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6/11/2013
Court concurs with Weiner: Councilmembers cannot be denied traffic data; Citizens score win at Barley Mill

Weiner emphatically declared: It had been my position all along that while Council was not required to consider the results of traffic impact study before voting, individual council members should be able to consider traffic data if they thought it was material to their vote.  The Vice Chancellor's decision makes clear that I was legally correct in this regard.

As Vice Chancellor correctly stated:

  “In short, I find nothing in the Jan 1, 2010 UDC amendments to support the statements of Culver and the Developer’s counsel that the County Council was prohibited from considering traffic as part of its vote.  The effect of removing consideration of traffic impacts to “the end of the process” was to remove consideration of the effect of the development on traffic from Council’s deliberations in the discretionary exercise of its  rezoning authority.  There is simply no support for the Developer’s contention—made to the Council but not in this action—that such consideration was prohibited”

Footnote 111: Though the phrase “arbitrary and capricious” in its ordinary sense may seem inappropriate, or even unfair, as a description of Councilman Weiner’s decision making process, it is an accurate description under Delaware law. I note the irony that Weiner’s conscientious, emphatic insistence on traffic data now forms the basis for overturning his vote as arbitrary and capricious. Whether this makes Weiner, to paraphrase Charlie Brown, the hero or the goat of this tale, is, I suppose, a matter of perspective.


Citizens score win at Barley Mill 

Opponents ‘ecstatic’ after ruling on Stoltz project in Greenville
By Maureen Milford and Adam Taylor 

The News Journal June 11, 2013

A citizens group that has fought for five years against the redevelopment of an office park in the heart of Greenville scored a big victory Monday when a Delaware judge struck down the 2011 rezoning of Barley Mill Plaza.

Vice Chancellor Sam Glasscock III ruled the rezoning of 37 acres to retail development was invalid because at least one vote by a member of New Castle County Council was made arbitrarily – and that vote was necessary for the ordinance to pass. The record shows Councilman Robert Weiner erroneously believed procedural rules prevented the council from obtaining a traffic study before the vote, the ruling says. Weiner expressed publicly at the time of the vote that information from the study was essential to his vote, Glasscock wrote in his 38-page opinion.

“I ultimately find the Councilman Weiner’s vote was arbitrary and capricious, because he admittedly and explicitly voted without information material to his vote that he mistakenly believed was unavailable to him,” Glasscock wrote. “It is fair to say this was arbitrary, but there is no hint of caprice –acting upon mere whim – in the councilman’s deliberative process. It is clear from the record he himself created that he was troubled, under his mistaken understanding of the law, by having to take an uninformed decision.”

Greenville residents Sandra Anderson, one of the founders of the citizens group Save Our County that brought the case against the developer, New Castle County and New Castle County Council, said she was “absolutely ecstatic” about the decision.

“It’s very rewarding to know that the public can win,” Anderson said. “That five housewives sitting around a kitchen table started this thing, and to now know we’ve gotten this far, is very gratifying.”

Officials with Barley Mill LLC, a real estate entity under the Stoltz Real Estate Partners umbrella, declined to comment Monday. Lawyers for the county council did not comment.

County Executive Tom Gordon, who made opposition to the project a central theme in his campaign last year against incumbent Paul Clark, applauded the ruling Monday, calling it “outstanding for the citizens.”

Those who have been watching the case closely said it’s clear the decision is a significant setback in the development process. Stoltz, which paid $94 million for the nearly 100acre parcel in 2007, is now faced with hard decisions after five years of trying to develop the property in the face of community op-position.

Stoltz could attempt to go through the rezoning process again on the proposed 1.6-million-squarefoot retail and office development – or return to its original plan, filed in 2008, which called for a 2.8-million-square-foot mixed-use project, including condominiums.

But no matter what Stoltz ultimately decides, the decision has statewide political implications involving traffic considerations during a rezoning vote. While Glasscock found that state and county law doesn’t require council members to weigh traffic impact, he also ruled that county officials gave incorrect advice to the council that they could not consider it. There is no legal impediment to council members’ considering traffic data, Glasscock ruled. 

Long struggle 

The traffic impact on the Greenville area, which has long had a pastoral character, has been the major concern of residents since Stoltz filed its first plan in 2008 that called for a massive mixed-use development.

After Stoltz modified and downsized the plan in 2010, a portion of the land was rezoned without a traffic study. Save Our County appealed the rezoning in Delaware Chancery Court, saying county council erred by not considering traffic.

Now that the court has invalidated the rezoning, Gordon wants the Stoltz application for Barley Mill Plaza to begin anew with a traffic study. After taking office last November, Gordon took an extraordinary step and changed the county’s legal position. For more than a year, county attorneys and Stoltz attorneys had worked together to fight the case. Gordon changed course and the county’s new position mirrored Save Our County’s.

