The New Castle City’s Special Planning Commission Meeting took
place on July 5, 2005 at 6 p.m. in the City of New Castle’s
Town Hall.
Members Present:
James Steele, Chairman
Tom Wilson
Jane Miller
George Freebery
Richard Mendelsohn
Mary Davis
Elliott Tatum
Dr. John Norsworthy
Chairman Steele called the meeting to order at 6 p.m. Roll call was
taken. The reason for this meeting is because the Attorney General’s
Office has ruled that our meeting of 3/28/05 was in violation of the
Sunshine Law. They have directed us to rehear the subdivision of 219
East 2nd Street.
Jeff Weiner, partner in Fox Rothchild, representing resident (Steve
Velitskakis) -- We have stated our legal position in a letter. Our
position remains unchanged.
Carmen Casper, civil engineer with Howard Robertson -- We prepared
the subdivision plan for this property. We received recommendation
from the HAC and from two consultants with the city; the town engineer
and the Planning Commission consultant. We have revised the plan to
address all 11 comments of the town engineer (URS) and all 12 comments
of the Planning Commission’s engineer (KCI Engineering). At
the last meeting we showed a preliminary plan showing how we had addressed
all issues and how we would progress to record minor subdivision plan.
The Committee voted unanimously to move forward. (He was asked to
read the comments from both engineers and how they were addressed.)
Ms. Miller – What did the Planning Commission do at the 3/28/05
meeting?
Mr. Wilson – The motion was that the owner is required to set
aside the requirement City Engineer for access off-street parking
and all proper proceedings were posted. Mr. Mendelsohn seconded the
motion. We accepted the plans as submitted and with approval from
Ms. Jackie Seneschal that all requests were met. It was voted unanimously.
Mr. Mendelsohn – Because of the confusion with the hour no one
came here to present a case against this. We were unaware the meeting
was posted wrong. We are not trying to make an excuse. We might even
change our minds at this point when we see what’s going on.
When we made our decision we did it with the fairness that we thought
was right. Only after the fact when we had decided on it someone came
here and they were an hour late.
Tom Briggs, 211 E. 2nd Street – We are opposed to a road for
several reasons. First, is it protects a historic site. It is believed
the proposed road is close to if not over Fort Casimir. This includes
potters field and a Presbyterian graveyard is believed to be there
in addition to the foundation of our state and nation. Ownership of
the land is still in question. Can anyone here stand up and say they
own the land? (No response.) The best information we have is that
the State still owns 10 feet of that land. What about the safety of
the people who go out their gates? The HAC recommended that no off-street
parking be required for the subdivision into three lots. It would
have to go to the Board of Adjustment. The quality of life, we will
lose a lot of green space. Pet walkers use that area. Where will all
the water go once a road is built? In our backyards and basements?
Special Planning Commission Meeting Minutes
July 5, 2005
Page 2
Mike Heyman, Bull Hill – Off-street parking regulations in an
alley must be 20 feet wide; it is in the code. The property in question
only has room for a 10 foot wide alley. The owner would encroach on
Trustees property. Without the approval of the Trustees this paved
road is in violation of the city sub-development laws. The Planning
Commission has no choice but to vote “no” to a paved road.
Without the 20 foot wide alley required for off-street parking for
subdevelopment of two houses, the owner can only build one house on
his property. Since his present plan calls for two pseudo-Colonial
townhouses, the Planning Commission has no choice but to vote “no”
to the entire sub-development. The owner must start over again. The
fault lies solely with the developer and whoever sold them this property
for sub-development. It was not the City’s responsibility to
reinvent regulations of the sub-development. If the developer wants
to sue someone they should sue their realtor.
Ned Hutchison, 14 West 4th Street – Property rights are property
rights. The Planning Commission and HAC are the ones who set the boundaries
on can be built there. I object to this town infringing on property
rights. HAC does the best they can. If someone buys property, they
can develop it. If the city wants to put curbs on development that’s
up to Council, not up to Planning. I suggested two years ago we have
a moratorium on building in this town.
