220 Delaware Street
New Castle, Delaware 19720
(302) 322-9804

DRAFT
The New Castle City’s Planning Commission Meeting took place on January 23, 2006 at 6:30 p.m. in the City of New Castle’s Town Hall.

Members Present: Thomas Wilson, Chairman
George Freebery
Jane Miller
Dr. Jack Norsworthy
Elliott Tatum
Mary Davis

Staff Present: Jackie Seneschal

Member Absent: Jim Steele

Chairman Wilson called the meeting to order at 6:35 p.m. Roll call was taken. There are two vacancies currently on this Commission.

Minutes – A motion to accept the minutes of the 12/19/05 meeting was made and seconded. The motion passed unanimously.

Business from the Mayor – The Chair said he did discuss with the Mayor the vacancies on this Commission. If anyone has a name they would like to submit to the Mayor, please do so in the next week. We would like to fill these vacancies as soon as possible.

Business from the City Council – None.

SUBDIVISION & SITE PLANS
The Chair said the items on the agenda this evening will generate a lot of discussion; therefore, presenters will have no more than 20 minutes to present their plan; comments from the floor will be limited to three minutes per person.

Site Plan – 0 Delaware Street (Family Foundations Academy, Inc. Charter School) – Jim Taylor, counsel to Family Foundations Academy (FFA) introduced the party with him. He then provided background on the project. The FFA received approval from the Board of Adjustment to open this school at this location. This is an opportunity to review the site plan and confirm their compliance with city codes. Population of the school is 420 students at full enrollment, grades 1-4. The Board of Adjustment suggested we go through the State’s Plus Process (12/28/05). We received their comments last week and a copy of his response is in each Commission member’s pack. The school will be a 38,500 sq. ft., one-story building on a site leased from the Trustees. (Members reviewed the drawings of the school.) Required setbacks have been met and city’s ordinances have been complied with. There are two playground areas and landscaping plans. Engineers are present to answer questions. DelDOT has noted in their Plus comments that traffic impact is low, so low that a traffic impact study is not necessary. There are two fenced-in playground areas. Ours will be the first site plan approved by this Commission. Mr. Freebery asked if they considered putting access to their entrance on 141. The response was that the lot is oriented on 273 and based on DelDOT’s comments, the entrance is one-way in (east) and one-way out (west). (Discussion about what a charter school is, the application process and who decided on this location took place.) Ms. Miller feels there will be an impact on traffic at this site and that we should have a traffic impact study. How much income is the City receiving since it is Trustees’ land. Ms. Seneschal said the arrangements between a property owner and a lessee are not part of the zoning and review process. The site plan review that we have is for compliance of the zoning ordinance. The setback requirements

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and location of the building are subject to review by the Board of Adjustment. They did approve those setbacks. We are reviewing it for compliance with other requirements of the ordinance such as parking, which they have met, and the landscaping requirements for the parking area. The ordinance requires that 10% of the parking area be landscaped. (The engineer explained the parking calculations.) Ms. Senescal noted the filter strip that is to be mowed on a regular basis; she suggested locating the fence outside the filter strip to make maintenance easier. They had no problem with this suggestion. She added that the particular species of tree that has been chosen should be reviewed by the Tree Commission as a condition of approval. You have the right number of trees shown. Another concern was whether the trees you have chosen (red maples) for the islands have enough room to survive. Either change the species or make the island bigger. Ms. Davis suggested making the island bigger. They indicated they would comply with this request.
Ms. Davis asked Ms. Seneschal to clarify that we cannot bring up traffic impact with this property. Ms. Seneschal said that because the access is on a State highway they can bring it up if they feel it is an issue. This isn’t a subdivision and the City does not have a traffic impact ordinance related to site plans. Up until a year ago this kind of plan was approved by a building official.
Ms. Miller expressed concern about the quality of life being impacted in New Castle as a result of this project. Ms. Davis asked the Chair, as a member of the Trustees, what was behind the thinking of this project. The Chair said the Trustees had been actively trying to lease this property for several years. There was a large investment made with the sewer line that was put in and they felt they had to recoup their money. It was not a unanimous vote, but was approved. There is a signed contract involved and he will abstain from any voting on this project. Mr. Norsworthy questioned whether what Plus brought up in their letter was addressed. Mr. Taylor said either everything has been taken care of or implemented and explained why the generic comments don’t apply. The Chair questioned the accessibility of emergency apparatus to this building. Mr. Taylor responded that they will not get a building permit if the Fire Marshal doesn’t sign off on it and the code requires the building to be sprinklered.

