Pike Creek Valley Civic League Meeting On The Pike Creek Golf Course Set For 7PM September 23rd At Skyline United Methodist Church

 Caroline Alexander stands Friday near the sixth green of the derelict Three Little Bakers Country Club, which her Pepper Ridge home overlooks. A Superior Court judge’s ruling earlier this week could pave the way for a development company to build 388 houses, town homes and condominiums on the site. WILLIAM BRETZGER/THE NEWS JOURNAL

Jeff Peters, President, PCVCL, wrote this on the DE Way post about CVS and deed restrictions development attorneys want to break ~

Thanks for the post, Nancy. Pike Creek Valley Civic League did not participate in the GHADA sponsored Focus Group as we felt that GHADA had no standing in our neighborhood. PCVCL has scheduled a meeting Monday, Sept. 23, 7:00 PM at Skyline United Methodist Church to have Pike Creek residents express their position on this issue.
Jeff Peters, President, PCVCL

The above referenced meeting has been re-tasked as a meeting on the Pike Creek Golf Course. A meeting on Whitemans Garage will be rescheduled. PCVCL

I do intend to write a follow up on the CVS-Whiteman's Garage problem, partly because I understand the CVS focus group is set to meet next Tuesday and I wonder whether NCC administration was invited. But also because I got an email from Shawn Tucker with a few points of clarity about what I'd written he'd no doubt like me to share. All in good time, Shawn.

Meanwhile, attention has shifted to news of Judge Wallace's Pike Creek Golf Course decision. All of the information I've gotten on this decision is confusing, including email updates from County Councilwoman Kilpatrick and the initial News Journal report: Judge rules in Pike Creek golf course dispute.

Both of these issues show all residents how fragile deed restrictions are - even with the backing of the county - and should serve as a caution to all civic groups being courted with new development restrictions. There is no guarantee to protect your property in this litigious environment (i.e. the deed restrictions Shawn Tucker is offering surrounding communities on behalf of the Walmart expansion project near Prices Corner and the recent upending of deed restrictions for the Limestone Medical Center at Mill Creek)

How confusing is this?.......

News Journal Thursday - Judge rules in Pike Creek golf course dispute

A Delaware Superior Court judge issued what appears to be a split­ decision Thursday evening in the case between New Castle County and a developer trying to build nearly 400 homes on the Pike Creek Golf Course. Judge Paul R. Wallace ruled that Pike Creek Recreational Services LLC must preserve 130 acres of the 177-acre property as open space but doesn’t have to operate a golf course. The county wanted the court to block development on the entire 177 acres and require the developer to operate a golf course.

Kim Hoffman, the developer’s at­torney, said Thursday night the ruling was a victory, saying her client’s origi­nal plan to build 388 residential units included keeping 130 acres of open space – the same amount that Wallace ordered to be preserved. “That was the minimum amount of open space we agreed to preserve from the beginning,” Hoffman said.

County Executive Tom Gordon said Thursday night that he’s not sure if the ruling means the developer can move forward with its plan for 388 houses, town homes and condominiums. Coun­ty attorneys would begin analyzing the decision this morning to see how the government will respond. Wallace also ruled that the devel­oper’s plan for Hogan Drive, which calls for 20 town homes on 1.4 acres ad­jacent to the course, can proceed.

With a comment ~

I guess no one cares about the people who actually live here already. Pike Creek is too crowded as it is! We need more houses in this area like we all need an additional hole in our heads. You want to develop something? Develop that eyesore that is the former Pike Creek Bowling Alley!

- Emails

Thursday ~

Councilwoman Kilpatrick just received the following information from the County Attorney regarding the Pike Creek Recreational Services case and asked me to pass it along.  We are including everyone on our mailing list in this email to ensure we reach as many people possible who have expressed an interest in this case.

“Today the Court entered several Orders.  All of the Orders were essentially the same for each of the various associated cases.  The net effect of the Orders appears to stay Pike Creek’s ability to press forward w/ the issue of class certification.  This may be a sign of a decision to follow soon, but as everything has been about this case, it’s hard to predict.  If the Court provides any further substantive Orders, I will let you know.”

As soon as any additional information is received, it will be passed on to you.  As of now, this is the only new information we have and represents verbatim what was just sent by the County Attorney.

