Barley Mill Plaza Development Proposal Up for NCC Vote

The vote by New Castle County Council on Stoltz’s proposal to rezone 37 acres at Barley Mill Plaza (BMP) (40% of the site) from Office Regional to Commercial Regional will be decided on Tuesday, October 11.

SOC (Save Our County), in an effort to deny a rezoning at Barley Mill Plaza has issued an email/letter which has provided disinformation regarding the compromise proposal.

CRG (Citizens for Responsible Growth) issued a rebuttal of the questions that have been raised and have shared the responses with the community.

The statements below from SOC’s email/letter statements are in black. CRG’s comments to those statements, are indented and in blue.

 

For way too long we have been subjected to threats by the Stoltz organization to destroy our community if we do not agree to the so-called “Compromise Plan” at Barley Mill Plaza (BMP).

Like it or not, we have to deal with the reality of the situation. Characterizing disagreeable alternatives as “threats” does not change reality. We are faced with a choice between deed restricted downsized projects and unrestricted larger projects. Our choices do not include “no new development.”

This abuse of responsible land use planning will come to a head on October 11 at a critical meeting of the New Castle County Council where Stoltz’s proposal to rezone 37 acres at BMP (40% of the site) from Office Regional to Commercial Regional will be decided. The County Council’s decision will be a momentous one, impacting our County for decades to come.

The future of Northern New Castle County is truly at stake. County Council’s vote will indeed be momentous because, if the rezoning is denied, our community will be facing a huge “by right” mixed-use project at BMP with a much larger shopping center that County Council cannot vote to stop, and a towering “by right” Rollins Building at Greenville Center that County Council cannot vote to stop. Both of these projects were well on their way to getting approval when the compromise was negotiated by County Executive Coons last Fall.

We need your help to return responsibility, ethics and balanced development to land use planning, and to tell County Council members to vote “no” to Stoltz’s commercial regional rezoning request on October 11.

Barley Mill Plaza is already zoned for “regional” development as an office campus. This is why it can be developed without a rezoning as a “mixed-use” project of staggering proportions. Will denying the rezoning of a portion of this land to regional commercial based on “principle” lead to a better or worse result for our community? CRG understands the allure of “principle” but seeks to protect the community from a disastrous practical result if the rezoning is not granted. A rezoning in order to achieve a smaller deed restricted project is preferable as a practical matter to no rezoning and a much larger unrestricted project. We must not let the “perfect” become the enemy of the “good.”

1) “The 1.7 million square foot ‘Compromise Plan’ under discussion, as well as the 2.8 million square foot “original plan,” are out of character for our community. Instead, we are advocating for balanced, responsible growth that will attract jobs while enhancing our community.”

No resident in our area would argue that either of the two plans suits the character of our community. But our County Code gives Stoltz the right to create a huge mixed-use project with a large strip shopping center at Barley Mill Plaza. Denying the rezoning request for 37 acres releases Stoltz from the compromise and lets him reactivate the mixed-use plans, which are filed and pending.

Once Stoltz gets approval for his original mixed-use 2,800,000 square foot project, he can build an unrestricted strip shopping center of nearly 700,000 square feet. The likelihood that this will not get built overnight is irrelevant. Once approved, it will eventually happen. The fact that an economic recovery may take years will not protect our community in the long run. The only sure way to prevent an irreversible tragedy is to rezone 37 acres for a much smaller deed-restricted shopping center of 454,000 square feet.

Our choice, realistically, is between a 695,000 square foot shopping center without deed restrictions, and a 454,000 square foot deed restricted shopping center. We cannot risk the future of our community on platitudes such as “advocating for balanced, responsible growth that will attract jobs while enhancing our community.” “Advocating” for an ideal result sounds wonderful but it is not going to stop Stoltz from getting “by-right” development approvals for his properties. Once he has these approvals, construction will eventually occur.

2) “The purported ‘strong and irrevocable’ deed restrictions are neither strong nor irrevocable. The protections currently envisioned are inadequate to protect our community.”