Public Comment
Councilman John DiMondi – For the public record the Board of Adjustment was out of order granting a conditional exception without it first coming to the Planning Commission. It is in the City code. He believes this proceeding is out of order because protocol was not followed. There are problems with the plan. The drainage heads off the property; do they have an easement from the Trustees because it will drain onto a State roadway. The Chair said it is on the greenway they are going to put in. He also questioned the lack of a fire lane on the right side of the building. Lastly, he questioned the two play areas on route 273. Board of Adjustment gave you approval, which you don’t have by City code, only a recommendation. This is not a community school and the City doesn’t get any real estate taxes or other monetary benefit and the citizens should not have to support it.
Ned Hutchison, 14 West 4th Street – The traffic impact will be horrendous. Where is the WILMAPCO study that was done about 5 years ago? The other item on tonight’s agenda, Parkway Gravel, will add to the traffic also.
Councilperson Teel Petty – If this hasn’t been approved for a building why are we discussing landscaping and parking? Also, why does the State feel we need another school in this area? Colonial School District just passed a referendum to increase taxes. Did the Trustees ask the Council about the school they were going to lease? These are major problems for the City of New Castle.

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David Byrd – Expressed concern about process. At the Board of Adjustment meeting there was discussion about getting the State’s input in the form of Plus. The Board of Adjustment said they would go ahead with approval with the condition the applicants would go to Plus, get their comments and respond accordingly. They have done this. He agrees with Mr. DiMondi. His concern is that this is the first time the Planning Commission has seen the site plan, the State’s Plus letter and responses. Perhaps it would be prudent to look further into what the Planning Commission can do in the review process, look at the State Plus program and Mr. Taylor’s responses and give the members of the public a chance to review what the State said and the applicant’s response. In the city’s Land Use Plan it did authorize this type of use in this area. He commended the Chair for recognizing a potential conflict and abstaining from any vote on this issue.
Dorothy Fisk, 26 E. 3rd Street – We need to look at this project very carefully. Senator Connor was at the Trustee Meeting when it was mentioned that the lease had been signed and she was unaware of this project. She is concerned about traffic flow and asked them (Trustees) to provide her with as much information as possible. At the December Board of Adjustment meeting she felt that the lawyer for the school was pushing the Board of Adjustment into agreeing to the plan before the Plus program. At the Trustees Meeting it was indicated that the charter school has to have a certificate of occupancy by June 16th or it has to get a waiver. We should be concerned about what is good for the town overall and requests this be considered. She does not understand how Council can be completely shut out of this process.
John Houben, Washington Park – He is also glad to hear that the Chair is recussing himself because he is a member of the Trustees. The Trustees invested $125,000 into the sewer line and he understands they want to recoup their investment. They never got a pre-approved credit on the proposed tenant to see if he was financially capable to handle the obligation so the Trustees made a bad investment with our money. He lives in the area of the proposed school and it will create more traffic congestion.
(Brief discussion about standards that apply to buildings in various zones in the city took place.)
The Chair expressed concern about Councilman DiMondi’s statement that this process may not be in sync with the law of the city and we should consider this before going forward.
Ms. Seneschal said she is not aware of any circumstance where the Board of Adjustment was to get a recommendation from the Planning Commission, but she will look into this. Ms. Miller is concerned about facts about what the procedures are or whether they are in sequence.
Mr. Taylor said he did speak with Mr. Kavanaugh before going to the Board of Adjustment and he confirmed that this is the appropriate order in process. The Board of Adjustment approved it with the condition the school continue through the Plus process. The Board of Adjustment has signed off, we have complied with the Plus process, and now before this Commission is the opportunity to sign off on the landscape plans and to confirm that it meets with zoning requirements. Because it is a R3 zone there are other uses for this property that would have more of an impact than a school. By tabling this project, it could have the effect of keeping the school from opening for a full school year.
Ms. Davis said our problem lies with the Trustees. Does the lessor have the ability to ask what the building will look like? She wants everyone to understand the Planning Commission has no ability to make any recommendations on this building. We should address this issue with the Trustees because they have a responsibility to make sure the building is appropriate and fits in well. They need to be held accountable for the impact on this community. We need to write a letter or meet with them. Mr. Taylor added that the lease requires the Trustees to review the final building plans.

