A New Castle City Board of Adjustment Hearing took place
on December 6, 2005 at 6 p.m. in the City of New Castle’s
Town Hall.
Present: Mayor John F. Klingmeyer
David Athey, City Engineer
Gerard Kavanaugh, City Solicitor
Jeff Bergstrom, Building Official
William Manning representing Family Foundations Academy, Inc.,
Applicant
Mayor Klingmeyer called the meeting to order at 6:05 p.m.
by Mayor Klingmeyer. Roll call was taken. Mayor Klingmeyer
read the Notice of Public Hearing that states, “An application
has been filed by Family Foundations Academy, Inc., P.O. Box
1045, New Castle, Delaware for a special exception to permit
operation of an educational institution pursuant to 230-218(B)(2)
on property owned by the Trustees of the New Castle Common
and located at 0 Delaware Street, New Castle, Delaware, Parcel
#21-010.00-072 (located between Carrie Downie School and New
Castle Middle School). For the purpose of considering this
application, the Board of Adjustment will hold a public hearing
on Tuesday, December 6th, 2005, at 6 p.m. in Old Town Hall,
2nd Floor, located at 2nd and Delaware Street, New Castle,
Delaware.”
This was advertised in the New Castle Weekly and the News-Journal.
Bill Manning, representative for the applicant, was then called
to make their presentation. He introduced Tennell Brewington
who represents the Board of Family Foundations Academy and
David Sills who will answer questions concerning the construction
plan. The property is zoned R3 and in that zoning district
an educational institution can be constructed with a grant
of special exception by the Board of Adjustment
(Mr. Manning then described what Family Foundations is and
what they are proposing to do.) From the State’s point
of view this is a public school ready to open in 2006 if they
have the facilities to do so. It will be situated on a three-acre
parcel of land and will be a 38,500 square foot structure.
It will house 420 students. It will open with 260 students
and grow over a four-year period. Grades 1-4 will be provided.
Students will be selected through a lottery process that is
run by a computer. The site is between two current educational
facilities (Carrie Downie and the middle school). The impact
on the infrastructure will be modest. He presented a plot
plan of the school and will leave that plan for public inspection.
Mr. Athey (to Jeff Bergstrom) asked if Planning Commission
approval is still required. We are approving the use? Mr.
Bergstrom said they must also go through the Plus process
and under ordinance 429 they still must go through the Planning
Commission. Mr. Manning said all that is being done tonight
is whether the Board of Adjustment grants a special exception
to permit this use. You are not approving this plan. The Plus
process has been commenced.
Mr. Kavanaugh explained to everyone that our zoning ordinance
provides that the Board of Adjustment can hear applications
for special exceptions and grant them.
New Castle City Board of Adjustment Hearing
December 6, 2005
Page 2
The Board of Adjustment can deny applications when they are
not in harmony with the purposes and intent of the zoning
code. It would appear to me that there are at least two prerequisites
that have to be met; the approval of the Plus proposal and
the Planning Commission. (Discussion about what is involved
with the Plus process took place.)
Mr. Athey asked what would happen if the school loses its
charter in the future. What happens to the building; does
the special exception go with the project or with the land?
Mr. Kavanaugh said it would go with the land. Mr. Manning
said lenders would want to know the use of a school could
continue assuming they comply with all of New Castle’s
other requirements. Mr. Kavanaugh added that if the use were
to change, they would have to return to see us.
(Mr. Kavanaugh expressed more interest in the Plus process.
Mr. Manning provided additional information about the process.)
Mr. Kavanaugh asked what this municipality does when it gets
a Plus recommendation letter. Mr. Manning informed it can
follow the advice, follow some of it, or ignore it. The town
still has control over its land use. It is the State offering
its comments so the town can make its decision. (The Plus
letter will go to the Planning Commission.)
The Mayor opened the discussion to the audience.
Councilman John DiMondi feels the application is premature.
It is not a sub-division application. The only people who
will hear for the public good are this committee, not City
Council. It is important they go to Plus before it comes to
you. We will not hear this in Council. You can’t rule
on the public good until you know what the Plus program says.
Mr. Kavanaugh said our authority is to grant special exceptions
with such conditions and safeguards as are appropriate. (Mr.
DiMondi asked him to look under Chapter 230-57(E)(1) after
which more discussion took place about Mr. DiMondi’s
concern.)
David Bird commented that charter schools are generally good
for our community and for our school system. Another piece
of good news is the City’s Comprehensive Plan (page
28) for this piece of land recommends institutional use for
this parcel. One of the main concerns is the volume of traffic
on 273 and the impact this additional institution will have
on that area. That is one of the things the State would be
concerned about and would address during the Plus process.
He doesn’t know that there needs to be a decision by
the Board of Adjustment tonight. You can table it.
Ann ____, 26 East 3rd Street, agreed with Mr. Bird and Councilman
DiMondi. She would like to wait until after the Plus decision
before making a decision.
Mr. Kavanaugh reiterated that the City retains final decision-making
authority. The Memorandum of Understanding between the State
and the City leaves the final decision-making with the municipality.
Mayor Klingmeyer said the Planning Commission must grant approval
also. If we decided to grant approval it would be subject
to Planning Commission approval with input from the Plus proposal.