The criticism of the deed restrictions contains inexcusable misrepresentations. The actual language of the deed restrictions can be read by going to Bob Weiner’s web site at http://crginnewcastlecounty.com/pdfs/Stoltz-CRG-Barley-Mill-Plaza-Deed Restrictions.pdf. The criticism ignores all of the limitations and protections that are in fact imposed on size, height, use and future development, and focuses on matters such as signage, lighting and landscaping that are regulated by Code and that the restrictions state will be further dealt with as they arise. Also ignored is the reality that no deed restrictions whatever will apply if the rezoning is denied and the mixed-use project proceeds.

-There are no lighting or signage protections whatsoever

This contains a misrepresentation. In addition to the detailed lighting and signage requirements in the County Code, Section 2.4 of the BNP deed restrictions which have been signed by Stoltz (but which will apply only if the compromise is implemented by the requested rezoning) require Stoltz to use best efforts to design the parking structures so that car lights will not shine towards Nearby Homes. Section 5.1 of the BMP deed restrictions acknowledge Stoltz’s likely need for sign variances and sets out the parameters for gaining CRG’s support, stating: “CRG is opposed to signs that are internally lit, flashing or changing, and prefers externally lit ground monument signs with brick or stone bases, and a limited number of building signs, in all cases mounted on building walls rather than roofs; . . .” Since signage varies by tenant, each of which has its own sign requirements, specific limitations are not stated in advance, but Stoltz knows and has agreed “to work with CRG in good faith in an effort to reach a reasonable accommodation on a case by case basis between Declarant’s desire for sign variances and CRG’s desire for signs that are aesthetically pleasing, such that CRG will be able to support Declarant’s applications for signage variances.”

NOTE: By working with Stoltz and its tenants on issues of signage, the community will have an excellent opportunity to make certain that tenants realize the importance to their future customer base of preserving trees and having tasteful signs.

-There is no mandated visual screening of the buildings, just low plantings-ALL of the mature trees along Route 141 can be taken out, and probably will be

If the rezoning is denied, then it is true that all of the mature trees along Route 141 will probably be taken out. The County Code does not require visual screening of retail buildings or parking areas. But if the rezoning is approved, then Stoltz has agreed in the deed restrictions to provide visual screening against parked vehicles. He has also agreed in Section 4.1 of the BMP deed restrictions that to avoid “removal of trees along Route 141 [which] is neither required for purposes of constructing the improvements shown on the Compromise Plan for the Property, nor necessary to achieve reasonable line of sight for the Retail Site along Route 141, [and that] such trees shall not be removed except where necessary due to the health condition of the tree(s).” NOTE: CRG has determined that few if any trees will need to be removed for construction of improvements shown on the Compromise Plan. To preserve most of the trees with minimum “Line of Sight” pruning, the community should organize to target the tenants who are dependent on the community for business. If the tenants ask Stoltz to preserve the trees in order to please its customer base and avoid boycott, then Stoltz will do so because that is what his tenants want.

-Big box stores up to 90,000 square feet ARE permitted. That’s 2X the size of the Pathmark on Lancaster Pike and nearly the size of the Walmart at Prices Corner

This is misleading. If the rezoning is approved, then the deed restrictions will actually limit the size of “big boxes” to 75,000 square feet except in two instances, i.e., 90,000 to accommodate food stores and furniture stores. Wegmans, for example, typically requires 90,000 square feet. If Stoltz proceeds with a mixed-use plan, there will be no deed restrictions at all against either the existence or the size of big box stores.

-BOTH plans have building height problems. The 1.7M ‘compromise plan’ allows retail heights along Route 141 up to 50 ft and office buildings up to 60 ft, comparable to the Christiana Mall. The 2.8M ‘original plan’ on file with New Castle County has heights up to 7-9 stories. This is not going to be the next Fairfax shopping center in either case

This contains misrepresentations. Where are the citations for these assertions? If the rezoning is approved, the deed restrictions 1) limit all heights of buildings adjoining Route 141 to one story of not more than 40 feet, 2) allows only one four story building up to 50 feet high in the rear, and then only if it contains a hotel, 3) limit all garages abutting residential communities to three above-ground stories and 36 feet with light and sound buffering, and 4) protect against future amendments that are not approved by The Kennett Pike Association and Delaware Greenways. If the rezoning is denied and the 2.8MM square foot project proceeds, the “original plan” on file with the County shows building heights of up to ten stories, with five story garages casting shadows over existing residential communities. And since there will be no deed restrictions for the mixed-use plan, it can be amended at any time to provide for buildings of up to 180 feet tall (rivaling the Rollins Building in height).

