By Andrew Abel

Delaware State News

DOVER — Farmers for Fairness, an association of Kent County landowners, submitted a petition Monday to the Delaware Court of Chancery in Dover contending that its constitutional property rights were violated when Kent County Levy Court adopted the county’s comprehensive land-use plan without proper notification to those affected by the zoning changes.

The Kent County comprehensive plan is a policy document that charts land development over the next several years. It is designed to stimulate growth where there is infrastructure to support it.

The court action was filed by Dover attorney John W. Paradee, who said the landowners did not receive the required 15 days’ notice of Kent County Levy Court and Regional Planning Commission meetings. In addition, the comprehensive plan called for the rezoning of farmers’ land from one unit per acre to one unit per 10 acres, he said.

"Essentially, this means that if a farmer had 20 acres, he could develop 20 houses on that land," Mr. Paradee said. "With the new changes, the same farmer can only build two houses on his 20 acres."

Most of the landowners have no intention of selling their property, but rezoning the land severely impacts equity value, he said. When farmers need money for seeds, fertilizer or equipment, they usually borrow against the value of their land, Mr. Paradee said.

"One of those big harvesters can cost $500,000," he said. "Farmers just don’t always have that type of cash."

With the economy’s recent downturn, farmers are operating on thin enough margins as it is, Mr. Paradee said. The rezoning just puts more strain on the industry and reduces borrowing power by 90 percent, he said.

Levy Court and the Regional Planning Commission held numerous public hearings and meetings; however, the state mandates that anytime there is a zoning change, the affected landowners must be notified individually, he said.

But the comprehensive plan is a policy document, so even though it has already been adopted, zoning changes have not yet occurred, Mr. Paradee said. According to state code, rezoning has to occur within 18 months of adoption of the comprehensive plan.

Many Kent County residents didn’t know about the meetings concerning the comprehensive plan, Mr. Paradee said. Now that the plan is adopted and zoning changes are about to occur, their only option is legal action, he said.

"Banks have told my clients that they can’t lend them as much money as before because their property value has decreased" due to the implications of the comprehensive land-use plan, Mr. Paradee said. "Farmers’ asset portfolios are 10 percent of what they used to be."

"We plan to appoint a committee of farmers to address concerns about rezoning," said P. Brooks Banta, president of Kent County Levy Court. "Any farmers involved with the lawsuit will not be included in the committee."

Despite the fact that the comprehensive plan has already been adopted, Mr. Banta said, "There is always opportunity for adjustment."

Many oppose measure in uncertain economy

Delaware State News

DOVER — Despite many residents’ fears that the Kent County comprehensive plan would devalue their property, Levy Court commissioners voted 6-1 to pass the proposed plan.

"There’s a lot of decisions that are hard to make up here, and this has to be the hardest one I’ve had to make," said Commissioner Harold K. Brode, who voted to approve the plan. "I support the draft comp plan for what it’s supposed to be.

"I realize it’s really just a starting plan and there’s a lot to do with ordinances."

Public testimony was taken well past 11 p.m. Tuesday from a majority of residents speaking against the plan. About 15 minutes before midnight, commissioners made their decision, with Commissioner W.G. Edmanson II casting the lone dissenting vote.

"Especially with the economy the way it is, and I feel your pain, I cannot vote for this plan," Mr. Edmanson said.

One major amendment the commission approved unanimously was to strike a proposed requirement that any development outside the growth zone would be limited to a 10-percent impervious surface and would provide a minimum of 70 percent dedicated open space.

Instability in the financial market was one of the recurring reasons residents were opposed to the plan. Many farmers said they felt the plan would decrease their land value, the only source of equity most of them use for loans.

"Things change, and you need your options open," Smyrna resident John Messina said about being able to sell his land for development if needed. "Those in the development zone get more money per acre. If I’m going to give that up, they should pay for that. You can take my rights, but pay for them."

But county staff reiterated several times that the comprehensive plan would not affect densities in any part of the county and that the densities listed in the plan are in effect in the county now.

Maximum allowable densities differs depending on whether land is inside or outside the growth zone — established in 1996, the zone is the swath of the county largely between U.S. 13 and Del. 1.

Early versions of the plan recommended shortening and widening the zone in places, in addition to lowering densities throughout the entire county, but that version failed when it was presented to Levy Court during a public hearing in April. That hearing lasted until 2 a.m. and ended with commissioners tabling the plan to address residents’ concerns.

Mandated by the state to update its comprehensive plan every five years, the county has been working on updating the 2002 version of the comprehensive plan since 2006.

"(The plan) does set forth goals and objectives, but it does not in and of itself take action on any of those recommendations," said Michael J. Petit de Mange, county administrator. "It strives to offer up recommendations with reason and that are reasonable.

