Wednesday, April 4, 2018

STOP's Top 10 Unanswered Questions

Below are the top 10 questions (in no particular order) that County and State agencies and/or officials refuse to answer for us. Most will likely never be answered without the use of the Freedom of Information Act (FOIA).
  1. Does the NCC Dept of Land Use (DLU) have an established and well-accepted methodology for Level of Service (LOS) evaluations of non-signalized intersections, that include turns into residential side streets, driveways, median cut-throughs, and others that are of little or no consequence to the development? These were well taken advantage in crafting the Traffic Impact Study (TIS) for the Chestnut Hill "Preserve" (CHP), in a tiny radius, to qualify its 3 intersection analysis.

  2. When Vic Singer refuted the above TIS based on failed LOS at adjacent SR4 intersections, the DLU responded that the TIS met the criteria set forth by the Unified Development Code (UDC). They followed that a "Legal Review" was conducted to confirm this. After repeated asks of Mr Richard Hall (DLU Manager), no such "Review" or documents to support this claim have surfaced to date.

  3. What truly is Joe Setting's role in the development of the Orphanage Property? According to the Wilmington News Journal, he is the developer and thus in a position to benefit financially, but may have changed to another role when a conflict of interest became apparent: Developer Joe Setting, of Montchanin-based Setting Properties Inc. is partnering with developer Greg Lingo, formerly of Cornell Homes, and the Felician Sisters on the project".

  4. Who else is partnered in both of Joe Settings LLCs related to the development of the Orphanage Property? According to Wikipedia, "A limited liability company (LLC) is the United States-specific form of a private limited company. It is a business structure that combines the pass-through taxation of a partnership or sole proprietorship with the limited liability of a corporation". What are they hiding?

  5. Is eastbound SR4 access-only really acceptable by DelDOT standards for the CHP, assuming that Mr Stranahan wins his claim for Adverse Possession? According to the FHWA, as of 2014, there are 9.4 daily car trips per day per household. Therefore, with 270 Dwelling Units (DUs), Ogletown residents are looking at ~2,500 additional car trips entering-exiting out on to SR4 each day. The project is barreling forward as though all approvals are in place.

  6. How is it possible that all 3 area representatives -- Councilwoman Lisa Diller, Rep Ed Osienski, and Senator Bryan Townsend -- did NOT recognize the Orphanage Property for the invaluable treasure that it was, and appeal to citizens and advocates to help save it as far back as 2011?

  7. With the State half stakeholder, why didn't our two legislators insist on attending the buyout negotiations with Meyer, instead of waiting for the Nuns to call them with updates?

  8. Will the NCC Ethics Commission dismiss the flagrant conflict of interest that existed when Exec Meyer appointed Joe Setting (CHP developer) and Mike Hoffman (Felician Sister's legal firm) to his Parks Transition Team? It appears they will.

  9. What prevented our County and State legislators from invoking Eminent Domain to secure the Orphanage Property, for the greater good, as a regional park, and as the last remaining land suitable for such a purpose?

  10. What is preventing our two State legislators from pursuing the first 5 above, using Freedom of Information Act (FOIA) requests of NCC Govt as a means to investigate?

Friday, March 30, 2018

Highest of odds that SR4 intersections already fail at LOS grade "F"

One of the greatest ironies of NCC's approval of the Chestnut Hill so-called "Preserve" is the use of 2010 data to fulfill its Transportation Impact Study (TIS) requirements. Equally surprising is DelDOT's apparent approval, despite adding the failed intersections of Salem Church Road and Library Avenue to the TIS study area. They are under very tight ROW constraints now, and would find it prohibitive and/or nearly impossible to widen Rt.4 and add additional lanes. With developers now getting carte' blanch under NCC Executive Meyer and Land Use Manager Rich Hall, it is not clear how DelDOT will deal with the corridor in the future without the use of eminent domain.

Vehicle Miles Traveled (VMT) was down significantly in 2010 due to the great recession, and gas prices were nearly $4/gallon. People were consolidating trips, using other means, and driving less in general. If these intersections were a grade "E" in level of service (LOS) in 2010, it's a virtual certainty that they're an "F" today (for a simple chart showing each grade and the delays involved, open the CMS report and turn to page 3).


