SPECIAL UTILITY COMMITTEE
A Special Utility Committee meeting was held on December 11, 2007 at 4:30 p.m. with Chairman Ruane presiding. Members present were Mr. Leary, Mr. McGiffin, Mr. Cregar, and Mr. Snaman.
AGENDA ADDITIONS/DELETIONS
Mr. Snaman moved for approval of the agenda, seconded by Mr. Leary and unanimously carried.
Appendix B - Zoning Ordinance, Article 3 - District Regulations, Section 29 - Source Water
Protection Overlay Zone (SWPOZ), Section 29.7 - Tier III (Continued from Meeting of November 27, 2007)
During their meeting of November 27, 2007, members began a review of Section 29.7 - Tier III, of Article 3 - District Regulations, Section 29 - Source Water Protection Overlay Zone (SWPOZ) of Appendix B - Zoning Ordinance. Due to time constraints, members deferred their review of the proposed zoning text amendment to be continued during a Special Meeting at this time and place.
Mrs. Townshend, Director of Planning and Inspections, provided members with a revised draft of Section 29.7 - Tier III, of the Dover’s Source Water Protection Overlay Zone, which included recommendations of the committee as a result of their last meeting, and reviewed the proposed text amendment in detail. She reminded members that during their last meeting, there was much discussion regarding Section 29.72 and that staff has reviewed the material and developed more appropriate language. In addition, Mrs. Townshend stated that the word “mitigation” in Section 29.711, should be replaced with the word “compensation”. As a result of a meeting with engineering and real estate representatives, she stated that staff added Section 29.710, Special Environmental Considerations; however, the phrase “to the affected areas” should be added to the end of the first sentence.
Responding to Mr. Snaman, Mr. Koenig, Public Services Manager, stated that there is no indication that the ground water under the downtown area is in jeopardy because the water is coming from the confined aquifer and not the shallow unconfined groundwater area. There are several sites in the downtown area that have affected the very shallow groundwater area, that would be the unconfined groundwater area; however, that is not where the drinking water is coming from. He stated that any problems downtown are not affecting the groundwater supply at this point. If there is no problem, Mr. Snaman questioned the need to institute these requirements to the downtown area. Mr. Koenig explained that the requirements of the ordinance for the downtown area would effectively, over time, either reclaim areas that are currently impervious and turn them into pervious or it would allow the City to purchase excellent recharge areas in other parts of the region. He stated that, over time, the downtown condition would essentially migrate, through development, to a condition that would be better for regional water resources than it is today.
Noting that the City has put a lot of effort, time, and money into the redevelopment of the downtown, Mr. Cregar felt that the regulations would impede these efforts and questioned why this area could not be exempt from the regulations. Mr. Koenig stated that the compensation portion, under Section 29.79, has been recommended as an advocate for water utility and resources. Mrs. Townshend reminded members that the initial draft ordinance had an exemption for the downtown area. Although the exemption concept remains, it was felt that the proposed compensation is a way that would not impede development and at the same time includes all areas in the requirements. She noted that there is precedent in the Code that provides for different treatment of the downtown area.
Responding to Mr. McGiffin, Mrs. Townshend stated that it is the opinion of the City Solicitor that it would be a legally defendable position to exempt the downtown area based on the Comprehensive Plan and other precedence within the Dover Code.
Mr. John Barndt, Program Manager for Source Water and Wellhead Protection Programs for the Department of Natural Resources and Environmental Control (DNREC), stated that the development process of the proposed ordinance has been commendable, which has resulted in several changes that are both pragmatic and protective of the resource. With regards to exempting the downtown area, he stated that there were legal concerns; however, he noted that the City Solicitor has indicated assurance in this regard.
In response to Mr. Ruane, Mr. Barndt stated that Kent County has recently begun the process of developing an ordinance, which is currently very similar to the City’s. At this time, he does not have an opinion as to the effect any exemption would have with Kent County.
