REGULAR COUNCIL MEETING
The Regular Council Meeting was held on March 14, 1994 with Council President Christiansen presiding. Council members present were Mr. Lambert, Mr. Tudor, Mr. Leary, Mr. Pitts, Mrs. Malone, Mr. Hutchison, Mr. Salters and Mr. Hare.
Council staff members present were Chief Smith, Mr. Lucas, Mr. O'Connor, Mr. DePrima, Chief Osika, Mrs. Boaman and Mr. Rodriguez.
OPEN FORUM
The Open Forum was held at 7:15 p.m., prior to commencement of the Official Council Meeting. Council President Christiansen declared the open forum in session and reminded those present that Council is not in official session and cannot take formal action.
There was no one present wishing to speak during the Open Forum.
The invocation was given by Rabbi Goldblum, followed by the Pledge of Allegiance.
AGENDA ADDITIONS/DELETIONS
Mr. Hare moved for approval of the agenda, seconded by Mrs. Malone and unanimously carried.
ADOPTION OF MINUTES - REGULAR COUNCIL MEETING OF FEBRUARY 28, 1994
The Minutes of the Regular Council Meeting of February 28, 1994 were unanimously approved by motion of Mr. Leary, seconded by Mrs. Malone and bore the written approval of Mayor Knopf.
ADOPTION OF MINUTES - QUARTERLY OPEN TOWN MEETING OF MARCH 7, 1994
The Minutes of the Quarterly Open Town Meeting of March 7, 1994 were unanimously approved by motion of Mr. Hutchison, seconded by Mr. Leary and bore the written approval of Mayor Knopf.
PRESENTATION BY POLICE DEPARTMENT - COUNCILMAN HARE
In recognition of the many hours spent by Councilman Hare as a ride-a-long with City Police Officers, Chief J.R. Smith presented Councilman Hare with a certificate that reads as follows, "The City of Dover Police Department awards the position of honorary Police Officer to Councilman William Hare in recognition of his support and assistance to the Dover Police Department".
Councilman Hare relayed his appreciation for the recognition. He suggested that other members of Council participate as he did, stating that it is enlightening to see our Police Department at work. He conveyed his utmost appreciation for the excellent work of the City officers and the excellent work they do for the citizens of Dover.
PUBLIC HEARING - ABANDONMENT OF ALLEY - GREGORY GRIFFIN
A public hearing was duly advertised for this time and place to consider abandonment of an unimproved alley, running east to west on the north side of 28 N. Kirkwood Street. The request for alley abandonment was made by Mr. Gregory Griffin. The Planning Commission and Utility Committee recommended approval of the abandonment request.
Council President Christiansen announced that the request for alley abandonment has been withdrawn by Mr. Gregory Griffin. No action by Council was necessary.
PUBLIC HEARING - ABANDONMENT OF ALLEY - MATTHEW SMITH
A public hearing was duly advertised for this time and place to consider abandonment of an unimproved alley, running parallel to W. Division Street and intersecting N. Kirkwood Street on the east side. The request for alley abandonment was made by Mr. Matthew Smith.
Mr. DePrima, City Planner, explained that Mr. Smith is planning an expansion to his residence and that additional property is necessary. To afford Mr. Smith the property necessary to meet the City's setback requirements, he has requested abandonment of an adjacent alley. Mr. DePrima stated that this portion of the alley has never been opened or improved and the alley is generally used by adjoining neighbors as a part of their yard and is not used for vehicular access. The Planning Commission and Utility Committee recommended abandonment of the alley. It is noted that the City's policy for alley abandonment mandates that the alley be abandoned equally to all adjoining property owners desiring the additional property.
Council President Christiansen declared the public hearing open.
Mr. Robert Jones, trustee for the Holy Tabernacle, stated that he believes the property owners already own the area referred to as an alley. He conveyed that their deed states that their property joins to the property of his neighbor and makes no mention of an alley.
Since there was no one else wishing to speak on the subject, Council President Christiansen declared the public hearing closed.
Due to questions on legal ownership of the alley, Mr. Tudor moved to table the matter for further review by City staff and a report at the next Council Meeting. The motion was seconded by Mr. Lambert and unanimously carried.