New Castle City Board of Adjustment Hearing
December 6, 2005
Page 3
Mr. Kavanaugh said if we decide to vote in favor of granting
a special exception we could make it subject to approval of
the Planning Commission in light of the recommendations of
the Plus group.
Ginny Appleby, New Castle, is wondering what group of children
would be impacted and what area would the children come from.
Mr. Manning responded that a charter school does not pick
its students; students pick the school. If more applicants
apply than is space, a lottery system is put in place. There
is no admissions test to get in. Families choose charter schools
for various reasons; i.e., location, discipline, uniforms
and many more. He added the applications is a matter of public
record and can help to clarify concerns.
Thomas Whitehead questioned the issue of safety; whether a
new or bigger intersection could be put in. Currently there
are four different entrances for the two schools. He thinks
the Board of Adjustment should wait and hear what DelDOT has
to say.
Joseph DiAngelo, 753 West 12th Street, said the Planning Commission
doesn’t approve anything; they recommend. This should
have been done and it has not happened. Page 230-45, paragraph
23057.
(Interpretation of language was discussed.)
Nancy Coning (?), 54 East 4th Street, asked when the Plus
meeting is scheduled.
Councilman DiMondi responded that it is 12/28/05. She said
she has attended two Trustees meetings where it was discussed
that it would be 1-4 initially and a year added until it became
1-12. Is that true? Mr. Manning said the only authority they
have is grades 1-4; that is its limit. (Discussion about the
school’s Board’s responsibilities and how a charter
school operates took place.)
Dick Appleby asked Mr. Kavanaugh to explain the R3 area. He
responded there are certain permitted uses in an R3 area.
There are also certain uses allowed by special exception if
approved by this Board. If the Board of Adjustment grants
the special exception you can have an institution of an educational,
religious, medical, charitable or philanthropic nature. (Discussion
about curb cuts at this location took place.)
Mr. Athey asked to explore the timeframe. Are you on the Planning
Commission’s agenda for December? (They were unsure.)
The Planning Commission meets on 12/19/05, before the Plus
letter. The earliest would be in January 2006. He doesn’t
see why we can’t table this matter until we do get something
from Plus because we aren’t on a critical path.
Mr. Manning responded we should do what the Memorandum of
Understanding calls for us to do. If you add “special
exceptions” to the list of things in your Memorandum
of Understanding that require prior review by Plus, you would
be changing without whatever process led to this agreement
in the first place. Property owners generally are required
to look at the process that they should follow. There is no
requirement right now that the town seeks Plus review before
considering a special exception. You have said the ultimate
authority to build this building is not going to happen until
after Plus input has been received. It would be a departure
from your Memorandum of Understanding and unfair to the applicant
to decide now that even though your memo doesn’t call
for it, you are going to invoke the Plus process outside of
that which you have already agreed to.
New Castle City Board of Adjustment Hearing
December 6, 2005
Page 4
Mr. Athey asked how he is being unfair to the applicant if
his timeline is accurate.
Mr. Manning responded he doesn’t understand the need
for this Board to have Plus input when what you are charged
with doing is essentially a zoning question.
Mr. Athey said if we met in early January after knowing what
Plus has to say, how are we being unfair?
Mr. Manning feels it is unfair to depart from the agreement
you struck with the State Planning Office. You decided what
actions would trigger Plus review. You didn’t include
application for special exception.
(Discussion between the Board and Mr. Manning about interpretation
of language in the Memorandum of Understanding took place.)
Mr. Kavanaugh asked Mr. Bergstrom if under ordinance 429 the
Planning Commission has to review this project. He said ‘yes’.
Mr. Kavanaugh then reviewed the criteria needed. The Planning
Commission or the Historic Area Commission has reviewed the
application and forwarded a favorable recommendation to the
Board where such review is required and that has not occurred,
but since we can grant special exceptions with such conditions
and safeguards as are appropriate, we can require that Subparagraph
B be complied with.
Melissa Pavonne, 1589 East 2nd Street, questioned how the
Board can make a decision without having all information concerning
the impact on the community from the Plus meeting. Do you
draw upon the Planning Commission’s recommendation to
make your decision? The Mayor said if we get a favorable recommendation
we can act; if they disapprove it, it won’t happen.
She asked if their recommendation is based on the Plus meeting.
The Mayor said we would specify that they review Plus then
make their recommendation.
Mr. Athey is uncomfortable acting because we are lacking a
key piece of information. Can we make it a condition that
the Planning Commission base their recommendation upon a review
of the Plus input?
Mr. Kavanaugh does not want this municipality to give up what
is going to be done in this city. Mr. Athey does not feel
we are giving anything up it is a recommendation only. Mr.
Kavanaugh does agree that there does need to be a favorable
recommendation after the review of the Plus letter.
Mr. Kavanaugh made a motion that the special exception be
granted subject to approval, that is, a favorable recommendation
of the Planning Commission after that Commission has reviewed
the Plus letter of recommendation. Mr. Athey seconded the
motion which passed unanimously.
Adjournment
The meeting was adjourned at 7:30 p.m.
Respectfully submitted,
Debbie Turner
Stenographer
