SPECIAL UTILITY COMMITTEE
A Special Utility Committee meeting was held on November 6, 2007 at 5:00 p.m. with Chairman Ruane presiding. Members present were Mr. McGiffin, Mr. Cregar, and Mr. Snaman. Members of Council present were Mr. Salters (arrived at 5:25 p.m.) and Mayor Carey.
AGENDA ADDITIONS/DELETIONS
Mr. Snaman moved for approval of the agenda, seconded by Mr. McGiffin and unanimously carried.
Appendix B - Zoning Ordinance, Article 3 - District Regulations, Section 29 - Source Water
Protection Overlay Zone (SWPOZ) (Referred by City Council on October 22, 2007)
During the Regular Council Meeting of October 22, 2007, a public hearing was scheduled to consider the adoption of proposed zoning text amendments that would establish a Source Water Protection Overlay Zone (SWPOZ), which affects over 500 parcels within the City. It was noted that the proposed ordinance was reviewed by the Parks, Recreation, and Community Enhancement Committee during their meeting of October 9, 2007. Based on several comments and other discussions that occurred since the Planning Commission meeting on October 15, 2007, it was staff’s opinion that providing for an exemption may not be the best alternative to address impervious cover limitations, and suggested the possibility of balancing important economic development factors with the protection of the recharge areas. Staff recommended that the proposed ordinance be referred to the Utility Committee and that a Public Hearing be rescheduled for January 14, 2008, to allow staff and the Utility Committee to work through these issues to bring forward an ordinance that addresses the concerns realistically. Members of City Council, during their meeting of October 22, 2007, deferred the public hearing for the proposed zoning text amendment and referred the ordinance amending Article 3 - District Regulations, Section 29 - Source Water Protection Overlay Zone (SWPOZ), of the Zoning Ordinance, to the Utility Committee in order to reconsider protective land use policies to protect Dover’s excellent water recharge areas and its well-heads and to present a revised ordinance to City Council for public hearing on January 14, 2008.
Members were provided a draft ordinance that depicted changes recommended by the Planning Commission (red text) and Parks, Recreation, and Community Enhancement Committee (blue text).
Mr. Koenig, Public Services Manager, reviewed a presentation of the Dover’s Source Water Protection Overlay Zone (Attachment #1).
Mrs. Townshend distributed an alternative draft ordinance entitled “Wellhead Protection Only” (Attachment #2), and explained that if members are not able to come to a consensus regarding the excellent recharge areas at this time, the alternative could be considered. She explained that the State is requiring the City to adopt the Overlay Zone prior to the end of the year and felt that the alternative may satisfy the requirement at this time.
Responding to Mr. McGiffin, Mr. Barndt, Program Manager for Source Water and Wellhead Protection Programs for the Department of Natural Resources and Environmental Control (DNREC), explained that the definitions for hazardous substances were derived from the record program which is defined by the federal government and includes certain quantities. If there are quantities below a certain threshold, they would not be reportable. He stated that there are specific citations that could be included to clarify hazardous substances.
Mr. McGiffin moved to recommend that staff clarify the application of the phrase “hazardous materials and substances”. The motion was seconded by Mr. Snaman and unanimously carried.
Mrs. Townshend assured members that staff will use the definitions provided by the State that references the proper amounts.
In response to Mr. Scott Kidner, representing local realtors, Mrs. Townshend explained that any property owners that would be affected by either the excellent recharge area or the wellhead protection area have been notified by mail twice to date. Although comments have not been received from the property owners within the wellhead protection areas, staff has received comments from the property owners within the excellent recharge area.
Responding to Mr. Ruane’s concern for clarification of Subsection 29.87, Boundary Disputes, Mrs. Townshend suggested that “within primary wellhead protection areas” could be added.
Mr. Snaman moved to recommend that staff clarify Subsection 29.87, Boundary Disputes, by including language that specifies that the boundary disputes were specific to the primary wellhead protection areas. The motion was seconded by Mr. McGiffin and unanimously carried.
Mr. Phil McGinnis, McGinnis Commercial Real Estate Company, noted that the “blue” area on the map overlaps the Garrison Property and questioned if the blue area represents the area of the set back from the wells. Responding, Mr. Koenig explained that the blue areas represent the wellheads and from there, you begin to measure your protective measures.
For further explanation, Mr. Barndt stated that the blue area is what is regarded as the entire wellhead protection area for those shallow unconfined wells, which have a much larger wellhead protection area than the confined wells since the confined wells are regarded as naturally protected by overlaying confining layers. He indicated that the setbacks are less than the official wellhead protection area that DNREC delineated for the City.
