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3/31/2013
"New Castle County land-use system, including DelDOT's role in it, is horribly broken," said New Castle County Councilman Bob Weiner


“The land-use system in New Castle County, including DelDOT’s role in it, is horribly broken,” said New Castle County Councilman Bob Weiner. “Access and influence is the key – and in the case of Barley Mill Plaza, Stoltz had it.”

Influence, access tainted land-use decisions; After five years, Barley Mill project still awaits traffic study

Adam Taylor & Maureen Milford - Wilmington News Journal 3/31/13

The Barley Mill Plaza project in Greenville reveals a broken process to approve real estate developments, making political access key for developers who need to get their way, a News Journal investigation has found.

Proposed in 2008 as the largest commercial and residential development in state history, Barley Mill escaped stricter scrutiny that could have required millions more in needed traffic improvements thanks to a powerful lobbyist and a politically-connected lawyer who benefited from the state’s dysfunctional planning process, the investigation found.

Residents and community leaders who oppose the project have long argued that taxpayers were left in the dark and short-changed by an unfair process that favored the developer. They appear to be right. Evidence from state meetings and correspondence shows the Stoltz Real Estate Partners project was managed from the beginning to sidestep a rigorous traffic study.

“The land-use system in New Castle County, including DelDOT’s role in it, is horribly broken,” said New Castle County Councilman Bob Weiner. “Access and influence is the key – and in the case of Barley Mill Plaza, Stoltz had it.”

The two people hired by Stoltz to shepherd the project through state and county planning were Roger Roy, the former lawmaker who oversaw transportation funding for 22 years as head of the General Assembly’s bond committee; and lawyer Pam Scott, who is married to Paul Clark, the former County Council president and later county executive while the project was debated. Scott and Roy worked behind the scenes for years to deflect community opposition and ease the regulatory path for the Barley Mill project, reaching as high as Gov. Jack Markell’s cabinet members when they needed help, records show.

Despite publicly stepping down as a land-use attorney from her law firm to remove a conflict of interest found with her husband’s county position, Scott continued working behind the scenes for Stoltz, records show.

In every step of the process, Roy and Scott were helped by ambiguous and tangled sets of state and New Castle County rules covering proposed real estate developments

Perhaps their most significant accomplishment was steering the Barley Mill project away from an extensive traffic study that could have required Stoltz to make more costly improvements on roads and nearby intersections to accommodate the development.

State transportation officials argue they will require a thorough traffic study and, in the end, they will recommend what transportation improvements the county should mandate to accommodate the impact of Stoltz’s project.

“Watch us,” said Frederick Schranck, attorney for Delaware’s Department of Transportation. “We have enough teeth to give a very strong opinion to the county who makes the land use opinion about whether this goes forward.”

The Barley Mill project, now stalled in a court fight with community opponents, is subject to traffic study standards that have greater flexibility, and potentially fewer requirements for expanded improvements. Five years after the project was proposed, neither the state nor the county has a traffic study to document just how much the enormous development will impact the community.

To make sure DelDOT didn’t flinch in 2009 in response to growing community opposition to a more relaxed study of traffic impact, Scott appealed to the Markell administration.

“DelDOT needs to stay the course in terms of the level of traffic analysis that they are requiring for this project,” she wrote in June 2009 to Alan Levin, Markell’s economic development director. “We need to ensure that DelDOT refrains from changing their position on this matter.”

Six months after that, some DelDOT officials were told to hold off making decisions about including the two-lane Tyler McConnell Bridge and entrance to the DuPont Experimental Station in the traffic analysis until DelDOT’s then-planning director Ralph Reeb had received input from Roy and Scott. The bridge is a major bottleneck located about two miles and two traffic signals from the development along Del. 141.

“Before taking any further steps I need to know if Ralph has had any further discussions on this with either Pam Scott or Roger Roy,” reads one email written by a DelDOT official in January 2010. Reeb was removed as director of planning in 2010 following a series of articles in The News Journal that detailed questionable land deals in Kent and Sussex counties.