Mr. Greg Moore of Becker Morgan Group, representing the Greater Dover Committee, indicated his support for providing an exemption for the downtown area, feeling that otherwise, the proposed ordinance would jeopardize the downtown and would lose the need to redevelop. The Sections of the proposed ordinance that provide for cash-in-lieu would actually provide disincentives to redevelopment of older buildings and provide incentives to take the redevelopment dollars towards new properties and expand, thus creating sprawl. On behalf of the downtown, he requested that members provide an exemption for the downtown area. As a representative of Bayhealth, he relayed concern with the requirements proposed for the downtown if the area is not exempted.
Responding to Mr. Moore, Mrs. Townshend stated that a stormwater management pond that is wet would not be considered impervious. Mr. Moore requested that the ordinance include language that would specify this fact. Mrs. Townshend suggested that, separate from the ordinance, a definition for impervious surface be added to the zoning ordinance.
As a representative of Dover Downs and Delaware State University, Mr. Moore noted that these institutions are the single largest land owners in the excellent recharge areas on Route 13. At one point, these areas were also exempted; however, the exemption was removed when the downtown exemption was removed. Each of these institutions believe that the maximum impervious coverage limits will affect the continuation of their institutions. He explained that the Dover Downs property contains two (2) separate operating entities, the casino operation and the Nascar operation. The Nascar property is wholly in the excellent recharge area and is not completely developed. Mr. Moore stated that Dover Downs is concerned that, over time, the imposition of 60% maximum will limit their ability to develop some of the undeveloped parcels and meet Nascar or market requirements to sustain a competitive advantage. He noted that Section 27.77, Master Plans, does not provide for any credit for directing water from the tier 2 areas and infiltrating it to the tier 3 areas. He questioned the possibility of providing some flexibility to Section 27.77 that would allow for additional buildable areas. He explained that big properties such as Dover Downs and Delaware State University are looking for this type of flexibility in site plan and master planning.
Responding to Mr. Ruane, Mr. Moore stated that until the last committee meeting, both Dover Downs and Delaware State University were under the impression that they were exempt. The comment on the Master Plan Section is a result of the response from the Corporate Attorney for Dover Downs. Mrs. Townshend advised members that there are currently two (2) separate Master Plans for Dover Downs, one (1) for the casino/hotel operation and another for the speedway, which have been approved and are, therefore, not subject to the proposed ordinance. She stated that, in the future, Dover Downs could submit one (1) Master Plan for all of their land holdings.
Mr. Moore requested that Section 27.77 be amended to include language that would allow for the City Planner and City Engineer to have the opportunity to increase the impervious an additional 15% if the Master Plan can demonstrate superior infiltration design that would meet the intent of the Dover Code.
Mr. Koenig explained that the goal of the proposed ordinance is to preserve the amount of water that enters the ground, to preserve the resource; therefore, he did not have any objections to the request for such an amendment.
Responding to Mr. Moore, Mr. Ruane reiterated that the intent of members is that a stormwater management pond that is wet would not be considered impervious.
Mr. Phil McGinnis, Kent County Association of Realtors, indicated support for the proposed ordinance, with consideration of the comments and concerns relayed by Mr. Moore. Should members not include an exemption for the downtown area, he relayed concern with the use of the City’s assessment of property, as indicated in Section 29.79(a), due to many of these assessments being higher than the market value; therefore, an appraisal done by a qualified, certified appraiser would be preferred. He suggested that the third, fourth, and fifth sentences of Section 29.79(a) be deleted and replaced with the following: “Payment-in-lieu of land easement shall be permitted and such payment shall be made prior to the issuance of a certificate of occupancy. Such cash payment shall be determined by either a qualified appraisal (conforming to Delaware Statute for real estate valuation) submitted by the applicant at the applicant’s expense or the City’s assessed value of the underlying land as affected by the ordinance. The amount of the cash payment shall be calculated by multiplying the appraised value of the underlying land times a rate, which shall be the difference between the percentage of impervious cover of the lot minus 60%. For example, a property with 70% impervious cover would be required to pay a cash donation of 10% of the underlying land value prior to the applicant receiving a certificate of occupancy.” He stated that the sixth sentence beginning with “Money paid to . . .” and thereafter would remain.
There being no objections, Mr. Ruane called for a 5-minute recess to allow staff to consider the suggestions and develop amendments if deemed appropriate.
