A
New Castle City Board of Adjustment Hearing took place on April 30,
2008 at 7 p.m. in the City of New Castle’s Town Hall.
Present:
Mayor John F. Klingmeyer
David Athey, City Engineer
Roger Akin, City Solicitor
Mayor
Klingmeyer called the meeting to order at 7:05 p.m.
The
Mayor read the Notice of Public Hearing that states, “An
application has been filed by Richard Keller/Buck-Kennett III LLC,
P.O. Box 4095, Greenville, DE 19807 for variances from the zoning
code to permit the construction of a new building (1) reducing the
front setback to 12.5 feet from the required 32.5 feet, (2) reducing
the rear setback to 16 feet from the required 32.5 feet, and (3)
increasing the maximum building height to 67.5 feet from the required
65 feet, on property located at 0 West Ninth Street, New Castle,
Delaware (Deemer’s Landing II) known as tax parcel number
2101400500.
For
the purpose of considering this application, the Board of Adjustment
will hold a public hearing on April 30, 2008 at 7 p.m. in Old Town
Hall, 2nd
Floor, located at 201 Delaware Street, New Castle, Delaware.”
An
affidavit of publication from the News Journal was published on April
9, 2008.
City
Building Inspector Mr. Bergstrom confirmed the property has been
properly posted.
(All
parties providing testimony this evening were sworn in.)
Mr.
Athey asked a clarification question concerning reduction of the rear
setback to 16’ from the required 32.5’; the plan reads
that 16 feet is the width of the back drive and the setback is
actually 27.5 feet. Counsel advised it is a housekeeping matter that
will be addressed.
Mr.
Sean Tucker, counsel for the applicant, informed there are some
housekeeping matters concerning the advertisement. The advertisement
states an incorrect distance (16.5 feet) for the front yard variance;
in the formally-filed application we requested 12.5 feet.
Variances
being sought for the rear yard setback required by code is 32.5 feet
and we are seeking a reduction to 27 feet. There is also a variance
that is not in the advertisement concerning parking. The application
requests parking reduction from the required 156 spaces to 140
spaces. We would like to waive the non-advertisement issue tonight.
In the event an appeal would be filed we would come back to another
hearing to address this matter; if none were filed it would become a
non-issue. Mr. Akin informed that the fact that a variance was
incorrectly published and the parking variance was not published may
prejudice the rights of members of the public who may have liked to
speak on those subjects but have not received notice that they are
before this Board tonight. Counsel informed that they would pay for
advertisement of the decision, if favorable, so people could be put
on notice of an appeal period. If an objection is filed we would be
willing to hold another hearing.
Board of Adjustment Hearing—
Richard Keller/Buck-Kennett III LLC
April
30, 2008
Page
2
(Discussion
followed.) The Board
agreed that the applicant’s position as stated by their counsel
provides the protection the court would require.
Mr.
Tucker used an aerial photograph from McBride and Ziegler (project
engineer) to provide an overview of the proposed project. They are
seeking to mirror the Deemer’s Landing I project on the south
side of Ninth Street and are seeking a variance in the rear yard from
the required 32.5 feet by Code to a reduction of 27.5 feet. This
parcel has unique characteristics and this setback does not serve any
purpose here. They are contiguous to railroad property (150 feet
from the railroad tracks) and they have a buffer of the railroad
line. He utilized three (3) additional photographs to further
demonstrate to the Board what the applicant’s plans are for the
property. The setback requirements in the Code do not fit this
property. They have a significant buffer and the reduction will not
have any impact on neighboring properties.
Mr.
Tucker described the variance request for Deemer’s Landing I.
In 2002 there was an application to the Board of Adjustment to allow
a 12 foot setback that established the existing character with the
Deemer’s Landing I. The planner at that time recommended the
Colonial look and wanted to create a landscape along Ninth Street.
(Mr. Tucker then displayed
the photographs to audience members.)
The City’s Comprehensive Development Plan uses Deemer’s
Landing I as an example of how to do development on Brownfields. (A
Brownfield site is defined as a designated parcel that had some level
of contamination on the site. Many sites today are being recycled,
treated and cleaned up to meet EPA and DNREC standards.)