The Barley Mill development illustrates how Delaware insiders with political access and influence can work the system to their advantage over a community left clueless about behind-the-scenes maneuvering. Other projects that benefited from the state’s broken system include the leasing of 10.3 acres of state land on Del. 1 in Milford to a liquor company then controlled by Chris Tigani, a friend of former Gov. Ruth Ann Minner; and costly DelDOT land reservations in Sussex County.

“This is a classic example of the Delaware way, or the hijacking of the Delaware way,” said former GOP Sen. Charles Copeland, who unsuccessfully ran for lieutenant governor in 2008.

“Roger Roy was the consummate insider’s insider in the Legislature for decades. Then he represents Stoltz,” Copeland said. “To have a lobbyist be that influential, to basically tell DelDOT what they are going to do on behalf of his client, that’s no way to run a government.”

'A flawed process'

County Executive Tom Gordon, who took office in November after making his opposition to the Barley Mill Plaza project a central theme in his campaign against Clark, was surprised when he heard about Roy’s and Scott’s interaction with DelDOT.

“I think overall it was a flawed process,” Gordon said, adding that he believes a more rigorous and comprehensive traffic impact study should have been required. “You can now see by the evidence that it was not a fair process for the public.”

DelDOT spokesman Geoff Sundstrom said Roy and Scott may have wanted to steer the process, but officials were not subject to “undue influence that shaped our decision making.”

“But certainly projects like Barley Mill do bring to the fore areas where perhaps the regulations can be tightened or made clearer,” Sundstrom said. “Sometimes the core of the mistrust of our agency is a lack of understanding of regulations and our regulatory process. We want to dispel the mystery and mystique of working with DelDOT. We want people to feel that everyone has access to a fair and predictable outcome.”

Roy declined an interview. “I’ve basically been advised by my client to not comment while this thing is in court,” he said. “It’s in the right arena.”

Scott said she doesn’t believe that she and Roy received greater access or favorable treatment.

“People know who the players are. Delaware’s a small state,” Scott said. “My colleagues in the land-use business know who to talk to. I don’t think the access we had was any different than any of the other people.”

Stoltz officials declined to comment.

'We were betrayed'

Decisions by DelDOT and the county’s transportation department continue to rankle Greenville residents and fuel the belief that politics trumped doing the right thing for the community.

Joe Kelly, a member of the community group Save Our County that took Stoltz to court over the project, said the evidence shows Roy influenced the process unfairly.

“Roy’s involvement is very disturbing. There clearly was favoritism here,” Kelly said.

The failure to consider traffic impact is now the central issue in Save Our County’s lawsuit against the county and Stoltz.

“That’s what stinks about this project,” said Wilmington land-use attorney Richard Abbott. “These guys were given access. They were given special treatment that nobody else gets.”

John Danzeisen, president of the Citizens for Responsible Growth group that negotiated a compromise on the Barley Mill project with Stoltz, said he still thinks they will have a seat at the table when DelDOT fine-tunes the final traffic plan after the lawsuit is over.

“The fight on traffic isn’t over,” he said.

Sandra Anderson disagrees. She aligned herself with CRG, but now is a part of the Save Our County group.

“We felt CRG threw us under the bus,” Anderson said. “We all feel we were played and betrayed. I never believed for a moment that they would have a seat at the table with DelDOT on traffic.”

Early contacts

The Barley Mill development of offices, residences and shops needed all the pieces to fall into place at each step of the process to avoid onerous regulations that could drive up the project’s cost. .

The effort began in September 2007, when Stoltz, the Bala Cynwyd, Pa.-based investment and development company, purchased the roughly 96-acre office park at Del. 141 and Lancaster Pike through an entity called Barley Mill LLC. At the time, the rich price of $94 million surprised other developers who had bid on the property.

