Land-use law appeals debated. Proposal would eliminate deadlines on local-state conflicts.

June 1, 2012

 The News Journal –

A state senator has introduced a bill that would allow someone to contest a land-use law passed by a local government that is in conflict with Delaware law, no matter how long ago it had been passed.People now have 60 days from the passage of a land-use law to contest it in court. One example of the problem Sen. Karen Peterson, D-Stanton, is trying to solve is the redevelopment provision of New Castle County’s Unified Development Code. Passed 11 years ago and amended five times since, a developer can receive a waiver from a full-blown traffic-impact study — as required by state law — if the county designates a project as “redevelopment.”

“At Barley Mill Plaza, here you have what was a little office park and a development the size of King of Prussia Mall was first proposed, but there was no traffic-impact study, because it got waived,” Peterson said. “That’s just wrong.”

If S.B. 167 is passed, Peterson’s bill would allow someone to contest the county’s redevelopment law at any time in the future, instead of 60 days from when it was passed or changed. People would still have only 60 days to appeal Stoltz Real Estate Partner’s redevelopment plan for Barley Mill, which passed in October.

New Castle County government and the Homebuilders Association of Delaware are opposed to the bill. Peterson said that’s because they don’t understand that she wants to give people the right to change land-use laws, not land-use plans.”I’m not trying to scare anybody,” Peterson said. “The intent is certainly not to give people the right to undo something, to tear down that shopping center that’s already been built.”

New Castle County Chief Administrative Officer Gregg Wilson, however, thinks that repealing a law that allowed a project to be built would jeopardize that project’s existence. He emailed the members of the General Assembly Friday asking them to oppose Peterson’s bill. Pam Scott, the wife of County Executive Paul Clark, Wilson’s boss, used to represent Stoltz.

“If an ordinance that allowed a day care to take access from a local street was deemed to be invalid, it would have to change their access or relocate,” Wilson wrote in the letter. “If the ordinance permitting accessory dwelling units was deemed invalid, many residents would find themselves with an illegal addition.”

Rhett Ruggerio, a lobbyist for the homebuilders, said the law would promote something his clients can’t have in the minds of banks — uncertainty.

“Builders want to know that banks will lend them money without having the burden of knowing there is no definitive time period where there could be a suit brought forth that could have the development undone,” Ruggerio said.

County Councilman George Smiley thinks the bill could bring development across the county to a halt. “Why would anybody finance anything under those conditions?” Smiley said. “You couldn’t rely on any law that was passed.”Peterson said she has already crafted an amendment to her bill to clarify her intent. She said she will meet with any opponents to explain what she’s trying to accomplish.

Bob Valihura, an attorney and member of Council of Civic Organizations of Brandywine Hundred, a civic group, said it’s unlikely that a judge would force a development to change its use because an old law upon which it had been allowed to be built was ruled invalid. Peterson’s bill could still scare off developers, however. “In essence, the buyer would be buying into a potential lawsuit with no way of knowing what the potential cost and liability might be,” Valihura said.

John Kuffel, head of the real estate section of the Delaware State Bar Association, said the group will meet soon to decide its position on the bill.

Joe Kelly, an attorney from Greenville who is a member of the Save Our County Coalition that fought Stoltz’s plans at Barley Mill, said he supports Peterson’s bill. Save Our County sued county government over its rezoning of Barley Mill Plaza.”Any extension is clearly in the public interest,” Kelly said.Mark Blake, president of Greater Hockessin Area Development Association, a citizens group, said he supports the bill. Blake is a GOP candidate for New Castle County executive.

“I think it’s a great starting point toward transparency and honesty in government,” Blake said.

Contact Adam Taylor at 324-2787 or