PUBLIC HEARING - REZONING OF PROPERTY LOCATED NORTH OF MAPLE DALE ROAD - CITY OF DOVER AND MAPLE DALE COUNTRY CLUB
A public hearing was duly advertised for this time and place to consider rezoning of property located north of Maple Dale Road and east of Dover Kenton Road, owned by the City of Dover and Maple Dale Country Club.
City Assessor Lucas stated that this property was acquired by the City in 1970 in exchange for a 12" water line that was to run in front of the Maple Dale Country Club (MDCC) property. At one time, the City envisioned the placement of a water storage tank at this location, but this idea was abandoned and the tank was placed elsewhere. The value of the exchange at that time was determined to be $9,000. Since 1970 it has remained vacant and unused. Approximately 18 months ago, representatives of the MDCC approached the City to determine if the City would consider selling its parcel to MDCC. They intended to reunite the City's two acre parcel to their two acre parcel and to develop the property into residential homes. The City held a public hearing on the proposed sale, with no opposition entered into the record. The City entered into an Agreement of Sale with MDCC on April 26, 1993, contingent upon proper residential rezoning and lifting of the deed restrictions related to development.
Correspondence
The City Clerk reported that petitions in opposition have been received. According to the City Assessor, more than 20% of property owners within 100' of the parcel to be rezoned, have petitioned in opposition. Therefore, in accordance with 22 Del. Code Section 305, the zoning amendment shall become effective with a three-fourths vote of the legislative body of the municipality.
Council President Christiansen read into the record the following correspondence from City Solicitor Rodriguez:
"Confirming our telephone conversation of March 9, 1994, when this rezoning application is heard by Council, it is my recommendation that the Council persons who are Maple Dale members/stockholders should disqualify themselves from voting. There is no question in my mind that these Council persons would vote with the interest of the citizens of Dover in primary focus but the outward appearance is that they are members of the applicant - Maple Dale. They certainly stand to receive no financial gain but the outward appearance of the matter leads me to believe that they should not vote where they are members and stockholders of the applicant.
The question that arises if three Council persons disqualify themselves from voting, what happens if the application is opposed which requires approval of "three-fourths of all members of the legislative body of the municipality" to approve the zoning application. 22 Del. C. §305. In such a case, I think this must be taken to mean all members of Council who are qualified to act which seems to be universal interpretation by the courts. 4 McQuillin, Municipal Corporations, Sec. 13.27 (b), page 702. This would mean that six Council persons would be qualified to vote on the application and in order to have passage, five affirmative votes would be necessary.
Very truly yours,
NICHOLAS H. RODRIGUEZ"
Planner's Review
To the north and west of the site are lands zoned RM-2 (Medium Density) which have been developed into a low to medium density development known as The Retreat. North and east of the site are lands zoned R-C (Recreation & Commercial) which consists of the lands comprising Maple Dale Country Club and Golf Course. Further east are lands zoned R-10 (One Family Residence) which form the single family developments of Foxhall and The Woodlands of Foxhall. To the south and southwest are lands outside the City Limits which are zoned AC/AR (Agriculture) which have been developed in a low density pattern of lots fronting on Kenton and Fire School Roads. Further south are lands zoned R-8 (One Family Residence) which comprise the single family developments of Westfield and Fox Hall West.
The 1986 Comprehensive Plan Update recommends that this property be utilized for Open Space purposes. Its placement in this land use is due to its association with Maple Dale Country Club.
The Plan submitted with the application for rezoning conceptualizes a four (4) lot single family subdivision of the property. The Conceptual Plan would involve an average lot area of 1.0 acre +/-. The four (4) lot subdivision is shown for illustrative purposes to give a sense of what might happen with the property if the rezoning is granted.
The R-10 zone was originally recommended to the applicants because it seemed to fit well within the single family development pattern of the area. As a result, the application is for an R-10 zone which requires a minimum lot area of 10,000 sq. ft. After making the R-10 recommendation several adjoining property owners contacted the Planning Department and expressed concern over the development potential of the R-10 zone and have indicated a general acceptance of the concept of a low density subdivision for the property. At that time the applicants indicated that they had no difficulty with an R-20 zone which requires a minimum lot area of 20,000 sq. ft., a minimum lot width and street frontage of 120 feet and would limit the development to four or possibly five lots. Therefore, the staff recommended an R-20 zone to the Planning Commission.