Paul Flannigan, 116 East 2nd Street – no one is denying the
owner from doing what he wants with his property according to the
building codes and the system we have, but we create something from
nothing to benefit a sole individual and it is not fair. We have a
habit of creating things. (He cited the property that Healy bought
and he filled in the river in front of that property. He kept filling
in the property until he owned an entire building lot where there
was never property before.) We have set precedence on things then
forget about them. I remember that alley being no more than 10 foot
wide. There was never a 20 foot street there, never a 20 foot alley
when I was a kid in 1964. The issue is not protecting the specific
needs of specific people. We have a park there and we don’t
want a road there.
Claudia ________, Harmony Street – I walk my dogs there all
the time. If this man puts in a roadway to the subdivision, who will
maintain it?
Anna DiMaio, 313 Harmony Street – How many people in this room
have seen the map the Planning Commission is using? Before you make
any decisions the residents have a right to see what you have that
they have not seen. You can’t let one person overcome all others
and ruin the backs of our houses; it is not fair.
Ms. Davis – One of the reasons the planning commission considered
the road behind the houses was because of the off-street parking because
in the code the builder must provide off-street parking. If they don’t
want that they must go to the Board of Adjustment. I know that HAC
suggested that the road not be there because we are not in favor of
having that paved road. I serve on HAC. We don’t want to see
a lot of driveways or paved roads, but that was one of the main reasons
we discussed was because of the off-street parking issues in town.
What is the parking in that area like? If there were not off-street
parking provided and the Board of Adjustment said they didn’t
have to have it, what would it be like for the residents at Bull Hill?
Kathy Dunn, formerly of 209 East 2nd Street – I have heard there
are now three lots on a piece of property where there was one lot.
Ms. Davis – People have a right to ask to sub-divide their property.
It has been done in town in numerous locations. That piece of property
is large enough for two building lots.
Special Planning Commission Meeting Minutes
July 5, 2005
Page 3
Susan Keyser, ____ East 2nd Street – Mr. Carmen said they wrote
the plans with all of HAC’s recommendations on it; this is not
true. They recommended that off-street parking not be required. There
was an initial proposal that went to HAC that HAC said they would
approve dividing the parcel in half and off-street would be provided
by the presently existing curb cut and driveway and that would provide
the off-street, provide the developer a sub-division and meet all
the codes. That is an option. When Mr. Wilson said the motion that
was passed, that is not what is reflected in the minutes. The motion
in the minutes I got from the internet didn’t say anything about
approving sub-division. It was a motion for requiring a road, which
is exactly the opposite of what HAC recommended.
Karen Heyman, 207 East 2nd Street – Delaware is the First State
in our nation and we are represented by the first star on the American
flag. The ground on which Bull Hill exists is the most sensitive historical
ground in our state and one of the most sensitive areas in the entire
nation. “Attaching a screen door with screws is a far cry from
tearing down homes that are supposed to be protected as part of the
historic area.” The point of being designated an historic area
is you want to save the ambiance, a treasure, a jewel. Once you start
eroding that it can never be the same. Already Bull Hill is drastically
changed. I don’t fault individual property owners and I do agree
that a property owner has rights over their property, but when you
move here you know you are moving into an historic area and there
are already rules on the books. You need to know what they are and
your real estate agent should advise you of that. I wonder how a local
real estate in good conscience could advertise in the News-Journal
that there are properties available in Old New Castle that may be
sub-devisable. I don’t see how any governing body in New Castle
can be held responsible for ads that real estate agents put in papers
to hook developers, nor should you be bound by the kinds of dealings
that real estate agents make.
Ms. Miller – I think what everyone has said is very important
for all of us to hear. Before we continue I would like the Planning
Commission to discuss amongst themselves exactly what the motion was
that was approved and the understanding. Steve, if you are adamant
about off-street parking, because there are ways not to have it, I
am also on HAC and I am predisposed not to have any more black in
this town, macadam. You might not be talking to a hostile audience.
We need to articulate what our position had been, what were the parameters
and the leeway to discuss further. Does Steve have to have off-street
parking? Of course, he doesn’t. The code says ‘yes’.
