CITY OF NEWARK DELAWARE
PLANNING COMMISSION MEETING
December 1, 2015
7:00 p.m.
Present at the 7:00 p.m. meeting were:
Chairman: Alan Silverman
Commissioners Present: Bob Cronin Jeremy Firestone Willard Hurd Edgar Johnson Frank McIntosh Robert Stozek
Commissioners Absent: None
Staff Present: Maureen Feeney Roser, Planning and Development Director Michael Fortner, Development Manager
Mr. Silverman called the Planning Commission meeting to order at 7:04 p.m.
Mr. Alan Silverman: I would like to call to order the City of Newark Planning Commission meeting for December 1, 2015.
Mr. Bob Cronin: Could you speak into the microphone?
Mr. Silverman: It’s going to be the death of me yet. Let’s try again. I would like to call to order the City of Newark Planning Commission Meeting for December 1, 2015.
1. THE MINUTES OF THE NOVEMBER 3, 2015 PLANNING COMMISSION MEETING.
Mr. Silverman: The first item on our agenda is approval of the minutes of the November 3, 2015 Planning Commission Meeting. The draft has been posted on the internet. No? You’re not doing that?
Ms. Maureen Feeney Roser: We don’t post drafts on the internet, just the corrected minutes. The audio is there, but the minutes are not.
Mr. Silverman: Okay.
Ms. Feeney Roser: Sorry.
Mr. Silverman: Apparently draft minutes are no longer available. The Commissioners have had copies of paper minutes. Are there any additions or corrections to the paper copies that have been distributed to the Commissioners?
Mr. Cronin: Mr. Chairman, I have one, I think. On page 11, actually was, unless you’ve corrected it already, I think it was your remarks about the shopping center. Maureen, if you’re looking, there’s two large paragraphs toward the center. It’s the 2nd paragraph, the 4th line down, talks about modern suburban painting, like parking islands. I think they mean modern suburban planting.
Mr. Silverman: Probably planting.
Mr. Cronin: Most likely.
Ms. Feeney Roser: That would make sense.
Mr. Cronin: Yeah, that’s what I thought. It made more sense to me when I put planting in there. One question, I don’t know whether this is a correction to the minutes or not, but the same page at the top, the 3rd line down from the top, the complaint review effort. I don’t even know what that is. Is that correct, the third line from the top on page 11? Is that something that…
Ms. Feeney Roser: Alan, it’s yours. The sentence reads, “So maybe we need to ask the staff to start looking at some of those issue if some of my notion is true and at least lay it out for City Council and the complaint review effort as to whether they want to carry that notion forward.”
Mr. Silverman: Frankly, I don’t read these.
Mr. Cronin: Okay.
Mr. Frank McIntosh: It seems like, if it weren’t capitalized, it’d be fine.
Ms. Feeney Roser: That could be.
Mr. Cronin: Maybe that would, that’s what caught my attention. I mean, if I see something capitalized, I think there’s a formal process or something.
Mr. McIntosh: Alan, you’re just a formal guy.
Mr. Cronin: How would you like to see it in the minutes, since they’re your words?
Mr. Silverman: If that’s what the transcriber took down, that’s what’s there. I’m not changing anything.
Mr. Cronin: I understand, but she doesn’t know whether to transcribe with capital letters or not, so maybe you could help her.
Mr. Silverman: No, I’ve got nothing to do with it.
Mr. Cronin: Alright.
Mr. Silverman: We’ll discuss minutes when we get to the FOIA and open meetings.
Mr. Cronin: No further comments, Mr. Chairman.
Mr. Silverman: Okay, other than the corrections of my discussion that I chose not to correct, but have been corrected through our table talk here, any other corrections? Okay, hearing none, the minutes stand as corrected.
2. REVIEW AND CONSIDERATION OF THE MAJOR SUBDIVISION AND SPECIAL USE PERMIT FOR 3.3 ACRES LOCATED ON POSSUM PARK ROAD JUST NORTH OF THE MILLCROFT RETIREMENT AND NURSING HOME IN ORDER TO ADD A 48 BED MEMORY CARE UNIT TO THE EXISTING MILLCROFT FACILITY.
Mr. Silverman: Second item on our agenda.
Ms. Feeney Roser: Thank you, Mr. Chairman. This is the review and consideration of the major subdivision and special use permit for the Millcroft Retirement Home to add a 48 bed memory
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care unit to the existing facility. For the benefit of those in the audience, I will try to briefly summarize my report, the requirements report to the Commission.
On June 15, 2015, the Planning and Development Department received an application from Taylor Wiseman & Taylor on behalf of Five Star Quality Care Inc. for Major Subdivision and Special Use Permit approval for the 3.3 acres within the City limits and located just north of the existing Millcroft Retirement and Nursing Home. The applicants are requesting development approval in order to add a 35,828 square foot, 48 bed memory care unit to the existing Millcroft facility, which is located in New Castle County. The required special use permit for the nursing care facility in the RD zoning district is also requested.
The Planning and Development Department report on the Millcroft Memory Care Facility major subdivision and special use permit request follows:
Property Description and Related Data
1. Location:
The property is located on the west side of Possum Park Road, immediately south of Cullen Way, and just north of the existing Millcroft Retirement and Nursing Home located in New Castle County.
2. Size:
3.307+/- acres
3. Existing Land Use:
The property is currently vacant. A major subdivision was approved in 2006 for 10 single family adult community homes known as Stonevale, which was not built. The subdivision since expired.
4. Physical Condition of the Site:
The property is a cleared and vacant site, which slopes consistently from east to west, from Possum Park Road to the Hunt at Louviers and north to south towards the existing Millcroft facility. A row of evergreen trees separates the property from Cullen Way. The southern and western boundaries of the site are bordered by a mixture of pine and deciduous trees and scruffy underbrush. In terms of soils, accordingly the United States Department of Agriculture’s Natural Resources Conservation Service and the Subdivision Plan, the site contains the following soils, listed below:
Brinklow channery loam (BkD), 15% to 25% slope; Glenelg loam (GeB), 3% to 8% slope; Glenelg loam (GeC), 8% to 15% slope
There are no wetlands on the site.
5. Planning and Zoning:
RD is a residential zone that permits the following:
A. A one-family, semidetached dwelling. B. Accessory uses and accessory buildings subject to special requirements. C. Cluster development subject to site plan approval as provided in Article XXVII D. A one-family detached dwelling. E. The taking of nontransient boarders or roomers in a one-family dwelling by an owner- occupant family resident of the premises, provided there is no display or advertising on
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the premises in connection with such use and provided there are not more than three boarders or roomers in any one-family dwelling. F. The taking of nontransient boarders or roomers in a one-family dwelling by a non- owner-occupant family resident on the premises, is not a use as a matter of right, but is a conditional use subject to special requirements, including the requirement for a rental permit, and provided there are not more than two boarders or roomers in any one-family dwelling. G. Church or other place of worship, seminary or convent, parish house, or Sunday school building. H. Public and private elementary, junior, and senior high schools. I. Municipal park, playground, athletic field, recreational building, and community center operated on a noncommercial basis for recreation purposes. J. Municipal utilities; street rights of way. K. Swimming pool, private; swimming pool, public. L. Temporary building, temporary real estate or construction office. M. Utility transmission and distribution lines. N. Public transportation bus or transit stops for the loading and unloading of passengers. O. Student Homes, with special requirements.
RD also permits, with a Council-granted Special Use Permit, the following:
A. Nursing home, rest home, or home for the aged, subject to special requirements. B. If approved by the Council, property in a residential zone adjacent to an area zoned "business" or "industrial" may be used for parking space as an accessory use to a business use, whether said business use be a nonconforming use in the residential zone or a business use in said adjacent area zoned "business" or "industrial." C. Police and fire station, library, museum, and art gallery. D. Country club, regulation golf course, including customary accessory uses subject to special requirements. E. Professional office in residential dwellings for the resident-owner of single-family dwellings, with special requirements, including the requirement that the professional office is permitted only for the resident-owner of a single-family dwelling. F. Customary home occupations subject to special requirements. G. Substation, electric, and gas facilities, subject to special requirements. H. Day care centers, kindergartens, preschools, day nursery schools, and orphanages, subject to special requirements. I. Public transportation bus or transit shelters. J. Public transportation bus or transit off-street parking facilities. K. Swimming club, private (nonprofit) subject to special regulations.
Area regulations.
1. Minimum lot area. 6,250 square feet. 2. Maximum lot coverage. 25%, and the total maximum lot coverage of 50%. 3. Minimum lot width. 50 feet. 4. Height of buildings. Three stories or 35 feet. 5. Building setback lines. 15 feet. 6. Rear yards. 20 feet with conditions. 7. Side yards. Minimum width 8 feet, with an aggregate of 20 feet with conditions.
Please note that the Millcroft Memory Care Facility proposal meets or can meet all RD zoning area requirements.
Regarding adjacent and nearby properties, immediately south of the site is zoned “NC21” in New Castle County and contains the Millcroft Senior Living Community. “NC21”, in the County is, in general, a single family residential district that permits residential development on one-half acre minimum lot sizes. The land east of the site across Possum Park Road is zone “S” in the County and contains the large lot residential subdivision known as Chanterelle. “S” is a residential zone in the County that permits a wide variety of residential uses, with higher densities permitted with additional open space. The RT (single family, detached) City
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development of The Hunt at Louviers is located immediately west of the site. RT permits single family homes on lots with a minimum size of 15,000 square feet. The RT-zoned Temple Beth El property lies north of the site across Cullen Way.
In terms of comprehensive planning, the Comprehensive Development Plan IV calls for single family residential (low density) uses at the site. The plan defines single family residential (low density) as “areas designed for dwellings occupied by one family, primarily single family detached with overall densities of one to three dwelling units per acre.” Please note that residential land uses section of Comp Plan IV goes on to note that “professional, administrative and medical offices, churches, schools, nursing homes, funeral homes, community centers, daycare centers, police and fire stations, office research facilities and similar light industrial uses may be accommodated very satisfactorily along with, or adjacent to residential areas depending on the specific use involved, site design considerations, proposed site amenities, and the availability of adequate services and facilities.”
Status of Site Design
Please note that at this stage in the Newark Subdivision review process, applicants need only show the general site design and the architectural character of the project. For the site design, specific details taking into account topographic and other natural features must be included in the Construction Improvements Plan (CIP). For architectural character, the applicants must submit at this subdivision plan stage of the process, color scale elevations of all proposed buildings, showing the kind, color and texture of materials to be used, proposed signs, lighting, related exterior features and existing utility lines. If the CIP, which is reviewed and approved by the operating departments, does not conform substantially to the approved subdivision site and architectural plan, the CIP is referred back to City Council for its further review and re-approval. That is, initial Council subdivision plan approval means that the general site concept and more specific architectural design has received City endorsement, with the developer left some limited flexibility in working out the details of the plan – within Code determined and approved subdivision set parameters – to respond in a limited way to changing needs and circumstances. This does not mean, however, that the Planning Commission cannot make site design or related recommendations that City Council could include in the subdivision agreement for the project.
Be that as it may, the Millcroft Memory Care Facility major subdivision and special use permit plans call for the construction of a 35,828 +/- square foot facility to contain forty-eight memory care beds, with associated facilities. The plan also shows an access-way leading from the existing Millcroft Nursing Home and Lifecare Facility off Possum Park Road into the site. There will be no access to Cullen Way from the proposed facility. In addition to fire lanes and associated access-ways, the plan shows a total of 46 parking spaces, which exceeds the total required by Code to serve the development (25), by 21 spaces. However, 33 of the spaces used to serve the facility are located in New Castle County, and only 13 are located within the municipal boundaries of Newark. This does not create an issue for the facility, provided that a cross access and parking easement is prepared and executed as well as a guarantee that at least 12 of the parking spaces on the County property are dedicated to the Memory Care Facility. The wording of this agreement will need to be approved by the City Solicitor prior to the issuance of a building permit for the project.
Regarding design, please consult the applicant’s submitted elevation drawings for additional information concerning the proposed architecture and site design. To evaluate the proposed architectural design, the Planning Commission should consult the design criteria in Municipal Code Chapter 27 Subdivision and development regulations Appendix XIV. Please note, in this regard, the proposed elevation drawings were not reviewed by the Downtown Newark Partnership’s design committee because they site is not located within the boundaries of the Downtown Newark Partnership’s area of responsibility.
Fiscal Impact
The Planning and Development Department has evaluated the Millcroft Memory Care Facility’s impact on Newark finances. The estimates generated on net return are based on the
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Planning and Development Department’s Fiscal Impact Model. The Model projects the Millcroft Memory Care Facility fiscal impact – that is, total anticipated municipal revenues generated less total costs of municipal services provided. The Planning and Development Department’s estimate of net annual revenue for the project is as follows:
First Year $26,670 Second Year and Thereafter $15,420
The difference between the first and future years’ net revenue is from the City transfer tax in the first year.
Special Use Permit
Zoning Code Section 32-78, Special Use Permits, stipulates that Council may issue a special use permit for a nursing home facility in an RD district provided that the applicants demonstrate that the proposed use will not:
“A. Affect adversely the health or safety of persons residing or working within the City of Newark boundaries or within one mile of the City of Newark boundaries and within the State of Delaware; B. Be detrimental to the public welfare or injurious to property or improvements within the City of Newark boundaries or within one mile of the City of Newark boundaries and within the State of Delaware; and C. Be in conflict with the purposes of the Comprehensive Development Plan of the City.”
Please note, in granting any special use permit, Council may designate such conditions in connection therewith as will, in its opinion, assure that the use will conform to the foregoing requirements and that such use will continue to do so.
Traffic
Because Possum Park Road is a State-owned and maintained roadway, the Planning and Development Department requested a DelDOT review of the Millcroft Memory Care major subdivision and special use permit plan. The department indicates that the development as proposed does not meet the volume-based warrants for a Traffic Impact Study (TIS), which are 500 trips per day and 50 trips per peak hour. Having said that, the department does indicate that there will be some increase in traffic for the Memory Care Facility above what was estimated to have been generated by the previously approved and expired 10 unit residential subdivision. Therefore, the department had some comments which should be incorporated into the plan as follows:
1. An initial stage submission is necessary; 2. A turning template for an SU-30 type vehicle is needed; 3. Possum Park Road is a major collector roadway and requires a minimum of 40 feet right- of-way from the center line. If the existing right-of-way is less than 40 feet from the center line, the right-of-way should be dimensioned and, as necessary, a dedication will be required. The dedication should be called out on the plan as follows: “A x-foot wide strip of right-of-way is hereby dedicated to the State of Delaware as per this plan.” Where the existing building would fall within the 40 feet, the dedication should run to the face of the building; 4. Cullen Way is classified as a local roadway and requires a minimum of 30 feet right-of- way from the center line. If the existing right-of-way is less than 30 feet from the center line, the right-of-way should be dimensioned and, as necessary, a dedication should be required. The dedication should be called out on the plan as noted above. Where the existing building would fall within the 30 feet, the dedication should run to the face of the building; 5. A 15 foot permanent easement should be provided beyond the right-of-way dedications above; and 6. A traffic generation diagram should be shown on the plan.
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Subdivision Advisory Committee
The Subdivision Advisory Committee – consisting of the Management, Planning and Development and Operating Departments – has reviewed the proposed Millcroft Memory Care Facility major subdivision and special use permit plan and has the comments below. Where appropriate, the subdivision plan should be revised prior to its review by City Council. The Subdivision Advisory Committee comments are as follows:
Electric
1. The developer must pay $17,000 towards the cost of the underground high voltage electrical distribution system, electric meters and a new utility pole on Possum Park Road. This price is subject to a yearly CPI index, once the development is approved by Council. 2. If the development interferes with the City’s smart metering system, the developer must pay all costs associated with mitigating the problem interference. 3. While the department indicates that the location of the transformer as shown on the plan is acceptable, they suggest that it be relocated to a location closer to the facility to reduce costs and to prevent possible voltage drop issues. The developer’s engineer should contact the Department to discuss options for the transformer location.
Parks and Recreation
1. The Department indicates that the landscape plan is acceptable, and further that they will have additional comments during the construction improvements plan review, if the development is approved.
Planning and Development
Planning
1. The Planning and Development Department notes that the removal of a curb cut on Cullen Way is a benefit of the project. 2. The Department notes that the Millcroft Memory Care Facility meets the Comprehensive Development Plan IV land use designations and the current zoning of the project. The department also notes that the facility will fill a need in this community for memory care assistance. 3. The Department notes that a cross access and parking agreement between parcels, and which will guarantee that at least 12 of the parking spaces on the County property (Tax Parcel #080470014) are dedicated to the Memory Care Facility is required. The wording of this agreement will need to be approved by the City Solicitor and must be provided before a building permit can be issued for the facility. 4. The Department indicates that the bike rack detail on page 4 of 7 is shown but is not the approved type of bike rack in the City Bicycle Design guidelines. Proposed racks should support the bike frame in two locations and provide specified locking capabilities. The bike rack detail must be included in the construction improvements plan. 5. The Department indicates: • The architectural design of the proposed façade should be carried out on all building elevations visible from public ways. • Storage areas, mechanical and utility hardware shall be screened from view from all public ways and nearby properties in a manner consistent with the proposed architectural design. • Lighting should be designed to limit impact on adjoining and nearby properties. 6. In addition, the Department notes that a Certification of Plan Approval Signature Block should be added to the plan with signature lines for the City Manager, City Secretary and the Planning and Development Director.