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Ms. Miller feels it is unfair of the Trustees to drop this on the Planning Commission. The Trustees have a responsibility to talk to other people and agencies in the city before going ahead. This is not a good idea for the City of New Castle.
David Byrd – The reason the public is here is to provide their input to the Planning Commission to enable them to make their decision. He feels the Planning Commission can look at the Plus process results and what the applicant’s response is and make a decision on whether to go ahead or get more information. We need to make sure what we are doing is appropriate within the approval process and the City counsel can indicate that. (Brief discussion about what is appropriate then took place.)
Ms. Seneschal then reviewed the applicant’s responses to the Plus process letter. Mr. Byrd expressed concern that this information has not been communicated to the public yet. She said that with the exception of rezoning the Planning Commission is not in a position to tell someone they can’t use their property for a particular use.
Jeff Davis, East 4th Street – He thinks the Board of Adjustment usurp your authority on this ordinance and Council’s authority by preapproval pending certain conditions. Is that your understanding? The school has complied and we should give them a vote one way or another then engage in dialogue with the Trustees or develop an ordinance that follows a process we are all familiar with. We need to get on with the vote.
Ms. Davis made a motion to approve the landscape design as this is the only thing we have jurisdiction over, recommend that the Tree Commission be consulted as to tree species, make the islands bigger, and reposition the fence outside the filter strip.
Ms. Miller seconded the motion. Five voted in favor of the motion with Mr. Wilson abstaining from the vote.
The Chair proposed scheduling a meeting with the Trustees. Ms. Miller is confused as to how we got to this point. Many years ago when a funeral home wanted to use that land it came to the Planning Commission. The Chair said there are bad communications in the City with the three entities, Municipal Services, Council and the Trustees. He has seen the Planning Commission and Tree Commission get caught in the middle. The Trustees are not above the law. He would like to see Council and Municipal Services in a room with the Trustees. The first step is to sit down with them and determine what the Planning Commission’s responsibilities are and how they have to abide by the Comprehensive Plan like everyone else in the City.
Audience – Suggested that the three groups meet once a month or whatever to communicate with one another. The Chair said he would initiate that request.
Councilperson Petty – This is disgusting to her. The Planning Commission works for Council, we take our recommendation and if you can only work on certain things, what good is your recommendation? If the Trustees have more power than you do or Council who run the City, something is wrong with the picture. City Council represents the people and we need a public hearing.

UNFINISHED BUSINESS
Review of Parkway Gravel Request for Rezoning from IOP to R3 – Donald Isken of Morris, Nichol, Arsht and Tunnel presented on behalf of Parkway Gravel. He introduced his team members then followed with a background and review of the project. A conceptual development plan was provided to Commission members.
Ms. Davis asked what the Planning Commission is going to be recommending this evening.
Ms. Seneschal said there are four questions the Planning Commission needs to answer in their report to City Council. The first is related to the comprehensive plan and an amendment to the transportation plan that would remove the connector between Route 9 and Center Point