We can go to the Board of Adjustments. These are issues I think should
be brought up.
Chairman Steele – Commented on the beautiful backyards and gardens.
Putting off-street parking back there you actually take away from
those properties. The parking you have up there we have been trying
to get the City to put parking lots at 4th and Chestnut at the old
ferry site and other areas of the City and they haven’t acted
on it.
Ms. Miller – The need for an archeological search before something
is developed is very important.
Ms. Keyser – My sense is that we have an historic site and we
need that site preserved.
Concern was expressed about the rationale of some people having off-street
parking and not using that driveway was raised. It is not enforced.
Ms. Davis – I am happy this was taken to the Attorney General
so that we are rehearing this. I do think the sub-division is separate.
HAC does not have any approval to approve of or like or not like the
sub-division. All HAC can do is set the side yard setbacks. The work
‘approval’ can get misconstrued.
Special Planning Commission Meeting Minutes
July 5, 2005
Page 4
Joan ______, 31 West 4th Street – I appreciate you taking the
time to listen to the concerns of the people. I ask that you once
you make the final decision you see it through to the end. I don’t
want to see what happened on West 3rd Street happen to East 2nd Street.
Mr. Condouris built homes on West 3rd Street. All we have behind those
houses is a parking lot. He was to landscape it; he did not. He was
to take care of the lot directly behind me; he did not. He has since
sold it. If you do it, do it to the end in keeping with the city and
the historical place in which we live.
Carolyn Briggs, 211 East 2nd Street – When the State vacated
that property is was not a pretty site. The Trustees worked with the
residents of Bull Hill to clean it up and it is now a beautiful area.
This property in question has an existing curb cut that would provide
off-street parking. I think we should all work together to work this
out.
Doris _____, 26 East 3rd Street – Who approves sub-divisions?
Is it Council?
Chairman Steele confirmed that it is Council.
Dorothy Fisk? -- I spoke to Mr. DiMondi and the new comprehensive
code voted in by the last Council included a number of things that
should not have been in there, because no one went through it with
a fine-tooth comb. According to him, if correct, Council is required
to approve any sub-division that has the requisite amount of plan.
I was on an open spaces committee a number of years ago and we made
recommendations the then-Council chose not to implement. Mr. DiMondi
-- One of the errors that went through in the comprehensive code was
the requirement that the Council had to approve any sub-division that
had the requisite amount of land. I think that is something that is
very damaging to the town and the new Council needs to address and
change the law.
___________ -- I am speaking from the position of chairman of preservation
outreach for the New Castle Historical Society. We strongly oppose
anything that would disturb the area behind the houses on Bull Hill
because of the evidence of history that is there. I believe there
are no villains in this. We are all neighbors. Things like this are
difficult when we don’t have all the information available to
us that might influence the decisions that are being made. I applaud
that we are back here tonight and that you are listening to what is
being said. From the standpoint of the New Castle Historical Society,
I can tell you that we oppose anything that would disturb that area
in the strongest possible terms. We encourage everyone involved to
think as much about responsibilities as we do about rights. All that
is codified speaks to the rights as property owners and residents.
In New Castle we have special responsibilities. If we don’t
take care of the 350 years of history, who will? Like it or not, it
is our watch and our responsibility. My recollection is that there
was tremendous concern about sub-division development that every narrow
lot in New Castle could have a building on it. As often happens those
who granted the legislation didn’t go about it correctly. They
entered a requirement for off-street parking naively believing that
it would result in some developments not being possible. What has
happened here is we have reached a point where we are adjusting our
thinking in order to help a property owner accommodate this off-street
parking requirement. If we do that we advantage a single property
owner and disadvantage other property owners in the same neighborhood.
In the process we could desecrate an area that we know is of significant
historic importance. Now is the time for our best thinking and making
the best decisions.
Special Planning Commission Meeting Minutes
July 5, 2005
Page 5
Councilman DiMondi – I spoke to Dorothy Fisk? and sent out several
letters and got no response. You have a comprehensive code that cost
the city $90,000. It reads that all new construction in an historical
area has to have off-street parking. You can’t change that.