Code Enforcement
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1. An additional fire hydrant is required in the rear of the building between the two fire hydrants shown on the plan, which are approximately 900 feet apart. Delaware State Fire Prevention Regulations provide for a maximum distance between fire hydrants of 800 feet for health care occupancies. Therefore, an additional fire hydrant will be required in the CIP process. 2. The building must meet 2012 ICC Codes, as amended, in force at the time of building permit submittal, including the 2012 IFC and the Delaware State Fire Prevention Regulations, whichever is more restrictive.
Public Works and Water Resources
1. Consideration for sidewalk access from this site to Possum Park Road should be considered. Pedestrians and/or bicyclists will have to go all the way to the southern entrance to gain access to the site as proposed. This suggestion is made for employees’ and workers’ convenience and to promote interconnectivity, biking and walking. 2. Additional water and sewer comments will be provided during CIP but the plan is acceptable at the subdivision plan level.
Recommendation
Because the Millcroft Memory Care Facility’s major subdivision and special use permit plan conforms to the Comprehensive Development Plan IV, because the major subdivision and special use permit plan, with the Subdivision Advisory Committee recommendations, will not have a negative impact on adjacent and nearby properties, because the proposal meets all applicable code requirements, and because the proposed plan does not conflict with the development pattern in the nearby area, the Planning and Development Department suggests that the Planning Commission recommend that City Council approve the Millcroft Memory Care Facility major subdivision and special use permit plan as shown on the Taylor Wiseman & Taylor plan, dated May 6, 2015, with revisions through September 18, 2015.
I know that the applicant is here and will be making a presentation to you, but I will be happy to answer any questions that the Commission may have for staff.
Mr. Silverman: Do the Commissioners have any questions for staff about the staff report?
Mr. Will Hurd: Will Hurd. Maureen, I didn’t see the police commenting on what I could consider to be sort of a possible major issue of having the property split between two municipal areas. Is this something we have other places in the city? Is this a concern to people?
Ms. Feeney Roser: The municipal boundary varies throughout the community and the police did not raise any concerns at all about that.
Mr. Hurd: Okay, I’m just, it’s almost as if we’ve got a problem at Millcroft, I just see that there could be a delay if they’re not clear about the City one or the County one, or can the City respond?
Ms. Feeney Roser: They have mutual agreements to be able to do that.
Mr. Hurd: Okay.
Mr. Silverman: Will, there are mutual agreements in place because of the outliers of New Castle County within the City limits. Studio Green Apartments complex, for example.
Mr. Hurd: Okay.
Mr. Silverman: First available unit.
Mr. Hurd: All right. That was my only question on the report.
Mr. Silverman: Any other questions on the report? Okay, let’s open the floor to the applicant. 8
Mr. Michael Hoffman: Mr. Chairman, members of the Planning Commission, good evening. I’m Michael Hoffman. I’m an attorney with Tarabicos Grosso and I’m here tonight on behalf of the applicant. Also with me here tonight is our project team. You’ll have an opportunity to hear from everyone on our project team to answer questions that the Commission might have.
With me here tonight are Rob Eckenrode. Rob is the assistant director of Facilities Management for Five Star Quality Care. Also, Walt Zapor of KCBA Architects. He’s the project architect. And we have Gary Vecchio and Mark Thompson of Taylor Wiseman & Taylor, the project engineers with you tonight.
Before I turn it over to our project team, I do want to run through a little bit of a background. I thank Director Feeney Roser for the report that sums up pretty nicely what we’re here about tonight. This is the Millcroft Memory Care, proposed Millcroft Memory Care project. It is located, as Ms. Feeney Roser mentioned, to the west of Possum Park Road. That is the existing Millcroft facility. That is located within the jurisdictional boundaries of the County. As I’ll show in a moment, the City’s line runs right about here (please note: Mr. Hoffman referred to a PowerPoint presentation.) and so the subject site that we’re talking about is right here. It is currently a vacant lot and we, again, are proposing a 48 bed memory care facility.
To orient the Commission a little bit better as well, I did put the boundary line there in red and, again, that is our facility right there. It’s an interesting project because it does cross jurisdictional boundaries. We have concurrently both our major subdivision application with you here tonight. Also along with that is a special use permit request that we are requesting for the nursing home use, and then we also have a minor land development plan running through the County process, which I’ll talk a little bit about, so that we can connect the site through there.
A little bit of the site history as Ms. Feeney Roser mentioned, the property was previously approved back in 2006 for a 10 unit adult community, 55+ community, Stonevale. That plan has expired. Since then, in June of 2014, my client closed on the property. Between June of 2014 and present day, we have had three meetings with the local community. This is the Hunt at Louviers over here. Across the way, in the County also, is Chanterelle and, again, this is Possum Park Road right here.
We have met with the community. We have taken steps to engage the community and amend the plan in accordance with that dialogue. We’re pretty proud of where we stand here before you tonight.
The site itself is about 3.3 acres. It is zoned RD in the residential zoning district. As I mentioned, the existing facility is in the County. The proposal of the plan is to actually limit the site, again, as Ms. Feeney Roser mentioned. Access would be through the County portion of the site and then we would have a cross access and parking easement agreement to allow access, ingress and egress to the actual expansion, all located within the site. That was one of the things that was important to the community that we actually house it within a complex and not have access off Cullen Way, but we will talk more about that.
Again, it’s a 48 bed facility that’s proposed. I’ll let Mr. Zapor talk more about the elements, but this is a loop road for fire access. That’s a [inaudible] loop road. Again, we’ve tried to be mindful of stormwater management and other elements of the project.
Before I do turn it over to our professional team, I do want to highlight a little bit. As you know this is a request for special use permit and accordingly there are certain dimensional requirements that we’re required to meet under the Code. We meet those specific requirements, but then there are also more subjective requirements that we are obligated to establish. Specifically, we have to establish that the proposed use will not, a) adversely affect the health and safety of persons within the neighborhood of the proposed use, b) will not be detrimental to the public welfare or injurious to property or improvements in the neighborhood, and c) will not be in conflict with the purposes of the City’s Comprehensive Development Plan. Through our presentation we’ll try to touch upon each of those elements so I can give the Planning Commission an idea of why we submit that we meet all those requirements going forward.
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Our framework here tonight, is first I will have Rob speak about Millcroft, introduce the Planning Commission a little bit about what is this facility, what’s the business, and what’s the proposal. I’ll then turn it over to Walt Zapor to talk more about the renderings and the architectural elements that are being proposed, before turning it over to Mark to get into the engineering elements. At the close of that, I will come back up to summarize and go through, we do have a draft cross access easement, and I also want to summarize some of the conversations we’ve had with the community. So if that works with you, I’ll first turn it over to Rob Eckenrode.
Mr. Silverman: Rob, if you’ll give your name for the transcript.
Mr. Robert Eckenrode: Yes, it’s, this is off, it’s Robert Eckenrode. Thanks for having me tonight. I am the assistant director of Facilities Management for Five Star Senior Living. A little history on Five Star. Five Star operates 270 communities over 38 states, providing independent living care, skilled nursing, as well as assisted living and rehab services.
Thanks to Mike for pointing out a little bit about the existing property, but as far as the existing property goes, Millcroft has 62 independent living apartments currently. There's also 26 assisted living units as well as 110 nursing health care beds. Oh, great, thank you. Perfect. The expansion project which we would love to do is a 48 unit, to Mike’s point, 48 unit Alzheimer’s care facility. It’s a single story facility with, as we’ll get into the detail, with three pods, but it’s mainly our Bridge to Rediscovery Program, which is a dementia care program, which covers all the levels of dementia in Alzheimer’s care for our residents.
Mr. Walt Zapor: Thank you. My name’s Walt Zapor. I’m a senior associated KCBA architect and project manager for this project. Five Star had come to us requesting a design for a project for a memory care facility. We’ve done several of these type of memory care projects for them and we’ll tell you a little bit about the building here.
I believe this is just a schematic plan showing the footprint of the proposed building and some of the topography and we’ll let Taylor Wiseman get more involved with that discussion.
This is a rendering of the main entry of the building. Both residents and visitors and guests would be able to drive up the driveway here and drop off the residents or visitors at this front entry. The door is right here under a large porch and a sitting area. Again, the building is one story and the materials, which I’ll show a little bit more later, are compatible with the other existing buildings at the site. But this loop road is primarily to facilitate drop-offs and pick-up.
The aerial view here that you saw earlier but zoomed in a little bit of the existing facility, I would note the roofs, the materials that we have there. Our intent was, and per the client’s request, was to have a campus-like atmosphere, a campus feel, so we’ve tried to integrate the architectural aspects of the design to be similar to the existing.
The building in front here is actually a three story building with hip roofs and brick. We’ve carried that theme into the new addition, echoing the hip roofs and brick materials. We’ve tried to actually have two accesses. Again, this would be a more public access coming through here and drop off, as I mentioned earlier, but also service areas are located in the back, providing access for deliveries, which is balanced with the same access on the existing building. Mechanical equipment, trash areas, deliveries are here and they occur here in the new building, so we’ve kept those back-of-house aspects back-to-back.
A little bit about the actual layout. For dementia care, the current trends are that, rather than double loaded corridors, multi-stories high, facilities are currently being designed into households, with 12 to about 20 residents per household and it gives a sense of identity for the members in that household in terms of memory care. It gives an identity to each household.
The apartments are around the perimeter. The interior of each household actually has living and dining space, kitchenette and then a back-of-house [inaudible] and so forth. The three households are connected with a main street and it’s no accident there was a little bit of a theme.
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Main Street Newark is quite famous and so we will echo a little bit of that Main Street theme, including even possibly some art recalling the history of the area.
The Main Street actually then has a kitchen area, which is a full kitchen where meals are delivered, basically, dinner to each of the households, and light meals like breakfast are actually prepared in the households. So there’s a kitchen area here. The areas over here are nursing and support, physical therapy and so forth. Main entry here with administration and a group activity space is here.
Again, the materials are intended to be compatible and mirror what’s at the existing building. We will have brick match as close as we can to the existing building, shingles in a reddish family to match, and siding. The existing building also has some stucco and siding in the later editions and we’ll be recalling that material in somewhat a transitional, traditional look.
We’re working with Taylor Wiseman and our landscape architect to develop landscaping that is compatible with what’s at the existing site but also supportive of the memory care. In particular, we will have two memory care courtyards here with planting and where activities can take place for the residents. We have some retaining walls and I think we have a photo later on of how we will address them. We’ve worked, again, listening to the community and their concerns about buffering in this area here. There are some pine trees and we’ll actually be supplanting that buffer with some additional planting, and then planting both the bio-retention basis here and the large stormwater basin over here.
Here’s an example of the buffer where the pine trees are older, very sparse vegetation at the lower branches, so we’re actually supplementing with another layer of buffering here along Cullen Road. Again, this is feedback in response from the community.
These are some views where again, computer model to give a sense of how the building is actually nestled into the hillside here, much like across the street. There is a synagogue that is also nestled into the topography in this area here, so it actually makes a very low profile, a low visibility from both Possum Park and Cullen. Another view, actually towards Cullen, which is in the back. The entrance we looked at. Again, the loop road was developed with input from the fire marshal and we used pervious surfaces for the loop road.
This actually here is existing. This is the entrance to the Hunt at Louviers development, which occurs back here. Many of these are existing trees, but we will also be planting more vegetation here. So actually not very much will be seen from this intersection.
Another view from Possum Park and you can see how that nestles into the topography there. This is actually standing on Cullen looking back toward the entrance gate, fence, for the Hunt. All our materials, again, feedback from the community, we’ve added some additional brick and buffering. And this is standing in Cullen Way looking directly across.
This is an example of the porous paving. They’re called ECO pavers. It’s an EP Henry product. Again, the purpose is that we do not want to blacktop the entire loop road, both providing something that’s a visually more appealing for the residents and the community overall, but also meeting all the requirements of the fire marshal.
Some of the patterns, I don’t think we have the final pattern selected, but that’s just some examples of the types of materials we will use for that loop road. The other item I mentioned earlier was the retaining wall. Our intent is to not do 8 foot high retaining wall, but actually to take more of an approach of terracing the retaining wall to give a softer feel and look of where we have to cut into the site. So we would have a terraced planting retaining wall. Again, some examples of the color and texture that the retaining walls will be composed of. Thank you.
Mr. Mark Thompson: Hello. My name is Mark Thompson. I’m with Taylor, Wiseman Taylor. We are the civil engineer on this project. I think there has been a pretty good narrative so far, as far as the site goes and all. I’ll try to be brief here, but as we all discussed, the existing entrance along Possum Park, the existing facility will be utilized for our new expansion project. You’ll have to enter on Possum Park, and then come up and access this new facility here. 11
We do have parking on our site. You can see these apartments face us here. There’s also a parking area here, which is in the County’s property, and that’s where the cross access easement agreement comes from. There’s also some additional parking right here in front of the building that, again, that’s in the County, the County property.
Walt was talking about the loop road around the building, which is shown here. That was, again, based on comments from the fire marshal. Walt said we want to make it porous paving. Another advantage to making it porous paving is the stormwater management concerns. The porous paving helps with our stormwater requirements. Water is able to infiltrate through and reduce the volume.
We also are proposing two rain garden areas. There’s one here and there’s one here. These discharge into a pipe along the loop road and then eventually into the dry detention base in here which is equipped with a four bay area. So we have a treatment train, if you will, of stormwater management. We have rain gardens, porous paving, four bays, and a dry basin all for water quality and stormwater quality reduction.
This is just the existing conditions and proposed conditions drainage area map. Most of the drainage area, as you can see, is in this small area here, is directed to, there’s an existing inlet right here in Cullen Way. Our proposed basin, we tried to match the existing drainage areas and all of our stormwater pumps, out the rain gardens and all and into the basin and then eventually to that same inlet there. The basin and stormwater management facilities have been designed to reduce the rate of runoff in all storm events.
Mr. Silverman: Can you describe what a rain garden is and how it functions?
Mr. Thompson: Sure. A rain garden is a depressed area. It’s a small, depressed area. There’s only about 2 feet of depth in it and the, I actually have a detail of it later on I can show you. It’s a shallow, depressed area and it collects water from, in this case it’s coming off of our roof, but there will be 2 feet of soil that comes out of that basin and gets replaced with an amended soil mix, which is topsoil and sand. It helps to, 1) infiltrate and 2) clean the water before it gets to the storm network.
Mr. Silverman: It’s planted with water-tolerant plant materials so it serves as both a landscaping feature and a stormwater management [inaudible].
Mr. Thompson: Yes, correct. We have some pictures as we go back. This is the existing basin at the Hunt at Louviers. We want to try to mimic this with our design for our large basin. It’ll be a naturalized bottom. It’ll be allowed to overgrow and it’s mowed like once or twice during a growing season. We can also plant some, you can see there’s some wildflower growing in there, which we will be doing, planting some wildflower seed mix in there to give it a little color and all. These are just other pictures of it, something of that nature is what we’re looking for.
This is a picture of a rain garden that was done. As you can see there is a mulch area. It’s a shallow depression and there are some nice shrubs and shrubbery and just a nice landscape there. This is another picture of a separate basin with some wildflower mixtures. This is the detail for the rain garden area. As you see, they take out the planting media and put back in, take out the soil and put back in the planting media.
Mr. Hoffman: Just to wrap things up and then we’ll certainly take questions from the Commission. One thing I do want to emphasize is, as it has been said, we did work pretty closely with the landscape committee of the Hunt at Louviers. We were connected with that committee through Councilman Markham and certainly we’ve enjoyed working with them. We appreciate all of their input. I think that it has helped us develop what we think is a pretty good plan for this project.
Just a little bit more about those meetings. There were three. The first meeting was in May, May 14, 2014. There was another meeting July 8th of 2014, and, it wasn’t planned this way but it just so happened to be, the third meeting was July 8th of 2015, so exactly to the day a year after that meeting. Through that there was a lot of good conversation. Again, a lot of the 12
ideas that have been incorporated came through those meetings and we certainly appreciate the community input.
One of the things that also came through that meeting is, there was a question, the landscape committee is responsible for a lot of the maintenance along Cullen Way and in the community, and so there was a question as to whether we would be willing to make a contribution to the landscape committee for that maintenance. I spoke to my client and, again, we were certainly appreciative of the good, working relationship and so we have committed and we are committing to a $500 annual contribution to the landscape committee. I’m working with the landscape committee. They are, again, we’re not tying this, but there was some discussion and recommendation that the money be used, again, there for the landscaping along Cullen Way associated with the project.
The other thing that I should mention is the cross access. A requirement both on the City and the County end of this project is that we have a cross access and maintenance easement agreement in place. We do have that agreement drafted. It is ready to share with both the City and the City solicitor, as well as the County attorneys. One that I just want to show here, this is the exhibit associated with that easement agreement and, just so you can see, the easement area is this crosshatch here and then the parking is here. The idea is that this parcel over here, which is the parcel within the City, would gain access and parking through this parcel here, and that would allow us to preserve and maintain this campus-like feel that you’ve heard about.
Yes, Mr. Chairman?
Mr. Silverman: And those agreements run with the land regardless of ownership?
Mr. Hoffman: That’s correct.
Mr. Silverman: Or future ownership?
Mr. Hoffman: Correct, and that is a great point. They are drafted. Two important considerations in drafting those agreements. They do run with the land, the other thing is that they respect the corporate formalities. These are actually two separate parcels owned by two separate entities, legal entities. They’re controlled by the same overarching organization, but as far as our agreement when we draft that cross access agreement, we do have to respect the corporate formalities, so it is drafted in a manner that recognizes these two separate entities, but that it will run with the land however the land is conveyed in the future.