Keith Stoltz, chief executive of Stoltz Management Co., had concerns about “undertaking development projects in Delaware,” according to a March 2008 email from state economic development officials to then County Executive Chris Coons.

Days before the Stoltz company filed plans with the county on March 27, 2008, for the mixed-use development of 2.9 million square feet, former state economic development director Judy McKinney-Cherry was arranging a lunch for herself, Keith Stoltz, Coons and then Transportation Secretary Carolann Wicks. The group planned to discuss Stoltz’s concerns involving the “county approval processes and traffic issues managed at the state level,” the email shows. McKinney-Cherry said she doesn’t remember if the lunch ever happened.

Coons, who left the county executive job in November 2010 to serve in the U.S. Senate, said he met with Keith Stoltz, who expressed concern about “potential public opposition to his plans.

“He proposed a complicated multi-parcel deal, combined with extraordinary measures that would have allowed the projects to avoid most of the public review and debate required by law,” Coons said in a statement released Friday by his Senate office. “I refused, saying I would not allow or support any end-run of the typical county land use process.”

But Coons didn’t refuse when Scott offered to help write his speech days before announcing a compromise and promoting the Barley Mill project in September 2010.

Crucial deadline

The date that Stoltz filed plans with the county for the redevelopment project was not random. If filed by March 31, 2008, Stoltz would avoid new and more detailed DelDOT standards involving subdivisions and state highway access that went into effect the next day.

The county recorded receiving Stoltz’s completed plan on April 1, one day past the March 31 deadline. A county official requested more information for the plans to be complete after documents were filed days earlier. The information was provided and stamped as received April 1 by the county. County officials said they considered the plan filed by the deadline.

Under DelDOT’s pre-April 2008 standards first passed in the 1980s, there were few details involving traffic delays at the statewide level, something called level of service, DelDOT officials say. Level of service is a traffic delay benchmark of A to F that measures how many seconds a vehicle is delayed at a traffic signal; major delays caused by development could mean millions in required road improvements for a developer.

Scott, just days after Stoltz had filed its land application with the county, helped craft an inter-agency agreement between the transportation department and the county, documents show. The new agreement held that if a rigid traffic impact study is required, DelDOT will agree to accept the county’s level of service standards.

In the case of Barley Mill Plaza, the standard applied would be average delays per vehicle at traffic signals of more than 35 seconds but not more than 55. Meeting that standard so that traffic wasn’t delayed longer could have forced Stoltz to pay for costly road improvements or make other changes, land use attorneys said.

The county’s acceptance of the Barley Mill plan by March 31 meant the project was exempted from that standard in the new agreement.

The right plan

With the development plan filed, Stoltz turned to what type of traffic study would be required to show the project’s impact on roads.

Eight weeks after the plans were filed, Roy and Scott attended a crucial meeting where DelDOT engineers and county transportation officials typically meet with the developer to discuss the scope of the traffic study.

It was unprecedented for a lobbyist like Roy to be at the table for such a so-called scoping meeting, DelDOT officials said. Typically, the meetings include DelDOT project engineers, county transportation planners, the developer and the developer’s engineers, a DelDOT email says.

Roy’s presence was particularly interesting because of his 30 years as a legislator with influence among DelDOT officials because he controlled funding for projects.

In the meeting, Roy suggested that the study be called a traffic operational analysis rather than a traffic impact study, known as a TIS. When the meeting minutes identified the study as “traffic operational analysis,” county transportation planner Owen Robatino was alarmed.

“I thought I heard DelDOT say they wanted a full TIS here – but the scoping minutes say ‘Traffic Operational Analysis’! Which is it?” Robatino said in a June 6, 2008, email to Troy Brestel, DelDOT project engineer, and Bill Brockenbrough, DelDOT planning coordinator.

Brestel responded: “Originally, we said TIS, but Roger Roy complained at the meeting and thought that if we called this a TIS, the locals would complain.”