As seen in this FHWA trend above, national VMT dropped significantly in 2010. The result was gasoline "demand destruction", which triggered a surplus resulting in the record low (adjusted for inflation) pump prices we are seeing today. VMT has since returned to where it left off, and has continued to new record highs. Delaware's improving economy, along with Meyer's fierce pro-development stance will further add to it.



Above:
This interactive map, courtesy of Wilmapco, illustrates the conundrum. If we examine the Rt.4-Salem Church Rd intersection alone, we see an "E" grade fail in 2010 (ditto for Rt.72-Library Ave). The odds are overwhelming that it would score an "F" if measured today, in 2018. Not that it makes a whole lot of difference, since both letters are a fail and come under the same UDC rules. But it does show how dire the situation is out on Rt.4, a hospital corridor and evacuation route no less.
If by some miracle these intersections are still at 2010 grade "E", they are likely teetering on "F" in 2018, meaning that the Chestnut Hill so-called "Preserve" will push them to "F" in any case -- the worst possible grade for vehicle LOS.

Thursday, March 29, 2018

No stopping the Chestnut Hill "Preserve"

Well folks, it is DEFINITELY over now and virtually the entire open space (and 1/3 the woods and wetlands) will be packed with apartments, townhomes, and McMansion homes -- probably by year's end (if not sooner). We were clinging to life, hoping that Stranahan's Adverse Possession claim would complicate things, given that 2 points of access (one bi-directional) were required. It turns out that a min. 300 home development is where that regulation kicks in. Therefore, even if they don't connect to Waverly in Breezewwod, a simple eastbound IN/eastbound OUT on Rt.4 satisfies NCC Unified Development Code (UDC).

We were hoping that, with "Tree of Heaven Way" removed, it would force a new Traffic Impact Study given only one access point at Rt.4. For example, traffic entering/exiting westbound will now have to use U-Turns at intersections or median cut-throughs. This will only complicate already failed Levels of Service (LOS) that now cause massive backups on Rt.4. NCC has no issue with any of this, apparently -- not even that it could delay the arrival of civil services, i.e. paramedics.

DelDOT still must weigh in, and provide for optimal through-movements. But by the time they get involved, even if they don't approve of such a limited access configuration, the project will have advanced to a point where there is no turning back. This was the argument we were trying to convince Vic Singer, who still thinks he can stop the Chestnut Hill "Preserve" at the 51st building permit. 51 dwelling units (DUs) is all the Unified Development Code allows dispensation for, when LOS is in failure mode -- as it most definitely is along Rt.4 and at its intersections. This was another issue we attempted to bring to the Ethics Commission, against Richard Hall, which has been all but dismissed at this point.

As we see it, IF DelDOT weighs in, and as a result of a single one-way access point, upgrades to Rt.4 infrastructure is required, the next question is who pays for it? We have little doubt that we, the taxpayer, will have to foot the bill (never mind Meyer's tax increase), to ensure that Mr Sipple and friends can draw maximum profits. We're all going to pay -- bigly -- in any case; it's the Delaware way.

In closing, nothing can now stand in the way of the full development; not DelDOT, not Vic Singer; not our State Legislators either, who could have easily stopped this over the 6 years they knew about it. In a brilliant counter move, Bob Sipple made sure to modify the building order to ensure that all key infrastructure elements (streets, sewer, drainage, etc) were already in place before any such conflicts arrived. Now, there really is no turning back.

Wednesday, March 28, 2018

Conflict of Interest is not enough for Ethics Commission

On their web site, the New Castle County Ethics Commission (NCCEC) states the following:

In 1990, the New Castle County Council created an ethics code and an Ethics Commission. The ethics code prohibits conflicts of interest and appearance of impropriety in the conduct of New Castle County public officials and employees.

It is in their mission to investigate and discipline if there is evidence, or even the appearance of a conflict of interest (COI). STOP clearly applies.