At the Public Hearing two important presentations were given. First, the applicant requested that the property be rezoned to R-15 and presented a development plan that showed five lots, the purpose of the R-15 zoning would be to allow less side yard requirements that would yield larger homes on the lot.
Second, representatives of surrounding neighbors stated that they were opposed to the rezoning and sale of the city portion of the property because it was needed for the recreation needs of the area's children. At that time it was stated that the neighbors were working on a plan to take over the maintenance of the city property.
Given the open space designation of the Comprehensive Plan, the large lots that are adjacent in The Retreat, and after consideration of the various comments from area residents and discussions with the applicants to better define their intentions for this property, the Planning Commission recommends that the property be rezoned to R-15 (One Family Residence) with the condition that the development be limited to five building lots as presented. It was noted during the discussion of the motion that the Planning Commission was not taking a position on whether the area should be made into a city park because this is not a matter of the zoning since parks would be allowed in either zone. In addition, the necessary information to determine whether a park was needed was not fully presented to the Commission or supported by the recreation department. It was further noted that the 10% parkland set aside requirement would be discussed as a part of the subdivision process.
Public Hearing
Council President Christiansen declared the hearing open.
Mr. Michael Malkiewicz, attorney representing MDCC, spoke in favor of the proposed rezoning. He relayed that he believes he is speaking for the majority of the MDCC membership which includes over 400 families. At the request of Mr. Malkiewicz, several members of the audience displayed their support of the rezoning by raising their hands. He stated that although there are a few MDCC members that are opposed to the project, they are those that live near the parcel who wish it to remain as undeveloped, open space.
Mr. Malkiewicz submitted an exhibit package that included passages from the MDCC By-Laws, which he feels clearly allows the Board of Directors to make the decision to purchase and resell the land. The By-Laws have a provision that if a member is dissatisfied with actions of the Board they may a register a complaint for consideration. To date, no written complaints have been received. Mr. Malkiewicz also submitted a petition of signers favoring the proposed rezoning.
Referring to a map depicting the property owned by MDCC and the parcel owned by the City of Dover, Mr. Malkiewicz pointed out that it would be nearly impossible to access the City parcel without trespassing on MDCC land. Officials of DelDOT have relayed that they will not give access to the property off of Kenton Road. Although some of the neighbors have relayed that they could utilize right-of-way to access the City property, Mr. Malkiewicz reminded Council that City right-of-way is for use by the City and does not give the public the right to use right-of-way through private property. Over the past several years, this site has been used for recreational purposes and MDCC has never objected. However, now that they have plans to develop the property they feel their generosity in the past is now being held against them. In an effort to compromise with the neighbors, MDCC has offered 1.5 acres of MDCC land for recreational uses. The neighbors have rejected this proposal. He stated that although the neighbors have rejected the offer, MDCC will go on record as keeping the offer open in the event that the neighbors change their position.
Mr. Malkiewicz reminded Council that MDCC is a good neighbor and a vibrant part of the City of Dover. Their facility is used by local schools at no cost, local colleges at a limited cost and by many citizens for receptions and parties and by business organizations for meeting facilities. He stated that the MDCC is planning to use funds derived from the sale of the land to upgrade the facilities at the Club. This is planned in an attempt to keep up with the growing population of our growing City. Referring to a proposed release of restrictive covenant, Mr. Malkiewicz stated that the document has been signed by the necessary parties and will be filed as soon as the rezoning is accomplished.
Mr. Lee Berry, Vice-President of MDCC, and a resident of 55 Maple Dale Road, spoke in favor of the rezoning. Mr. Berry stated that development of the five lots should be complete by 1995 with upscale homes that will be an asset to the community and to the City. He reminded Council that this road is also the entrance to the MDCC Clubhouse and assured them that it will remain aesthetically pleasing. Development of the properties will place the land on the tax rolls of the City, County and Capital School District. Mr. Berry stated that property owners in close proximity to the parcel have always known that the parcel would be developed; the only difference is that it will happen now rather than the year 2008. He relayed that the Board has worked diligently on this contract over an extended period of time and that all meetings relative to the sale were publicly advertised and that public hearings were held with no opposition voiced. The MDCC has spent a great deal of money and time on the project, under the assumption that there was no opposition, and he felt it unfair that the project could now be jeopardized because the neighbors have decided to object at this late date.