And Friday ~ 

Dear residents,

 

This is to advise you that the written opinion for the Case  of New Castle County v Pike Creek Recreational Services (Three Little Bakers property) is complete. While a full copy is on my website athttp://www2.nccde.org/council/District3/default.aspx , which gives details related to every discussion/decision that was discussed throughout this case,  this is a synopsis of the conclusions.

In reading the opinion it states that:

1.  "The Master plan does not require PCRS (Pike Creek Recreational Services) to operate the golf course, but does preclude developmenton 130 acres of the set-aside open space."  with a footnote that reads:  On November 16, 2011, the previous judge indicated that his "intention" was to rule that PCRS is prevented from building on 177 acres, less the minimal acreage of the Hogan Drive development... that intended ruling was made however, prior to the submission of supplemental briefings by both the County and PCRS.  A review of the entire record now before the court leaves the court to find that rendering the previously intended position would be "clearly wrong".  The correct interpretation requires a set-aside of only 130 acres." (page 28 in document 1 of 2)    The set-aside must be such that it could "feasibly be developed as an 18-hole golf course" and "must be a parcel of land of sufficient quantity, quality and configuration to meet the specific purpose." (page 33 in document 1 of 2)

2.  "By collecting taxes on the Hogan Drive lots as if subject to development, the County waived its right to object  to PCRS' proposed Hogan Drive plan." (page 33 in document 1 of 2)  "The approximately 1.4 acres of proposed developments may be developed without contrvening the Golf Course restriction created by the Master Plan." (page 35 in document 1 of 2)

3.  "The Court will not defer to the County's interpretation of the scope of the restrictive covenant created by the Master Plan"   Resolution 10-217, passed by New Castle County which reads: "WHEREAS applicable covenants, agreements, dedications and plans enforceable by the County, the current owners plan to build in violation of the requirement that an 1-hole golf course continue on the property in its current form and also violates the concepts of the Master Plan" is not upheld by the Court. (page 35-36 in document 1 of 2)

4. "The doctrine of merger by deed does not serve to extinguish the golf course restriction"   "Because the Master Plan creates an enforceable limited restriction regarding the land on which the golf course is situated, because subsequent recorded plans demonstrate subsequent owners' intention to dedicate "Private Open Space" in accordance with the Master Plan and for the benefit of the County, and because it had knowledge of the restrictions, PCRS cannot seek refuge in the doctrine of merger to extinguish the 130-acres restriction created by the Master Plan."(page 40 in document 1 of 2)

5. "The motion to intervene is denied, because, in part, no implied sevitude functions to enlarge the orginal set-aside beyond 130 acres."  "The County's position is that an implied servitude requires 177 acres, the size of the golf course immediately prior to its closure, rather than the 130 acres explicitely reserved in the Master Plan set aside"  "The County's plan is predicated upon the affidavits of several Pike Creek Valley residents who claim to have purchased property or paid lot premiums in reliance upon oral representations of developers and upon the Distributed Master Plan, which showed the golf course abutting several residential properties." (page 40 in document 1 of 2)   "These residents, reacting to PCRS' claim that the County lacks standing" (in this argument) "filed a motion to intervene in the instant action, on November 14, 2010, two days prior to the scheduled oral argument on the real parties cross-motion for summary judgement."  "No intervention will be permitted because the application to intervene was untimely and the claim the interested parties wish to "echo" is futile" (page 42 in document 1 of 2)  "The interested parties mere claim that they believe the golf course would continue into perpetuity to benefit their residential property is not a basis for implied easemetn" (page 9 - in document 2 of 2)  ..."the interested parties have no explicit rights under the master plan which states no person, firm or corporation other than the parties, LEVY COURT and governmental body enumerated... shall have any right whatever arising out of or by virtue of the execution of delivery of this agreement." (page 11 in doc  2 of 2)

C. "PCRS has not met its burden in demonstrating that mandamus should lie here." "PCRS wishes the court to issue a writ of mandamus directing the County to approve the previously submitted plans for The Terraces and the Hogan Drive lots." (page 13 in doc 2 of 2).   "Mandamus is an extraordinary write used to compel performance of a duty by administrative agency, public body or public official which Superior Court will issue only where the petitioner has demonstrated a "clear legal right to the performance of a non-discretionary duty" (page 11 in doc 2 or 2)

D. "PCRS cannot avoid the applicable County approval process via the presumption statute, res judicata, collaterol estopel, or by claiming violation of constitutional guarantees."