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Industrial Park that connects to Route 273. The developer has requested it be removed from the transportation plan. The second is whether future use of this property in the comprehensive plan should be industrial or residential. Third, if it is determined the future use should be residential, what is the appropriate residential zoning to be applied? Fourth, if you respond ‘residential’ to the above two concerns, what term should be included in an amended restrictions agreement? What conditions should apply to that rezoning? When this property was annexed by the City there was a written agreement that applied to the property. (Brief discussion about the kinds of conditions applicable to the rezoning took place.) Ms. Seneschal referenced a letter from Mr. Isken responding to the technical report that each Commission member received. There is a clarification memo from the Municipal Services Division that each member should also have. The Plus review letter was distributed at the last Planning Commission Meeting. There is also a technical staff report prepared on behalf of the Technical Review Committee. The trip generation figures originally submitted by the applicant have been updated by what has been submitted this evening. Other background materials were also distributed to Commission members. We have requested electronic versions be placed on the City’s website. (Ms. Seneschal recognized the members of the Technical Review Team.) Ms. Seneschal reviewed the Technical Review Report. The technical report does not take any posture on the rezoning or the comprehensive plan amendments; it merely captures and reports technical information. We reported what the facts are so you can make a decision.
Transportation Plan – Ms. Miller expressed concern about the traffic situation. Mr. Isken responded that there are several reasons why they are advocating the connector not be built. First, the project will have private streets eliminating the burden on the City to maintain the streets. If they are private it is incompatible with the concept of making this connector between Routes 9 and 273. Second, it’s inconsistent with building a residential subdivision to now create a major bypass. Ms. Miller feels they are saying that our needs do not fit. Mr. Isken explained that some reasons are out of their control. They need the cooperation of the owner of the Center Point Business Park and he has refused to cooperate and allow the connector to be built. The owner doesn’t want additional traffic going through his business park. It would also require a crossing over the railroad and they don’t give out crossing agreements easily. (Brief discussion about the railroad crossing and the history of a requested crossing and a conceptual agreement between the railroad, the City, DelDOT and Parkway Gravel in 2002 took place.) Ms. Davis asked if there was a way to keep the connector issue open for possible future reconsideration. The Chair said the concern is that if we insist on a connector road it then becomes public and would those streets become the City’s responsibility. The plan is that no City truck will enter the area at any time. Ms. Seneschal added that it is possible to do an alignment of a road between Route 9 and the entrance to the subdivision as a public road. If you leave the road on the transportation plan, then when the subdivision comes you will need to acquire the right-of-way from the developer for the alignment. One of the major functions of the subdivision regulations is to allow the jurisdiction to reserve the land. (Additional discussion about a connector road and the project took place amongst Commission members.)
Ms. Seneschal is concerned about zoning; R3 zoning can generate a much different project. Mr. Isken feels there is a concern here that in the future the age-restricted community might leave and it would turn into an apartment complex. His client is prepared to impose restrictions on the property that will provide the City with adequate assurance that what is being built there will be restricted to a 210-unit, age-restricted residential subdivision. It would be in the form of deed restrictions and the number of units would be included in the document.

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Zoning – Ms. Seneschal said the zoning district that most closely represents what the developer is proposing is R1. The developer wants to continue to ask for R3. (Discussion took place about the sizes of the dwellings and how they fit into R1. Ms. Seneschal presented how an area per family is calculated.)
Municipal Services – Ms. Seneschal addressed utilities issues. Municipal Services want to see utilities _____ to this. They propose a route where the water lines could be ______. This is an issue related more to subdivision than rezoning.
Emergency Access – Ms. Seneschal reported that the Fire Chief expressed his preference for a connector road, but if that doesn’t work or built initially the developer has proposed an emergency access route. Literature about the type of materials to be used for that emergency access has been distributed to Commission members.
Noise – Ms. Seneschal reported that the railroad track runs immediately behind and landscaping for noise buffering was suggested. The developer initially proposed a berm with landscaping. A berm design that is consistent with DelDOT’s requirements for rail in those locations was suggested by her firm. A fence that provides noise protection was also suggested by her firm. (Berm dimensions and types of designs were discussed.)
Crime – Police representatives said their type of police support required for older residents is different but there would still need to be a police presence in the community. They feel that even though they are private streets, there are likely to be occasions where they will respond. The security service could restrict who enters the community, but the City police would respond if a crime takes place.
Buffers – Initially DNREC recommended a 100 ft. buffer. In speaking with DNREC and environmental scientists at KCI there is a consensus that if a buffer is at least 50 ft. wide it will provide appropriate water quality benefits. In general that 50 ft. is a minimum. If landscaping is being proposed 50 ft. would be appropriate.
Fiscal Impact – Ms. Seneschal said that either project would have a financial impact for the City. There hasn’t been enough detail analysis done to establish which would have a better fiscal impact. Mr. Isken added that revenues derived from a 55+ community will be greater than that of an industrial park.

