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9/5/2015
Councilman Weiner expresses hope that DuPont Country Club will be protected will be protected by proposed open space law

“It is my hope, reflecting on the vast majority of my constituents, that the DuPont Country Club would be protected by this ordinance,” said Councilman Bob Weiner, whose district includes the club.

“I’m concerned that if this legislation is passed that it has been properly vetted to withstand any constitutional challenge based upon property rights,” Weiner said. “On the one hand, I support protecting the DuPont Country Club. I also want to make sure the ordinance withstands judicial scrutiny.”

New law might allow protection of DuPont Country Club

Xerxes Wilson, The News Journal 11:11 p.m. EDT September 5, 2015

 

Woodlawn Trustees Inc., a Wilmington company whose mission includes land preservation along The Brandywine, quietly released deed restrictions in 2008 that once prohibited development on roughly half of the 525-acre DuPont Country Club property. Here, a golfer heads to his next shot in front of the clubhouse of the club in April. (Photo: WILLIAM BRETZGER/THE NEWS JOURNAL)

New Castle County officials are considering new development rules that would make building on open space like golf courses more difficult.

The effort comes as at least one local golf course is targeted for a large scale development, and as residents fear for the future of DuPont Country Club.

The idea is to create a new zoning category specifically for open space which county government could apply to land that has been used as such. Currently, some properties are zoned similarly to the surrounding community. This allows for building and makes the land a target for developers.

“There will be no vagueness at all. Open space will be open space in perpetuity,” said Councilman David Tackett, who chairs the County Council’s Land Use Committee and is sponsoring legislation to create the new category.

It would allow little or no building on land zoned as open space. Three types of properties would fit into the new zoning classification.

The new category would be applied to parkland to prevent confusion when looking at a zoning map, Tackett said. For example, Glasgow Park’s green space in Bear is actually zoned for industrial use.

“It is important to have the (open space) zoning category simply for the purpose that you can look at a zoning map and understand what the allowable uses are for the land,” said Mary Jacobson, a lawyer for the county.

Another application of the new classification would protect open space within existing residential developments. It is not uncommon for land-use attorneys to trumpet open-space incorporated into development plans when pitching a project to the community.

But in some cases, developers have returned later to fill that open space with houses or businesses, Tackett said.

The most controversial application of the new zoning category would be to properties that have been used for “low-intensity recreation” for at least 25 years. The county defines low intensity recreation as a use that emphasizes open area. Jacobson confirmed golf courses or country clubs fit into that definition.

“It is my hope, reflecting on the vast majority of my constituents, that the DuPont Country Club would be protected by this ordinance,” said Councilman Bob Weiner, whose district includes the club.

Tackett used the club as an example of one that could possibly qualify for the new category, though he emphasized the legislation isn’t targeting any one piece of land.

In May, The News Journal reported how deed restrictions barring development on roughly half of the 525-acre country club property were quietly lifted in 2008. The club’s three courses in Brandywine Hundred include a mix of zoning that allows for residential and commercial development.

The county has had other high profile fights over golf course developments. Residents in the Churchman’s Marsh area have railed against a proposal to build 525 homes and nearly 379,000 square feet of commercial space on the 145-acre Cavaliers Country Club.

“Obviously, when you create a mechanism to downzone someone’s property there is the potential for loss in one’s property value someday,” said Shawn Tucker, a land use attorney for those proposing the Cavaliers development.

Tucker said the proposal shouldn’t cause significant controversy if the county seeks landowner permission before rezoning a property to the new category.

Creation of the new open space category would not automatically rezone qualified properties. Instead, the county’s land-use department would go through the various areas of the county and identify land that qualifies before putting a rezoning proposal for certain parcels to County Council.

It is unclear exactly how that process would work, but Jacobson said law does not require the landowners permission for the county to start the process of rezoning a property. That process includes public hearings and County Council would have ultimate authority over whether the rezoning takes place, Jacobson said.

Tackett said he would want the landowner’s blessing before voting for a government-compelled rezoning of a parcel to open space.

“I’m concerned that if this legislation is passed that it has been properly vetted to withstand any constitutional challenge based upon property rights,” Weiner said. “On the one hand, I support protecting the DuPont Country Club. I also want to make sure the ordinance withstands judicial scrutiny.”

County Executive Tom Gordon said it is too early to say exactly how the new zoning category would be implemented.

“It would be unfair for me to say it would be used for that at this point,” Gordon said. “We have nobody in mind to go and attack any golf course.”

Legislation creating the new zoning category was introduced by County Council in late August. The concept must be reviewed by state authorities and by the County’s Planning Commission before council votes. That is expected to happen in Jan. 2016, Jacobson said.

Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareonline.com. Follow @Ber_Xerxes on Twitter.

 

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