“Deed restrictions are only as good as the commitment of the deed holders. Do KPA and Delaware Greenways have the expertise, resources and the will to defend these limited restrictions going forward? The County & State — those whom we elect to protect us — will have NO ROLE in enforcing these restrictions…are you comfortable with that? As for being ‘irrevocable,’ one only has to look at the pending Pike Creek case to see that deed restrictions are challenged all the time. Who is going to defend the remaining 60% of BMP from even more commercial retail?”

The residents in the Route 40/7 community did not have the benefit of deed restrictions that they could enforce as private citizens. Their only protection was County Council. Despite community pleas, County Council voted to lift the deed restrictions that the Council could have enforced, and approved rezoning of a large office parcel for a shopping center. This is why the deed restrictions negotiated by CRG can be enforced by the community, not lifted by the government.

Obviously, KPA and Delaware Greenways, with the support of many other community organizations and umbrella groups, has had and will continue to have the expertise, resources and will to oppose the Stoltz plans as originally filed and negotiate and enter into the existing deed restrictions. If, going forward, the community continues to have the will and continues to provide the resources as and when necessary to enforce the restrictions going forward, then no reason exists to imagine that the community will not be protected by KPA and Delaware Greenways. That includes enforcing the restriction against retail development of the remaining 62% (59 acres) of BMP.

The KPA (which has existed for over 50 years and is still going strong) vigorously opposed the deed restriction amendment being sought by Stoltz at 20 Montchanin Road for the purpose of constructing a three story office building within 40 feet of the road. However, KPA is supporting a compromise there because the recorded deed restrictions written 40 years ago contain an expiration clause. The same is true at Pike Creek Valley. The recorded deed restrictions at Pike Creek Valley contain an express expiration clause. CRG has negotiated deed restrictions with Stoltz that by their terms will never expire unless the compromise plan is defeated.

3) “The 1.7 million square foot proposal under discussion isn’t a compromise; it’s a SWEETHEART DEAL and a BAILOUT for Stoltz’s investors that will leave the citizens of NCC paying the price for a massive, private commercial development for years.

Where are the citations for these assertions? Where are the calculations? How can construction of the monstrous original plans cost the citizens of NCC less than the downsized compromise plans? If the downsized compromise plans are a “sweetheart deal” and a “bailout” for Stoltz’s investors, then why would getting approvals for the much larger, original plans be a “bad deal” for Stoltz’s investors? Stoltz has always been clear that his objective at Barley Mill Plaza is to get maximum approvals and sell the project to one or more builders at a profit. Denying the rezoning will release him from the compromise and let him get more square footage approved for sale to builders. That will benefit his investors much more than the downsized compromise plans.

“Stoltz’s threatened option — the original 2.8M Proposal — HAS A VERY IMPORTANT REQUIREMENT. To build its prized commercial retail space, it has to build residential and office space AT THE SAME TIME — residential and office space they likely can’t sell. Interesting, isn’t it?

Where are the Code citations for these assertions? Nothing in the County Code requires concurrent construction of retail, office and residential uses in mixed-use projects. The County Land Use Department on its own initiative on one occasion did require some form of concurrency in a much smaller mixed-use project; but it also imposed no such requirement on another mixed-use project. Even if the Land Use Department tried to impose a construction concurrency requirement on Stoltz (and who would stake our community’s future on that happening?), the community cannot expect the Courts to uphold and enforce an unwritten, subjective administrative policy for which there is no support in the Code and which has not been consistently applied.

“Our community is being played like a fiddle. If there is any money to be made in real estate today, it’s in commercial retail development. There’s a very limited market for new office or residential space. The 1.7M “compromise plan” allows Stoltz to immediately build the commercial retail buildings — a half-sized Christiana Mall — without ever building any office space. In the 2.8M “original plan” — because it’s filed as mixed use — Stoltz MUST BUILD ~3 square feet of office and 1.4 square feet of residential for every 1.0 square feet of commercial retail built. The proportional buildout of all classes of space at the same time is a requirement of the mixed use designation. Will Stoltz want to build office and residential space they can’t sell? Would Stoltz ever have “agreed” to the 1.7M plan if they had an economically viable 2.8M plan? Which plan BAILS OUT Stoltz’s investors?”