Mr. Silverman: Thank you.
Mr. Hoffman: The one thing, just to wrap up here and, again, we’ll certainly take any questions of the Commission. I do want to talk a little bit about, again, I mentioned the subject of legal standards. We believe that we have met that. We submit that we have. As the Planning Department mentioned, this plan is compliant with the Comp Plan, Comp Plan IV. A Comp Plan emphasizes and acknowledges that Newark has a growing aging population and so facilities that support that population are certainly in line and also within the residential characteristic of the zone and an institutional use such as that is complementary and compatible with those uses. So with that I will take and answer any questions.
Mr. Silverman: Commissioners?
Mr. Jeremy Firestone: Was there any interaction with, excuse me, Jeremy Firestone. Was there any interaction with Temple Beth El?
Mr. Hoffman: No, I don’t believe that there was.
Mr. Robert Stozek: Bob Stozek. Just curious, what is your timeline as far as when you would like to start construction and when do you envision being up for business?
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Mr. Hoffman: Certainly. The ill-timed movement of the presentation. There are a lot of moving pieces to this. Just as far as the approval timeline where we are right now, certainly we are before the Planning Commission here tonight. We do still have to go before the City Council here in Newark. We also are scheduled to go before the Board of Adjustment. That is an excellent point to point out. We have a minor land development plan going through the County because the, let me get the site plan here, as you can see over here, the County has obviously setback requirements, aiding setback requirements, and because in order to connect this and the parking spaces here, we are going to require some variances, and we are scheduled to appear before the Board of Adjustment in New Castle County for those variances on December 10th. Once all the approvals are in place, then the question becomes, I don’t know if Rob has an idea, Rob or Walt, as far as construction, and give a timeline for that.
Mr. Eckenrode: Yeah, at that point, we would go to contract. It would be bid, go to contract, and then construction time would be a year from then, so it would take a year [inaudible].
Mr. Hoffman: For the record, that was Rob Eckenrode.
Mr. Silverman: Any other questions from the Commissioners? Will, do you have any questions?
Mr. Hurd: No.
Mr. Silverman: I have a number of questions. There appears to be an agreement with the community and a consensus for no access on Cullen Way. Would your client be willing to place a denial of access strip running coterminous with the property line along Cullens Way on your drawings and as a note on the plan? Again, for future owners.
Mr. Hoffman: Sure, and I appreciate that. What I would say, certainly as the plan, we have to build it and it has to be constructed in accordance with the plan as-is. Any change to that plan would have to come back through the City for any sort of an approval there. I hesitate, and the reason I hesitate is two-fold. First, I haven’t spoken to my client about that particular condition. I’d be happy to do so, but I can’t obviously agree to that until I have an opportunity to see my client. But second, there could be any number of reasons why in the future access might be necessary. We have no intention to do that. It doesn’t support this plan. It is not in line with how this design is. There really genuinely is no intention to do that. I just don’t know if I can commit to that as [inaudible].
Mr. Silverman: I was thinking of the community wishes, the involvement with the councilmen, the understanding exists today, and whoever may be owning or operating that site 15 or 20 years from now. That if it’s memorialized either in notes on the plan or through the drawings, everyone knows what the deal was initially.
Mr. Hoffman: Certainly, and I understand and I respect the position. I’ll take it back to my client and we can certainly consider that. Again, I don’t want to make a mountain out of a molehill, but there is no intention to do that.
Mr. Silverman: I’m not either. If everyone’s comfortable with somebody will be here, or somebody who’s here today will be here 15 years from now, it can be settled then.
Ms. Feeney Roser: Chairman Silverman, that may be something we can have on the agreement for this particular development.
Mr. Silverman: Okay, just so it’s memorialized.
Ms. Feeney Roser: Because it’s in the report, so we could certainly do that and then curb cut that would be requested would have to go to the City Manager and it would show up.
Mr. Hoffman: Correct.
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Mr. Silverman: Okay. I was thinking more in terms of doing some searches through records. Sometimes things get a little dislocated.
Another point, given the clients that will be in the facility, and I have some personal family experience with facilities like this, the best efforts are made to control access in and out of the buildings, but from time to time that does fail. Will the stormwater retention areas and other areas be designed that they won’t pose a hazard to an individual who may be a walk-away?
Mr. Hoffman: I appreciate the question, Mr. Chairman. I’ll have Rob come up. That actually is something that we discussed. It is something we were talking about, the security of the residence. It is something that is not only very important to the client, but also from a State regulatory position, it’s also very important there. But Rob, I don’t know if you had a couple words.
Mr. Silverman: I’m not looking for detailed answers. Just so it’s on your mind and in the design [inaudible].
Mr. Eckenrode: No, it definitely…
Ms. Feeney Roser: I’m sorry, Rob. You have to come to the microphone.
Mr. Eckenrode: Sorry, Robert Eckenrode. The plan does, it is a secured facility, so it is, there are locking devices on all the exits of the property. Those locking devices do drop out in the event of a fire. So a fire alarm goes off, magnetic locking devices drop out, staff is responsible to secure residents in an area, whether it’s a fire compartment or outside of the building. We do have that luxury around those rain gardens where each of those closed-in areas are closed in with fence, so they’re closed in. Anyone that got out the front door, which takes multiple barriers and multiple locks to get through to the front, then can’t get to the large rain basin, but we are considering that, and that’s a major consideration of all of our Bridge to Rediscovery properties, which is all of our Alzheimer properties we have.
Mr. Silverman: Who will you be purchasing your electricity from and how will it be brought into the site? Do you know?
Mr. Eckenrode: I do not know.
Ms. Feeney Roser: The electricity is City of Newark and that route has been worked out with the Electric Department.
Mr. Silverman: Okay, you may want to very closely coordinate with them so everyone’s on the same wavelength as to how the electric is going to get from the street side into your site.
Mr. Eckenrode: Okay.
Mr. Silverman: Underground, overhead wires, where it’s physically going to come into your building, because you’ve worked very hard on your aesthetics and how the site works.
Mr. Eckenrode: No, I appreciate that.
Mr. Silverman: I’m just throwing that out there.
Mr. Eckenrode: No, that’s a great recommendation.
Mr. Silverman: Make no assumptions. My final question, since this is a care facility, I assume the State fire marshal is playing an active role in this, as well as the City’s fire review person?
Mr. Eckenrode: Exactly. City and County, correct.
Mr. Silverman: I noticed that the City called for an additional fire hydrant on the site. Where is that planned? Please come up to the microphone. 15
Mr. Thompson: I’m Mark Thompson with Taylor, Wise Taylor again. There is one existing hydrant up here near the intersection of Cullen Way and Possum Park, and there’s another hydrant here, 900 feet away, on Cullen Way. We’re also proposing a new hydrant off of the main, in Possum Park that will go somewhere in this area.
Mr. Silverman: Near the new parking?
Mr. Thompson: Correct.
Mr. Silverman: The County parking interface?
Mr. Thompson: Correct, and then the fire marshal also would like a second, I’m sorry, another hydrant installed somewhere up here, located in the back of the building between the two existing ones. So there will be a second hydrant added right in that location.
Mr. Silverman: I was going to suggest that you may want to go back and work with the fire marshal and your landscape architect to take advantage of those fire hydrants on Cullen Way so that they can easily be accessed. Whether it’s a ramp, stone structure, all-weather surface, rather than trying to bring another fire hydrant in that may be simply a dead end. It’s just something to think about. A little cost savings and it would literally split the water systems for reliability. Just another way of looking at a project and it’s also not unusual to locate the fire department connection remotely from the building. Because right now where the hydrant is placed, if a fire apparatus were to pull up next to that hydrant, and I’m going to assume the fire department connection is on the Possum Park Road side, it’s going to get very crowded right there and minimize access around the building because of necessity of parking pieces of equipment and where hoses are going to go. So it is possible and the fire marshals are aware of this. I’ve worked with them on other projects to locate the fire department connection remotely from the building, and it’s a free-standing pipe with what looks like the wall connection.
Mr. Thompson: The Siamese connection.
Mr. Silverman: Yes, the Siamese. So that’s just another thing to look at. Again, cost savings and making the site work a little better.
One last detail and I’m battered from having to chase down plans that are 15 to 20 years old. If a purpose statement could be put in a box above the title block so it very clearly says what it is. And I have no other questions.
Mr. Hoffman: Mr. Chairman, one thing I do want to add to Mark’s response and we appreciate the suggestions. We'll take all of that back. One thing, just to emphasize, as I mentioned, when we had the one community meeting in July of 2014 and then it was a year until the next community meeting, part of that is working with the fire marshal’s office and developing this loop road, and making sure. So we have worked closely with the fire marshal’s office and will continue to do so, but appreciate the suggestions.
Mr. Hurd: I have just one comment that actually came to me from the site stuff. I was wondering if you had a response to the remark or the comment about the sidewalk access to the bike area, the bike parking area and that sidewalk area around the building?
Mr. Hoffman: Actually, to be honest, when I was preparing for tonight’s hearing, I was looking through the report and, again, I was reminded of that. And I did something, I don’t have an answer right now. We haven’t talked about it. I don’t know if Rob and his team have given it any thought, but it is on my list to take to the client and discuss.
There are a couple things that we have, as you see over here. You have the retaining walls here. You have the retaining walls here. This is an existing sidewalk, and then you’ve got a sidewalk come in here, and so the question is, is where’s the best place with the topo and what not? That’s something I’ve got to take back to the client.
Mr. Hurd: Okay. 16
Mr. Silverman: Any other comments from the Commissioners before we move on to public comment? I have a request from Tim Roberts.
Mr. Tom Roberts: Tom.
Mr. Silverman: Tom Roberts, I’m sorry.
Mr. Roberts: Hi, I'm Tom Roberts from the Hunt at Louviers. I'm one of the co-chairs of the landscape committee, which is the closest things we have to a homeowners' association. A couple of things, I wanted to validate Mike's comments about the project group. They have been very good at keeping us informed and requesting our interaction, just as Mike said. They've been very receptive to incorporating our suggestions so I just wanted to validate that.
The other thing from a personal perspective, I am someone who has two parents that are both stricken with Alzheimer's. I'm a little familiar with the offerings that are available to them in New Castle County, whether it would be in the Newark area or in north Wilmington. There is a great shortage. There's a lot of limitations as far as what is available down in this part of the woods of Newark. So, I for one would be very anxious to have some other options and I'm sure with the aging community, aging population, that I wouldn't be alone with that, that we need other options for our elderly.
We’d really just like to encourage the approval. Let's get this rolling because I know, as Mike mentioned, it's been a year. It seems like it's been two years but, as he mentioned, someone mentioned back in '06, Stonevale was proposed and I think from a community perspective, Millcroft has been a neighbor and we would encourage enhancement of their offering rather than some business or a residential community, so please, get it rolling.
Mr. Silverman: Any other questions from members of the public? Ma'am if you will come to the podium and give your name.
Ms. Renee Casanova: Hi. Renee Casanova, also from the Hunt at Louviers. I do have a couple of questions and, again, I haven't seen the plan closely. I am trying to figure out what is the distance between the closest of the back driveway to the walkway back there? That's question number one. The second question I have is the storm, the water access that you're planning on doing. It was my understanding, and I live at 100 Cullen, are you going to be digging up that property to expand that pipe, which we were told previously and we have not had any [inaudible] of that since? I'm trying to understand the impact to my property in this event.
Mr. Silverman: Let's see if we can clear this up. You're talking about an existing stormwater pipe now?
Ms. Casanova: Correct.
Mr. Hoffman: Thanks, Mr. Chairman. There's two-fold. Actually if I can, we'll have Mark address the pipe and be able to answer that question for you. I just want to clarify, and I apologize if you're talking about the distance from the back edge of this driveway? I'm sorry.
Ms. Casanova: Back there, so the closest distance here.
Mr. Hoffman: Okay, because we have, this over here is the retaining wall and then you have the Cullen Way, and then there's, you're talking about this distance right here?
Ms. Casanova: Correct.
Mr. Hoffman: Mark, do you have that?
Ms. Casanova: The new road is 15 feet from the…
Mr. Thompson: From the right-of-way.
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Mr. Hoffman: Mark, if you can come up to the podium and if you can address that and then also address this.
Mr. Thompson: Okay. Again, I'm Mark Thompson with Taylor, Wiseman & Taylor.
Mr. Silverman: Mark, can you refer to the page in your document that you're looking at?
Mr. Thompson: Yes, I am looking at sheet three which is entitled Major Site Plan.
Mr. Silverman: Thank you.
Mr. Thompson: Page 3 of 7. The loop road that she is asking about at the rear of the property is about 15 feet away from the right-of-way line, the existing right-of-way line on Cullen Way, and Cullen Way has about another 20 feet or so to the curb line, so from the right-of-way to the curb. The loop road will be about 35 feet away from the existing curb, and we're going to be retaining all those existing pine trees and then planting additional ones. Regarding the stormwater management, we are planning to utilize the existing pipes across the street, we're not planning to upsize them. We will actually be reducing the amount of storm water that runs off our site from today with the use of the basins and rain gardens.
Mr. Silverman: Are you clear on that, ma'am?
Ms. Casanova: I am, I’m trying to…
Ms. Feeney Roser: I'm sorry, please go to the microphone.
Ms. Casanova: Sorry, okay. The concern I have is when they were going to do the other development, they said they were going to have to come in and put bigger ones. I understand that you're going to try and do the runoff here but have you sized it and made sure, well I'm good with it because you're not digging up my property, but have you done the assessment? I don't want it to overflow either. That's another challenge, right?
Mr. Thompson: Correct. Again, we will be reducing the rate of runoff leaving our site. We could not do a full assessment of all the storm networks but at that point where we're discharging it to, we will have less storm overall than we do today.
Mr. Silverman: Ma’am, generally, with the recently adopted controversial DNREC standards, there has to be less water coming off the site after development than there was before.
Ms. Casanova: Where are you going to connect the pipes? You're going to dig somewhere so how are you going to, where will that connection be?
Mr. Thompson: The connection will occur at this existing inlet on our side of Cullen Way. We will have a pipe network around our site and through, discharging into our basin, and then from this basin we'll have a discharge pipe that goes directly into that inlet, it will be underground, and then all the water will flow in existing pipes under the street and then down into the stream.
Mr. Silverman: Are there any other questions from members of the public? Okay, hearing none, are the Commissioners ready to vote? Okay. The chair entertains a motion that the Commission support the recommendation of the Planning and Development Department that City Council approve the Millcroft Memory Care Facility major subdivision and special use permit plan as shown on the Taylor, Wiseman Taylor plan dated, this date is still current, dated May 6, 2015, with revisions through September 18, 2015, with the addition of making provisions for the denial of access.
Mr. Johnson: Seconded.
Mr. Hurd: I so move.
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Mr. Silverman: Okay. The move has been seconded. All those in favor, signify by saying Aye. All those in opposition, signify by saying Nay. Motion carried.
MOTION BY HURD, SECONDED BY JOHNSON, THAT THE PLANNING COMMISSION MAKE THE FOLLOWING RECOMMENDATION TO CITY COUNCIL:
THAT CITY COUNCIL APPROVE THE MILLCROFT MEMORY CARE FACILITY MAJOR SUBDIVISION AND SPECIAL USE PERMIT WITH THE SUBDIVISION ADVISORY COMMITTEE CONDITIONS AND WITH THE ADDED CONDITION THAT PROVISIONS ARE MADE FOR THE DENIAL OF ACCESS TO CULLEN WAY.
VOTE: 7-0 AYE: CRONIN, FIRESTONE, HURD, JOHNSON, MCINTOSH, SILVERMAN, STOZEK NAY: NONE
MOTION PASSED UNANIMOUSLY
Mr. Hurd: Edgar is always good for a second. Even before the motion is on the table.
[inaudible]
3. REVIEW OF AN AMENDMENT TO THE ZONING CODE RELATING TO THE DEFINITION OF ACCESSORY BUILDING OR STRUCTURE.
Mr. Silverman: Okay. Moving on to the next item on our agenda, item three, review of an amendment to the Zoning Code relating to the definition of accessory building or structure.
Ms. Feeney Roser: Thank you, Chairman Silverman. For the benefit of Mrs. McKelvey and Dr. Morgan, I will say, first of all, that there is a misspelling in the title of the report. I just noticed the word 'definition’ is spelled wrong. But I will summarize my report.
At the Council meeting held Monday, November 9, 2015, Council directed staff to revisit the issue of the height of accessory structures and consider an amendment(s) to Zoning Code to limit the height of no impact accessory buildings/structures.
BACKGROUND
As the Commission knows, a little more than 18 months ago, Council requested a review of the City’s Zoning Code for consideration of changing the definition of “accessory use” and creating a definition for the term “neighborhood.” In response, the Planning and Development Department issued a memorandum on June 13, 2014 outlining the extensive research conducted and potential options for consideration, and requested a workshop to discuss how to proceed. With other pressing matters before Council, a workshop date was not set, and eventually, the Planning Commission held an open public dialogue about the issues surrounding accessory uses and the definition of neighborhood, and possibilities for changing the Code provisions to address them as part of their March 2015 meeting. Based on Commission discussion and public input, staff received enough direction to proceed with crafting Code amendments to address the concerns. Subsequent to the March meeting, the Commission held three additional public meetings (April 7, June 2 and July 7) to finalize the recommendations to Council.