If you want to change that you have to come to Council and we will
entertain it. The only way to get away from it is for the property
owner to go to the Board of Adjustment and say they want a variance,
that they don’t want it. The historic commission denied the
right to park in the front by moving the house up to the rest of the
houses, so they gave him one alternative – park in the back
on an existing 20 foot alley.
(It was acknowledged that Mr. DiMondi did send some personal letters
to residents who did write letters to the editor. A personal response
was not required.)
Ms. Heyman – If I understood Mr. DiMondi he said there was an
extra 20 foot alleyway. I believe it was established earlier the alleyway
was 10 foot.
Chairman Steele – That point has not been established yet.
Andy Taylor of Cooch and Taylor – I have done research on the
alleyway. The deed from the State to the Trustees of New Castle Common
mentions two parcels. Parcel one and parcel two which do refer to
it as being a 10 foot wide alleyway in describing our property boundary.
That deed does mention the Trustees have the right and privilege of
using forever with others entitled thereto said 10 foot alley. There
are other parcels in this deed on the other side of Chestnut Street
extended which refer to a 10 foot alley and another that refers to
a 20 foot alley. I don’t know that I can give you a definitive
opinion whether that is a 10 foot wide alley or a 20 foot wide alley.
After the State purchased the property (Feb., 1952), they had a survey
plan done in April of 1953 and that shows a 20 foot alley, but also
shows a chain link fence going down the middle of it. Today there
are still cut-off fence posts in the macadam that appears to indicate
where that fence was. One question I would raise, the sub-division
plan includes a note that says streets and alleys are dedicated by
the plan. I would question the City Solicitor can a plan dedicate
a street or alleyway to public use if the person doesn’t own
it. I don’t think the owner of that plan owns the alleyway,
but I also don’t know if it’s not already dedicated. These
are questions open to further research.
Audience -- What was the most recent deed?
Mr. Taylor -- The Trustees acquired from the State of Delaware in
1966.
Paul Flannigan – Earlier points not addressed about who maintains
the paved area if approved? Who will provide everything necessary?
Will they plow it? We have already turned down housing on that end
of 2nd Street where they required off-street parking and couldn’t
provide it. Now we’re saying you don’t have to worry about
that. This is a dangerous area for the future.
Tom Mammarella, attorney representing the property owner – I
would like to respond to some of the comments made this evening. Comment
made about ownership of the alley, I think what’s meant by that
comment is it is not clear who owns the bed of the alley. This is
not relevant for purposes of use. There is no question there is an
alley there. It is reflected in the last several deeds and surveys
I have seen. There is some inconsistency about the size of the alley.
Comment about problems from water runoff in the event the alley is
paved. This issue is important and will be addressed by the engineer
in the design of the access way, if approved. Question about who maintains
the alley once paved. The developer was proposing to bear all costs
in connection with initial construction of the alley and it is general
law in Delaware that even though other adjoining property owners who
have the right to use the alley they wouldn’t
Special Planning Commission Meeting Minutes
July 5, 2005
Page 6
have any responsibility to maintain it or contribute to the cost of
it unless they in fact use it. If it were to be put in and they chose
to avail themselves to the alley by having their own parking in the
rear, at that time they may have an obligation to help with the upkeep.
Several comments about parking in the rear creates problem with changing
the character of the land immediately behind these houses. Parking
in the rear does relieve the parking problem and congestion on 2nd
Street as it currently exists. Another comment about the two proposed
townhouses to be constructed on the two out of three lots being created
by proposed sub-division. When this application was presented before
the HAC the application was for a single house in addition to the
single house and that the recommendation from HAC was to not go in
that direction because the house was perceived to be too large for
the area and that two houses would be preferable. The last comment
I would like to make is about the possibility of the area of archeological
significance of where this alley is located. I was at the property
before this meeting today. I noticed the historical marker which identifies
Fort Casimir being 100 feet east of the sign. I don’t know how
accurate that is. If that is true and the fort is located within 100
feet east of the sign, it is already blacktopped with concrete paving
over that. The proposed work on the alley would be a fairly minimal
intrusion. The plan indicates 8 inches of stone and 2 inches of hot
mix on top of that for a total of 10 inches in depth. If it turns
out the soils are not compact with that depth there may be a need
to go deeper. Certainly if any artifact of archeological significance
were uncovered the work would stop.
