letter from Joan Claybrook, Citizens to Preserve Dewey…
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Honorable Harry Wilson, Chair Dear Mr. Chairman: I am writing on behalf of Citizens to Preserve Dewey to submit this letter for consideration by your Commission concerning your forthcoming vote on the ordinance written by Harvey, Hanna and Associates (HHA) and referred to your Commission by the Town Council for acceptance or rejection within 60 days of your Commission’s first meeting on this ordinance (August 23, 2007). I would first like to emphasize that, as our letter of September 28, 2007 makes clear, the Commission must reject the HHA ordinance to avoid its automatic acceptance under the 60 day rule, and to give your Commission the time to properly evaluate the Comprehensive Plan in relation to new zoning ordinances that reflect the views of Dewey Beach citizens (15 months remain of the time allocated for this in the Comprehensive Plan). The reason for this unusual procedure is that instead of following the proper route for approval of a major new project, HHA in July 2007 hijacked the process by submitting to the Town Council a zoning ordinance written by its attorneys to serve its purposes, asking for its referral your Commission. The proper route for town consideration of a major development proposal, as HHA well knows, is to submit a complete application and detailed proposal and site plan for consideration by the Board of Adjustment, rather than merely a proposed ordinance and a rough concept drawing about its proposed convention hotel. This tactic inappropriately resulted in the 60 day rule governing consideration by your Commission of complex zoning questions under the new Comprehensive Plan which cannot reasonably be properly evaluated and considered in that time frame. Thus, it is important to emphasize that HHA is not a legitimate “applicant” as HHA constantly states, but rather a mere proponent of a self-serving ordinance to advance its own interests. It has no “property rights” in a particular proposed zoning ordinance, despite its claim of “equitable ownership.” Short-cutting the process in order to ram its project through before most citizens in Dewey were fully aware of its implications has backfired on HHA. Yet now it has proposed a major change from 68 feet to 48 feet. Such a major change in its proposed ordinance was not approved by the Town Council for consideration by P&Z. Thus, this 11th hour maneuver cannot be part of P&Z’s consideration of the proposed HHA ordinances. HHA misconstrues the Comprehensive Plan in arguing in its October 8, 2007 letter to John Brady, the Town Solicitor, that its constitutional property rights would be violated if the P&Z Commission does not approve its proposed ordinance, and that a violation of these rights would subject Dewey Beach, individuals who make the decisions and private individuals “who may conspire” with government officials to liability. This kind of threat has no place in this debate over the future vision of Dewey Beach and is highly misleading. HHA has no vested rights based on their zoning ordinance. And citizens, including the hundreds who are part of Citizens to Preserve Dewey, have a constitutional right to petition the government and cannot be held liable for doing so. That threat is clearly unfounded (Norr Pennington doctrine).. Further, since the P&Z is merely a recommending body, there is no final action which can serve as the basis for any lawsuit against the P&Z Commission. As HHA knows, rejection by the P&Z Commission of the HHA ordinances would not be the last word on these issues. The Comprehensive Plan specifically gives Dewey Beach 18 months from adoption (in July 2007) to approve implementing zoning codes. As a number of experienced planners and experts have stated during your public hearings, including the Planner hired by the Town Council, that a great deal of work is required on environmental effects, transportation impacts, safety and welfare issues, overcrowding, adequate public facilities, engineering issues, comparisons with the requirements of other towns in the Atlantic coast of Delaware and Maryland, and other details before any zoning decisions are made under the Comprehensive Plan. Citizens to Preserve Dewey has urged that no zoning decisions be made in isolation. Rather the Commission should take the time to consider all the zoning issues before making any final decisions. And of course that is the time to consider any possible adjustments on the variety of issues involved. By contrast, HHA wants to rush its ordinances into law, complaining that it has now proposed a “compromise” of 48 feet but that we have not embraced it. But once again HHA wants to call the shots and wrap its newest idea around its contentious ordinances to give them credibility despite many inappropriate and illegal provisions, such as; shifting a number of conditional uses to permitted uses, The HHA proposal violates the law first because it does not treat all parcels in a Further, the elected officials of Dewey Beach through adoption of the 2007 Comprehensive Plan have mandated that all property owners in the RB-1 district be treated equally and uniformly. The Town Council could have proposed the RB-1 district as only the three properties identified for rezoning before this Commission. But they did not do that. Instead the Council it its wisdom determined that more properties should be included in the RB-1 district. We must presume it acted in compliance with the law and with the understanding that the standards in each district must be uniform. Thus, the HHA ordinance violates the Delaware code. The reason the uniformity question is so important is that it has its foundation in the equal protection clause of the United States constitution. 42 U.S.C. Section 1983 allows people to sue municipalities for constitutional violations. To avoid this problem, the Commissioners must take the time to study the ordinances carefully before sending final recommendations for new zoning rules to the Town Council. Finally, because the three parcels are proposed under the HHA ordinance to be treated differently from all other parcels in the RB-1 zone, the town could also be subject to a challenge that the proposed ordinance is illegal spot zoning. Spot zoning is a clear concept. It is illegal for the town to single out parcels for treatment that differs from that of other land in the same district. Under Delaware law, “the hallmark of spot zoning is the extension of special treatment, usually preferential, to the owner of a small parcel of land which differs in no reasonable regard than that of his neighbors.” Scarborough v. Cheswold, 303 A2d 701 (Del.Ch. 1973). The HHA ordinance is a clear example of illegal spot zoning. In our view, any ordinance considered by P&Z must be written by the Commission, not by a developer, after a thorough planning process and with solid advice from planners, technical experts and legal counsel. And if major changes are made to the current code, such as buildings above 35 feet or allowing hotels, there should be a referendum so the citizens can play a strong role in the decision making. HHA presses the point that the Comprehensive Plan has the force of law but misleadingly states that if HHA parcels are not rezoned to permit higher density, its rights would be violated. But the Comprehensive Plan very specifically does not “require” such action. It states that “the following criteria are presented for consideration for new Commercial Overlay Districts.” And it says that “The percentages listed herein are the ideals of this Plan.