Meeting Recessed at 5:20 p.m. and Reconvened at 5:28 p.m.
Mr. McGiffin moved to recommend that in Section 29.79, the word “mitigation” be changed to “compensation”, seconded by Mr. Leary and unanimously carried.
Mr. Snaman moved to recommend that the phrase “to the affected areas” be added to the end of the first sentence of Section 29.710. The motion was seconded by Mr. Leary and unanimously carried.
Referring to Section 29.77, Mr. Koenig stated that staff is proposing to add the following to the existing paragraph: “On a site development Master Plan, when the City Engineer certifies that the project utilizes superior infiltration design that maximizes groundwater recharge, impervious cover may be increased to 75%”. He requested the opportunity to evaluate this sentence between now and consideration of the proposed ordinance by Council. Responding, Mr. Ruane felt that this assumption would be for all of the proposed changes being recommended.
Mr. McGiffin moved to recommend that the following sentence be added to Section 29.77: “On a site development Master Plan, when the City Engineer certifies that the project utilizes superior infiltration design that maximizes groundwater recharge, impervious cover may be increased to 75%”. The motion was seconded by Mr. Snaman and unanimously carried.
With reference to Section 29.79(a), Mrs. Townshend submitted an amendment, substituting the third, fourth, and fifth sentences as recommended by Mr. McGinnis.
Mr. Leary moved to recommend striking the third, fourth, and fifth sentences of Section 29.79(a), from “Payment-in-lieu...” through “...development application”, seconded by Mr. Snaman and unanimously carried.
For clarification, Mr. McGiffin suggested that the proposed rewording for Section 29.79(a) be amended by deleting the word “either” and including, in the second sentence, after “applicant’s expense or” the words “absent an appraisal”.
Mr. McGiffin moved to recommend that the third, fourth, and fifth sentences of Section 29.79(a) be replaced with the following: “Payment-in-lieu of land easement shall be permitted, and such payment shall be made prior to the issuance of a certificate of occupancy. Such cash payment shall be determined by a qualified appraisal (conforming to Delaware Statute for real estate valuation) submitted by the applicant at the applicant’s expense or, absent an appraisal, the City’s assessed value of the underlying land. The amount of the cash payment shall be calculated by multiplying the appraised value of the underlying land times a rate which shall be the difference between the percentage of impervious cover of the lot minus 60%. For example, a property with 70% impervious cover would be required to pay a cash donation of 10% of the underlying land value prior to the applicant receiving a certificate of occupancy.” The motion was seconded by Mr. Cregar and unanimously carried.
Responding to Mr. Leary, Mr. Koenig stated that there are parcels in the downtown area that exceed two (2) acres.
Mr. Ruane relayed his concurrence with staff’s position in regards to this matter and reminded members of stewardship responsibilities that would be inclusive of property owners in the downtown area. It was his feeling that the language that staff has proposed allows for an exemption based on size and provides for a method to compensate in lieu of having the required abilities.
Mr. Cregar moved to recommend that Section 29.79, Downtown Target Area, be struck and replaced with the following wording: “Section 29.79, Downtown Redevelopment Target Area. The Downtown Redevelopment Target Area as defined in Appendix C, Article II, Section 3 [Target Area] of the City of Dover Code of Ordinance shall be exempt from the requirements and restrictions of the Source Water Protection Overlay Zone. The motion was seconded by Mr. Leary and carried with Mr. Ruane voting no.
Mr. McGiffin moved to recommend that the proposed ordinance, as revised (Attachment #1), be forwarded to City Council for consideration during their Regular Meeting of January 14, 2008 for a First Reading and referral to the Planning Commission and setting of a public hearing before City Council. The motion was seconded by Mr. Leary and unanimously carried.
Mr. Snaman moved for adjournment, seconded by Mr. Cregar and unanimously carried.
Meeting Adjourned at 5:51 P.M.
Respectfully submitted,
Eugene B. Ruane
Chairman
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Attachments
Attachment #1 - Revised Proposed Ordinance, Section 29.7 (Tier 3, Excellent Recharge Areas)