Public Comment
Charles Cobb – He is concerned with the closing of the access to the property. The railroad crossing was closed and the City received verbal approval from DelDOT to have the crossing and they also agreed that they would take Route 9 through Center Point, which is a city street, and it would be a State road. The City would then have to take over Washington Street and Seventh Street.
Joe DiAngelo, Washington Park – He is concerned with traffic. He cited Deemer’s Landing and the traffic congestion it brought. DelDOT needs to do something with Route 9 and Route 273. We need to consider what is best for New Castle.
Councilman John DiMondi – The impact on buffering communities matters to the people living in Washington Park and Dobbinsville. He feels the developer has done everything we have asked him to do. This is a good deal for the City and the people living around it.
Dobbinsville Resident – He would rather deal with 200 cars than 400 trucks.
John Houben – He did an informal survey of Washington Park, covering Juniper Street and 12th Street. When he explained the situation of industrial versus residential, everyone he spoke with preferred residential. He surveyed 20-30 homes. The Chair concurred. He added that Jim Steel sent him a letter saying he is in favor of the residential project.

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David Byrd – Asked if the proposed bypass is on the applicant’s property. The Chair responded ‘yes.’ Has there been something constructed on the property? The Chair responded ‘yes.’
Mr. Byrd questioned how this can be done. He was informed that they received a permit from DelDOT. In the event this application is denied they would continue their plans for an industrial park.
He would like to explore the possible bypass around the City in the area and still work with the property owner to allow the type of development they are proposing. He also feels we should look at another type of zoning to work with the property owner to accommodate them and allow the City to get what they want.
Dorothy Fisk – A residential development is far better than an industrial park and there is a lot of money involved. She asked how a person would qualify to live in this community. Ms. Isken said the lender would require a photocopy of the buyer’s driver’s license be submitted to them at the time of settlement.
Jeff Davis – He asked the Planning Commission to rezone to residential. The type would depend on the credibility you have accessed to the developer. It seems that traffic is always the last thing thought of. The City isn’t forfeiting anything on the bypass because you always have the right of imminent domain.
The Chair said he doesn’t feel putting in a bypass road would fix anything. It may fix truck traffic, but nothing permanently. We need DelDOT to do a legitimate bypass.
Charles Cobb – You don’t have to deny putting the road through, but the provision should stand so we can proceed if something happens.
Dorothy Fisk – A question was raised at a previous meeting about garbage collection. Someone from Parkway Gravel said it won’t be permanent. Residents will look at City residents and question why they are paying for garbage collection. She believes this private community that isn’t going to cost anything will likely cost us in the long run.
Councilman John DiMondi – Two council members and he have been given permission to enter into discussions with the developer to get some issues out of the way. One is restrictions. Where the garbage is concerned we want to keep City vehicles out, but will pay for tonnage in a special account at the landfill. Delaware Solid Waste quoted us a figure of under $19,000/year for the waste. Our vehicles will never be in the development because it will be part of a restrictive contract with a maintenance corporation. Regarding zoning, the developer is willing to put deed covenant in place which permanently restricts this property to an over 55 community. Whatever you zone it doesn’t matter. Council will vote on the rezoning on the condition of this plan that we are now looking at.
Mr. Norsworthy made a motion to change the land use plan to residential from industrial. Ms. Davis seconded the motion. Mr. Freebery and Ms. Miller voted no; Mr. Norsworthy, Ms. Davis and Mr. Tatum voted yes. The motion passed 3-2.
Ms. Miller made a motion that the connector road not be removed through the site to Center Point; Ms. Davis seconded the motion. Mr. Norsworthy voted no; Ms. Miller, Ms. Davis, Mr. Tatum voted yes. The motion passed 3-1.
Concerning what zoning the Planning Commission recommends, the Chair feels there is a need to consider a special zoning commission for a 55 and over community in our town.
Mr. Norsworthy asked Ms. Seneschal what the potential impact is between an R1 and R3 zoning. Ms. Seneschal said the difference is the development potential on the property. If you have deed restrictions in R3 zoning you can restrict the number of units allowed.
(Ms. Seneschal explained the differences in the zoning category and the development potential for the site with deed restrictions.)