He went on to say DelDOT’s former assistant director of planning, Ted Bishop, signed off on using the operational analysis designation because that study would require “everything in the scope regardless if it was called a TIS or TOA.”

Copeland, the former legislator, said Roy’s influence on DelDOT led the state agency to accept a less stringent traffic review.

“The lobbyist decided which it should be and DelDOT capitulated,” Copeland said.

Easy study

DelDOT officials defend their decision, maintaining that the traffic operational analysis gives them the flexibility to broaden the study area and include the Tyler McConnell Bridge and entrance to the Experimental Station. But land use experts say there is a significant difference between the two.

A rigid traffic impact study is very specific in detailing what must be studied, Brockenbrough said. There are few criteria for how the more flexible traffic operational analysis is conducted under the pre-2008 DelDOT standards applied to Barley Mill, he said. The county’s unified development code also doesn’t define the term, Brockenbrough wrote in a technical paper.

The criteria for an operational analysis are determined in the meeting DelDOT officials typically have with developers, which in the case of Barley Mill included Roy and Scott. At that meeting, DelDOT and county officials are supposed to tell the developer what they want examined, Brockenbrough said.

Lawyers and developers said they typically are not in a position to make demands in DelDOT meetings when discussing traffic studies, and were surprised to learn how much influence Roy and Scott appeared to have in their meeting with transportation officials.

After neighbors and lawmakers began to call for a traffic impact study, Scott told Levin in 2009 it was “probably because of the belief that the standards for a TIS cannot be met for this project.”

“We do not believe that a TIS is warranted and to require same would set a dangerous precedent for redevelopment projects. Therefore, we need to ensure that DelDOT refrains from changing their position on this matter,” she wrote.

'Paper tiger'

Critics charge that by choosing the more flexible traffic operational analysis designation, Stoltz avoided triggering level of service benchmarks for traffic delays caused by the development. Some argue that the tougher traffic impact study would have forced Stoltz to spend more on traffic improvements or scale back the Barley Mill project.

Scott’s letter to Levin supports that, arguing under the traffic operational analysis neither the county nor DelDOT have the authority to require that impacted intersections meet level of service standards. Scott sent her letter after Wicks said the transportation agency would apply tougher levels.

Under the county redevelopment provision at that time, there was no level of service benchmarks, county officials said. “This project is exempted from ... standards because it is grandfathered, and the county does not have the authority to apply” the tougher standards to redevelopment projects, Scott wrote.

“So we need to come to some resolution with DelDOT as to the appropriate standard to be applied for analyzing traffic,” she wrote to Levin.

While Levin acknowledged he met with Scott, he said the Delaware Economic Development Office did nothing with regard to Scott’s suggestions involving traffic regulations.

Still, by getting the more flexible traffic analysis the state and county were stuck with a “paper tiger,” Abbott said.

“It has no teeth,” he said. “A TIS has teeth.”

Under a traffic operational analysis, DelDOT will still require Stoltz to pay for improvements. But it will be for a few million, instead of tens of millions, Abbott said.

“They cut a sweetheart deal that no other developer in this state would get.”

'Oh my God'

DelDOT officials said their decision to use a traffic operational analysis allows them to require Stoltz to study the area nearly two miles from Barley Mill around the Tyler McConnell Bridge and entrance to the DuPont Experimental Station. Under a traffic impact study they could only look at three intersections from the site entrances, DelDOT officials said.

Still, DelDOT officials appeared to defer to Roy and Scott, emails and other documents show.

Sometime toward the end of 2008, DelDOT informed Stoltz’s engineers that the department was going to require them to study the intersection at Del. 141 and Rising Sun Road at the main entrance to the Experimental Station.

Scott in her letter to Levin complained that the inclusion of the DuPont entrance went beyond the scope of the original traffic operational analysis, TOA as she called it. It also goes beyond the policy of reviewing three intersections out in all directions from the project’s entrances, Scott said. DelDOT officials said the three intersections are the standard for a traffic impact study.