Based on research, considerable public outreach and discussion, the Planning and Development Department suggested developing a set of definitions for Accessory Use and Accessory Building, which would differentiate between those uses/buildings which have no impact beyond the property on which they are located and those that have an impact; and requiring those accessory uses/buildings “with impact” to obtain a Council-granted special use permit. The approach allows accessory uses/buildings which do not have an impact beyond the property line as permitted uses; and allows those uses with impact beyond the property line only as conditional uses, and therefore, subject to special use permit review and requirements. Also based on research and public discussion, it became abundantly clear that the word 19
“neighborhood” is difficult to define because the word’s meaning may alter based on individual associations and/or contexts. Therefore, to provide a more definitive term for Code interpretations, the Department suggested that when the word “neighborhood” is used in Code to refer to an impacted area, it be changed to the term “surrounding area.” Based on Code notification requirements for rezoning, annexations, etc., the Department further proposed to define surrounding area as “properties immediately adjacent thereto and extending 300’ in any direction from the property in question.”
At the July 7, 2015, the Planning Commission unanimously approved the Planning and Development Department recommendations, and on September 14, 2015 Council approved the recommendations.
CURRENT DEFINITIONS FOR ACCESSORY BUILDING OR STRUCTURE
Code Section 32-4(a)(1) reads as follows: Accessory building or structure: “A detached or subordinate building on the same property as the principal building, the use of which is incidental and subordinate to that of the principal building.
32-4(a)(1) a. Accessory building or structure, no impact: “An accessory building whose use generates no noise, smoke, dust, odor, or pollution above normal local background levels detectable outside of the property line. A no impact accessory building shall not be used for commercial purposes, but may be used for a professional office.
32-4(a)(1) b. Accessory building or structure, with impact: “An accessory building that does not meet the definition or requirements of an “accessory building, no impact.”
Although no change is proposed for the definitions of Accessory Use, Accessory Use, no impact or Accessory Use with Impact, the definitions are provided below for context:
32-4(a)(2) Accessory use: “A use customarily incidental and subordinate to the principal use or building and located on the same lot with such principal use or building, except for parking spaces as required in Article XIV of this chapter.
32-4(a)(2) a. Accessory use, no impact: “An accessory use that generates no noise, smoke, dust, odor, or pollution above normal local background levels detectable outside the property line. Backup power generators used only during emergency or maintenance conditions in accordance with the manufacturer's specifications, residential grills and fireplaces shall be considered no impact accessory uses.
32-4(a)(2)b. Accessory use, with impact: “An accessory use that does not meet the definition or requirements of an “accessory use, no impact.”
ISSUE
Recently, there was a special use permit application, which has since been withdrawn, for a home based business to operate a Federal Communication Commission (FCC) authorized Low Power FM (LPFM) radio station in a home on Bent Lane. The applicant was required to apply for a special use permit in order to operate a radio station in his home as a home based business with impact, not because the business itself qualified as a home business with impact but because in order to operate the station he installed a 51 foot high utility pole in the side yard of his property for the antenna. This outdoor alteration excluded the radio station from qualifying as “no impact” home occupation, however the tower itself met the criteria of a “no impact” accessory structure. In other words, the home occupation was not a “no impact” occupation because it required an external alteration inconsistent with the residential use of the dwelling, but the utility pole itself (without the associated radio station) was permitted as a “no impact’ accessory structure based on the definition. 20
Therefore, staff was asked to look at the definition of accessory structure to determine if there should be a height limitation.
PROPOSED AMENDMENT
Staff believes that the limitation can be easily integrated into the existing definition of Accessory Building or Structure, No Impact as follows (addition in bold italics):
32-4(a)(1) a. Accessory building or structure, no impact: “An accessory building or structure, which does not exceed the height of the principal building, and whose use generates no noise, smoke, dust, odor, or pollution above normal local background levels detectable outside of the property line. A no impact accessory building shall not be used for commercial purposes, but may be used for a professional office.
STAFF COMMENTS
The proposed definition and Code amendment have been reviewed by the City Solicitor and the operating departments and we have the following comments:
• The Planning and Development Department notes, while the Planning Commission considered and rejected a height limitation when discussing the creation of a definition of accessory buildings, that was before the strategy of creating two classes of accessory structure - those with impact and those without impact - was developed. With this impact vs no impact strategy in place, the proposed Code revision will not prohibit accessory structures from being taller than the primary structure, but will simply require Council review and a special use permit to exceed the height of the primary structure.
• The Planning and Development Department also notes that during the extensive research done to develop our accessory use and structure definition, many communities also included a limitation on height.
• The Planning and Development Department believes that the revised definition is easy to understand and will limit the visual impact of accessory structures because if a structure is taller than the primary structure, Council will have the ability to deny or approve a structure with conditions, such as requiring aesthetic improvements or landscaping requirements with the special use permit.
• Operating Departments had no concerns about the revised definition.
• The City Solicitor indicates the revised definition is a good way to address the concern and does not conflict with any other Code provisions.
Recommendation
In order to limit the potential negative impacts caused by the height of an accessory structure, the Planning and Development Department suggests that the Planning Commission recommend that City Council revise Zoning Code section 32-4(a)(1) to read as follows:
32-4(a)(1) a. Accessory building or structure, no impact: “An accessory building or structure, which does not exceed the height of the principal building, and whose use generates no noise, smoke, dust, odor, or pollution above normal local background levels detectable outside of the property line. A no impact accessory building shall not be used for commercial purposes, but may be used for a professional office.
That’s the summary of the report. Certainly Mike and I would be happy to answer any questions that you may have regarding this. I know that Dr. Morgan has suggested an amendment that he'll talk with you about that we would also consider, so I'll be happy to answer any questions you might have.
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Mr. Silverman: I would like to take a lead on this. I usually wait for everyone else who's spoken but I've given some thought to this and been through the wars of the accessory uses. I am going to lean very hard in Edgar Johnson's direction. Our Code has defined poles like this as a structure. We have height limitations in, I believe, every zoning district. There's already a mechanism in place for the Board of Adjustment to grant a variance if somebody wants to exceed those height limitations. I feel that the Board of Adjustment is a more neutral body and having amenities three feet back, six feet back, and neighbors' arguments being played out on the floor of Council. And also, I think the Board of Adjustment can go a lot further in laying out conditions, kind of semi-wide open as far as they're concerned, in meeting neighborhood needs that would more meet the needs of the general neighborhood, as well as the people who are directly affected.
One thing I did not find in our Code was a requirement that any towers like this be required to fall within the property line in which they were erected. If we're going to change the Code, that's the direction I would go. A number of jurisdictions, including New Castle County, have this. As a matter of fact, some jurisdictions actually have required a tower to fall within the property line. They require an additional distance, maybe one and a half times the height of the tower, for the location of the tower from the property line.
So at this point, I see no need to change the Code. I think all the pieces are there. There are height limitations to any structure. A pole like that is considered a structure. If the person wants to vary from that, they can go to the board of adjustment for a variance, which gives a formal, by itself, free-standing public hearing instead of an agenda item review before Council.
Ms. Feeney Roser: May I respond?
Mr. Silverman: Yes.
Ms. Feeney Roser: First of all, the height definition in our Code is for height of building, right? That's what I looked at when you were speaking. It doesn't talk about a utility pole in somebody's yard, although we would consider that a structure.
Mr. Silverman: Somewhere in the Code refers to utility poles being structures. Remember we had this conversation about what's a building and what's a structure?
Ms. Feeney Roser: Yes. I remember we had lots of conversation about that but this pole, the height of the pole did not trigger any Building Code or Zoning Code denial of the pole height. Mike handled that and I see him walking up.
Mr. Silverman: What’s the…
Mr. Mike Fortner: The poles are basically…
Ms. Feeney Roser: You've got to turn on the mic.
Mr. Hurd: Mike, turn it on.
Ms. Feeney Roser: Poles are exempt. Okay.
Mr. Fortner: Either it was, there’s a section of the Code that except for power and utility poles.
Ms. Feeney Roser: That's 32-56, right? So that's one.
Mr. Fortner: So this was an accessory structure that met all the setback requirements but there was nothing to regulate the height for a utility pole.
Ms. Feeney Roser: Plus, the other part of that, because of that, there would be nothing that would trigger an appeal to the Board of Adjustment. You have to be denied in order to go to the Board of Adjustment. So unless you have a restriction that we say you can't meet, they would have no reason to go to the Board of Adjustment. 22
Mr. Silverman: So if a height description in a residential neighborhood is 35 feet…
Ms. Feeney Roser: For a building.
Mr. Silverman: For a building, I'm just picking at numbers here.
Ms. Feeney Roser: Okay.
Mr. Silverman: We'll forget chimneys and cornices and all the rest of that. My reading would be that any accessory building, any accessory structure, cannot exceed the height limit in that particular district, so it could not exceed 35 feet.
Mr. Fortner: Except that radio towers and things are exempt from the height limitations.
Ms. Feeney Roser: This is not a tower.
Mr. Silverman: It's not a radio tower. It's a pole.
Mr. Fortner: Well, it's a radio tower.
Mr. Silverman: It's a pole.
Mr. Fortner: It's a radio tower.
Ms. Feeney Roser: Okay. The Code Section 32-56.2, Height of Buildings, Exceptions to Height Limits, says in any district, the maximum height provisions shall not apply to spirals, domes, cupolas, belfries, chimneys, smokestacks, flag poles, water tanks, towers, observation towers, transmission towers, silos, antennas. So it doesn't, there is no height restriction in zoning.
Mr. Silverman: Well then, rather than, where I'm going with this is I think it's impossible to pick out height limitations for pole tower-type structures for every zoning district.
Maureen: You wouldn't have to, because this amendment just says that it couldn't be taller than the primary structure without going to Council for a special use permit. It doesn't preclude somebody from being able to do that.
Mr. Fortner: So even if the height requirement is 35 feet, if the primary structure on that building is a one-story structure, you couldn't build an accessory garage taller than that without going to Council. I don't think you should think of it as poles because poles have all kinds of exemptions. For example, if this was called a ham radio pole, it would have been exempt under the FCC, which is originally what I thought it was. The height limitation wouldn't apply anyway to a pole that's broadcasting in a similar nature, but it could apply to someone building an accessory building that's taller than the primary structure, whether it's 35 feet or not.
Obviously the cap in most residential areas is 35 feet so you couldn't go above that, but this would actually say it can't be higher than it. So if the primary structure is only 20 feet, then it can't be higher than 20 feet without going to Council.
Mr. Silverman: Okay, so the de facto height limitation would be the height limit of the primary structure.
Mr. Fortner: That's right. Not the 35 feet, which would be the primary structure maximum.
Ms. Feeney Roser: It's for the visual impact.
Mr. Stozek: I have a question. I guess going back to that, it seems to me we're tying it to the principal building here, the height, with the assumption that the structure is going to be in close proximity to that principal building. Therefore it's not going to be an eyesore or whatever. What if the principal building is 35 feet but the structure is 100 feet away on the property?
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Ms. Feeney Roser: The way this is written, it would still apply, because it is accessory.
Mr. Stozek: Right, but I think, didn't you just say part of the reason for this is the appearance? The visual impact?
Ms. Feeney Roser: Part of what prompted Council to want us to look at it was that people didn't like looking at this utility pole, which you could see above the structure, as well as in the side yard.
Mr. Fortner: In this scenario, it would still be allowed, it's just it would have to go to Council for approval and they would demonstrate it doesn't have, the visual impact, would not be really pertinent, I guess. You wouldn't be able to do by right.
Ms. Feeney Roser: Now, if it were 100 feet away, then that would be a reason the Council would then approve this special use permit conditionally. It doesn't have a visual impact because it's so far away, but it would still, if it's on the same lot, that's the way it becomes an accessory, if it is taller than the primary structure, need a special use permit.
Mr. Silverman: And Council was clear that they would rather get involved in this process than having it handled through the Board of Adjustment?
Ms. Feeney Roser: Council asked us to look at the definition of accessory structure, to put a limitation on height. We thought that the best and easiest way to handle that since Council has already indicated that they would like to have an opportunity to review things that may have impact on the community, that this would be the most straightforward way to address the concern.
Mr. Silverman: Okay. Let me back up with an example, if Mike would work with me here. We had a proposal that I believe was withdrawn, with an automobile dealership on Marrows Road. They wanted to erect a radio communication tower to link its various businesses. Are you saying that under this proposal, they could not do that?
Ms. Feeney Roser: They would require a special use permit for that anyway. That would be another matter that they would have to get before Council, for the height as well as the fact that it's a radio transmission tower.
Mr. Silverman: Okay. I'm trying to see how these pieces would fit together. I don't know whether we're overcomplicating things here. Any other?
Mr. Firestone: Yeah, I've got a question. Jeremy Firestone. Is a solar panel considered to be an accessory structure, an accessory use or something else altogether?
Mr. Fortner: It is connected to the primary, if it's connected to the house on the roof, it would be a part of the primary structure so it wouldn't be an accessory structure because it's connected. If they somehow put solar panels around their yard then it would be accessory structure, and then it would fall under all our accessory structure guidelines. Just like a garage. If a garage is attached to your house, its part of your primary structure but if it's detached from your house, it's in your backyard, you'll have to have it three feet from the property line and all that.
Mr. Firestone: This wouldn't prohibit you putting solar panels on a flat roof?
Ms. Feeney Roser: No.
Mr. Fortner: No. Do you get, the accessory height structure, the radio pole, since there's all kinds of exemptions for radio poles, it would be better about a car dealership that wanted to do those stacking cars up high? Okay, now you're there? Is that a better example? Now, there's one that did it. It was attached to the primary structure and they did this kind of thing, and so I think that falls under the height limit of the primary structure. If they want to do it closer to the road, then there's no height limit. There are setback requirements, so they could want to stack it up high and so if they want to do it more than the primary structure, then they would need a 24
special use permit. It would be the extra step to it, and so that might be somewhere Council might want to have the authority to look over something like that.
Mr. Silverman: Any other questions?
Mr. Cronin: Mr. Chairman, I have one question on the terminology here. There are properties to the north and west of Newark, in particular, in the city limits that, given their terrain, there's probably already some portion of the perimeter or property boundary which may even be higher than the roof of the house to begin with. If somebody wanted to put a pergola or even a swing set up there and they had a little plateau in the back of their yard and they got a nice view of the…
Ms. Feeney Roser: You would measure that as you measure the building height, so it's from grade plane.
Mr. Cronin: Okay. It doesn't say that.
Ms. Feeney Roser: Not in this, but that’s how [inaudible].
Mr. Cronin: Okay. I thought maybe we should have some further clarity of that perhaps because in my mind it's not clear.
Mr. Hurd: I think it's in the definition of height in the Code.
Mr. Silverman: Yes.
Mr. Cronin: Alright.
Mr. Hurd: Where you define height or building height or structure height.
Ms. Feeney Roser: It's in the Building Code as well.
Mr. Cronin: So it's the height of the structure. So if you have a 35 foot house here and you want to put a 35 foot something here, given the terrain, it still would be okay because…
Mr. Silverman: From the soil.
Mr. Cronin: From the soil, okay. As long as we have that understanding [inaudible]. Thank you.
Mr. Hurd: Will Hurd. I think I can see partly what Alan is going for but I think I can also understand what Maureen and Mike are going for in terms of making sure that the accessory use is, what’s the word, subservient, to the primary. I think Bob has a good point that maybe we need to reword this slightly about that, to say that the accessory building or structure's height is not greater than the height of the principal building, so that we're talking about the two heights. Because right now it does read as, it says you can't be taller than the, you know, if I were a lawyer I would drive right through that loophole.
Mr. Cronin: Exactly.
Ms. Feeney Roser: So you would say whose height does not exceed?
Mr. Hurd: Right, but what you really want to say is that I've got an eight foot building up on the hill and I've got a 20 foot building, you know, house. Eight feet is less than 20, I'm good, even if the eight foot building is 15 feet off the ground to start with so that its, instead of saying that the tops are different, it’s just saying that’s 8 feet, this is 20. It makes you go back and say what's the height of the structure? What's my height of my primary building? Okay it's this. What's the height of my accessory building? It's this. They're not the same. They're less than.
Mr. Stozek: So you're saying we have to go back at sea level.
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Mr. Cronin: No.
Mr. Hurd: No.
Mr. Stozek: It's the height of the structure from sea level.
Mr. Hurd: From grade plane, from the grade around the structure.
Mr. Cronin: I think Mr. Hurd's suggestion is to change the wording to say instead of an accessory building or structure, say the height of an accessory building or structure which does not exceed the height of the principal building.
Mr. Hurd: Right. I would say an accessory building or structure whose height does not exceed the height of the principal building.
Mr. Cronin: Yeah.
Ms. Feeney Roser: Can we say the height of which?
Mr. Firestone: Jeremy Firestone. I don’t think that clears up the ambiguity. It doesn't change the legal analysis that it's ambiguous as to what the word 'height' means.
Mr. Hurd: But if the Zoning Code says height is this, because it's in the Code when you say, when you're defining the height of the building, there's a mechanism for defining that, especially when the grade isn't level.
Mr. Firestone: But saying the word twice doesn't make it any clearer. I mean it doesn't.
Mr. Cronin: Yeah, it does.
Mr. Firestone: I don't see how that helps.
Mr. McIntosh: Mr. Chairman, Frank McIntosh. I don't see how it helps either. If it's in the Code as where you measure height from, that's there. It's there. You can't do anything else about it so you just measure it, from wherever that point is. I think that's pretty, instead of just adding words and verbiage, I think the more simple the declaration is, the better off we're with it. I don't think there's any necessity then to play with this. It's already there.