A conflict of interest exists if the circumstances are reasonably believed to create a risk that a decision may be unduly influenced by other, secondary interests, and not on whether a particular individual is actually influenced by a secondary interest. A widely used definition is: "A conflict of interest is a set of circumstances that creates a risk that professional judgement or actions regarding a primary interest will be unduly influenced by a secondary interest" (Wikipedia).

After his election in 2016, NCC Executive Matthew Meyer appointed Orphanage Property developer Joseph Setting, along with Michael Hoffman, an attorney from the firm representing the Felician Sisters, to Chairmanship positions on his Parks Transition Team. There they would have significant influence over how and where regional parkland would be prioritized, including Ogletown-S.Newark where they had a vested interest to develop the last remaining open space suitable for such a purpose. In response, STOP advocates filed a formal complaint with the NCCEC. The attorney assigned to the case responded with the following:

"... how can you support your contention that Meyer was improperly influenced against purchasing the property to preserve as a park when Meyer and his employees worked many hours to, in fact, purchase the property for preservation as a park[?]

"... I have learned through my preliminary inquiry that Setting was in a position where he would profit equally whether a developer purchased the property or whether a government purchased the property. This mitigates against your allegation that Meyer would be influenced by Setting to make sure the land was purchased by a developer. Setting did not care to whom the land was sold".

Yet, according to a Wilmington News Journal article in July 2015, Mr Setting is/was indeed the developer, along with Greg Lingo. As developers, they invest in and pave over land, expecting an exponential return with the sale of homes. Hardly something not to be interested in.

"Developer Joe Setting, of Montchanin-based Setting Properties Inc. is partnering with developer Greg Lingo, formerly of Cornell Homes, and the Felician Sisters on the project"

We responded that we would forfeit our case if -- IF -- the NCCEC can provide the proof concerning Mr Setting's role in the property, and that he was not the developer at the time Meyer appointed him to Chair the Parks Team. Our understanding is quite to the contrary, that Mr Setting was in a position to benefit financially as developer, but may have changed to a different role when the COI became apparent. We also asked repeatedly if it was possible for the NCCEC to produce the membership in each of Mr Setting's LLCs, and what exactly their role was in all of this. This is not something that a FOIA (Freedom of Information Act) can accomplish; these are privately held corporations that owe nothing to public relations. That question goes unanswered.

If we can achieve creditable proof to the contrary, that indeed Mr Setting was a "neutral" party in terms of who the Orphanage Property was sold to when he first took the Chair of the Parks Team, we'll consider the case closed. Otherwise, placing the developer on the "Team" that sets regional park priority for the very region that he's going to profit from (by developing its last suitable parcel for such a purpose) IS a conflict of interest. It also has all the appearance of impropriety on the part of Meyer, which is also forbidden according to the Ethics Code and subject to a probe by the NCCEC.

With such a vested interest in development of the Orphanage Property, placing it at #3 would make perfect sense for Setting/Hoffman; any funds left over in the NCC budget will be depleted on #1 and #2 -- south of the C&D Canal and in Red Lion -- well before Ogletown-S. Newark came around. It should also be noted that NCC already owns the parcel(s) needed south of the Canal, and Red Lion was donated by a philanthropist. On the other hand, #3 (STOP) was a one time ever opportunity, with the Felician Sisters looking to cash in at the appraised value. And, with a joint purchase including the State, NCC was getting a bargain at half price. It should have easily been #1.

We made sure to CC Senator Bryan Townsend, to draw his opinion on Exec Meyer's/NCC's sincerity in executing a buyout agreement, and whether a FOIA would produce the "proof" of collusion that the NCCEC is asking for. As an attorney himself, and Senator for the effected district, his office can and should be pursuing the truth concerning any unethical and illegal actions that could harm his constituents, especially in such an extreme manner as STOP. Instead, it is STOP advocates that are tasked with the impossible; providing the proof that Meyer wasn't sincere and/or staged his failed actions toward a buyout in order to seal the deal for development. We'll provide coverage on this and Townsend's reaction (or lack thereof) in our next article.