“Including this intersection in the TOA goes beyond the authority granted to DelDOT and simply gives the opposition another basis for attempting to stop the project,” Scott wrote in June 2009.

DelDOT planning director Reeb organized a meeting on July 6, 2009, to meet with Scott, Roy and the engineers to discuss Barley Mill, DelDOT records show. The next month, a DelDOT project update read: “The bridge issue as it relates to the county’s concurrency requirements has not been resolved and will require discussions with the governor’s office.”

“Concurrency” under the county code is designed to make sure development occurs only where there are “adequate transportation facilities in place, or programmed for construction.”

Markell routinely is informed about major developments and traffic issues, and this was an example of that, spokeswoman Cathy Rossi said.

In December 2009 , Brestel and Brockenbrough asked their supervisor about moving forward with the traffic analysis.

“Before taking any further steps I need to know if Ralph [Reeb] has had any further discussions on this with either Pam Scott or Roger Roy,” Ted Bishop replied in January 2010.

Such deference shocks land use attorneys.

“Oh my God,” said land-use attorney Larry Tarabicos. “The answer should have been, ‘If it makes sense from operational, engineering and scientific points of view, then we should make them do it.’ Not, “I don’t know,’ because an attorney and a paid lobbyist might have talked to my boss.”

DelDOT defers

At the end of 2009, New Castle County transportation officials were asking DelDOT questions about the results of the traffic study. DelDOT project engineer Brestel responded that there had been no movement on the study and “there were some issues regarding the Tyler McConnell bridge and the DuPont entrance east/north of the bridge,” at the Experimental Station site.

“Those issues were being discussed between Ralph [Reeb] and Pam Scott,” Brestel wrote to county planner John Janowski.

Indeed, Brestel later wrote that he had received an answer from Ted Bishop involving the bridge and level of service “issues surrounding it.”

Proposed revisions to DelDOT’s regulations were being discussed, allowing a local government to accept a lower level of service standard for some part of the day. Under the revision for a designated redevelopment, the local government and DelDOT “may consider accepting the existing level of service, provided the development makes sufficient improvements to retain the existing measured level of service,” Brestel wrote.

“Please keep in mind that this is a proposed revision at this point, and is not yet official. Provided that it stays the way it is, Barley Mill Plaza could move forward without having to go so far as to replace or widen the existing historic (?) bridge, provided they make other improvements to keep the LOS [level of service] no worse than what it is now,” Brestel wrote to Janowski.

County concerns

Scott wanted issues addressed at the county level, as well, according to her letter to Levin.

One was the requirement under the county code that a developer must work on each of the mixed uses of a project at the same time, such as residential, commercial and office.

Scott complained to Levin that the county’s stance wasn’t contained in the development code, but rather was an interpretation.

“With a project of this size, such a requirement would impose an unreasonable burden on the developer by jeopardizing their ability to finance the project and requiring that space be built before there is a tenant for it,” Scott wrote.

She wrote this two months after she lobbied county attorney Brian Merritt for a different ruling on the so-called “proportionate” development ruling.

“Brian, is there an opportunity to discuss this further?” Scott said in an a March 27, 2009, email to Merritt.

Merritt responded by saying the decision wasn’t final. He then emailed county Land Use General Manager David Culver with an update.

“I thought you’d want to see how I responded to Pam on the mixed-use question,” Merritt wrote. “I gave her some hope that she may not be forced to have phases that exactly matched the UDC [Unified Development Code], since I sensed from more than one person that we wanted to be flexible if we could be on that, but I didn’t commit to anything.”

Culver last week said the county never wavered on its requirement that offices had to be built at the same time as the commercial space. He said he was not flexible and he doesn’t know whom Merritt was referring to in the email.