Mr. Silverman: I'm a visual learner. There's a house down there on the road. Its 20 feet tall. I want to put a structure up here on the back of my property on the hill, overlooking my house. A gazebo. How do I determine the height of the gazebo on the hill behind my house?
Ms. Feeney Roser: You measure it from grade plane.
Mr. Silverman: So it would be measured from here.
Mr. Firestone: Are you any taller when you stand on the rear of your property than when you stand on the front?
Mr. Silverman: No.
Mr. Firestone: You're the same height.
Mr. Silverman: Okay. I'm just making sure that we're all, I want to make sure that we're…
Ms. Feeney Roser: I don't know. I feel taller when I sit up here.
Mr. Silverman: No, don't confuse tall with power.
Ms. Feeney Roser: Oh power, right? That's me. Powerful. 26
Mr. Silverman: Okay so we're all thinking about the same thing. That it's measured from hard surface, and measured from hard surface in this example. Does the wording say that?
Mr. Cronin: It's not totally clear.
Ms. Feeney Roser: It’s the height of the principal building.
Mr. Silverman: Okay. One person's opinion, my opinion was I thought it might be more appropriate for Board of Adjustment. I have no problem with the ordinance as it stands.
Ms. Feeney Roser: Well they couldn’t go to the Board of Adjustment if we denied your building permit because you exceeded height, because it's a conditional use.
Mr. Fortner: No, [inaudible] council has to process.
Mr. Cronin: That’s wasn’t on the microphone.
Ms. Feeney Roser: So it's not going to the Board of Adjustment.
Mr. Silverman: That's an important distinction. Mike, can we get that in the record?
Ms. Feeney Roser: It's on the record.
Mr. Silverman: Okay. I didn't know whether Mike was at the microphone when he said that.
Mr. Cronin: He wasn't.
Mr. Silverman: Okay. We ready to move on this?
Ms. Feeney Roser: We need to hear from…
Mr. Silverman: Dr. Morgan, you're here for this.
Dr. John Morgan: Thank you very much. John Morgan, district one, and I appreciated listening to the conversation at the table tonight. I thought it was very perceptive. I actually do like Commissioner Hurd's suggestion of replacing the word 'which' with the phrase 'whose height', because I think it does make it clearer, what exactly is meant here. I do think that's clearer. I also communicated to Maureen and Mike, about 24 hours ago, a further suggestion which I think I had made earlier but maybe got lost, which is that since there are some properties which have more than one principal structure, possibly of different heights, for example an apartment complex or a factory, then it might be good to say whose height does not exceed the height of the tallest or the highest principal building. I think highest would be best in this context.
Mr. Cronin: That's a good point.
Mr. Silverman: How many principal structures can you have on one property?
Ms. Feeney Roser: I think that's a good point. Dr. Morgan used the example of an apartment complex. If you looked at Studio Green, how would you determine which was the principal building? This is the question.
Mr. Johnson: What you need to do is put an 'S' on the end of the building.
Mr. Hurd: The heights for the buildings?
Dr. Morgan: The height of the principal buildings.
Ms. Feeney Roser: You would need a parentheses and an 'S' afterwards.
Dr. Morgan: Okay, that would do it. 27
Ms. Feeney Roser: Mike and I have talked and, of course, we have been in communication with Dr. Morgan. We don't have any issue with that at all. I think that makes a lot of sense.
Mr. Hurd: Yeah.
Mr. Cronin: Okay.
Mr. Stozek: Excuse me. Bob Stozek. So you're saying there can be more than one principal building on a site?
Ms. Feeney Roser: No. I'm sure we'd have to determine which one was the principal building, but it's a case that would take some doing. I assume that lawyers could get into which one is the principal building, something that they're all, you know, one building is a little taller.
Mr. Hurd: I think in the case of the apartment complex, sorry, Will Hurd, all those buildings are principal to my mind because they all serve the principal use of that site. They're all residential buildings.
Mr. Silverman: The key is the principal use.
Mr. Hurd: Right. They're all apartments. They're all principal. It's the storage shed out back that is the accessory.
Mr. Silverman: Well, using Studio Green again, doing this from memory, they have their rental units and then they have some kind of community building.
Mr. Cronin: That's right.
Mr. Silverman: So the principal use is clearly providing apartment units, rental units, but their community building or their exercise and all the rest of that would be clearly an accessory use.
Mr. Hurd: Yeah.
Mr. Firestone: I guess I'm not quite convinced that if you have multiple buildings at an apartment structure that you have multiple principal buildings. If there's, one of the buildings has the office then that, to me, is the principal building and all the other buildings are other buildings that are a part of the development.
Mr. Stozek: But the office building may not be the highest.
Mr. Firestone: Correct, so it may mean that we need to adjust this language, but I think you can probably only have one principal building, hence the word ‘principal’.
Mr. Stozek: I would think so, yeah.
Ms. Feeney Roser: So that would take the 'S' off of 'buildings' that was just suggested. It would remain 'principal building', and then we can debate amongst ourselves and attorneys what is the principal building. I would agree with you if there is an…
Mr. Firestone: Unless we want to define it or define, not use the words ‘principal building’ but the tallest building on the property that performs the principal use.
Mr. Hurd: Right. You have to circle around it and say higher than the tallest building that's serving the principal use, but maybe that's what we have to do.
Mr. Johnson: This is Edgar Johnson. The English language is sometimes not the most clear language for these types of things. I agree with Jeremy there can only be one principal use. I do believe in this case 'principal' is misspelled, but…
Ms. Feeney Roser: I’d better check that out. 28
Mr. Cronin: It's not.
Mr. Johnson: But you've already built the apartment complex. The heights of the buildings have already been approved so therefore nothing else that you put on the property can exceed the height of what is already there. Correct?
Ms. Feeney Roser: Correct.
Mr. Johnson: So what's the problem?
Mr. Fortner: I was going to say on an apartment complex, buildings have a setback and they have, principal buildings all have a setback that's different than accessory buildings. If there's not an accessory building, its 15 feet from the street line or those kind of things, so those apply to all the buildings that aren’t accessory buildings, like a shed. We look at the same, we don't look at there's only one building then all the other buildings will be accessory buildings. If the office was the only principal building, then the others are accessory buildings and that’s not the way we look at it. So I’m agreeing with Edgar that the tallest building.
Mr. Johnson: Will that be in writing, please? Somebody’s agreeing with me.
Mr. Hurd: I will say though that the, if you just say you can't be taller than the tallest building, as soon as you get approval for an accessory building that is taller than your primary or your principal, you've now said, ‘Oh well now I've got a 60-foot tall radio tower. It's a structure. I can go up to 60 feet now without any review.’
Mr. Silverman: It now becomes the tallest structure.
Mr. Hurd: It's the tallest structure.
Mr. Cronin: That's a good point.
Ms. Feeney Roser: You have to keep in mind that this is in conjunction with the definitions of accessory building and accessory use. That all goes back to it being subordinate.
Mr. Hurd: Maureen, do we have a definition there of principal building in the zoning?
Ms. Feeney Roser: No, not in the Zoning Code. You'd have to go to the Merriam-Webster's. I would think that when somebody came in that Mike and I could probably figure out what was the principal building on the lot, and then if they wanted to argue with us, then that would be an argument of the interpretation of the Code, which could go to the Board of Adjustment. It could go there. There is a way to determine that.
Mr. Fortner: It's 35, the height would be 35 feet. The Code said the principal one can be no higher than 35 feet, or whatever it is in the Code, than the accessory structure, that's what we're talking about here, accessory structures, it couldn't be higher than that. So even you put the radio tower again I think that's a different kind of mechanism, but if you were to approve a 60 foot shed then you can say now I'm going to build my apartment building at 60 foot. It just wouldn't work that way because it's already done.
Mr. Johnson: This is Edgar, I want to correct my previous comment that principal is not misspelled.
Ms. Feeney Roser: Yay, because I'm a terrible speller. I appreciate that.
Mr. Johnson: Wrong again, Edgar.
Dr. Morgan: Could I make a further comment? John Morgan, again. I did a lot of background research on this starting over the summer, soon after Mr. Silverman mentioned the example of the radio tower. I did Google searches for phrases like accessory, structure, no taller than, no higher than, things like that, and there are dozens and dozens and dozens of codes all over the 29
country which have such language in their building codes. They usually have an outright prohibition on an accessory building or structure being taller than or higher than the principal structure. What has been proposed here by the Planning Department allows exceptions, they just have to go to Council where there can be public discussion involving the neighbors, and there's discretion. Council can make their best determination.
I think there may be less discretion in hearings before the Board of Adjustment when the variances are sought, right? Am I right about that? And there is a stronger presumption that the property owner should be able to do what he wants on his property before the Board of Adjustment. And so I think that it is the right route to bring it before Council. Council asked for it. If in the twelve months they have 20 requests for exceptions, they may want to do something different, but I don't think that will happen. I think the number of requests per year will be maybe one. Thank you.
Mr. Hurd: Sorry, Will Hurd. I think one final comment just from listening here, because going back to the earlier conversations we had about this, the whole point of this was really to just say anything that was uncertain to kick it out of the administrative mode and kick it to Council. So I think as long as we've got language that basically says, that does that, that says if you're shorter than the building you're fine. If you're taller than something, anything, it could be just any building, if you're taller than any of the primary buildings, you go to Council and let them sort it out. Rather than try to slice this up so fine that we can cover that one or two cases that should have gone that didn't.
Mr. Silverman: Any other discussion?
Mr. Cronin: Bob Cronin, I like Dr. Morgan's suggestion, what he said, whose height. I would propose an amendment to the wording accessory building or structure, the height of which, and which is already there, the height of which does not exceed the height of the principal building. I think that…
Ms. Feeney Roser: If you keep reading, it then says 'and whose'.
Mr. Cronin: All right, then use the 'whose'. I just don't like whose without being a being.
Ms. Feeney Roser: I don't either but apparently we thought it was okay when we recommended [inaudible].
Mr. Cronin: Then go with 'whose height' for internal consistency. So I make the motion to read after structure 'whose height does not exceed'.
Ms. Feeney Roser: Can you please keep going because there was a lot of conversation.
Mr. Cronin: All right. So it would read in quotations there, 'an accessory building or a structure whose height does not exceed the height of the principal building, and whose use generates no noise, no dust, odor or pollution above the normal local background levels detectable outside of the property line', and of course there's no end of the quotation marks. We need closing quotations marks too, I think, somewhere.
Mr. Hurd: Is that a motion?
Mr. Cronin: Yeah.
Mr. Hurd: Okay, I second.
Mr. Silverman: Jeremy, you work and live in a world of words. With your training and background is in the world of words. Do these words work? Do they say what, the sense of what we're talking about around the table?
Ms. Feeney Roser: Just the words we're talking about adding, right?
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Mr. Silverman: Yes, I'm sorry. Thank you.
Mr. Firestone: For the most part, I would say yes there will be a debate over what the principal building is but Council does have the ability and the discretion should someone feel aggrieved by a position on that, and so they could then extend that use anyway. I think we are pretty clear on the record on what height means and height comparison, and so I think that if anyone went back and looked at this record, it would be clear at least on what this Commission meant in regard to the word 'height'.
Mr. Silverman: Madam Director, do we have enough words there that we can craft a motion?
Ms. Feeney Roser: Actually Mr. Cronin did move and it was seconded by Mr. Hurd.
Mr. Silverman: Okay, so my comment was under discussion.
Ms. Feeney Roser: Yes.
Mr. Silverman: So any further discussion? We're ready to move on the motion?
Mr. Hurd: Yes.
Mr. Silverman: All those in favor of the proposal from the Planning Department, as wordsmithed, signify by saying, Aye. All those opposed, signify by saying, Nay. The motion carries.
MOTION BY CRONIN, SECONDED BY HURD, THAT THE PLANNING COMMISSION MAKE THE FOLLOWING RECOMMENDATION TO CITY COUNCIL:
THAT CITY COUNCIL AMEND THE ZONING CODE DEFINITION OF “ACCESSORY BUILDING OR STRUCTURE” IN THE FOLLOWING WAY:
Delete Section 32-4(a)(1) a. which reads as follows:
32-4(a)(1) a. Accessory building or structure, no impact: “An accessory building whose use generates no noise, smoke, dust, odor, or pollution above normal local background levels detectable outside of the property line. A no impact accessory building shall not be used for commercial purposes, but may be used for a professional office.”
And replace it with new Section 32-4(a)(1) a. as follows:
32-4(a)(1) a. Accessory building or structure, no impact: “An accessory building or structure, whose height does not exceed the height of the principal building, and whose use generates no noise, smoke, dust, odor, or pollution above normal local background levels detectable outside of the property line. A no impact accessory building shall not be used for commercial purposes, but may be used for a professional office.”
VOTE: 7-0 AYE: CRONIN, FIRESTONE, HURD, JOHNSON, MCINTOSH, SILVERMAN, STOZEK NAY: NONE
MOTION PASSED UNANIMOUSLY
Mr. Cronin: Mr. Chairman, a question. With the motion or not the motion, do we vote in the motion first, the amendment?
Ms. Feeney Roser: I believe that was the vote on the motion, right?
Mr. Cronin: With the amended words or not?
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Mr. Hurd: Yes.
Ms. Feeney Roser: Yes, with.
Mr. Cronin: All right. Thank you.
Mr. Silverman: Yes. I used the word 'wordsmith' as modified by the discussion. Motion carries.
Ms. Feeney Roser: Thank you.
4. COMMISSION DISCUSSION REGARDING 2015 ANNUAL REPORT AND 2016 WORK PLAN.
Mr. Silverman: Okay, item four, the annual work program.
Ms. Feeney Roser: In your packets, Chairman and Members of the Commission, is the draft which contains your Annual Report to Council for 2015, which is not changed from the last time that you reviewed this, and the Work Plan. On the 2016 Work Plan, which will be, there are no page numbers on this report but the last page of it, which we can certainly go through now. I will also say that at your place tonight, there should have been a submission deadline sheet because the Work Plan does refer to it, and I had not attached it to the report. It's basically just a planning sheet. I'm sorry, I also didn't tell Michelle that I forgot to add it. That just shows you the time frames under which someone submits a particular type of development and gets to the Planning Commission.
Under number one from the work item, we really just put in what you do every month anyway and that's the review and consideration of land development projects as…
Mr. Stozek: Excuse me, Maureen. I have a sheet attached to mine.
Mr. Cronin: I don't.
Ms. Feeney Roser: Is it from this latest, because I attached my…
Mr. Stozek: That's my question. Is it the same as the one handed out? It looks like it.
Ms. Feeney Roser: Do you have 2016 Work Plan on the next to the last page, then it goes one through six.
Mr. McIntosh: That's the last page of mine.
Ms. Feeney Roser: Right.
Mr. Silverman: No, I don't have a last page.
Ms. Feeney Roser: You do have the last page. You just don't have the attachment. So the last page of the report has at the bottom of the last page, the 2016 Work Plan which at this point is only six items. If you have a much longer list of items, that is the report from the previous Planning Commission meeting.
Mr. Cronin: No six, that's the page six. I don't see it.
Mr. Silverman: Remember, we asked the Department to whittle down the 2016 Work Program.
Mr. Stozek: Oh, that's October.
Ms. Feeney Roser: I think we have extra copies if you just want us to…
Mr. Cronin: Maybe they got commingled.
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Mr. Hurd: It looks like Bob got last month's.
Mr. Stozek: I think we have our packets mixed up.
Ms. Feeney Roser: Okay. This one, the one that we're reviewing tonight, did not have that attachment. That's why we just handed it out to you. That's referred to as Attachment A in number one of the 2016 proposed Work Plan.
Number two is the consideration of the revised Comprehensive Development Plan V.
Three was the staff's attempt to summarize the information that you wanted included for a work plan for the parking project, which was to review parking capacity and demand, parking space requirements by use, parking waiver legislation, fees and practices, and to conduct nationwide research on parking designs, standards and best practices, and make recommendations for Code amendments based on those findings. We see this as a multi-month project that we would start with and discuss at various meetings up until such time as we're prepared, as a group, to recommend amendments.
Number four was to consider the amendments to the subdivision regulations as they pertain to the requirements for plan submittal, and those associated fees. That's come up relatively often, that we think the developers aren't paying enough of the share of what costs the community to review their projects, and also to talk about doing the site plan changes that we talked about last time.
The fifth work item is to work with the Planning and Development Department and DelDOT to set boundaries to begin the process to create a Transportation Improvement District or Districts that are called for in the Comp Plan. I think Michael spent some time with you on why we think that's important, but the reason it's in here is to try to address the concerns about incrementalism for traffic and transportation review. Every time we look at it, the individual developments don't meet the traffic impact study requirements, and yet each adds traffic to our streets. This is an approach that we may be able to incorporate.
The last was to participate in training sessions on the role of Commissioner, Robert’s Fules, and FOIA, which there will be a report on later. That was, considering the amount of projects that come through here and the amount of time that you have and the amount of staff effort that can be put into it, we thought it was a pretty robust work plan and we’re happy to discuss any and all items with the Commission, with the goal being to finalize something so that we can send it to Council.
Mr. Stozek: Bob Stozek, talking about training sessions, somewhere in the Comprehensive Plan, I can't find it right now, there was discussion about evaluating whether we'd use form based codes.
Ms. Feeney Roser: Yes.
Mr. Stozek: I'm wondering, should we have a training session to talk about that so that everybody on the Commission, and whoever else, is knowledgeable about form based codes, if we actually plan to use them.