Approval from DNREC has been received before presenting this
proposal.
The
floor was opened to the audience for questions/comments. No
questions/
comments
were raised.
Mr.
Parley Hess, professional engineer at McBride and Ziegler and project
engineer, said that 78 apartment units are being proposed and 140
parking spaces. The Code requires 156 spaces (2 parking spots per
unit). He referred to the photograph to show the Board where the
building footprint and parking area will be located. All development
will be on the western side of the site. The 78 units will be
located in a single building and they are proposing six (6) stories.
The applicant is seeking a variance to increase the maximum building
height 2 feet, 11 inches from the 65 feet allowed per the City Code.
Mr. Hess confirmed that McBride and Ziegler determined the front yard
setback, the rear yard setback and the parking calculation. They
visited the site four (4) different occasions to view the existing
parking in Deemer’s Landing I and how it is being utilized.
There are 269 spaces, which is more than what was required by Code at
the time. Mr. Hess reported on his findings. There are currently
four (4) units vacant out of 144 units. If no variances were sought
the same number of units, height and parking could be built on this
site. To do so would have necessitated crossing of a drainage ditch
to provided additional parking. That would involve installation of a
pedestrian path as well. The unit sizes would have to be smaller
(10%) to reduce the footprint of the building and they would not have
the
Board of Adjustment Hearing—
Richard Keller/Buck-Kennett III LLC
April
30, 2008
Page
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extra
2 feet, 11 inches of height. Mr. Keller described reducing the size
of the units as dramatic. He wants to improve on Deemer’s
Landing I and to get the marketing and clientele he is looking for he
needs the extra size for amenities and rents. He is also proposing
two (2) elevators for the building making it more ADA-compliant.
Mr.
Kevin Wilson, Architectural Alliance and architect for Deemer’s
Landing I and the proposed Deemer’s Landing II, distributed
several pictures and artist renderings to the Board and audience and
explained the streetscape along Ninth Street, light posts, decorative
fencing, balconies, screen parking by way of parking garages,
materials to be used to be consistent with Deemer’s Landing I,
and roof line and height. (Discussion
followed.)
Mr.
Athey suggested the variance request for maximum building height
should be rounded up to 68 feet rather than 67.5 feet. Mr. Tucker
said an amended application was filed increasing the height variance
request to 67.11 feet. He would consider a waiver of this request
under the same conditions as parking earlier in the meeting. Mr.
Bergstrom confirmed that an amended application had been filed. The
Board has not seen the amended application. Mr. Akin expressed
concern about doing so much business this evening without giving the
public full notice of business to be addressed tonight.
There
are three (3) discrepancies with the advertisement involving the
application and amended application. The first two involve rear-yard
setback and maximum building height. The last discrepancy is the
lack of advertisement of the parking matter.
Mr.
Tucker said if the variance is granted the applicant would pay for
the publishing of the actual variances that were granted and give a
time period for residents to object and state their grounds for such
objection. If that would occur we would have another hearing to
allow those residents to be heard. (Lengthy
discussion followed about this proposal.)
Mr.
Bergstrom suggested that parking for Deemer’s Landing II does
not need to be on the same lot. There are surplus spaces in the
Deemer’s Landing I parking lot and enough land on the other
side of the street or ditch to compensate for parking required
without presenting the parking variance tonight. The applicant can
still come back to request a parking variance at a later date. If
the Board denies the applicant’s request for a waiver of the
parking variance tonight then the applicant would have to show
dedication of spaces in Deemer’s Landing I for the sole use of
residents in Deemer’s Landing II or they wouldn’t have
enough parking for Deemer’s Landing II. Mr. Tucker suggested
the applicant could withdraw the earlier request to add parking and
it could be addressed when we go before the Planning Commission or
come back for a second hearing. It is Mr. Akin’s opinion that
this Board should not take
Board of Adjustment Hearing—
Richard Keller/Buck-Kennett III LLC
April
30, 2008
Page
4
final
action on the parking reduction this evening. (Discussion
continued about shared parking between two projects.)
Mr. Tucker withdrew the request to add the parking variance in the
revised application and consider coming back later.