Mrs. Valla Rogers of 10 Augusta Court spoke in favor of the rezoning. Mrs. Rogers stated that although the field is used for recreational purposes, it is not used consistently or often. On the few occasions that the field is used, it seems to be used by older children that drive to get there and not by children that actually live in close proximity. She stated that there may be a need for a park in West Dover, but the two acres of City owned land and the two acres of privately owned land is not the appropriate place for such a park. By recommending the rezoning of the parcels, the City's Parks and Recreation Department must agree with this concept. Mrs. Roger relayed her opinion that neither the City nor the MDCC should have the responsibility of maintaining the view of open space for private homes.
Mr. Dan Crouse, President of the MDCC, and resident of 137 Pine Valley Road, spoke in favor of the rezoning. Mr. Crouse stated that he is very confident that he is well supported by the membership in the effort to acquire the City's property. He stated his opinion that this project will be good for the neighborhood, for the City and for the MDCC.
Mr. Al Hedgecock, member of MDCC, urged his support for the proposal, stating that the MDCC executed the Agreement of Sale under good faith and he felt that the City should honor the commitment.
Mr. Franklin Arbaugh of 322 Troon Road, stockholder of the MDCC, spoke in favor of the rezoning. He stated that under the Club's good neighbor policy, they would like to provide a positive approach to the support of the transfer of land. He stated that rear entrance security for the homes currently at the site will be enhanced by development of the land and property values will ultimately increase. Should the City not rezone the property, a variety of buildings could be placed on the lots under the current RC (Recreational/Commercial) zoning classification. Property owners that are adjacent to open space are never guaranteed that the open space will be there forever. He urged the adjacent property owners to work with MDCC in developing the best possible use of the parcel.
Mr. Gary Breakwell of 6 Lost Tree Court, voiced his opposition to the proposed rezoning. He urged Council to preserve the open space in West Dover. By denying the request of MDCC to rezone and purchase the land at the corner of Dover-Kenton and Maple Dale Roads, the City would be preserving an increasingly valuable City resource - public open space. Mr. Breakwell stated that although they have many supporters in their opposition, they will limit their speakers to three. In an attempt to show public support for their position, they have submitted three petitions containing several signatures, and had a number of citizens in attendance relay their opposition by a show of hands.
Referring to possible access to the City's parcel, Mr. Breakwell stated that three of the adjacent property owners have agreed to include in their deeds a declaration of public easement. This would allow the public to gain access to the field by way of the utility easement that is located along the southerly boundary of Lost Tree Court properties. Making reference to MDCC's offer to provide 1.5 acres of land for recreational use, Mr. Breakwell stated that although they appreciate the willingness of MDCC to look at alternatives, the neighbors rejected the offer. He explained that the parcels are too small and that there are safety factors that would make it impossible for children to use the property safely. There are two roads adjacent to the property, a utility pole is located in the middle of the property that would pose possible threat to soccer ball players, there is an unprotected pond adjacent to the parcel, and the road that divides the parcels leads to a commercial establishment that serves alcoholic beverages.
Mr. Breakwell reminded Council that the proposed Agreement of Sale is contingent upon rezoning of the property. The rezoning process takes into consideration the feelings of the adjacent property owners and Mr. Breakwell stated that the majority of the adjacent property owners clearly object to the rezoning. Although he feels that the MDCC views the transaction only as a business deal, he urged Council to view the loss of open space as a community matter, stating that what is being proposed would permanently damage the nature of their neighborhood. The neighbors feel that their claim to the use of this public land is as legitimate as MDCC's. He stated that denying the rezoning does not deny the MDCC the opportunity to upgrade their facility or threaten their right to expand their membership, but denial of the rezoning would preserve an opportunity for the citizens of Dover to enjoy some of the simple pleasures that make this an interesting place to live.