Mr. Hurd: Remember we've got several years for the Comp Plan so if it doesn't happen this year, the consideration for form based planning could happen next year, once we, say, deal with parking.
Ms. Feeney Roser: Or we can say, and if practical, form based code training, and we could just have that here if you thought that was important.
Mr. Stozek: I guess I would rather include, get items on a list. We can talk about when we're going to do them and that was another issue I wanted to talk about with the Comp Plan is when are some of these things going to take place. So you have a timeline to work against rather than it just sits there and maybe never gets worked on. 33
Mr. Silverman: Any other comments?
Mr. Hurd: Just a general comment that I think you captured that very long and winding conversation that we had last month, so thank you.
Ms. Feeney Roser: Thank you.
Mr. Silverman: I agree, particularly on item three. I do have one question on item four. I understand our participation amendments to the regulations that pertain to development plan submittal requirements. We were talking about better formatting, clearer this and that but I would think that the associated fees would be Administration and Council.
Ms. Feeney Roser: They’re part of the subdivision regulations, so they have to come through you.
Mr. Silverman: But perfunctory. I'm not going to say that $350 is not enough, it should be $600. It's going to have to come to us.
Ms. Feeney Roser: Oh yes. I don't anticipate anything other than doing what we did for the accessory use in neighborhoods, and we sort of had an open discussion in here, the staff will still present recommendations to you and if you don't want to talk about dollar figures, that's your purview. But we will come with something that says we think that the major subdivision application now costs $1,000 and it should be $2,000 or $10,000 or whatever. We're going to have to do the research in house to see how much staff time it actually takes to review these things. How much does it actually cost? The advertising costs have gone up. The fee to do recordation has gone up, and those kinds of things, so we will come to you with a recommendation.
Mr. Silverman: I think it's our responsibility to say, at minimum, they should cover your costs, the City costs. But what that dollar value is, do we contribute anything to that?
Mr. Hurd: I guess it's clear in my mind that this is a work plan between both the Commission and the staff. Some of these items are being done by, or being reviewed and considered and generated by us to some extent, and some of this is, as Maureen said, it's information and data being collected and analyzed and processed and brought to us in the form of reports saying, this was the fee before, we're thinking because of these, it's taken this long to review, here's your bottom line number, that should be the new number. We can go, okay, we agree with your math or we think that that's not fair that they have to, who knows. But they can come to us and say, instead of just saying, here's a final number, if you break it down, for instance, we can accept, as an example.
Ms. Feeney Roser: I agree with Commissioner Hurd. Also I think since this is a work plan that you're submitting to Council, we know that it is a concern of Council, and Council knows that because of where it's located in the Code it's coming to you. It's just an indication that we recognize that this is something we need to look at.
Mr. Silverman: Okay. Any other discussion?
Mr. Stozek: Are we going to include training in form based codes or not?
Mr. Silverman: I see no harm in that.
Mr. Stozek: We may not get to it this year. There's a lot of things that are on a list that we don't get to.
Ms. Feeney Roser: Certainly I can add it, you know, and if time allows, form based code.
Mr. Stozek: And maybe at some point the Department will decide, we're not going to use form based codes. Then we can eliminate it off the list. But I think as long as it's expressed in the Comp Plan, I think we need to understand it. 34
Mr. Silverman: [inaudible]
Mr. Hurd: Actually just thinking about what Mr. Stozek was saying there, whether that item seven should be more general to say something along the lines of reviewing…
Mr. Silverman: Seven?
Mr. Hurd: Well, the one after six. Basically, because item five talks about creating the TID as called for in the Comprehensive Development Plan, so we already have an item here that says, there's a thing called out in the Comp Plan that we need to be addressing. Whether seven could be something general like formatting a plan for addressing those things in the Comp Plan that are going to need to come to us, and I'm not sure how to phrase that because there may be other things, there may be other goals or topics or whatever. Do you call them goals in the Comp Plan? They might, sorry.
Mr. Stozek: They also call them action items.
Mr. Fortner: There’s goals and there's action items.
Mr. Hurd: So basically reviewing the action items and saying, which of those action items, once the Comp Plan is enacted, are going to become work plan items for us?
Ms. Feeney Roser: What we could do then, instead of creating a seven, is under two, it says, consideration of the revised Comprehensive Development Plan and, once approved by Council, setting up a plan for implementation of work items.
Mr. Hurd: Action items, yeah. I think that that, to me, covers more of the things that might fall through the cracks. I think Bob has a good point to say if we don't put them on our plan, at some point we're going to come to this five years later and go, wow, we just didn't do those, because no one went back and looked at it and said are we actually working these action items?
Ms. Feeney Roser: Mr. Stozek, does doing that address your concern that we'll eventually look at form based codes, because that is an action item? Is it Michael? Or is it consider form based codes. Is it an action item?
Mr. Stozek: Well I guess the form, yeah, I think it is. I think looking at form based codes is an important issue to me but there are other action items there, also. I guess I'm fine with just saying the action items, that we will look at them or decide which ones to look at, rather than singling out each one at this point.
Ms. Feeney Roser: Would number two then read consideration of the revised Comp Plan and once approved, setting a plan for implementation of action items? Does that cover it?
Mr. Stozek: Yeah, that's fine.
Mr. McIntosh: Does that remove item six?
Mr. Hurd: No.
Ms. Feeney Roser: It doesn’t remove it because…
Mr. Hurd: I don't think those are, they’re not action items in the Comp Plan.
Mr. Silverman: They’re administrative items. They’re more for the benefit of the Commissioners.
Mr. Hurd: Now item five is more of that than maybe, maybe that could get pulled out. Yeah, we'll keep five out.
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Ms. Feeney Roser: To me that is something that we're going to pursue even if the Comp Plan continues.
Mr. Hurd: Right, looking at it again, I think item five, dealing with traffic, has been such an issue for so long that we do want to, we know that that's a top priority for the coming year.
Ms. Feeney Roser: Do you want to open it up for public comment. I'm going to need a motion that this is your work plan. There are extra copies and it was on the web, was it not Michelle? On the web linked to the agenda item?
Ms. Michelle Vispi: It was.
Mr. Silverman: The Commissioners have reviewed the document as presented to us. I would like to now open the floor up for comments. I see Dr. Morgan is racing to get up to the microphone.
Dr. Morgan: Yeah, correct. John Morgan, District One. There is a missing apostrophe in item six for Robert's Rules, which I'm sure you'll correct. I would like to say that I generally like the Work Plan. There is one issue that I feel, if not the most important thing the Planning Commission needs to look at soon, it is certainly an important thing, especially in light of the ongoing discussion and, perhaps, plans to build a large parking garage in Lot 1 with capacity of perhaps 500 parking spaces.
Back on the 7th of July I prepared a document on the real cost of parking waivers in which I pointed out that the main reason there might be a severe shortage of parking in downtown Newark which would motivate the construction of a large parking garage, is the City's overly generous parking waiver program, in which the cost of a parking waiver is only about ten percent of the cost of actually constructing the spaces in parking garages. I'm happy to distribute some extra copies of that to anyone who didn't get one back on the 7th of July.
Mr. Silverman: May we have one of those?
Dr. Morgan: Yeah, sure. I don't have eight copies but I have four that I can distribute.
Mr. Firestone: I could use one. I wasn't on the Commission then.
Dr. Morgan: I very much hope you'll look at that because I think there's really been a [inaudible] on parking waivers, and the City now finds itself in potentially a dangerous situation where you have a parking waiver program and there are procedures for deciding whether the Planning Commission should grant parking waivers. It made a lot of sense to have this program, say, 15 years ago when the City wanted to encourage lots of development downtown along Main Street. Now it's getting pretty crowded downtown and there's less need for having big projects that require 50 to 80 parking waivers, unlike say, a dozen years ago. I think it's dangerous to have an underpriced commodity that you might then be accused of arbitrarily turning down requests for I think the true cost. Getting the parking waivers at their true cost of creating more parking spaces downtown, is very important as opposed to rejecting proposals that come to you for even very small numbers of parking waivers, like two or four, that have happened recently. For other reasons, those were rejected but I think it would be good to have it so that there's an equilibrium, a balance there. And so I hope you will be looking at that relatively early in the new year. Would anyone else like any copies of my handout?
Ms. Feeney Roser: I think that I have it but I could have it and then we would put it with the Planning Commission minutes.
Mr. Hurd: Got one?
Mr. Cronin: I have one.
Ms. Feeney Roser: Mrs. McKelvey, do you have anything to say?
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Mrs. Carol McKelvey: No, I’m glad you’re going to do something.
Mr. Silverman: Okay, we have now heard from the public on this issue. Do we have a statement drafted that we can turn into a document that we're all comfortable with and we can approve the document as modified? Do the commissioners believe we've captured [inaudible]?
Mr. Hurd: I do believe Maureen, when she was discussing item two, I think the words that she added captured the intent.
Mr. Silverman: Okay.
Ms. Feeney Roser: And I'll add the apostrophe.
Mr. Hurd: And the apostrophe.
Mr. Silverman: So the chair entertains a motion that we accept the draft report dated November 24, 2015 as proposed by the Planning and Development Department.
Ms. Feeney Roser: Chairman Silverman, this is actually a memo from yourself.
Mr. Silverman: I know.
Ms. Feeney Roser: So we can structure it another way.
Mr. Silverman: No, no, according to the Code, this needs to come from the Commission and it comes from the Chair.
Ms. Feeney Roser: So your motion should reflect that this is your work plan. Your annual report and your work plan.
Mr. Silverman: Okay, I'm open to suggestions here. I was heading down the road that we accept the contents as corrected.
Mr. Hurd: And, as amended?
Mr. Stozek: Amended.
Mr. Firestone: I'll so move that we instruct Alan Silverman, Planning Commission Chairman, to send the memo dated November 24, 2015, as amended in our discussion to the Mayor and members of City Council.
Mr. Silverman: Okay, the Chair will take that as the motion. Is there a second?
Mr. Hurd: Second.
Mr. Silverman: It has been moved and seconded. All those in favor of the motion, signify by saying Aye. All those opposed, signify by saying Nay. Motion carried.
MOTION BY FIRESTONE, SECONDED BY HURD, THAT THE PLANNING COMMISSION SUBMIT TO CITY COUNCIL THE NEWARK PLANNING COMMISSION 2015 ANNUAL REPORT AND 2016 WORK PLAN, AS AMENDED.
VOTE: 7-0 AYE: CRONIN, FIRESTONE, HURD, JOHNSON, MCINTOSH, SILVERMAN, STOZEK NAY: NONE
MOTION PASSED UNANIMOUSLY
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5. REVIEW OF CHANGES TO COMPREHENSIVE PLAN V SINCE PREVIOUS COMMISSION RECOMMNEDATION TO APPROVE.
Ms. Feeney Roser: Mike, you're on.
Mr. Hurd: Alright, Mike.
Mr. Fortner: Alright.
Ms. Feeney Roser: Sorry, Mr. Chairman, I’m just jumping in here. I’m used to telling Mike what to do.
Mr. Fortner: Mr. Chairman, I'll begin. Good evening. Last meeting you asked me to give a twenty minute update on the Comprehensive Development Plan. We're not going to vote on this today but we'll give it twenty minutes. It won't more than twenty minutes, I set this to go off at twenty minutes. It's going to play 'Taking Care of Business' and then I will wrap it up quick. This is just for your review.
What I'd like to do with this twenty minutes is first of all, talk about Comp Plan V and how it relates to your 2016 Work Plan and the strategic issues that you've developed, and also the review of changes since it's been about a year-and-a-half since you've seen this. I'm going to talk a little bit about what stayed the same and what has changed.
The strategic issues at your last meeting that I heard you talk about were, first of all, parking. You need to do something about parking, the parking waiver program might need to be evaluated. We want to evaluate parking fees, a whole slew of issues regarding parking, ultimately leading to the possible evaluation, with data, of whether we need a parking garage or not. Traffic, the concern about traffic analysis being piecemeal, we think things don’t require traffic studies or if traffic studies don't look at the big picture, so it's very piecemeal. It doesn't look at the big picture, the bigger network of the transportation system. Then finally, piecemeal development was another big theme from your discussions that, again, we're not looking at, we're approving just each subdivision but we don't see how it involves in a broader context and not the big picture of the long term. There's no strategy plan in terms of approving new developments. We don't have a tool to help us evaluate whether this is the right thing or not.
So parking, you have your work plan that's already been read, but your work plan is basically to evaluate the parking waiver system and a lot of the data and just to do a comprehensive review of the parking situation, particularly in downtown. The Comp Plan covers planning on page 66 and 67, it has a section on parking and it cites the Newark Transportation Plan that we did in 2011. It outlines that. It outlines that the long term recommended pursuing construction of a parking garage in Lot 1, the Galleria, pending the outcome of a financial feasibility assessment. Those kinds of things, I think, were added by Council to kind of soften, the original plan was to actually build a parking garage.
The short term recommendations that have all been or are being implemented, those are ongoing but, consolidate the parking lots and entrances which we've done, particularly on Lot 3 and 4. Maximize spaces in existing lots, which we've done and we're continuing to do. Improve ways of finding parking entrances, which was something that was worked on by the Design Committee a few years ago and was implemented. Of course, that's a continual evaluation and doing because most of our lots are behind buildings. And then, finally, add bicycle parking downtown, which the Planning Commission took action on by changing the bicycle parking regulations. They increased bicycle parking downtown and you're seeing a lot of new developments with more bicycle parking as a result.
Finally, in the Comp Plan it says, ‘review the parking waiver program to assess the impact on its parking supply and potential future shortage.’ With this, we're addressing that aspect of the Comp Plan this year in your 2016 Work Plan. In the strategic issues it says, ‘adequate parking for automobiles and bicycles to support local businesses.’ We have action item five, ‘use a data-driven approach to manage downtown parking and evaluate the need to build a municipal parking garage in the downtown area.’ That's the main, the other two are more 38
staff functions but they're improving the, looking for additional parking through redevelopment and also searching for and implementing new technologies. Your action item three, fits right into that and it's addressing this action item and this part of our Comprehensive Development Plan.
We'll have other partners with this. We have, of course, the Planning Commission and Planning Department but also the Parking Office, the Downtown Newark Partnership, the Merchant and Parking Committees, the Traffic Committee, the Newark Bicycle Committee and developers as private sectors partners will all be involved with this and probably others, too, since this is not a complete brainstorm of every agency or every partner that we'd want to be with, but it's just some examples.
Next we get to traffic. Your action item was to work with DelDOT to create a Transportation Improvement District, a TID. You have a handout or a brochure, and there's brochures for the public that I can give, that provides far more detail on this. There's actually a good write-up on Newark on page 23. Anyway, the Transportation Improvement District addresses the issue that we're having in terms, well, first of all, around strategic issues, methods to evaluate the relationship between land use and transportation. So the action item 1 on page 72 is work with DelDOT to establish an area of Newark's downtown core to create a Transportation Improvement District, a TID. Also, to conduct a corridor optimization program city-wide, which is part of the transportation plan.
A Transportation Investment District is an area that has defined the purpose of securing, requiring improvements in transportation facilities in the area. What it is, it's a comprehensive and proactive strategy to plan for and have long term area-wide transportation improvements. You have the issue of having a transportation study and it only looks at one development and how it impacts the current conditions but it doesn't look ahead. If this pattern of development continues, how is it going to, how is this going to play out? We get in that frustration, so we have a development that doesn't have a big enough impact so no new transportation improvements are needed, and then you have three or four more come down. All of a sudden we've got a mess because they all accumulate into a problem and then the last developer or the next developer has to fund all these improvements. That's not fair.
What this does is it plans region-wide. It looks at land use and creates a model and anticipates what the land uses will be and then it creates a fee, called a Transportation Based Impact Fee. It's equitable, fair and predictable for developers. They like it because they know they're going to pay into this system to improve for the long term of transportation that will directly benefit them and also help the City leverage or the developer leverage State and Federal funds because it's already planned out and mapped out. They already have a total study of that area and they know that the transportation improvements are going to directly benefit this area.
In the Comprehensive Plan we originally came up with, this is our planning area or what we were proposing as the Transportation Improvement District. Since then, I’ve had some consultation where this might be too large for a Transportation Improvement District and we might have to break this up into two or three Transportation Improvement Districts. But this was the basic core where we thought we needed to focus our planning with this type of tool. All the roads or the major arterial roads that go through that we want to evaluate for this tool. With this we'd have first the Planning Commission, Planning and Development Department, Public Works and Water Resources, Delaware Department of Transportation and WILMAPCO. You'll have more of a consulting role on this, this will be more of a staff function with WILMAPCO and working with DelDOT. We'll use you as a consultation. So there won't be a lot of work on your part but we'll use you in an advisory capacity and maybe you'd do something like you did on the Rental Housing Needs Assessment study, where you appoint two members and that we could have some sort of steering committee for this. That's how we could go about this. I think it's probably one of the more beneficial things that we could be doing in 2016, that will get to the concerns of this traffic impact and the feeling that we're approving things but we don't know how it's accumulating into a larger impact.
Finally we have the piecemeal development. This also goes along with how we're implementing strategies like home ownership and affordable housing in downtown, for example. 39
We have Transportation Improvement Districts are also addressed piecemeal in developments so we have that in the Comp Plan as something that we're pursuing in 2016. We also have another mechanism called Downtown Development Districts, which I'm going to talk about and also Focus Areas, which we have in our Comprehensive Development Plan.