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Ms. Miller made a motion to recommend to rezone to R1 zoning with deed restrictions.
Ms. Seneschal added that restricting to R1 it will force the developer to a land development option. It’s a provision of the City code that allows the Planning Commission to vary lot sizes, reduce setbacks in return for the developer providing extra open space, etc. By zoning R3 they could develop it by right under R3 provisions.
Mr. Isken said he has been informed by his consultants that an R1 zoning for this project as proposed will not work. In effect by rezoning to R1 you are denying the project. He reiterated by using R3 zoning they will agree to limit to 210 units, size and type of unit that cannot be changed unless you vote to change it.
Lacking a second for Ms. Miller’s motion, the motion failed.
Mr. Norsworthy made a motion to recommend R3 zoning with restrictions as stated earlier. Mr. Tatum seconded the motion. Mr. Norsworthy, Mr. Tatum, Ms. Davis voted yes. Ms. Miller voted no. The motion passed 3-1.
Ms. Seneschal suggested that at the time of the subdivision review a formal traffic study be submitted. This is a concern in the technical report and with the City Engineer. It would be a standard type of DelDOT type traffic study. (A discussion between the developer’s reps and Ms. Seneschal about traffic took place.)
Ms. Seneschal reported this is an identified archeological site. It was referenced at the time of annexation and there was a survey of archeological sites that was done when the sewer line was put in and found there was no impact on the sewer line itself, but that it was likely there was an archeological site and this was brought up in the Plus process. She suggested asking the developer for a phase one archeological at the time they submit the subdivision plat and if phase two is needed they can then start on that. The developer said they have already initiated discussions with the State on this subject and they intend to work directly with the State and follow their recommendations. Ms. Seneschal said we want to be aware of what is going on.
Buffer width – They are proposing a buffer that will accomplish what they are intended to accomplish. They are asking for latitude where they are trying to accomplish things like preserving view sheds and where the buffer won’t serve the purpose of filtering out. Looking at the DNREC-sponsored studies the amount of filtration from a 50 ft. buffer on a percentage basis is the equivalent of a 100 ft. buffer. Ms. Seneschal reminded that this is true as long as you landscape as you propose. Mr. Isken said it will only be below 50 ft. in non-critical areas.
Mr. Norsworthy asked for an explanation of non-critical areas. The developer indicated mostly the back of lots are considered non-critical areas. Ms. Seneschal suggested deferring further discussion on this issue until the developer presents a subdivision plat where we can look at the details of where these areas are and answer questions before the City signs a final agreement with the developer.
Mr. Isken said there are elements of the technical review committee report that they do not agree with and they do not intend to have them reflected in the final design of the plan. The Chair said the developer may not agree with what we are doing, but the developer will have to take the matter to Council. Ms. Seneschal said the technical review committee report will be an attachment to our recommendations to City Council. They will not endorse all of it because they have already made changes to it.
Ms. Isken questioned the archeological issue and if the State recommends that we don’t do a phase one he doesn’t want this to be contrary to the Planning Commission’s recommendation. They have the resources and the people with training to make a recommendation.
Ms. Seneschal said they should make their recommendation to the Planning Commission. The Planning Commission should decide on this. If they have a recommendation other than what was submitted in the Plus report they need to inform the Planning Commission.

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Ms. Miller made a motion that we recommend restrictions applicable to R3 rezoning to 55+ community, restricted to 110 units, open space and club amenities, pedestrian system as described, an operational analysis/traffic study, voluntary contribution and the archeological survey phase one. Mr. Norsworthy seconded the motion. The vote was 4-0 in favor of the motion.
Summary – The Planning Commission has recommended the change of the comprehensive land use plan, not to approve a change in the transportation plan, approve a recommendation of rezoning to R3 with restrictions, and the restrictions applicable to the R3 rezoning.

NEW BUSINESS
No New Business was presented.

Adjournment – Mr. Norsworthy made a motion to adjourn. The motion was seconded the meeting was adjourned at 10:05 p.m.


Respectfully submitted,

Debbie Turner
Stenographer