Mayor
Klingmeyer asked if the variances granted for Deemer’s Landing
I are being complied with. Mr. Tucker reviewed twelve (12) variances
as shown on pages 5-7 of the 7/25/02 letter from Herlihy, Harker &
Kavanaugh. Mr. Keller provided a status for each variance
accordingly.
Mr.
Athey informed that his firm (URS Corporation) did the design of
Ninth Street a few years ago and the plan does not show the 10-foot
wide easement given to Municipal Services. He is concerned that the
applicant is requesting a 12.5 foot setback from the right-of-way
line; a 2.5 foot setback from that easement line. There may be
electrical conduits in that easement as close as 2.5 feet from the
building foundation. He would like to state for the record that they
are aware of this and that for maintenance of whatever is in that
easement will not be affected if this waiver is granted. The other
concern is with the proposed storm sewer in the area; Mr. Athey does
not believe this is possible. Mr. Hess confirmed for the record.
Mr. Athey suggested they contact the Municipal Services Commission on
condition of any approval that may be granted. It was noted that
they have already met with Municipal Services and checked the
setbacks at that time. The dimensions shown on the survey are
field-based. (Discussion
about where the electric and water line will be located took place.
The closest utilities are telephone and cable.)
Mr. Athey declared that he is satisfied that the applicant is
clearly aware of the easement and has made contact with Municipal
Services.
The
floor was again opened to the audience.
A
resident believes this application should be tabled this evening and
re-notify citizens. He cited his concerns with the proposed
structure’s height and parking across the street creating a
safety issue. (Discussion
followed.)
Another
resident stated the back of the proposed building will look directly
into her property. Her concerns are that when the storm sewer and
the variance for the easement were granted and excavation work began
years ago her neighbor experienced minor flooding in her garage. She
is concerned that with more work taking place is the storm water
run-off being adequately addressed. She also said that when
construction was taking place residents could not get to the
entrances of their garages because crews had the street blocked off.
(Discussion followed about
installation of utilities for Deemer’s Landing I; they
connected into her sewer pipe improperly and the system failed
causing sewage in the neighbor’s basement. Representatives for
the applicant cited what they have done to remedy this issue.)
Board of Adjustment Hearing—
Richard Keller/Buck-Kennett III LLC
April
30, 2008
Page
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A
number of residents of Deemer’s Landing I, including the
property manager, and a local small business owner spoke in support
of the proposed Deemer’s Landing II. There is a need for a
facility that accommodates the young senior citizens and older
population.
Mr.
Akin asked Mr. Bergstrom if there is a firefighting reason for the
relationship between horizontal setback and fate of the building.
Mr. Bergstrom said there is no relationship; that setbacks need to be
a percentage of the height of the building. This project is 100%
accessible around the perimeter and is accessible for a fire ladder
truck.
In
closing, Mr. Tucker referred to the portion of the 2003 Updated
Comprehensive Plan that addresses the redevelopment of the former
Deemer Steel site. Good planning is exhibited in Deemer’s
Landing I and the applicant wants to emulate that in Deemer’s
Landing II. The project could be built at a smaller scale and with
less amenities, but it would be a hardship because the applicant is
not taking into account what is already there and the planning goals
that were expressed by the City Planner’s report at the 2002
hearing. Lease ability will suffer if amenities are reduced. If
you don’t have the numbers to get the rents for the type of
clientele you want then you can’t provide the things that make
a difference in this project and other projects. He referred to
Kwik-Check factors and submitted that there is no serious impact on
surrounding communities. There will be a positive impact because it
will be a higher-quality development that is consistent with the
character of the building across the street. The hardship related to
this property is not self-inflicted. The applicant needs these
variances in order to maintain the character he is seeking. This is
a reasonable and logical improvement of land considering that
Deemer’s Landing I has set the benchmark. He reviewed the four
(4) provisions of Section 230-57 (C) of the Zoning Code. In its 2002
decision the Board of Adjustment found this type of proposal
(Deemer’s Landing I) to be harmonious to the community and
consistent with planning goals.
Mr.
Athey asked what Brownfields has to do with setbacks and heights of
buildings, etc. Mr. Tucker responded that the way the standard is
written is something unique and peculiar. There is an overwhelming
call in the comprehensive plan to encourage Brownfield development.