Again, where are the Code citations for these figures? The mixed-use section of the Code allows mixed-use in OR zoned districts to contain commercial space of up to 25% of the total square footage in the project. The Code requires mixed-use in OR zoned districts to contain at least 50% of office space and 25% of residential. This creates a ratio of 1-1-2 for plan approval purposes. But the Code does not state that, for every one foot of approved commercial space constructed, one foot of residential must concurrently be constructed and two feet of office must concurrently be constructed. And there is simply no basis in the Code for the assertion that every 1 square foot of commercial space approved in a mixed-use project requires 3 square feet of office space and 1.4 square feet of residential space.

Where is the logic behind these speculations? Barley Mill Plaza already contains over 1.1MM square feet of existing office space, much of which continues to be occupied by DuPont, so even if (hypothetically) a construction concurrency requirement were to be imposed and could be enforced, there is no need for new office space to be constructed in order to build and operate the first 275,000 square feet of a strip shopping center along Route 141. Stoltz (or any builder that buys the approved plans for a 2.8MM square foot mixed-use project from Stoltz) can simply demolish 550,000 square feet of existing office, leaving over 550,000 square feet of office space in use to satisfy the imaginary concurrency requirement for 275,000 square feet of retail space. In addition to constructing a 275,000 square foot strip shopping center, Stoltz (or his buyer-builder) can also immediately proceed to construct at least 275,000 square feet of inexpensive, low-income apartments, for which the market is currently “hot.” This satisfies any alleged (but, again, not required in the Code) “proportionality” requirement of 1 square foot of retail and 1 square foot of residential for every 2 feet of office. As the market improves over time, the full build-out will occur: up to 700,000 square feet of shopping center, at least 700,000 square feet of apartments, and 1,400,000 square feet of offices. Should we as a community risk the long-term future of our community on short-term obstacles created by the recession?

THE CHOICES ARE CLEAR:

– A COUNCIL VOTE FOR THE 1.7M PROPOSAL AND THE REQUESTED COMMERCIAL REZONING guarantees a half-sized Christiana Mall at Barley Mill Plaza. Our community will be lost forever. And once the first 500,000 square feet of commercial retail is in place, you can bet that Stoltz or successor developers will come back and try for even more on the remaining 60% of the site.

Will our community not be even more lost if Stoltz builds a mixed-use project the size of the combined King of Prussia Malls? A County Council vote against the proposed rezoning clears the way for a King of Prussia size project which will eventually contain a 700,000 square foot strip shopping center, 700,000 square feet of apartments and 1,400,000 square feet of office space. There will be no deed restrictions protecting the community against future changes including 180 foot high buildings. A County Council vote for the rezoning guarantees that the threatened shopping center will never be larger than 454,000 square feet and that the remaining 60% of the site (which is not being rezoned) can never be rezoned or developed for anything other than office and associated uses allowed in office – no apartments.

-A COUNCIL VOTE AGAINST THE REZONING STOPS THE 1.7M PLAN AND GIVES THE COMMUNITY A CHANCE TO GET STOLTZ TO THE BARGAINING TABLE, AND, FOR THE FIRST TIME, TO GET OUR COMMUNITY FULLY REPRESENTED. Stoltz’s threatened option — the original 2.8M Proposal — HAS A VERY IMPORTANT REQUIREMENT. To build its prized commercial retail space, it has to build residential and office space AT THE SAME TIME — residential and office space they likely can’t sell. Interesting, isn’t it?

There is no basis in the Code for this assertion. If the County denies the rezoning, why would Stoltz come back to the bargaining table with those in the community who rejected the compromise he negotiated with the County Executive? Releasing him from the compromise and freeing him to obtain approvals for the 2,800,000 square foot mixed use project does not put Stoltz at the mercy of the community. Stoltz does not need community support or County Council’s vote to get approval for his mixed-use plans. With that approval he can immediately build 275,000 square feet of strip shopping center, put up 275,000 square feet of apartments, and continue using 550,000 square feet of existing office space for DuPont or replacement tenants. That amount of construction will take several years. He can simply ignore the community as the economy gradually improves and market forces allow completion of the full build-out. The dream that he will somehow be forced to bargain with the Save Our County Coalition and made to abandon any retail development is simply not grounded in reality.