Mr. John Maxted of 117 Pine Valley Road expressed his appreciation to everyone that has assisted the neighbors in their opposition to the development of this land. He stated that although he is a member of MDCC and is concerned about the financial well-being of the Club, he is a City resident that is concerned about the limited and shrinking open space available for recreation in the City and a parent that is concerned about safe recreational areas for his children. He felt compelled to place his concern for the need for public open space above the need of MDCC. Mr. Maxted explained that the field is large, grassed, flat, well-drained and open. The City's portion of the field is not large enough for baseball; however, if enjoined with the MDCC property, there is adequate room for soccer, football, and baseball. The parcels are accessible to approximately 650 homes and well over 1,000 people. He explained that accessibility is defined as being within the borders of major roads, which in this case is Kenton, College and McKee Roads and Mudstone Branch. This ensures that children do not have to cross these roads or the stream to get to the field. Mr. Maxted stated that this parcel is the only field in West Dover that meets these criteria.
Mr. Maxted reminded Council that the entire field is designated as open space in the City's Comprehensive Plan. Although the Plan is not a law, it is a good working document that should not be taken lightly. Mr. Maxted referred to Appendix A, Article 6, Section F-2, which specifies that up to 10% of a subdivision should have open space set aside for recreation. He stated that clearly this ordinance has not been enforced in the past, since there is no other public open space for recreation in developments within the targeted block which includes Fox Hall, Woodlands of Fox Hall, Meadows, Hidden Oaks, Retreat and Turnberry. He felt that the residents of these developments have a right and deserve to have designated open space in their neighborhoods. He urged Council to allow the City's Parks and Recreation Committee Recreation Department to take possession of the property and that it be maintained as public open space for the residents of West Dover. They advocate that the best possible use of the land is its current use as an open field, where a variety of activities are allowed, unencumbered by formal playgrounds and sports equipment. Mr. Maxted requested that if the rezoning and land sale is denied that the City place a use restriction on the property that would limit the use to informal, outdoor recreational activities, and that it be maintained by the City's Parks and Recreation Committee Recreation Department as public open space. He stated that it is our responsibility to create a safe, healthy and productive living environment for our children and he urged Council to keep the needs of children in mind when making this decision.
Ms. Elesa Cottrell of 60 Maple Dale Road relayed her opposition to the proposed rezoning. She stated that she chose to move to Dover approximately five years ago because she was so impressed with the vision of our founding fathers in maintaining an aesthetic open landscape in the City. She was also impressed that MDCC had that same vision which was displayed with their maple tree lined lane, much like that of an old country estate. Ms. Cottrell stated that an aesthetic landscape and appealing vista has a value to which no price tag can be attached. She stated that the officials and residents of Dover reflect a people-friendly community and she relayed her hope that this never changes.
Council President Christiansen declared the hearing closed.
Mr. Lambert stated his dismay that we did not do a better job in notifying all concerned parties before we got this involved in the process. The City complied with all the rules and took the necessary steps in advertising and holding the public hearings, however, it seems that there is always a certain number of people that do not get the information. He stated that the issue before Council at this time is one of rezoning, since the vote on the sale of the property has already taken place. Mr. Lambert stated that the limited access to the City's parcel makes it impractical for use as a public park. It was his opinion that the proposal of accessing the property by way of an easement would be improper. He relayed his support for open space, but felt that the City must follow through on its agreement with MDCC.
Mr. Lambert moved for approval of the rezoning of the parcel to R-15, as recommended by the Planning Commission. The motion was seconded by Mr. Pitts.
Prior to voting on the issue, Council President Christiansen relayed his support of open space for use by children. He stated, however, that the issue is not if Council wishes to keep the parcel as an open field, but that they must consider what is the best use of the land. He voiced his hope that the MDCC sincerely follows through on their offer to provide alternative space for recreational use.
On a call for the question on the motion to rezone the property to R-15 as recommended by the Planning Commission, the motion was approved by a unanimous roll call vote (Mr. Leary, Mr. Hutchison and Mr. Hare abstaining) and the following ordinance was adopted:
AN ORDINANCE AMENDING THE ZONING ORDINANCE AND ZONING MAP OF THE CITY OF DOVER BY CHANGING THE ZONING DESIGNATION OF PROPERTY LOCATED NORTH OF MAPLE DALE ROAD AND EAST OF DOVER KENTON ROAD
WHEREAS, the City of Dover has enacted a zoning ordinance regulating the use of property within the limits of the City of Dover; and
WHEREAS, it is deemed in the best interest of zoning and planning to change the permitted use of property described below from RC (Recreation and Commercial) to R-15 (Single Family Residential).