1. "The presumption statute does not apply and will not serve as a mechanism for automatic approval of the subdivision plan submitted on October 14, 2010"

2.  "Principles of res judica and collaterol estopol do not require this court to issue a writ of mandamus order the Depratment and the Planning Board to review the contents of the PCRS'  October 14, 2010 submissions."
3. "PCRS' constitutional claims are not ripe for adjudication at this stage."

PCRS is required to follow the Restriction Change Statute, where applicable if it wishes to modify the restrictive covenant found by the Court to exist..."  That restriction cannot be applied to the Hogan Drive plan.  The County and its regulatory and administrative bodies shall not unnecessarily delay review and approval of the Hogan Drive subdivision plans if such are otherwise in conformity with the New Castle County Code and any other applicable regulations."

My synopsis, although not legal, is that the only substantial change between the bench opinion and the written opinion is that the required open space is now 130 acres, not 177.  Any submission for development on the remaining acreage will have to go through the normal Land Use process, which will include public hearings at which you will have the ability to voice your opinions, and be code compliant.  This would include mandated open space, restrictions on flood plain, creeks, riparian buffets, steep slopes, etc.

Please do not hesitate to contact me with any questions.

 

Janet Kilpatrick

Councilmember - 3rd District

800 N. French St. - 8th Floor

Wilmington, DE 19801

302-395-8343 - work

302-234-1994 - home

- And today, (News Journal) Adam Taylor reports ~ Judge's ruling heats up battle over proposed development in Pike Creek

[Caro­line Alexander, who has lived for 17 years in the Pepper Ridge community next to the now-closed golf course, which also was the site of the former Three Little Bakers Country Club] “We bought in Pike Creek and not in Bear because of the golf course, which is this area’s open space we thought never would be developed,” Alexander said. “This isn’t a case of wealthy people try­ing to maintain their pristine views. It’s working-class people trying to save our way of life.”.........Alexander and her neighbors thought they had won their battle in 2011, when Superior Court Judge John A. Parkins Jr. ruled from the bench in favor of the county, say­ing none of the 177 acres could be developed. Par­kins was replaced on the case in April, however, because he never submit­ted a written opinion to make his oral ruling offi­cial.

New Judge Paul R. Wallace weakened Par­kins’ decision Thursday, ruling the developer only had to preserve 130 acres of the site and does not have to operate a golf course. Wallace based his decision on agreements signed between Pike Creek land owners and county officials in 1964 and 1969 that required 130 acres that could be used as a golf course. “It’s very dishearten­ing,” New Castle County Councilman Tim Sheldon said. Because the plan was to cluster the homes on 36 acres in the first place, the developer’s attorney Kim Hoffman called the decision a victory, saying her client has more than enough land to build its plan. Others aren’t so sure who won in Thursday’s ruling. Sheldon and fellow council member Janet Kilpatrick, whose district includes the develop­ment, said they think the developer might not be able to build 388 units now that Wallace ruled that the open space must be contiguous land – essen­tially a theoretical golf course. Pike Creek Civic League President Jeff Pe­ters agrees. “If they can’t build on the fairways, the Ter­races project is blown out of the water,” he said.

Hoffman said that’s not true. A block of 130 acres can be carved out and 388 units can still be built, she said. The U.S. Open was just played at Merion Golf Course in Pennsylvania, which is 130 acres, she said. “We can lay out a theo­retical golf course on 130 acres and still build the 388 units,” Hoffman said. “We’re not concerned about that.” Max Walton, the pri­vate attorney represent­ing the county in the case, said he has looked at ren­derings of the plan and can’t see how 388 units could be built in addition to leaving a block of open space the size of a golf course. “We disagree with our opponent’s position on that,” Walton said. The judge ruled the de­veloper’s plan for Hogan’s Run, a 20-town-home pro­ject on 1.4 acres adjacent to the course, can proceed through the county’s ap­proval process. The coun­ty wanted that land in­cluded in the open space set-aside. Wallace reject­ed that, saying the county couldn’t insist that it stay as open space because it has been collecting taxes on the parcel for years.

~*~