Read on for more details…

1) Both the 1.7 million square foot “compromise plan” and the 2.8 million square foot “original plan” are out of character for our community. Here is the information on each, as drawn from the plans on file:

 

 Square Footage  1.7M Plan  2.8M Plan
 Retail  454,000  495,000 (actually 695,000)
 Office  1,200,000  1,400,000
 Hotel  None (untrue; small hotel is allowed)  200,000 (allowed as part of 695,000 square feet, but not required)
 Residential  none  700,000


Each plan calls for almost 500,000 square feet of commercial retail development, half the size of the Christiana Mall. (Untrue: 454,000 is 10% less than 500,000 and 695,000 is nearly 20% more) In addition to destroying the character of the 141 corridor, these plans will cause massive cannibalization of existing retail businesses along the Concord Pike, Kirkwood Highway and in the City of Wilmington, among others, adding blight and increased need for County services. We already have vacant storefronts pock-marking our commercial corridors. Building more commercial retail will only mean more vacancies that will hurt existing business owners. And neither plan addresses the significant traffic issues from these proposed projects.

Exactly the same heartfelt arguments were made by the residents who live near the Route 40/Route 7 intersection. They pointed out how a new center would cannibalize existing ones, simply move clerkship jobs from one store to another, and generate intolerable traffic. But within the past six weeks County Council voted for the shopping center to generate quick construction jobs and retail clerk jobs. What makes anyone in our community think that the 11 County Council members who represent less affluent districts are going to bend over backwards to support ours?

Traffic issues have not yet been addressed by either plan because County Code does not require it. However, the deed restrictions negotiated by CRG give it and its traffic engineers a place at the table with Stoltz and DelDOT when traffic issues are addressed. If the rezoning is denied, then Stoltz can ignore the deed restrictions and traffic issues will get resolved without the public having a seat at the table.

Save Our County Coalition suggested letter:

[Subject] Deny Rezoning at Barley Mill Plaza]

[Body] Dear Members of New Castle County Council:

As a County resident, I am writing to express my strong objection to Stoltz’s proposed rezoning of Barley Mill Plaza to Commercial Regional use. [In fact the rezoning involves 37 acres, leaving 59 acres zoned Office Regional]

Today, Route 141 from Faulkland Road to Fairfax, a distance of 5 miles, is 100% office, residential and institutional. Stoltz is proposing a stripmall half the size of Christiana Mall on a road that travels through the Brandywine Valley Scenic Byway. [Omitted is mention of the fact that the proposed rezoning will result in a much smaller strip center than the pending mixed-use plans that Stoltz will get approved “by right” if the rezoning is denied.] This proposal is inconsistent with the character of the area and the long-standing uses of neighboring properties, and will have a significant, negative impact on the broader community. [Omitted is mention of the fact that an even larger “by-right” mixed-use shopping center will have an even greater negative impact.]

In addition to destroying the character of the Route 141 corridor, this plan, if approved, will cause massive cannibalization of existing retail businesses along the Concord Pike, Kirkwood Highway and in the City of Wilmington, among others, adding blight and the need for increased County services. [Denying the rezoning will simply pave the way for a much larger shopping center and will lead to even more cannibalization]

Section 40.31.410 of the County Code specifies the criteria for zoning changes. The Stoltz proposal clearly fails the criteria as affirmed by the independent County Planning Board on June 21 when it recommended AGAINST rezoning. [Again, no mention of the fact that denying the rezoning releases Stoltz from the compromise, not only at Barley Mill Plaza but also at Greenville Center. How does that protect the scenic byway? Or the character of the community?]

Barley Mill Plaza can be developed in a balanced, responsible way that attracts jobs and enhances our community without a zoning change. [Sounds lovely, but denying the rezoning will not make Stoltz sit around waiting for this wishful thinking to come true. He will simply proceed with the much larger mixed use project] I request this application be denied. [Unmentioned is the fact that a vote against the rezoning is a vote for releasing Stoltz from the compromise and proceeding with his mixed-use King of Prussia size project at Barley Mill Plaza and Rollins Building tower at Greenville Center.]

 

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