Sally Monigle, HAC – The recordings of our meeting concerning
the Chestnut Street sub-division will bear out that we did not make
a recommendation for one or two houses be built in addition to the
existing house. Our function is to set the front yard and side yard
setbacks. We also made the comment suggesting a reprieve from off-street
parking, which is generally our policy. We are not in favor of multiple
curb cuts in the historic district and the fact that parking has to
resolve itself. We did not recommend the road in the back. We did
not recommend sub-division into two lots. We dealt with both alternatives
at two different meetings.
_________, 218? 2nd Street – When the Commission looks at this
issue you should also consider whether placing that road there would
infringe on other uses of the park. There is a playground there, people
who walk there all the time. People tend to hang out at the parking
lot at Chestnut at night. You might put a burden on the people of
the community by putting that road in.
Ms. Keyser – Suggestion that was made that ownership is not
relevant, but if the State does own that and it is a significant archeological
site, then the State Office of Historic Preservation has to be brought
into the process. What makes this site different from other places
in the City, this is not like every other place in the City.
Ms. Davis – I am wondering what the scenario would be for the
property owner if we considered this without the paving of the road?
What would the developer then need to do?
(Chairman Steele called for a recess to allow the developer and related
parties to discuss this option.)
Mr. Weiner -- Thank you for allowing us an opportunity to discuss
your questions regarding withdrawing the pending application and resubmitting
the application eliminating the alley in the rear. My client does
not want to pursue that option. We previously indicated we believe
use of the alley does help with the parking on the street. We believe
the owners of the homes will like knowing they have a place to park.
My client is willing to limit the width of the alley to 10 feet in
order to limit the impact on the area. He is also willing to use a
different surface on the alley. We would like to proceed with the
application indicating the alley would be used to provide parking
in the rear of the lots.
Special Planning Commission Meeting Minutes
July 5, 2005
Page 7
Mr. Heyman – He says there is no congestion on East 2nd Street.
The alley also has to be 20 feet according to the sub-development
regulations. Also, this would only benefit the developer and impact
everyone else.
Mr. Wilson – Wants everyone to understand the confusion surrounding
the 3/28 meeting. We received an email stating 6 p.m. as the start
time. The Planning Commission has met at 6 p.m. for a long time. No
one had a reason to check the time. It was mistakenly put in the notice
and the paper as 7 p.m. I received a call at 6:15 p.m. informing me
I was late for the meeting. The meeting started at 6:35 p.m. We went
for 35 minutes looking at the plans and discussing what the requirements
were. The zoning and sub-division requirements were met and then we
discussed the off-street parking. Ms. Seneschal said the decision
whether off-street parking is needed will be made by the Board of
Adjustment. I am addressing the comment that I wasn’t reading
the minutes correctly; I was. When we decided that all rules and regulations
were met by the builder, I put the motion on the floor that we approve
the sub-division as is and the owner is required to satisfy the requirements
of the City Engineer for access to the off-street parking. We voted
unanimously to pass that and move it on to Council and at around 6:55
p.m./7 p.m. Don Mischner and Tommy Clayton came in and wanted to know
what was going on with the subdivision. They said the meeting wasn’t
supposed to start until 7 p.m. That was the first anyone on the Commission
knew there was a mistake. I didn’t know what to do about it
at the time. I wasn’t trying to railroad anything through, I
wasn’t trying to be dishonest. I do this for nothing. Then it
went to Council. After it goes to Council we don’t have any
control over it. I don’t know what happened at Council, but
they said we violated the Sunshine Law. In a sense, we did, but we
never did anything dishonest.
(Because the Attorney General’s Office ordered us to rehear
this application. That supercedes what took place before.)
Ms. Heyman – Did this body ask the Board of Adjustment whether
it was necessary to pave the back or did you ask them if a variance
might be possible?