…” Under the RB-1 zone it states that “Relaxed bulk standards (setbacks, lot coverage, etc [note it does not make any reference to height]) are available for contiguous tracts….” (emphasis added).. See pages 21 and 22. In arguing that it is entitled to receive approval of its proposed ordinances, HHA relies heavily on language in the Comprehensive Plan that a “working group’s final agreement upon ratification by the Commissioners shall be considered consistent with the Plan,” but this section is not relevant to HHA. That sentence refers to “development plans filed before the enactment of the Comprehensive Plan (emphasis added) that might be inconsistent with the Plan, but HHA has not filed any “development plans.” (emphasis added). Indeed, this is one of our complaints about how HHA has attempted to rush their ordinances through to approval without filing an application. To suggest that a “working group” can make a final agreement on which HHA can rely as approval of its non-application would be an invalid delegation of powers to such a group. It cannot be binding on the town. Furthermore, the real “working group” referred to in the Comprehensive Plan is NOT the Ruddertowne Architectual Committee (RAC), as HHA indicates (but carefully avoids use of the RAC name), but rather is a group formed to help implement the Plan with all the town commissions and others on it. The RAC by contrast was an informal volunteer group that had four hearings, recommended the HHA ordinance of 68 feet to the Town Council, and then disbanded with a very brief oral report by its chairman. Interestingly, just as HHA now begins talking now about a “final agreement” from the “working group,” the chair of the RAC has conveniently released a final report in writing (which he resisted doing in July) referring to the RAC as the “working group”. Without any real law to back up its claims, HHA is misleadingly creating an edifice of eggshells on which it is attempting to build its case. In pressing for approval to build a large convention hotel in Dewey Beach, HHA in its presentations to the P&Z Commission emphasized a statement under “economic development” in the back of the Comprehensive Plan (p.40) that “The Town will encourage the development of year-round restaurants and other retail businesses that meet the needs of the growing resident population.” The next sentence states, “The Town will encourage commercial development that is consistent with the desires and values of residents, property owners, business owners, and visitors.” Clearly the residents, property owners and voters have made it clear in the 2005 public survey and in the September 15, 2007 election that they do not want another hotel, particularly not one that exceeds the current maximum height of 35 feet. In addition, the nine goals of the Comprehensive Plan make no reference to year round development (see pp. 5 and 6), but do say the Town will “pursue a strategy of urban growth and development that protects the land resources while accurately defining the community”, and “will encourage the development of an appropriate cultural character for the town….” Year round attractions are of course welcomed if they don’t destroy the existing character of Dewey Beach. Further, we would be remiss is we did not mention that there is great concern that there will be substantial pressures to permit gambling in the convention hotel proposed by HHA in order to make it economically viable. As the recently adopted referendum (September 15, 2007) makes clear, the town voters oppose gambling in Dewey Beach. With regard to height, HHA argues that without an increased height any new buildings will be matchboxes and suppress creativity. Its paid consultants Cohen and Burcham in an Analysis and Assessment Report of September 24, 2007, state: “Significant to achieving the kind of commercial development envisioned is to permit the relaxing of prescriptive zoning restrictions that clearly discourage creative design. The town is wise in moving in this direction. Doing so allows the capability to entertain projects that could only be accomplished if design is held to a higher priority than simply adhering to the somewhat arbitrary mathematical requirements of a zoning code.” (p. 6) “Current planning and design practice identifies with the view that ‘A tall building can import a strong sense of identity, and many communities take pride in their tall structures for this reason.’ A compatible point is that that ‘In each city or community there is a role for imageable (sic) buildings that give identity and for background buildings that give context.’ The Ruddertowne proposal would be consistent with this perspective. It could serve to create/reinforce the identity of to (sic) town as a year-round family oriented place, while not compromising the traditional context of the community.” (p.10) However, by contrast with these assertions, there are numerous highly creative town centers and commercial developments in communities across America that are at or below 35 feet height (including in our sister communities of Bethany, Fenwick, Lewes, and Rehoboth). A tall structure is particularly inappropriate for “defining” Dewey Beach. Contrast that, for example, with an expanded and public Bay Walk as our hallmark. Before the P&Z Commission makes decisions on the role of height in creative development opportunities, we urge you to assess what other communities have already achieved. Some examples are already in the record of the Commission’s hearings. As a number of speakers have emphasized to the Commission, the town’s vision as expressed by its citizens should govern the future of Dewey Beach development, not the demands of one developer. We appreciate the opportunity to submit our comments for consideration by the P&Z Commission on the HHA proposed ordinances. We urge you to reject them at this time to comply with the prescriptions of the 60 day rule and to take the next 15 months to develop zoning rules that comport with the law and with the wishes of the town citizens as they have been clearly expressed in the 2005 survey and the September 15, 2007 election. Our hope for the future is that HHA or some other developer will be cooperative in working to enhance the character and culture of our town.
Sincerely, Joan Claybrook cc: |