We disagree with the NCCEC on their protocol, and must question their usefulness. Their purpose should be to first determine if there's a COI based on the legal definition of the term, above. STOP clearly fits. Then they should launch a probe which includes witness testimony and evidence gathering in all its forms. It shouldn't be up to the layman to prove to one Govt agency that malfeasance occurred within another Govt agency, in this case, the one that also happened to appoint those serving on the NCCEC. This is completely irregular, and if that's how they operate, it is a setup for failure and suspicion of collusion.

Wednesday, March 21, 2018

Will NCC and DE turn a blind eye to the worst of unethical behavior?

A SPECIAL MESSAGE FROM THE STOP CAMPAIGN

We will continue to remind everyone that the Chairman of NCC Executive Meyer's Parks Transition Team, that wrote the final report determining where regional parkland is prioritized, is the Registered Agent of two LLCs overseeing the development of the Orphanage Property. It sounds unimaginably hard to believe that this level of corruption -- clear to the naked eye even among the least politically savvy -- is acceptable at any level of govt, but it is apparently.

But not only was Mr Setting appointed the Chair by Mr Meyer, but Michael Hoffman of Tarbicos-Grosso LLP -- the law firm representing the Felician Sisters -- was also appointed chair of a Park's Team's subcommittee. With this level of influence presiding, does anyone honestly believe that Ogletown-S.Newark would have a snowball's chance in hell at our only chance of getting one? Yet, Senator Townsend doesn't think for a moment that this was an issue. In fact, he believes the simple fact that the "Rt.4 corridor" was just on the Team's list was enough to absolve them of any bias.

Further disturbing is that no attorney would help STOP, nor would they even touch a case like this. They won't touch the illegal Traffic Impact Studies and other show-stopping issues with the Chestnut Hill "Preserve" also, all because they don't want their careers "threatened". In other words, they're all in bed together, most especially the land use attorneys, who would threaten anyone the moment their client's profits were in doubt. This includes Widener, Greenprobono.org, etc. Not a one.

Anyway, this is what we're up against, folks. Total and absolute corruption. It's absolutely disgusting, and this is but one reason why we hold our two State's legislators (one an attorney himself) equally accountable; that they would stand idly by while such corruption continues unabated, and not make the least attempt to stop it despite our numerous pointers on how to do so.


Sunday, March 18, 2018

Guest Contributor Bill Dilks: Felician Sisters Orphanage Property

24th District Candidate Bill Dilks
As a businessman and project manager, accountability is mine, success or fail. There is no such thing as "It wasn't my fault." It’s not always fair, but that's just the way life is. Failure is not an option! The epic fail of this entire RT4 Orphanage fiasco lies on the shoulders of our state representative, Mr. Ed Osienski.

In 2015, the Felician Sisters had been "engaged with State/County officials for more than 2 years” (since 2013.) What happened between 2013 and 2015? Mr. Osienski did not stay on top of this. The result is a huge tragedy for open space along the RT4 community corridor.  Two simple things needed to be done.

First, get the property down-zone approval for just the Felician Sisters units.  "...some members of County Council began expressing opposition to our request”. So Mr. Osienski said the rezoning approach would not have worked. He was defeated without even trying. (I’m sure we’ll hear in detail the excuses on how naive this approach is and how this could have never gotten done. Yet, the failure still remains.)

Second, Mr. Osienski stated he got state funding to help purchase the land. Yet he only got partial state funding. And the Sisters saw through this obfuscation. More balls were dropped here than by Tom Brady in the Superbowl.

Mr. Osienski waited from 2013 until crunch time of July 2017 before even attempting to secure State funding for public acquisition.  So after 4 years of equivocation, the Sisters gave up due to the inertia of Mr. Osienski. The zoning wasn't going to change. Mr. Osienski had only half of the promised funds. So the Sisters had no choice but to push the button to get their project moving forward with the high-density zoning in place.