The Downtown Development District was created by the State of Delaware in 2014 and the idea is to create a mechanism for funding that go into downtowns as a mixed used community, and the surrounding neighborhoods. This is a benefit to the State and it makes for good developments. They want to create incentives for this. So there’s improved commercial vitality of downtowns and it was to create housing units, mixed and choice for residents of, what we call, all walks of life in or near downtown. What that means is, it directs our stated concern, not necessarily student housing, other types of housing but not necessarily student housing. How can we create incentives for a development like that to happen downtown when there’s so much incentive to build student housing?
To be eligible, of all property owners, developers within the designated Downtown Development District (DDD) and then it could include single homeowners rehabbing their home or it could also include large transformative projects. The method is the DDD grant would give up to 20% for grant-in-kind rebate on property investments. Again, it could be your single family house but it could also be major condominium development that met the City's and the DDD’s guidelines. The DSHA would also leverage other types of programs that we would give priority for, like the Housing Development Fund and other kinds of homeownership incentive programs, and also the City of Newark local incentives with CDBG. This is something we’d have to develop. We could have fee waivers, tax abatements, etc., that would encourage home ownership in downtown and affordable housing downtown.
This was created in 2014. They had an initial application round. The legislation had one in each County. We applied for New Castle County. We didn't get it. It was the first one. Wilmington was going to get the first round but we applied. We didn't have lot of time to apply. The application was out there, we only had a matter of a few weeks to put together an application. The application really calls for us to do a more long term, strategic application and part of that is putting together a downtown plan. We have a pretty thorough Comprehensive Development Plan that addresses downtown, we also have to use that, but we would benefit greatly by doing a downtown plan that would be directly towards how we would implement a Downtown Development District.
We wouldn't necessarily be the lead agency on this. It would be the Downtown Newark Partnership. They're the ones that actually filled out the application and submitted the application, but where the Planning Commission could take a good lead would be in creating the downtown plan with the land use and that would be something that would be our role in developing this Downtown Development District.
We don't know if there will be another round. We don't know that it will continue, that they'll expand, but we anticipate that they'll expand by next year and so this will be something we start preparing for next year or the year after when they open up Downtown Development Districts again for us to apply. These are some of the partner agencies but the main one is Delaware State Housing Authority and they would actually administer the program and we would be cooperating with them.
The final thing to address piecemeal planning and development is a mechanism we created for the Comp Plan which is called Focus Areas. As it was brought up in our last meeting, comprehensive plans, with their land use designations, don't offer a lot of flexibility in terms of being able to plan for alternative uses because it's very regulatory. You have to have the land use for the Comp Plan over the zoning. And so what we did, and, it was also just about having an overlay, and overlays that have regulatory control are not legal in Delaware and so we created a mechanism called Focus Areas that it basically identifies areas that are hot beds of planning in Newark. These are where we're going to see most of the action in the next five and ten years. Many areas around, like say, the outer neighborhoods, we're not anticipating any kinds of changes. Those are single family houses and neighborhoods and we want to preserve those. We don't see those hot beds of planning. 40
The areas outlined in boxes are the hot beds of planning and so we give, we outline those areas as Focus Areas and we give more direction on how we want to see that develop. Also, as part of that, we have the Rental Housing Needs Assessment study that is looking at City-wide housing and the issues that we're having, and also the TID which includes Cleveland Avenue and the surrounding area and how that's redeveloping and we would anticipate how the land use and how the development there is changing and how that would impact the traffic on Cleveland Avenue.
Next we get into what the plan, what's the same, what's changed. The plan still has the same vision, active, healthy community, sustainable community, inclusive community.
Mr. Silverman: Mike?
Mr. Fortner: Go ahead. Yes.
Mr. Silverman: I'm still waiting for why we got this back from Council and what are the Council changes to what we originally proposed.
Mr. Fortner: Okay, that's what I'm getting to right now.
Mr. Silverman: Okay.
Mr. Fortner: The same vision, the same structure that the Planning Commission set up with the different chapters, how you can amend each chapter. The same structure of the strategic plan, the division strategic issued goals, action items, focus areas. So that's remained the same. The core stuff, I think, has remained the same. Anytime we were going through and evaluating changes, I always tried to consider what was the Planning Commission's intent? That was usually a good argument if there was something that went against your intent, there was a good reason not to change it. The Council was very interested in what you wanted and so a lot of this is sort of editorial.
Anyway, one of the major changes to the Comp Plan is how we did land use designations. As you see on the exhibit, this is an old form, existing land use map, we had classifications called Institutional and Utilities. Institutional is in the gray, so Institutional includes churches, schools, day care centers, again, that's a Church over there. That's our existing land use map and an existing land use map just looks at a parcel and looks at what the current use is and it classifies it as that. Then we do a future land use, which has to be in conformity with the Zoning Code. What we had, we didn't want to show the school as going away in the future so we kept it institutional in the old report. A church stayed a church. We didn't have any type of different land use then, a day care stayed a day care. We didn't want to show them as going away.
According to advice from our lawyers, particularly Max Walton, and evaluating this, that would not be the most legal way of doing it because the future land use, and I'm getting into the legal weeds here, but the future land use is the primary designation and so the Zoning Code is subservient to it. For example, in a church, which is zoned residential, if it has an institutional land use designation, we don't have an institutional zoning so that the church, if it ever wanted to redevelop, go away, as churches sometimes do, it could only be an institutional use. It doesn't matter that it's zoned residential and it has all the RS types of things available to it. The designation would be institutional so all they could do is put an institution there. That was not the intent of doing that.
So it changed. We looked at the underlying zoning of institutional uses and we gave it the designation of its underlying zoning. For example, the school, which of course we don't anticipate going away, the Downes Elementary School changed to residential. It's zoned RS. Schools are permitted in residential zoning and so it's in conformity with our Comprehensive Development Plan but if it went away, that's what the development pattern would be. We cannot force it to stay a school. We can't force that church to stay a church. It has to have other types of development potential and so that was a big thing that changed from the version you approved to what they have approved. 41
There was a lot of tweaking with the strategic issues and that's too small so I included a handout that has it blown up. We wanted our strategic issues to be like action items that was like forward thinking that we were going, made them something that we would achieve and that we wanted to focus on under that chapter. There was a lot of back and forth and I tried to hold to this, that this was their intention to create these sort of action-oriented strategic issues but eventually I had to go to more statements of fact, basically. These are the issues and so it's changed that way. They're not action-oriented, they're just, these are the things that we are dealing with under this chapter.
There are deletions, most of them, I think, were inconsequential. It's been about a year-and-a- half since you've seen this and it's been through a lot. It could be a deletion of, for example, two or three pages where it was, this is a description of the City of Newark and, rightly so, it wasn't really needed. You could take this out and it was very, kind of, convoluted. It was written by a previous Planning Director who went through almost street by street, neighborhood by neighborhood, describing it. It wasn't needed. It was already displayed in maps.
Ms. Feeney Roser: He was a historian.
Mr. Fortner: He was a historian and he got into that, yeah. So things like that got taken out. There are also insertions, they clarified some action items. There's a few action items that are in there that weren't part of your original thing but they were not major, significant changes. There it is. It was, again, a year-and-a-half review. It had been so long since you've seen it, they wanted you to see these changes. I think it's, again, it's been through a vigorous process of changes and rewriting, a lot of the editorial, but I think, in my view, it's a better document. There's been a lot of public input on it and it's improved. The writing is crisper, action items got clarified and so they wanted to give this back to you because, first of all, they want you to review it and make sure it's all right with your view and then give any input, comments that you want and then we'll send a recommendation back to Council, where I suspect they're ready to approve it as well.
With that, the next steps is, you have all the revised documents. We'll meet in January. We will have what I suspect will be our final public hearing. I've already met with a few Planning Commissioners to discuss questions, but then I can do more. What, what?
Mr. Silverman: Point of information.
Mr. Fortner: Yeah.
Mr. Silverman: We made our recommendation to Council.
Mr. Fortner: Yeah.
Mr. Silverman: They chose to modify it. This is their document. Why are we holding hearings on it?
Mr. Fortner: Because they want you, this is your principal document. They want your review of it because this document comes from you and there's been significant changes to it and they want you to review it. It's been a long time. They've been talking about it for a while and they want you to be in the loop on this. They just don't want to say here, this is what we did with it. They're trying to get you involved. This isn't meant to, they didn't want to create a workload for you or be a pain in the butt. They wanted it to say, ‘hey, we did a lot to this, we want you to make sure you're alright with what we did and to review this and if there's things that you think we were out of line in, you can bring that to our attention. We can address it through our hearing process.’
The attorney recommended we do this, too, because this is essentially your document and now it's not. You gave a recommendation, they gave, they're basically giving you a lot of feedback, ‘this is what we'd like’, and then this is your chance to join the conversation again.
Mr. McIntosh: Join the conversation or [inaudible]? 42
Mr. Fortner: You know, they made a lot of changes and so they can just say, I guess they can just say, ‘this is it’, but they want your feedback. They didn’t want to cut you out of the loop.
Mr. McIntosh: As long as it doesn't…
Mr. Stozek: They feel lonely.
Ms. Feeney Roser: I think if it was something that had changed here that you had reason to say it was not what you wanted to happen, then you would make a recommendation and they would consider that at the table. Now, what they decide to do with that is up to Council.
Mr. Silverman: I haven't seen anything that even piques my interest. As long as it's ice cream, I don't care whether it's vanilla or chocolate.
Mr. Fortner: That's fine. In fact, to me, that's music to my ears because I don't want to spend a lot of time on it. I want this to go to Council and I want a Comprehensive Plan so we can get to work on the TID and the DDD and the other acronyms that I talked about, and proceed with this.
Mr. Silverman: From what you've described, there has been a lot of fine tuning. It's been a lot of clarifying. Maybe some pieces have been moved around on the chess board but it's still the same game. It works with the work program and a lot of public effort has gone into it.
Mr. Fortner: I'll get to the question, and I know it’s coming. What is the implementation of this?
Mr. Stozek: Yes. That was one of my questions.
Mr. Fortner: Alright. So I generally see this, when reading it, I think it has a 5 year window. I see it as 5 year. Everything is in there. We don't have the words like, ‘okay, this will be done by 2017, 2018’, it's not itemized in that way. But it's our guiding document. We're already taking action on it. Actually, one of the changes is that we actually completed action items in the plan and they wanted that taken out. Why have an action item in there that's already completed? Those are the kinds of things.
We have action items that we're working on, that we're moving forward. We're moving ahead on some of the key action items. Form based zoning is something that's an action item that we're going to look at within the next few years. We don't have it that as, ‘well, we're going to look at this in 2017’, but right now we're just in an evaluation, we're laying the ground work. We don't know that we want form based zoning but we're laying the ground work, educating, first of all, staff, we have to learn what this stuff is, too, and I don't fully understand it. Then, lots of, let’s talk about, the IPA puts on lots of sessions on form based planning. That would be no problem getting you into one of those planning 101s. Those are simple.
Mr. Silverman: Let me. . .
Ms. Feeney Roser: Sorry, I was going to say, one of the things that you just did in your Work Plan was to say that an item was to review the Comp Plan and create a plan for the action item(s) implementation. That might be an item that shows up in every year's Work Plan so that we can go back to the document and see what we've done and what we haven't.
Mr. Fortner: To follow up with that, the way this plan is organized, especially when we started this process to create this Work Plan, people would ask, ‘what did the last Comprehensive Plan achieve?’ It was always, sort of, hard to communicate that. There was a lot of stuff in there, a lot of good stuff and it had moved forward. We did a lot as a result of it. It was hard to communicate. This is done in a way that it's easy to identify what we want to do. Each year we do a report to the Office of State Planning on how we're making progress on it, and so this would be something more formal that we could have as an addendum. We would go through all the action items, this is the action we took on these and if we don't have anything to write on that action item, well that's a problem and we’ve either got to think about, ‘have we decided this is no longer important or do we need to get to action on that?’
43
There's a lot of mechanisms that will keep this on the forefront and especially because of the way it's organized. I don't think we're going to, anything is going to get lost in this one.
Mr. Silverman: Jeremy, you had a question?
Mr. Firestone: This is just more of a comment. I have had an opportunity to catch up and read the entire Comprehensive Plan and I've had some discussions with staff. Overall I think that the document reads well. There has obviously been a tremendous amount of effort going into it and I think staff should be commended. My main, sort of, one over-arching issue, and I realize I'm coming into this late, is that from my own perspective, I'd like to see more specific markers of progress, even more specific than are in there. Now we may have made a lot of strides from the Plan before but, for example, we talked about being a sustainable community. There's really nothing in here that suggests that we're going to move towards that other than we're going to meet or exceed some standards.
There's obviously a lot of focus, and in these couple weeks now there's a tremendous amount of focus on climate change, but there's really nothing in here to suggest that we have a goal of moving towards joining other communities that are moving towards becoming 100% renewable in so many years or decades, or becoming carbon neutral, those kind of things. I'm not sure whether this is the appropriate vehicle or whether there's another vehicle but those are some, sort of, more specific markers on what it actually means to be becoming a sustainable community. It is the kind of things that I would like to see.
Again, I realize I'm coming in really late in the ninth inning and there's two out, so [inaudible].
Mr. Fortner: What you were discussing is probably the number one complaint I hear about the Comprehensive Development Plan, this current one, and it's valid. My response is that this is a general, another word for comprehensive plan, some communities call it a general plan. These are general, it's broad guidelines. These performance measures or benchmarks, they don't want to be set arbitrarily. They need to have a systematic process of what kind of benchmarks are we able to meet. Those are legislations that Council can have a steering committee to create those. There's a Conservation Advisory Committee that works on these issues. It wouldn't necessarily be a Planning Commission lead issue of how we become more sustainable. But there are, we have those committees. This Comprehensive Plan gives us the framework. This is what we're striving for. And so when we develop a plan to become more sustainable, it fits into that framework. A lot of times the Comprehensive Plan refers to all these other plans like a transportation plan or other specific plans. That's what it does, it's a collection of all the planning we did and those plans are the ones that lay the specifics.
Mr. Firestone: Right, but in the Utility chapter, if we look at the planning goals and action items for both utilities, electricity is barely mentioned and it is mentioned in the context of goal to maintain and improve the existing utility infrastructure system. There is no, sort of, goal or action item really related to becoming sustainable since we all know fossil fuels are limited in quantity and, by definition, our continued use of them is not sustainable. There's really no, there's nothing in here in either a strategic item goal or an action item, however you want to call it that says how we're going to get to or move toward sustainability.
Mr. Silverman: Some of the links that are missing, we first laughed at it when we were told about it from the State. We had to consider sea level rise. Everybody says, ‘my God, Newark is 200 feet above sea level.’ Then as we got into this and there was more discussion, it's the whole climate change and it's more frequent and intense storms. Here we're trying to figure out how to deal with surface runoff in Newark. So if climate change is going to trigger more of those 100 year and 500 year storms, that needs to be translated directly into emphasizing more things like the retention basin that's being talked about that can get translated directly into a capital program. That's the way I look at some of these things.
Mr. Fortner: And those are usually good in hazard mitigation plans and I don’t know that we so much refer to it in ours. Like I said, this is a collection of plans. It's an over-arching, general plan. There is no specific benchmark set with the City right now of being weaned off fossil fuel 44
by 2040. It doesn't exist and I don't put it in the Comp Plan because it doesn't exist. If they create a plan that we're going to be off of fossil fuels in 2040, then we'll put it in the Comp Plan. There's other processes involved, and this is a collection of all those. These plans are goals as now, and we can create new ones.
Another feature of this is that each chapter is amendable. It's not just the Utilities, we have a whole chapter on environmental quality and I appreciate the benchmarks aren't very specific benchmarks, but it does create the framework to create these benchmarks.
Mr. Stozek: Yeah, Bob Stozek. Again, I did not have the pleasure of going through this as you guys all went through it once before. We talked before about the English language being a funny thing. The word plan to me has a totally different meaning from what I see this document as. I see it more as what you're talking about, guidelines. A plan means there are specific action items, there are specific goals and there are timelines established. And my sense is from reading this, that doesn't exist at all or very little of it, talks about timelines. I guess that was one of my comments about the Chapter 12 Coordination and Implementation, there's really no action items relative to implementation of this plan. I don't know where that gets developed.
Let me go back to one thing I think Jeremy said that, that I'm a little concerned that somehow we aren't incorporating, number one, prioritization. Because I know you guys already have a list of 30 things you're working on and we're going to add another 50 things here. If you work on everything at the same time, you're not working on anything. You need to prioritize things and where is there a prioritized list. When you have things prioritized, then you set timelines to them. They don't have to be cast in stone. Just one idea was if there were timelines established of certain projects being done, maybe the Department comes back to the Commission on a quarterly basis and says, ‘here's where we are, we've completed this, we need to skip this, give us a few extra months or something.’ Just so we have some sense that we're accomplishing the plan or the guidelines. I guess that's what I'm missing when I see this.
There are two specific questions I have. In Chapter 9, I think that's where it was, the BRAC program was talked about with STAR Campus. Is BRAC still viable? I thought with Defense Department cuts that was no longer…
Mr. Fortner: I think BRAC is still viable. Aberdeen Proving Ground has become a major hub.
Mr. Stozek: I thought their funding was cut way back.
Mr. Silverman: They're shutting down [inaudible].
Mr. Fortner: They’re shutting down?
Mr. Cronin: Well, it’s still…
Mr. Stozek: Anyhow, I’ll just throw out that comment. One last question. Under Transportation where you're talking about action item 9, the phrase UD Transit is used there as coordination with. What is UD Transit defined as?
Mr. Stozek: UD Transit, that's the student bus service line.