(Discussion followed.)
Mayor
Klingmeyer offered a history of how the land in this area was
developed. He added that this structure covering as much of the land
as possible helps to prevent the run-off and thus reduces the
contamination in our drinking/ground water. It is consistent with
Deemer’s Landing I and providing elevators will help with our
older population.
Mr.
Akin said that listening to the testimony tonight and applying
Kwik-Check standards in addition to other City standards, the
Delaware Supreme Court has asked Boards of Adjustment to consider
several factors. The nature of the zoning
Board of Adjustment Hearing—
Richard Keller/Buck-Kennett III LLC
April
30, 2008
Page
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and,
in this instance, the zoning makes it a consistent use. The
character of the immediate vicinity would be enhanced. There has
been limited testimony concerning how this project might affect
neighboring property owners and other testimony offers it has been
dealt with and problems are being addressed. We have heard no other
testimony from neighbors or others of this project who oppose it
because they don’t believe the size of the structure is
consistent with New Castle. The Board is here to decide if the
variances from the City Code are warranted. Lastly, we didn’t
hear much about a hardship during presentation of the evidence. (Mr.
Tucker offered hardship in his closing.)
The applicant testified he does not believe he can attract the type
of clientele he is seeking if he must downsize the individual units.
He thinks the Brownfield’s issue was not an issue that the
Supreme Court said you cannot consider in the variance analysis. For
these reasons and those Mr. Tucker spoke on, the issues under 230-57
(C) (a) (1-4) which is the City’s analysis for a variance, he
is inclined to vote in favor of the setback variances and the height
variances.
Mr.
Athey made a motion to grant the front setback variance from the
required 32.5 feet to 12.5 feet. Mr. Akin seconded the motion.
Mr.
Athey is still concerned with precedent issues and the Board
interpreting how much flexibility we should give people to encourage
development. The testimony was very good and the variances being
sought are minor. It would improve the neighborhood in general. He
is voting in favor of granting the front setback.
Mr.
Akin referred to his previous statement and votes in favor.
Mayor
Klingmeyer feels the overall project meets the criteria and the
requests are minor.
The
motion passed by unanimous vote.
Mr.
Athey made a motion to reduce rear setback from the required 32.5
feet to 27.5 feet. Mr. Akin seconded the motion.
Point
of clarification – Mr. Athey noted that the advertisement was
for 16 feet and we agreed earlier that because this is a lesser
variance being sought we are on firm ground to go forward with the
vote.
Mr.
Athey referred to his statement made in support of the front setback
and votes in favor.
Mr.
Akin referred to his previous statement and votes in favor.
Mayor
Klingmeyer voted in favor because there will not be any homes in the
background.
The
motion was passed by unanimous vote.
Mr.
Athey made a motion to allow an increase in the maximum building
height from the required maximum of 65 feet to 67.5 feet. Mr. Akin
seconded the motion.
Mr.
Athey and Mr. Akin stand by their earlier comments and vote in favor.
Mr. Akin noted we are still not sure of the correct calculus of
the mean height of the
Board of Adjustment Hearing—
Richard Keller/Buck-Kennett III LLC
April
30, 2008
Page
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top
of the roof from grade to top of the roof, but there has been
testimony that the developer has erred on the side of caution. Mr.
Keller is also on record making a commitment to reduce the mean
height to the 67.5 feet as advertised so it is no longer part of the
case.
Mayor
Klingmeyer voted in favor citing his agreement with the reasoning of
Messrs. Akin and Athey and added that he believes that the applicant
has shown good faith in dealing with his neighbors and the City.
The
motion passed unanimously.
The
hearing was adjourned at 9:50 p.m.
Respectfully
submitted,
Debbie
Turner
Stenographer
Exhibit
1 – Aerial photograph of proposed project (McBride and Ziegler)
Exhibit
2 (a) – Aerial photographs (3) of proposed project (McBride and
Ziegler)
Exhibit
2 (b) – McBride & Ziegler parking study
Exhibit
2 (c) -- Photographs (3) and artist renderings (2) (Architectural
Alliance)
Exhibit
3 – 2002 City Planner’s Report
(Copies
of the larger exhibits will be reproduced in a smaller form for the
City files.)