Mr. Michael Albert, City Planner, advised members that with the Tier 2 areas, what should be kept in mind is that they pertain to the 300-500 foot radius buffered areas around the wells. Everything in Section 29.8 is specific to that radius. The blue and green areas from the recharge all count as the overlay zone; therefore, the areas mentioned in Sections 29.1, 29.2,29.3, 29.4,29.5, and 29.6, pertain to both the green and blue areas. The Tier 1 section is a breakdown of more specific matters around the wells; however, the use restrictions apply to the mile radius around the wells.
Responding to Mr. Moore, Becker Morgan Group, Mrs. Townshend explained that the alternative proposed ordinance, if forwarded for adoption, would require the green areas to be removed from the map and the excellent recharge areas text removed from the ordinance. She noted that the alternative proposed ordinance reserves Section 29.7 for the excellent recharge areas and that when it is adopted, the green areas would be added to the map.
Mr. Moore explained his interpretation of Subsection 29.81(a) that the tier 2 areas (blue areas) will be designated as open space and would, therefore, be unbuildable, and that the government plans to purchase these areas. He questioned if the City of Dover, Kent County, or DNREC intends to purchase these properties. Responding, Mrs. Townshend stated that Subsection 29.81(a) is a policy statement indicating the City’s desire for these areas to be preserved. Developers would be permitted to develop these areas as long as they are in compliance with Subsections 29.82, 29.83, 29.84, 29.85, 29.86, and 29.87.
Mr. Paradee, Attorney with the law firm Pricket, Jones, and Elliott, stated that he represents clients that own property in the tier 2 areas and relayed concern with reference to the areas being designated as open space, as specified in Subsection 29.81(a). If this concept is a policy statement, he suggested that members eliminate it from the ordinance and adopt a resolution, since an ordinance has a force and effect of law. Mr. Paradee suggested the deletion of 29.81(a) in its entirety. With reference to the language regarding hazardous waste, he noted that there are other areas within the ordinance where similar language has been used. He suggested that staff review the proposed ordinance to assure the language is uniform throughout.
Mr. Paradee noted a recent decision by Chancellor Chandler relative to overlay zones being in violation of the uniformity requirements in Title 9 and Title 22 of the Delaware Code. Responding, Mrs. Townshend stated that the City Solicitor has reviewed the proposed ordinance and, since the State Code is requiring the City to adopt the overlay zones, it was the City Solicitor’s opinion that there would be no issues. She stated that this is an area where there is conflict within the Delaware Code. She assured members that it is the opinion of the City Solicitor that the City should move forward with the consideration of the proposed ordinance.
Responding to Mr. McGiffin, Mrs. Townshend stated that Subsection 29.81(a) does not provide the City with any additional regulatory authority; however, it does provide a statement of policy. She noted that staff is beginning to work on the Comprehensive Plan and suggested that if this statement is eliminated from the proposed ordinance, staff will include it in the Comprehensive Plan.
Mrs. Townshend stated that if the committee recommends that Council move forward with the alternative ordinance, Wellhead Protection Only, then staff would revise the map by eliminating the green areas.
Ms. Casey, Treasurer for the State Home Builders Association, concurred that Subsection 29.81(a) should be eliminated from the proposed ordinance and that such a policy statement should be included in the Comprehensive Plan.
Mr. Snaman moved to recommend that Subsection 29.81(a) be deleted, seconded by Mr. McGiffin and unanimously carried.
Mr. McGiffin moved to recommend adoption of the alternative proposed ordinance, as amended (Attachment #3), and that a public hearing be scheduled accordingly (It is recommended that a public hearing be set for November 26, 2007, at 7:30 p.m.) The motion was seconded by Mr. Snaman and unanimously carried.
Mr. Ruane announced that members will further consider the Tier 3, Excellent Recharge Areas (Section 29.7 of the proposed ordinance amendment) during the Utility Committee Meeting on November 27, 2007 at 4:30 p.m.
Mr. Snaman moved for adjournment, seconded by Mr. McGiffin and unanimously carried.
Meeting Adjourned at 6:34 P.M.
Respectfully submitted,
Eugene B. Ruane
Chairman
EBR/TM/jg
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Attachments
Attachment #1 - Presentation of the Dover’s Source Water Protection Overlay Zone
Attachment #2 - Alternative Draft Ordinance, entitled “Wellhead Protection Only”
Attachment #3 - Proposed Ordinance (without Section 29.7, Tier 3 - Excellent Recharge Areas)