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF DOVER, IN COUNCIL MET:
1. That from and after the passage and approval of this ordinance the Zoning Map and Zoning Ordinance of the City of Dover has been amended by changing the zoning designation from RC to R-15 on that property located north of Maple Dale Road and east of Dover Kenton Road, owned by Maple Dale Country Club, Inc. and City of Dover.
ADOPTED: March 14, 1994
Council took a five minute recess at 9:30 p.m.
PROPOSED OPTION AGREEMENT - KRAPFCANDOIT - (SALE OF PARKING LOT ADJACENT TO CITY HALL)
A public hearing was held on October 13, 1993 to consider the sale of the parking lot adjacent to City Hall. At that time a motion was approved to execute an Option Agreement with Krapfcandoit for the sale of the parking lot. Since that time, minor changes have been made to the Agreement. Mr. Gary Patterson, President of the Downtown Dover Development Corporation, highlighted the changes, as follows:
1. Paragraph three on the first page - the term "rentable office" was deleted to read "90,000 sq. ft. of "space".
2. Last page (page 3), paragraph 12, - the term "related" was struck and replaced with "owned".
3. All final attachments are updated and are a part of the final Option Agreement.
Mr. Patterson stated that the owners of Krapf have signed the official Option Agreement and the City is in possession of their check in the amount of $1,000. Mr. Patterson requested Council's approval of the final Option Agreement and for authorization to move forward with the sale.
Mr. Leary moved for approval of the final Option Agreement with Krapfcandoit (as on file with the Office of the City Clerk) on the proposed sale of the parking lot adjacent to City Hall. The motion was seconded by Mr. Salters and carried by a roll call vote of six (6) yes, three (3) no (Mr. Tudor, Mr. Pitts and Mr. Christiansen).
APPOINTMENTS - PLANNING COMMISSION - THREE YEAR TERMS (TO EXPIRE ON FEBRUARY 28, 1997
Mayor Knopf requested Council confirmation of the following three year appointments to the City of Dover Planning Commission, which will expire on February 28, 1997:
1. Theron Boots - 2nd District - (To replace seat currently held by Michael Ambruso)
2. David Outten - 3rd District - (To replace seat current held by Roy Bogus)
Mr. Tudor reiterated previous concerns with the appointment of Commissioners taking place just prior to the Mayoral elections. He suggested that the confirmations be held in abeyance until after the April elections so that the elected Mayor may make these appointments. Mr. Tudor reminded Council that the Planning Commission members are very important to the proper growth of the City and that since the appointments are for a period of three years, the appointments should take place after the Mayoral election.
Mr. Pitts conveyed his agreement with Mr. Tudor, stating that it seems that at one time the election was held in January and the Planning Commission appointments were made in February. However, when the election date was changed to April, the Council at that time failed to move the appointment date of Planning Commission members.
Mr. Leary and Mr. Hare voiced their opinion that the current appointments should be handled in accordance with the ordinances as they are currently written. Possible amendment to the ordinances should only effect those that are appointed after the amendments are approved.
Mr. Leary moved for confirmation of the appointments as recommended by Mayor Knopf, seconded by Mr. Salters.
Feeling that these appointments are extremely important to the citizens of Dover and that there is such a short period of time prior to the election, Mrs. Malone suggested that any action on the appointments be tabled.
On a call for the question on the motion to confirm the appointments, the motion was approved by a vote of seven (7) yes, two (2) no (Mr. Tudor and Mr. Pitts).
Mr. Hare moved for adjournment, seconded by Mr. Leary and unanimously carried.
Meeting Adjourned at 10:00 P.M.
DEBRAH J. BOAMAN
CITY CLERK
All orders, ordinances and resolutions adopted by City Council during their meeting of March 14, 1994, are hereby approved.
AARON O. KNOPF
MAYOR
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