“To not have traffic impact data for the largest development in the history of New Castle County is just appalling,” he said. “We ought to go back to the beginning, start over again, and do it correctly without any political interference.”

Gordon said it was wrong for attorney Pam Scott to represent Stoltz during a time when her husband, Paul Clark, served as County Council president and as county executive. Neither Scott nor Clark could be reached for comment Monday. A News Journal investigation found that Scott, along with lobbyist and former state lawmaker Roger Roy, maneuvered behind the scenes to ease county and state regulatory processes in favor of Stoltz. Weiner said he felt vindicated by Glasscock’s decision. Weiner said he fought with county attorneys and Land Use Department officials for years, arguing the council had a right to traffic data prior to a rezoning vote. He said he voted in favor of the Barley Mill Plaza rezoning because the alternative would have been a plan that was 1.2 million square feet larger.

“There was no basis for Stoltz and David Culver [county land use general manager] to deny us that right,” Weiner said. “I’m the only council member who took a nuanced position, which is why the judge correctly hung his legal hat on the nail that I put in the wall.” “I would welcome a rehearing on the rezoning, with traffic data being presented and a commitment from the state on what improvements will be made to the roads,” he said. Councilman Penrose Hollins said he finds Weiner’s logic “difficult to follow.”

“Whatever he spins is quite frankly up to him, but the fact is that the court ruled that it was his vote that was invalid,” Hollins said. “I think that’s very serious, since he’s a seasoned council person who often uses his legal background to advise other council members as to whether their votes were correct, yet it was only his vote that is in question.”

Councilwoman Janet Kilpatrick, in whose district Barley Mill Plaza was located when the 2011 rezoning vote took place, said she was glad the judge made it clear that council acted in accordance with state and county law when it voted to rezone the property.

“We do not have to consider traffic or a trafficimpact study before a rezoning vote,” she said. Kilpatrick said the problem with the vote was that Weiner was against the plan, but voted in favor of it.

“He voted ‘Yes,’ but explained his vote with statements as though he was going to vote ‘No,’ ” Kilpatrick said. “He should just have voted ‘No.’ ” 

Groups split 

The decision comes more than two years after Save Our County broke with another community group. After Stoltz filed a development plan in the spring of 2008, neighbors mobilized as Citizens for Responsible Growth to fight the project. CRG reached a truce with Stoltz in late 2010 that eliminated the project’s residential component, and reduced the commercial and office space. The proposed retail and office development would take up about a third of the property and require a rezoning.

That agreement was hailed as a model of cooperation, but not everyone was happy. Eight freestanding building sites the equivalent of 10 football fields would dot Del. 141 with restaurants and retail. One group of residents thought the plan was more intrusive than the earlier one.

They formed Save Our County. The group and four homeowners near Barley Mill Plaza appealed the ordinance, saying the rezoning is illegal because an analysis of the traffic impact was not considered beforehand. To turn “a blind eye” to the effects of traffic was irrational and arbitrary because the roads were already at marginal levels and a major concern of neighbors.

John Danzeisen of CRG said Glasscock’s decision marked a sad day for county residents.

“It now opens the door for a much larger commercial development at Barley Mill Plaza, with none of the community protections negotiated by CRG in the compromise agreement,” he said. “We hope this action doesn’t result in a much larger development.”

But Joe Kelly, a member of Save Our County, said Glasscock’s decision means that if council votes to rezone the property in the future, there will be complete traffic data before the vote. He said he was glad Glasscock noted that Stoltz attorney John Tracey and Land Use General Manager Culver gave the council incorrect advice when they said the consideration of traffic data came later in the process, after the council took its rezoning vote.

“I think the big thing was that the council was misled here, and the judge seized upon that to invalidate the decision,” Kelly said.

He also praised Gordon for his stance.

“We appreciate it,” Kelly said. “He took a lot of heat for this, and there was a lot of political pressure from the other side.”

Gordon changed the dynamic when he ousted Clark as county executive, siding with Save Our County. The change added a legal twist to the case, with the county still a defendant.

“I would have had a lot of sand kicked in my face about that if the judge would have ruled the other way,” Gordon said Monday. County Chief Administrative Officer David Grimaldi said he was proud of his boss. “It is both courageous and unprecedented for an executive to come in and change legal course,” Grimaldi said. “It would have been easier to just maintain the status quo, but this county executive keeps his promises and fights for his constituency.”

Hollins was critical of Gordon’s spin as well, noting that Glasscock agreed with Stoltz and county council’s contention that traffic data didn’t have to be considered before a rezoning vote. “The county executive is trying to make it appear as though he’s a knight in shining armor,” Hollins said. “None of what he brought forward had any impact on the court’s decision at all. This was about the decision of one councilman who didn’t understand the law.” 

Contact Maureen Milford at 324-2881 or mmilford@delawareonline. com. Contact Adam Taylor at 324-2787 or ataylor@delawareonline. com.

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