It is a complex issue, too complex for Mr. Osienski to handle. I would have been in constant contact with the Sisters, coordinating, coercing, passionately pushing and driving everyone, the county executive and council members, colleagues in Dover, and the Governor, rallying the citizenry, anyone and everyone. I would have been constantly updating the residents from the beginning, going back to 2013. Ongoing meetings would’ve been scheduled specifically for this, for years if need be. I would have wrapped my arms around the entire project from the get-go, and gotten the job done. Yet, I’m sure again we’ll hear excuses of how “it doesn’t work that way”, from a man who we now know was in over his head.

Mr Osienski handles the day-to-day interests for our district, as the job calls for. It’s the heavy lifting that is beyond his grasp. We need someone in place who supports the community each day, and who has the background and drive to manage the big ticket items.

Open land, and protecting our environment and coastline should not suffer due to the inept handling by our representatives. These initiatives are just too important.

The end result? Epic fail. Did Mr. Osienski drop the ball?  He never picked it up in the first place.

Bill Dilks is running for State Representative for the 24th District. Visit his webpage.


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NOTE - The Ogletown Resilience Blog is non-partisan, and as such, we are willing to consider the views and contributions of all citizens who share our concerns for the Environment, regardless of their Political Party affiliation. 

Why didn't STOP Legislators invoke Eminent Domain?

Many of our followers have brought this question to light; why Eminent Domain -- a clearly defined means of land acquisition -- was never called upon by area legislators to save the Orphanage Property. Advocates too are puzzled, since both Senator Townsend and Rep Osienski insist that they have done everything legally possible. And surely, they will make excuses for why Eminent Domain wouldn't have worked or couldn't have been used.

Not far from here at all is a very different take:


The use of eminent domain to establish public parks, to preserve places of historic interest, and to promote beautification has substantial precedent.

In DE Title 29, Chapter 95, we see the following:

(b) Notwithstanding any other provision of law, neither this State nor any political subdivision thereof nor any other condemning agency, including an agency as defined in § 9501(b) of this title, shall use eminent domain other than for a public use, as defined in subsection (c) of this section.

(c) The term "public use" shall only mean:

(1) The possession, occupation, or utilization of land by the general public or by public agencies;

(2) The use of land for the creation or functioning of public utilities, electric cooperatives, or common carriers, or

(3) Where the exercise of eminent domain:

a.1. Removes a "blighted area" as defined at § 4501(3) of Title 31, or a "slum area", as defined at § 4501(23) of Title 31;

2. Removes a structure that is beyond repair or unfit for human habitation or use; or

3. Is used to acquire abandoned real property; and

b. Eliminates a direct threat to public health and safety caused by or related to the real property in its current condition.

Then in Title 7, Chapter 75, we see the following:

The General Assembly finds that:

(1) The provision of lands for public recreation and conservation of natural resources promotes biological diversity, public health, prosperity and general welfare and is a proper responsibility of government.

(2) Lands now provided for such purposes will not be adequate to meet the needs of an expanding population in years to come.

(3) The expansion of population, while increasing the need for such lands, will continually diminish the supply and tend to increase the cost of public acquisition of lands available and appropriate for such purposes.

(4) Rapid growth and spread of urban development is encroaching upon, or eliminating, many open areas and spaces of varied size and character and many sites with important cultural and natural resources. These areas, spaces, and sites, if preserved and maintained in their present open state, constitute important physical, biological, social, aesthetic, recreational, or economic assets.

(5) The State must continue to permanently protect substantial quantities of such lands as are now available and appropriate so that they may be preserved and developed for the purposes enumerated herein.

(6) It is the public policy of the State that the permanent protection of land shall be accomplished through the voluntary acquisition of interests or rights in land, or donation of said lands, and that said acquisition or donation constitutes a public purpose for which public funds have been expended or advanced and should be continued.

We urge our readers to look over both chapters, and determine for themselves could our legislators have saved this last remaining jewel of a landscape? With such large gaps in their 2013-2015 timeline, i.e. waiting for the Nuns to call them as their drive toward application/exploratory plan approval went forward, couldn't they have at least made the threat?

And despite the drainage and sewer work, it's not too late. Except the reality is, neither legislator wants STOP to happen; from Day 1, their intentions (failure to progress) has been abundantly clear.