Chairman Steele – It is not the Planning Commission’s
part to ask for a variance.
Mr. Wilson – We recommended they go to the Board of Adjustment;
we can’t tell them what to do.
Ms. Davis – I would like to make a recommendation now to deal
with what has been suggested by the property owner as to what he wants
to proceed with and make a decision.
Mr. Mendelsohn -- Made a motion to disapprove the suggestions the
owner has made and if he wants he can go back to the Board and see
if they can make a change for him.
(Discussion about whether we can separately vote on the sub-division
and the off-street parking issue took place.)
Ms. Miller – Given the enormity of the concern about the road,
which I also have, I would disapprove use of the road for off-street
parking.
Mr. Wilson – At the earlier meeting Ms. Seneschal said the decision
whether off-street was needed would be made by the Board of Adjustment.
We did not approve the road last time. They have to have two off-street
parking spaces. We cannot override that. We can’t make a decision
on that.
Ms. Seneschal – It is her understanding that you vote on what
has been placed before you.
Mr. Mendelsohn – I would like to make a motion we disapprove
the subdivision as it has been presented for off-street parking accessed
by the road. Ms. Miller seconded the motion.
Special Planning Commission Meeting Minutes
July 5, 2005
Page 8
Mr. Wilson to Ms. Seneschal – Is this motion in conflict with
the comprehensive plan?
Ms. Seneschal – The subdivision as it is presented is consistent
with the zoning ordinance in the comprehensive plan.
Mr. Wilson – So this body put a motion on the floor to vote
against the zoning and comprehensive plan.
Ms. Seneschal – As I understand it, they presented a motion
to disapprove the subdivision.
Chairman Steele – We have a motion to disapprove subdivision
as presented with off-street parking as accessed by roadway behind
2nd Street. He asked for a show of hands in favor of disapproving
the subdivision. Three members raised their hands: Mary Davis, Rich
Mendelsohn and Jane Miller.
Ms. Miller – Something that disturbed me tonight is the assumed
animosity between the Planning Commission and HAC. I can assure you
that preserving the historic integrity and making the quality of life
of all citizens is our primary focus. It is shocking to hear a lot
of anger when we are working for nothing and are working for the town.
Please don’t forget that.
Chairman Steele – This motion has not passed. I need a motion
to approve the subdivision at 219 East 2nd Street as presented.
Ms. Davis – She wants to hear from her fellow commission members
as to why they voted to disapprove the subdivision.
Mr. Wilson – I had put a motion on the floor in April for the
Trustees to rezone that whole area as open space. It was denied. The
vote was 11-1 to keep that property as historical/residential. The
reason I didn’t vote to stop this was because everything we
set up in the zoning ordinance and comprehensive plan was done, then
we changed the rules on them. We have laws that say what we have to
do. He did that and we did that. I have been a resident of Bull Hill
for 37 years. The area is completely different now. That area is enhanced
ten times what it was when I moved there. There are people down there
who think this is a great idea.
Ms. Davis – I am not opposed to a sub-division; however, I am
opposed to this road as having to be part of that. It would be nice
if the developer would rethink the proposal to take into consideration
the great consternation that the neighborhood is feeling. We are not
here to rubber stamp something because the developer has made a decision.
We do have to take into consideration how neighbors feel.
Ms. Miller – The issue is the road. You can have one house and
have your off-street parking if code demands that coming from 2nd
Street. There are alternatives. It is important to listen to the community.
Chairman Steele – All we do is recommend to City Council. I
would like to get a compromise tonight so that when we take it to
Council with everyone in agreement. If we don’t make a decision
the whole thing goes to Council next week and we go through everything
again.
Mr. Wilson – Made a motion to accept the plans as submitted
amended by their 10 foot wide road.
Mr. Mendelsohn – The law is on their side. We are trying hard
to see it the citizens’ way. Either we compromise or it’s
going to go through because they’ve done everything right.
Chairman Steele – There being no second for the motion on the
floor, the motion fails. This matter is tabled until next month.
A motion to adjourn was made, seconded and approved. The meeting was
adjourned at
8:05 p.m.
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