Why Should Delaware Care?
The Delaware state government does not want counties, which historically have authority over property zonings, to tell it what it can and cannot do with land it controls. A recent fight over two parcels near a park and a proposed port in Edgemoor have reinvigorated the debate over who ultimately controls land use.
During the previous three months, state environmental regulators and a powerful Delaware land-use attorney quietly lobbied the New Castle County Council to keep two pieces of public land – located on opposite sides of Fox Point State Park – zoned for industry.
In emails and in conversations with council members, they argued that one of the properties was necessary for the success of the future Port of Edgemoor container terminal planned at a nearby former chemical plant – a project to which the public had already committed hundreds of millions of dollars.
And, any effort to hinder the port development by restrictively downzoning the property near the park would “undoubtedly cost taxpayers” even more, land use attorney Shawn Tucker said in an email to the county council.
Tucker, who has represented some of the biggest developers in Delaware, sent the email on behalf of the state-owned entity that oversees the Port of Wilmington, called the Diamond State Port Corporation.
The lobbying – which hints at a growing schism between the state and county over who has the right to say what goes where on public land – will likely pay off on Tuesday when the county council votes on an ordinance that would reaffirm the properties’ industrial zoning.
Still, a handful of council members have pushed back. During an August meeting, a normally subdued Councilman Dave Carter angrily questioned why the state had not raised its concerns sooner.
He said the county’s plan to restrict industry on the land has been known for more than a year, as it was part of a previously controversial plan to rezone scores of parcels across northern Delaware.
Carter also said the land near the park – which taxpayers had purchased decades ago with federal dollars – had been considered as part of a future public trail along the Delaware River.
“I worked for four cabinet secretaries trying to secure that waterfront to get some kind of a linear trail,” Carter said at the August meeting, referencing his previous career with the Delaware Department of Natural Resources and Environmental Control (DNREC).
A spokesman for DNREC, Michael Globetti, did not publicly say why the state wants the properties to retain their industrial zoning. Instead, he said “DNREC has no plans to alter the current use of the property, which will remain as is.”
But the assertion conflicts with several council members’ public statements who have said state officials intend to build an access road across property that borders Fox Point State Park southern boundary to the new Edgemoor container terminal.
For the piece of land that sits north of the park, it is not clear whether the state has development plans, or whether it seeks to retain the industrial zoning out of principle.
In a subsequent email to Spotlight Delaware, Globetti indicated that the dispute over the properties near Fox Point related to another disagreement between the state and the county over plans to create a new zoning category for public parklands.
The parkland zoning “restrictions could affect current operations and future development, including maintenance shops, stables, housing, retail services and more,” Globetti said.
Carter has also indicated that the local Fox Point dispute is a harbinger of a forthcoming fight over rezoning open space lands more broadly.
In a letter sent to the New Castle County planning board last week, Carter said a new zoning category for parkland would curb what he called a “troubling trend” of state officials improperly using public lands for private operations.
Among the examples he cited included the state’s transfer of parts of Fort DuPont State Park to an entity that was tasked with building homes and an RV park.
“Our open space was always intended to be integrated and complementary to local land use decisions and zoning,” Carter said in his letter to county planners.
Carter’s fight follows a high-profile land-use dispute in 2015 that erupted between the state and New Castle County that also posed the question of which government has ultimate say over land-use decisions.
At the time, then-County Executive Tom Gordon sought to block the Markell administration’s plans to allow Croda Inc. to build an ethylene oxide plant at its Atlas Point chemical facility, near New Castle.
“This isn’t 7-11,” Gordon told the News Journal at the time. “This is something serious.”
In response, state lawmakers inserted language into the footnotes of a 2015 capital funding bill that stripped the permitting authority for the Atlas Point parcels from the county, handing it instead to state officials at the Delaware Office of State Planning.
Following the change, Delaware promptly permitted Croda’s $170 million construction plans.
The lands in an around Fox Point State Park have become a point of contention between state and county officials. | MAP COURTESY OF GOOGLE / SPOTLIGHT DELAWARE GRAPHIC
How did Fox Point fight begin?
The state’s lobbying against the rezoning of the Fox Point properties began in July after New Castle County Councilman John Cartier introduced what was expected to be an uncontroversial ordinance, calling for changes to a handful of parcels in his Claymont-area district, including land that hugs Fox Point State Park.
The measure was the latest in the county’s larger plans to rezone scores of properties across northern Delaware, which last year sparked a politically punishing backlash from suburban residents who opposed the development of mega-warehouses on properties targeting for upzoning.
Cartier’s ordinance in July was expected to be an uncontroversial reprieve from those previous fights. Nevertheless, it also quickly drew resistance – this time coming from Gov. John Carney’s administration.
In response, Cartier suspended his ordinance, then amended it to preserve the industrial zonings around Fox Point State Park. He explained the actions during an August county council meeting, in which he revealed that state officials wanted to use the property south of the park for a future access road to the Edgemoor container terminal.
He said the state also wanted to maintain the industrial zoning “on the other side, to the north of the Fox Point Park,” but he did not disclose their plans for that land, if any.
Not all of the council members were satisfied.
Councilman Penrose Hollins claimed the Port of Wilmington did not have a pristine reputation and asked if neighboring civic groups had been alerted to the state’s plans. Councilman Jea Street questioned whether state officials were acting in “good faith” with assurances that the land would not be developed beyond an access road.
And, Councilwoman Dee Durham insisted that the public had bought the land in question in order to preserve open space.
“The people did buy it. That’s the difference. The people,” she said.
Over the subsequent weeks after the August meeting, DNREC and the Diamond State Port Corporation appeared to turn up its pressure on the county. In his email to council members Tucker even implied the county had no authority on the issue, while still stating that his client would attempt to comply with county rules.
He also argued for the virtues of a newly constructed port at the Edgemoor site, stating it would fast-track an environmental cleanup at the former chemical plant.
“The closure of that plant and cleanup of the site that comes with the port’s construction is, in my opinion, a benefit to the park and the public at large,” he said.
Make Your Voice Heard
The Fox Point rezoning will be one of several heard at tonight’s county council meeting, to be held at 6:30 p.m. the City/Council Building located at 800 N. French St. in Wilmington. Public comment can also be made via Zoom, by clicking here.
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