"Some of the recommendations may be implemented in the future, some may not, some may not be pursued at all. That’s up to the Levy Court in the next five years."

Emphasis was put on the transfer of development rights program, which offers those outside the growth zone the option to sell those rights to developers who can use the credits to build at higher densities inside the growth zone.

The program was started in 2005. Since then, one project has been recorded out of five proposed, county Planning Director Sarah Keifer said, but more developers are showing interest in shifting from a conventional subdivision to a TDR project. For the one approved project, 125 credits were sold at about $6,500 each, she said.

Not all residents present at the hearing were against the plan. Donna Feliceangeli, who lives west of Clayton, spoke in favor of it, saying that if it weren’t for plans that curtailed development, she wouldn’t be able to run her small flower nursery at her home.

"You do not want to have a plant nursery in the middle of a small town," she said. "If my well goes dry because of those houses, I can’t water my stock ... and it takes three to five years or better for flowers to mature."

Others who were opposed to the plan said they didn’t like being told what they could or could not do with their property. Commissioner Bradley S. Eaby sympathized with those sentiments, but added that what anyone does with their land affects others.

"If everyone out there who was a farmer never sold their farmland, we wouldn’t have a problem, but some have sold and it affects everything," he said, pointing to schools, emergency personnel and roads as some of the areas development impacts. "I don’t see the economy turning around in two years, so, I don’t see where tabling this gets us."

Kent residents voice concerns over proposal

Delaware State News

DOVER — Fears that Kent County’s comprehensive plan would slash property values rippled through residents during the Levy Court’s public hearing Tuesday.

The crowd slowly thinned as residents addressed concerns that the comprehensive plan would reduce land values outside the growth zone — essentially the land between U.S. 13 and Del. 1 from the top to the bottom of the county. The zone was established in 1996.

Public testimony continued past 10 p.m.

Since 2006, the county has been working on updating the 2002 comprehensive plan, which acts as a land-use and policy guide for the future of the county.

The Levy Court held a public hearing in April that lasted until 2 a.m. with a standing-room-only chamber full of residents. Commissioners tabled the plan to address the concerns expressed by those residents.

"I stood up here in 1996 when the growth zone was created and I told (Constance) Holland then we’ve created the haves and the have-nots," said Ted Bobola Jr., Kent County president of the state Farm Bureau. "I just wish we could wait, table this thing and get some laws straight in the state that makes the (transfer-of-development-rights program) worth something."

Ms. Holland, the state planning director, supports the plan, calling it excellent. The state office of planning commended earlier versions of the plan that proposed a different growth-zone boundary.

County staff pointed out that the comprehensive plan does not effectively change any current ordinances or regulations that are currently in place.

"This is not an ordinance; it does not change the density in the county," said county planning director Sarah Keifer. "The density provisions that are in place today in the county will be in place tomorrow if this plan is adopted tonight. The plan itself does not change anything."

Any changes to the current laws would require additional public hearings with the Levy Court if the commissioners decide they want to pursue those changes. However, the plan doesn’t affect density levels.

Maximum density inside the growth zone can be up to seven units per acre, while outside the growth zone density changes with the amount of units planned. A 10-lot subdivision can build at one unit per acre, 11 to 25 lots at one unit per two acres, a 24- to 50-lot subdivision is at one unit per three acres and 51 or more lots develop at one unit per four acres.

The economy drove many of the comments, with residents saying that the issues the nation is facing with the financial crisis, especially over the past few weeks, should require commissioners to table the plan and see where the nation is headed.

"I have a problem with losing equity, especially now," said Felton resident and farmer Robert Garey, adding that there has been a 25-percent drop in grain and corn value.

"Everybody knows that money is going to be hard to come by unless you have good equity. I would like to see us stop development, but I can’t see us downzoning and taking away equity.

"We as landowners can’t afford to give up that equity."

The Regional Planning Commission passed the plan for review by the Levy Court on Sept. 11, with five in favor, with Commissioner Paul Davis opposed and Commissioner Albert Holmes Jr. not voting.

The plan includes expanding the transfer-of-development-rights program, which allows those outside the growth zone to sell their development rights to those who want to build inside the growth zone at a higher density. Those who choose to sell their rights can still live on and farm their property, but cannot sell it for a subdivision.

It also proposes to establish traffic districts and sub-areas throughout the county, and an extensive plan would be written for those areas to identify infrastructure improvements needed, Ms. Keifer said before the meeting. This would make sure the infrastructure — roads, sewers, utilities, etc. — would be able to adequately serve the current and possible population in those areas.