Helping developers

Scott also told Levin in 2009 that “time is running out” on Stoltz’s original plan, which she said would expire in December of that year. She cited this as a reason for state legislation to give developers more time to complete their plans. Scott included in her correspondence synopses of legislation that passed in New Jersey, Florida and Portland, Ore., that extended approval deadlines.

“If the deadline is missed, it will be a significant setback for this project,” Scott told Levin about Barley Mill.

Levin agreed that it was a good idea, and in June 2009 sent the request to top Markell officials, saying “I think this could be of great assistance to the development community.”

But Cleon Cauley, then a Markell aide, declined in an email. He wrote that, “this is unprecedented” because it would interfere in local land use decision-making.

No such legislation was introduced. And Culver last week said Scott’s urgency regarding the deadline wasn’t necessary.

“The plan actually wouldn’t have expired until January 2012,” more than two years after she told Levin it would.

Scott still working

Stoltz filed its compromise plan in March 2011, which stopped the clock on the first, larger plan, which continues to be “held in abeyance” by the county in case Stoltz loses its suit against Save Our County.

Scott agreed to resign her job with the Saul Ewing law firm in Wilmington in March 2011 after a county ethics panel ruled her position conflicted with her husband’s role as county executive at the time. But state records show for the first time that Scott continued working on Stoltz’s behalf.

In July 2011, she called Levin on behalf of Stoltz, an email shows. Levin wrote to Cauley saying he had been contacted by Scott after Stoltz officials were unable to reach Cauley in his new position as acting transportation secretary. Levin asked Cauley to contact Stoltz or Scott.

Scott said the call she made doesn’t mean she represented Stoltz after she resigned. She said someone from Stoltz called her to say they weren’t getting calls returned from DelDOT.

“They asked if there was anybody I can call, and I called Alan just to prod DelDOT,” Scott said. “That was the extent of it.”

Trial continues

In the end, five years after the Barley Mill Plaza plan was filed – and downsized in 2010 – there’s been no traffic study.

Meanwhile, a revised plan dropped the scale of the development to a portion of the 92-acre property. The new proposal was agreed to in a compromise with a group of Greenville residents that Coons championed.

The 2.8-million-square-foot plan did not include a rezoning. The 1.6-million square-foot compromise proposal approved by the County Council 7-6 in October 2011 included rezoning 40 percent of the 92-acre property from office to commercial use. There is no residential component to the smaller plan. All of that commercial space could be built before the offices had to be built.

Save Our County sued New Castle County and the property owner Barley Mill LLC in December 2011, saying the rezoning of 37 acres violated state law. The group claims a traffic study of the roads near the plaza should have been completed before the council voted on the rezoning.

Gordon supports the group’s suit against the county, and presented documents to the Chancery Court arguing they proved wrongdoing in the county’s rezoning decision. The trial is scheduled April 22.

Among the documents produced by Gordon’s staff are an unsigned agreement that Scott authored in 2010, which would have required the county to promote the Barley Mill project as part of the proposed rezoning and keep the agreement confidential. There also are emails between Scott and county officials that Gordon argues show undue influence on county action.

DelDOT officials say when they get the traffic operational analysis, they will rigorously review it and make recommendations for traffic mitigation if level of service falls below acceptable standards.

“At one level the department is still back to an expression of an opinion to the land use agency that makes the determination of whether to say yes, no or maybe to a development proposal,” said DelDOT lawyer Schranck.

Such passing of the buck by DelDOT annoys county officials.

“DelDOT is the road authority and we don’t overrule them,” Culver said. “The county tells developers they have to do what DelDOT says is necessary. If DelDOT doesn’t sign off on a plan, the plan doesn’t get approved by the county.”

Critics said it remains to be seen how much Stoltz will be forced to do to mitigate traffic problems.

“It’s unclear to me – based upon how the project has been postured as a redevelopment plan that includes a rezoning – that no matter how strong and detailed the DelDOT traffic operational analysis review letter turns out to be, whether Stoltz will be truly obligated to comply with them,” land use attorney Tarabicos said.

 

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