Friends of Historic Glasgow (Delaware)

Land Use Fails To Support Historic Review Board (2/22/08)

Friends of Historic Glasgow Press Release

FOR IMMEDIATE RELEASE:

Headline – FOHG Points Out Failure of NCC Land Use To Support Its Own Historic Review Board

GLASGOW, DE, February 22, 2008 – In an appearance before the New Castle County Historic Review Board (HRB) on February 19th, Friends of Historic Glasgow argued to the board membership that the Department of Land Use (LU) had failed to fully support them.

Laying out evidence gathered from documents obtained via a Freedom of Information Act request, FOHG member David Arday showed how LU had failed to enforce HRB stipulations for preservation of major historical features on the La Grange farm, located in Glasgow. Instead, LU had already approved a preliminary development plan that failed to comply with the majority of those HRB stipulations.

As approved, the October 2007 La Grange development preliminary plan does not include any preservation guarantees for the farm's historic buildings, does not maintain the full buffer zone around the historic structures, does not preserve the historic road trace, and allows encroachment upon the Revolutionary War earthworks and Latrobe feeder canal remnant. The developer had been able to ignore most of the HRB stipulations by subdividing the property, threatening legal action, and undertaking other maneuvers.

Although the support problems began as early as January 2007, when LU approved the developer’s exploratory plan filing despite its failure to comply with the HRB stipulations issued in 2006, problems compounded during the preliminary plan review process. At the April 2007 HRB business meeting, LU head Charles Baker advised the HRB that they were only considering a newly submitted rezoning request, and not the entire preliminary plan.

However, under Sections 40.31.110 and 40.31.113 of the Unified Development Code (UDC), the proper and final opportunity for the HRB to review the full development plan (and not just the rezoning) was at that time, during the preliminary plan stage. There is no provision for any later HRB review, other than of architectural elements and lighting.

In spite of Mr. Baker’s advice, the HRB, which was already on record as being opposed to commercial rezoning, reiterated its earlier stipulations concerning the entire farm. But concerned that the rezoning might be approved over its objections, the HRB added new stipulations specific to the rezoning proposal. Land Use staff, however, forwarded to the Planning Board (PB) a recommendation for “conditional approval” of the rezoning request. Under the LU recommendation, the rezoning approval became contingent on compliance with most of the HRB’s 2006 and 2007 stipulations, though LU reinterpreted some of these before the PB.

At the subsequent PB hearing, on May 1, 2007 confusion resurfaced over whether the entire preliminary plan or just the rezoning request was to be considered and voted upon. Planning Board Chairman Victor Singer and legal counsel Kristopher Starr advised the other board members that only the rezoning application was before them.

But FOHG has found that similar UDC provisions apply—the PB also reviews the entire plan at the preliminary stage. Furthermore, at the 2006 public hearing on the La Grange exploratory plan, Mr. Singer explained to the public in attendance that the PB would consider and vote upon the entire La Grange development plan at a later date. But no such vote has taken place. And with the preliminary plan now approved, the opportunity has passed, as no more PB hearings are required.

The confusion over what was before the PB was so great that board member Arthur Wilson sent an e-mail to Chairman Singer the next day, indicating that he would have changed his vote to one in favor of the conditional approval had he understood that only the rezoning issue and not the entire plan was under consideration. Yet it appears that Mr. Wilson had it right, the entire development plan should have been under consideration at that meeting.

The result of last April's HRB meeting and subsequent May PB hearing was a 5-3 PB vote in favor of the LU “conditional approval” recommendation. Final approval of the rezoning request was to be contingent upon the developer complying with the remaining HRB stipulations.

Yet another seeming contradiction appears in the final PB and LU joint recommendation report to the New Castle County Council, transmitting the “conditional approval” recommendation. In that document, the “Statutory Guidelines” paragraph concludes, “In the phraseology of 9 Delaware Code Section 2603 (a), the Department of Land Use finds that this rezoning as proposed would not promote the convenience, order, and welfare of the present and future inhabitants of this state.”

Given this conclusion, “couldn't LU have just as easily used 9 Delaware Code Section 2603 (a) to simply say ‘no’?,” Arday posed to the board.

“Following the PB vote, Councilman David Tackett ‘pulled back’ the proposed rezoning ordinance, and there was hope among the Friends of Historic Glasgow membership that the carrot and stick conditional approval would result in a reasonable revision to the development plan,” commented Arday. “But it hasn’t turned out that way.”

Instead, the developer obtained an agricultural subdivision and filed several more revised preliminary plans that ignored most of the 2006 HRB stipulations, while addressing other issues, such as wetlands buffering, DELDOT requirements, and the locations of the proposed retail structures within the proposed commercial rezoning area. In August 2007, LU rejected the July 2007 revised preliminary plan. In its written response to the developer, the historic review section states, “The applicant is obliged to comply with the decisions of the HRB in regards to this property.”

With the submission of another revised preliminary plan, in September 2007, the developer apparently threatens legal action. The accompanying cover letter characterizes the HRB stipulations concerning preservation of the now separate historic structures and surrounding acreage as something that would wrongfully "limit development." In the letter, the developer refuses to file any preservation plan for the historic structures and calls such an HRB requirement "arbitrary, capricious, and improper."

In early October 2007, the preliminary plan was revised yet again, but only to eliminate the proposed commercial construction. With this revision, rezoning is no longer required, and the rezoning request is withdrawn from immediate consideration.

Three weeks later, on October 26, LU approved the preliminary plan. Although no further HRB review took place, and most of the HRB’s stipulations remained unmet, the written response to the developer’s latest plan submission suddenly stated,” The Historic Review Board has approved the residential development.”

“Why the withdrawal of the commercial rezoning request should affect the approval of the rest of the noncompliant preliminary plan, I don't know,” declared Arday to the HRB. “I can find no evidence in the [approved] plan that the developer did anything to warrant such an approval.”

To further highlight the discrepancy, a separate letter from Planning Manager David Culver to developer’s representative Thomas Prusack, dated October 25—one day before the letter approving the preliminary plan—continues to reiterate the need for the developer to comply with HRB requirements. Referring to the elimination of the commercial portion and withdrawal of the rezoning request, Culver stated, “…this change does not relieve the requirements of the Historic Review Board for approval of the plan.”

However, with the preliminary plan now approved, no further HRB hearings are required. The plan must go before County Council, but under Section 40.31.114 of the UDC they cannot turn it down. All the Council can do is consent immediately or send the plan back LU—no more than twice—with specific questions related to technical compliance. Once those are resolved, the Council “shall” [UDC language] accept it the major subdivision plan.

FOHG’s position is that there remains a lack of compliance with the HRB's stipulations. Unfortunately, by LU approving the preliminary plan without full historic preservation compliance, the wrong precedent has already been set, and the chance of ultimate compliance is now greatly reduced.

Additional information is available on FOHG web site, at http://www.neighborhoodlink.com/org/historicglasgow

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CONTACT INFORMATION;

Phone: 302-294-1939 (Nancy Willing)

E-mail: HistoricGlasgow@earthlink.net

Petition: http://www.thepetitionsite.com/takeaction/320808930

Mail: Friends of Historic Glasgow
P.O. Box 428
Fulton, MD 20759

Relevant documents available for download on the FOHG web site:

*Historic Review Board Staff Analysis for La Grange (4/3/07)

*NCC Planning Board Recommendation, Ord. 07-019 (5/1/2007)

*NCC Land Use Review Plan of La Grange (8/8/2007)

*Land Use Response to Developer Inquiry (10/25/07)

*Approval of La Grange Preliminary Plan (10/26/07)

*La Grange Preliminary Plan map (Jan 07)