Fritz Griesinger sent this along ~
 As a community advocate in 1964,I participated in the DPUD (Diversified Planned Unit Development) known as Pike Creek Valley.  It was to become roughly 1,500 acres with a density of 4.3 Dwellings per acre, roughly 6,000 homes of various designs and prices.  In order to achieve this state of the art design, about 200 acres of open space on which the developer chose to create the golf course. It would be an amenity to sell more houses and enhance the sale of homes abutting the course.  It isolated the various communities from each other so they could develop their own identities.
 
Money magazine in 1997 awarded Pike Creek Valley the 77th best place to live in the USA.  The award contained a footnote that the open space influenced their decision but cautioned that destroying the open space would destroy its attractiveness.   Of course we now know that's what happened.
 
In an attempt to clarify the validity of the DPUD, a county attorney by the name of Sandra Kauffman provided an opinion that the open space was 199 acres and that all residents of the DPUD had a vested interest when they were given a copy of the DPUD including a map when they signed their agreement of sale.  In fact, I have copies of 2 of those agreements which also give a price extra for golf course frontage.
 
Over the years, the open space (golf course) faced bankruptcy at least twice.  In my non legal experience, developers should have done at least minimum due diligence and realized that they could not simply ignore the verified rights of the many homeowners of Pike Creek Valley and it's roughly 18,000 residents.
 
MONEY TALKS!  Not only for the attorneys for the current course owners to reduce the course size but the golf course owners would make  $MILLIONS.  That would be a great risk / reward scenario for everyone except the many residents of Pike Creek Valley.
 
Here are some points to ponder based an Judge Wallace's ruling:
1)  In fact, the "Master Plan" does not require to operate the golf course.  My response, the owner of the golf course could give the property to an appropriate group as passive open space and take a generous tax benefit. 
2)  Building on Hogan Drive site is based on paying taxes. My response is the owners if they had any sense at all would have disputed the tax bills when they were first levied.
3)  It appears Judge Wallace seems to say the Master Plan is not enforceable.  My concern is he saying the Master Plan is completely unenforceable or just part of it.  But what about all the residents and their many successors who bought homes?
4)  Judge Wallace seems to feel only 130 acres are set aside.  My feeling is not so based on the many legal opinions INCLUDING JUDGE PARKINS WHO AT THE NOVEMBER 2011 HEARING COMPLIMENTED THE COUNTY ATTORNEYS FOR OUTSTANDING PRESENTATIONS.
5)  Judge Wallace seems to feel there is no requirement for a golf course beyond 130 acres. my response is that county attorney Sandra Kaufmann opinion was that the open space was 199 acres and even Judge Parkins ruled it was at least 170 acres.
 
PATH FORWARD
County Council through Councilman Sheldon and Councilwoman Kilpatrick have voted to uphold the open space (not neccessarily golf course) with funding to support appropriate legal appeal activity.  Also, there is now plenty of planning activity to prohibit golf courses as part of required open space.  See approved plans for Bayberry.  The county has devoted considerable effort to find mechanisms for open space such as special park districts or third party entities.  Our golf course may have to go to plan B which would have the developer turn over the open space to a third party as administrator or as a county passive open space and claim a generous tax credit.
 
Fritz Griesinger
Past President Pike Creek Valley Civic League and involvement since 1964    


And Rich Abbott responds ~ 
Fritz,
 
As to Hogan Drive, there is a strong probability of success on appeal.  The Court misstated the issue there.  It is not Waiver.  It is Estoppel.
 
It is tough to obtain a finding of Estoppel against the government.  You have to show substantial financial expenditures made in reasonable reliance on government representations.  Here, PCRS may have spent $10k or so on taxes during its term of ownership, rather than the $100,000+ typically found to be necessary by the Courts.  More importantly, however, how could PCRS reasonably rely on a subdivision plan which contains an express note stating the the lots are probably unbuildable?
 
To the extent that the issue was Waiver, the record is clear that the County did not undertake a voluntary relinquishment of a known right.  The plan was approved and recorded by involuntary Court Order.  And the only right the County gave up was to not review and approve the plan as to technical compliance.  The County did not nothing to indicate that the lots were buildable.  Indeed, it took action which expressed the exact opposite - the lots are unbuildable due to the Master Plan.
 
The Hogan Drive Townhouse Addition lands are an integral part of one of the holes on the golf course.  Since the golf course must survive, so to must that area of land be retained for golf course use.
 
The only way PCRS gets around the above is if it can show that a minimum of 130 acres of land exists on which a golf course may be situated in a new configuration, leaving extra land for development.  You cannot take down all mature and young forest areas, only a percentage.  And you cannot place a new golf hole on steep slopes, wetlands, floodplain, or other protected resource areas.
 
So the question remains as to how much, if any, of the 177 acres may be developed with new housing.  Judge Wallace expressly notes that PCRS must show it can place a viable 18 hole golf course on the lands to be set aside for that purpose.  And he provides that it may take more than 130 acres to actually lay out a feasible 18 hole course.
 
So the jury is still out.  In the meantime, the County should appeal.
 
Rich Abbott
 
Richard L. Abbott, Esq.

Abbott Law Firm

724 Yorklyn Rd, Suite 240

Hockessin, DE 19707

Direct - (302) 489-2529

Fax - (302) 489-2535

~*~