Mr. Stozek: That was one of my questions. If we want to try to improve transportation in the City and not put more vehicles, it seems like we could somehow get the UD Bus Service involved so people, citizens can use it. There's buses running all over the town all the time and I see very low volumes of people on the buses, except maybe at certain times of the day.
Mr. Fortner: It's not on your 2016 Work Plan but DART is going to be working with the University of Delaware's IPA to do a study on that exact action item. We will be participating in that. That's a key action item. There's planning already on the way for that action item.
It's true that we don't have specific dates on these, like you said. I've seen comprehensive plans do short term, medium term, long term. 45
Mr. Stozek: Even if you said by quarter. Like by the second quarter of 2017. I don't know. It's something to think about.
Mr. Fortner: But you're seeing it being on a Planning Commission, issues emerge like accessory use. We have to kind of, we wanted a little more flexibility in this plan. By having them as action items and having an annual report where we're addressing all the action items. All these action items are being done right now. You're not going to be that involved with it, at least as a Planning Commissioner. It's all on different agencies or different departments have this on their radar and they're doing them at various degrees.
Mr. Stozek: The only thing I'd say is, I appreciate the myriad of things you're working on. Again, prioritization, to me, is important. To be able to say you have accomplished, if you're working on everything at the same time, it takes forever to get it done. If there's one or two items you can knock out in a month, get those out of the way.
Mr. Fortner: I guess the way, we've had this 2016 Work Plan, I think that's an excellent way to address it. You identify the areas and those are our top priorities. The DDDs and the Transportation Investment District, these are top priorities. But all of a sudden transit could be a top priority, too, all of a sudden.
Ms. Feeney Roser: Right, things change. It has to be flexible. It has to be a dynamic plan but I'm wondering if how we amended that number two in the Work Plan that talks about setting a plan for implementation of the action items isn't where we can sit down and try to prioritize these things so that we can get that kind of direction.
Mr. Fortner: It would be something that's not in the Comp Plan, it would be a working document that we would have.
Ms. Feeney Roser: Right this is the Planning Commission’s so like Bob was suggesting, maybe we would come back on a quarterly basis. Maybe we develop that implementation plan so that we can keep track of it and prioritize.
Mr. Silverman: That's a very important issue with respect to Council people who don't necessarily know the amount of time it takes to do something. If they want to do something, hurry it up, there's a dollar cost to that. If the staff is running full tilt on these projects, then they need to hire a consultant. If not, they need to start looking at how realistic their immediate priority is.
Mr. Stozek: And if we did this quarterly report, I don't mean having a one hour discussion. Something, just say, here's the plan, here's what we've knocked off in the last quarter, here's what we're working on now type thing.
Mr. Silverman: And here are things that kept us from working on them.
Mr. Cronin: An update, a quarterly update
Mr. Stozek: Five minutes or less.
Mr. Fortner: Okay.
Mr. Silverman: I'm going to ask a question about the transportation portion. In the document I have where you listed the comments that you gleaned from the pre-Comp Plan update meeting. We're going back…
Mr. Fortner: Where in the presentation are we at?
Mr. Silverman: No, this is in the Stone Age. One strong recommendation from DelDOT was because of the urban nature of our City that we do away with the AADT traffic standards on levels of service. They will never be met and all it does is throw up an obstacle where somebody can say, well that's a failing intersection. Physically there's nothing to do with it and they felt 46
that it was unrealistic for urban areas like we have. There's a lot of literature to back that up. Other states are just abandoning that. Have we given some thought to that?
Mr. Fortner: It is a consideration item in the Transportation Plan. It was under Chapter 6. It's in there. It's part of DelDOT’s comments. It's something we can look into. That'll take action so it's just something that's in consideration right now, so it is in there. It's noted that we may well look at that.
Mr. Silverman: Because in my mind, a lot of the anti-growth people will hang their hat on that, ‘you can't do it because it's a D-level or F-level,’ and everybody gets all exercised. Then somebody on the technical side raises their hand and says, well DelDOT won't even comment on this and they wonder why. DelDOT says there's nothing to comment on. An F-level failure is F- level failure. We can't do anything about it. Where do we go from here?
Mr. Fortner: The next step is a January meeting. Again, if you want to meet with me or if you want to talk about some specifics, I'd be happy to meet with you at any time if you just want to go over things. I’ve met for a few.
Mr. Silverman: So clear my mind if we're permitted under FOIA for staff people to meet and talk with you as long as it doesn't exceed a quorum, that works for me.
Mr. Fortner: Yeah, it’s usually just one. It's not to make a decision, it's just to answer questions. Rather than have this type of forum where you're going to go through…
Mr. Silverman: But it's the public's business, you know how that goes. I'm being very facetious here. So next time we will have, essentially, your presentation for the public?
Mr. Fortner: Sure, I'll give a presentation.
Mr. Silverman: Okay.
Mr. Fortner: How long do you want it? Fifteen minutes?
Mr. Hurd: Talk faster.
Mr. Stozek: Ten to fifteen.
Mr. Fortner: I think the public has heard a lot of this. I think the public we're going to get is the people that have been involved. If they haven't been involved by this time, you know…
Mr. Silverman: Is there any interest…
Ms. Feeney Roser: Well it will be advertised.
Mr. Fortner: It'll be online. The Comp Plan is online.
Mr. Stozek: Count how many people are in the audience times 2, and that's how many minutes you have.
Mr. Silverman: Are there any interest groups out there placing aiming stakes that want to open up some new issues?
Mr. Fortner: I don't think so. They’ve had a year-and-a-half of Council meetings. It's been vetted very well.
Mr. Silverman: Okay, good.
Mr. Fortner: I'd be surprised.
Mr. Silverman: No surprises? 47
Mr. Fortner: I don't think there will be.
Mr. Silverman: Okay.
Ms. Feeney Roser: Hope springs eternal.
Mr. Silverman: Yes.
Mr. Fortner: Do you want to have public comment?
Dr. Morgan: John Morgan. I'd like to make a couple of, kind of, pointed comments actually which may save a lot of time. I didn't know very much at all about how the City of Newark was run until starting about two years ago when there was the great power plant controversy. We learned a lot of lessons in the winter of 2013-2014. One of the lessons that we learned was that the Comprehensive Plan has the force of law and in particular on the issue of whether the proposed power plant on the STAR Campus would violate a provision of the Comprehensive Plan, I guess this is Comprehensive Plan V, which said that future development cannot be allowed to adversely impact the community, or some words to that effect. The Board of Adjustment deadlocked in a 2:2 tie on whether that power plant would violate that provision. I think that's an illustration of why you don't want to have specific timelines in a comprehensive plan, because what happens if for some reason, maybe a financial short fall, you can't meet them?
If you had a specific statement that said by the year 2040 the City of Newark would be carbon neutral or fossil free or something like that, and if you didn't meet it then what would you do? You'd have no electricity or something like that, right? You don't want to have specific statements unless you're 100% sure you can meet them regardless of financial circumstances, regardless of whether the stock market goes up or down by a factor of two in the next couple of years. You want to have guidelines. You can then develop in parallel, documents which talk about how you're going to try to meet these goals, but you don't want specific guidelines, specific rules with deadlines in the Comprehensive Plan. Now I will not be here on the first Tuesday in January because I will be out in California at a couple of conferences, but there's one issue I did want to raise. Could you bring up the slide which showed page 67 of the Comprehensive Plan with the discussion of the parking garage? I just wanted to look at the exact wording.
Mr. Silverman: Pretty close to the beginning.
Dr. Morgan: Near the beginning.
Mr. Fortner: As for parking for automobiles and bicycles…
Mr. Hurd: No, one more.
Mr. Fortner: One more?
Dr. Morgan: Right now, this statement on pages 66 and 67 troubles me, if this is [inaudible]. I don't know what the exact wording is in the Comprehensive Plan but it talks, as you can see here, about pursuing construction of a parking garage pending the outcome of financial feasibility assessment. If this is the language that's in the Comprehensive Plan, it has the force of law.
Mr. Fortner: Well, as you noted before, which I think was very astute, about how it quotes other plans and you can develop a plan. So what this section right there is doing is outlining the Newark Transportation Plan of 2011 to state those were some of the recommendations from that plan. So that's in the context of that. The Council did soften it to make sure there's no commitment to build a parking garage. They've softened the action item and it's basically to review the data and to study the situation. It takes out the language we used to have in there that's like, ‘we're going to build a parking garage.’
Dr. Morgan: Okay good, because I would say that I would be more comfortable if it were like evaluating, rather than pursuing. 48
Mr. Fortner: Well that's not an action item, it was just something that is quoting a report. That that was what the report recommended.
Dr. Morgan: I'd like to make a general comment on the interplay with this. You can't address a parking issue without also thinking about the traffic issue. Especially in a highly congested area such as Lot 1 where there is only one entrance coming in off of Main Street and no exit, and one entrance going in on Delaware Avenue with one exit, the only exit. You have traffic back-ups a couple hundred yards away at that cross walk between the two parts of The Green. Let's think about what happened in the redevelopment up the road where the State gave money to basically expand Elkton Road by one lane. That led to several businesses on Elkton Road closing because it was so disruptive. It's harder to get in and out. Building a multi-story parking garage on Lot 1 or anywhere else, is likely to take about a year to demolish the existing houses and build a 4 to 5 story parking garage. Is that a fair estimate?
Ms. Feeney Roser: That's generous. It takes a while.
Dr. Morgan: Generous. Maybe two years, right?
Mr. Silverman: Construction days, maybe a year. The calendar year, maybe extended.
Dr. Morgan: Right, okay. So then people that are currently parking there with their nearby businesses within walking distance on Main Street will have to park elsewhere, right? The Tim Haahs study recommended pursuing allowing people to park in the University's parking garage opposite the Deer Park, which is nearly full during the day already, but the peak time for use of Lot 1, as determined by the Tim Haahs study, is between noon and 2PM, surprisingly. So where are those people going to go? I would predict that the construction of a large parking garage in Lot 1, that during the period of construction you will have a significant negative impact on nearby businesses. That needs to be thought about. I would contend that even if Bill Gates gave the City $15 million to build a parking garage, you would still want to think very carefully about the traffic feasibility of construction.
Mr. Silverman: And that's a Council consideration.
Dr. Morgan: I think it's proper for the Planning Commission to think about it also. You can make recommendations, you make a recommendation on the Capital Improvement Program and the parking garage is in it.
Mr. Silverman: If it gets to that point.
Dr. Morgan: The parking garage is in the Capital Improvement Proposal for the calendar year 2017 which was reviewed by this Planning Commission recently and it was appropriate for the Planning Commission to think seriously about the prioritization. I would think that addressing the traffic issue would be a higher priority.
Mr. Firestone: I just one have comment in regards to Dr. Morgan's comment. I wasn't suggesting a specific, binding requirement, but you can have specific, quantitative goals which you're striving for and those can be goals in regard to, again, certain percentage renewables or they can be goals as far as my fellow Council member, I mean Commissioner, stated, they can be goals in terms of dates of completion. Again, depends on how they're stated, but they don't have to be stated to be binding, they can be stated as goals.
Dr. Morgan: If I could respond, I think you have to be very careful because I think what was a rather vague statement in the Comprehensive Plan that wasn't noticed by any of the people in Newark Residents Against the Power Plant and their pretty good lawyer [Ken Kristl], and it turned out to have a decisive, potentially decisive, impact on the case. So you should be very, very careful what you put in the Comprehensive Plan.
Mr. McIntosh: Excuse me, I don't disagree with what you're saying, but if we don't have goals, nothing's going to happen. Therefore, it doesn't have to be in the Comprehensive Plan, but there has to be goals. We had a long discussion about that last month and as long as we have 75 49
priorities or 30 priorities or whatever the number may be, that's totally unrealistic. We're going to have to have goals and we're going to have to have priorities. They don't have to be in the Comprehensive Plan, but we have to hold ourselves accountable as an organization, as a Commission, to move our agenda forward. The only way we're going to do that is by having that. So I understand and appreciate what you're saying. So let’s keep them out of the Comprehensive Plan but we don’t keep them out of our consciousness and our commitment as a Commission.
Mr. Silverman: Edgar, comment?
Mr. Johnson: I just wanted to comment on a couple of things. One, I don't think traffic's going to get any better in Newark and I don't know what we can do to improve it. The second thing is, we need more parking and a parking garage can be constructed with precast concrete in less than a year. The disruption will be short. I think accommodations can be made for the disruption at the Galleria and other local businesses nearby that are serviced by that lot. But I'm one who believes we need a parking garage and I know it can be done with precast concrete faster than a year.
Ms. Feeney Roser: I was referring to where this is located, Edgar, in that since it's on Delaware Avenue you would want to have at least a sleeve building in front of it that would have some commercial perhaps, or something so that you're not creating just more dead space, to make something of value out of it beyond just parking, will take a little bit of time. But, yes, you're right, precast can go up.
Mr. Silverman: Any other discussion?
Ms. McKelvey: My name is Carol McKelvey and I’m in district 4, and I've listened to a lot of things that get said in the meetings and people use the pronoun ‘we’ and I find it confusing. I think that it should be clarified, the Planning Commission or Council, because things don't get done and part of the reason they don't get done is because you have to have a trajectory of progress. Things, like Bob was saying, have to get done by figuring out how to do them and the Planning Commission recommends, and I think the Planning Commission recommends wisely to help Council prioritize. I think the words ‘we’ are just inappropriate. Say the Planning Commission feels this way and Planning Commission hopes Council would or staff would, but this word ‘we’ gets so confused, I don't think people understand their specific responsibility to accomplish what might be hoped to be accomplished. I find this document too loose. Let's begin with that.
Mr. Silverman: Any other comments? I think that will be duly noted by staff, that's on the tape. Let's talk about next meeting and…
6. REPORT ON FREEDOM OF INFORMATION ACT (FOIA) TRAINING.
Ms. Feeney Roser: You added an item 6.
Mr. McIntosh: Can we do that in January?
Mr. Firestone: I move we table item 6.
Mr. McIntosh: I second.
Mr. Silverman: I thought we didn't table.
Mr. Firestone: I move we postpone item 6.
Mr. McIntosh: I still second.
Mr. Firestone: Until the next meeting.
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Mr. Silverman: Okay, I'm going to back up here. In January there will be an additional presentation of the Comp Plan as modified by Council. It may or may not contain the comments made by the Commission. Yes? No?
Mr. Fortner: I'll be presenting the plan you have in front of you. Actually there's a couple of typos I'm actually going to correct.
Mr. Silverman: We're going to look for another PowerPoint presentation. We'll open it up to the public for discussion. We'll glean their discussion. Then do we remand it back to Council?
Mr. Fortner: Yes.
Mr. Silverman: For their final consideration?
Mr. Fortner: Yes.
Mr. Silverman: Okay. Since we have, what did we do with our last item?
Ms. Feeney Roser: We postponed it until January.
Mr. Silverman: I’ve got to get the right words here.
Ms. Feeney Roser: Although I will tell you that for those Commissioners who were unable to attend, Chairman Silverman did forward an electronic copy of the document which we printed and you have at the table.
Mr. Hurd: Yes.
Mr. Silverman: One quick comment on that. You're going to find it a very interesting document. It has no force of law. If we were to violate FOIA, nobody goes to jail. As Mr. Walton, who was one of the presenters, said, all it does is void that particular activity and you go back to the beginning and you start over again. He also pointed out that the interpretations of FOIA are very loose in the sense that he's experienced very similar FOIA decisions going into the Attorney General's office, by virtue of the way the Attorney General's office is structured, they don't talk to one another and you could have two very different opinions on the same topic.
The enforcement, very interestingly, has been delegated to an army of FOIA officers who are associated with public bodies. Those FOIA officers have the handbook that you have and if you notice on the left margin there are margin notes, ‘when in doubt, run in the opposite direction of saying no and conservation.’ Now I did a straight answer. Bob Stozek gave a report on the meeting he went to as our representative, as our charge. It was his summary of what happened. I made the choice of sending it out to everyone. We can do that. Apparently under FOIA you can send information in one direction. We can't talk about it among ourselves. To send emails back and forth is considered serial communications. We can only bring up that topic at this table in public. One man's opinion sitting here, I think FOIA does a terrible disservice to the public, in that, because of the restrictions we cannot get together and benefit from one another's strengths, prop up one another's weaknesses, or develop a collective wisdom.
Mr. Firestone: I would respectfully disagree, strongly, but I'll save my remarks for January.
Mr. Silverman: Okay.
Mr. Johnson: Because we talked about it now I was hoping we wouldn't talk about it in January.
Mr. McIntosh: It did seem like we did number 6.
Mr. Hurd: It seems like it, yeah.
Mr. Silverman: Okay.
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[inaudible]
Mr. Silverman: No, you'll have an opportunity when we bring this up in January.
Mr. Firestone: Point of order, there was a motion to postpone and I'm including that on the agenda.
Mr. Silverman: I just made it under Chairman's prerogative. Under Chairman's prerogative, since we're using Edgar's rules here.
Dr. Morgan: Can I say I agree with you. FOIA is very, very restrictive [inaudible]. I think its laws should be modified so that you could communicate with one another by email, provided that those email records are made public. That would be a big step right there.
Mr. Silverman: The pendulum has swung from extremes and I guess we'll have to see what's going on in the future. If there are no objections, we will stand adjourned.
Ms. Feeney Roser: Thank you!
There being no further business, the Planning Commission adjourned at 10:10 p.m.
Respectfully submitted,
Michelle Vispi Planning Commission Secretary
/mv
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