DELAWARE VOICEJACK SCHREPPLER
[Published in The Sunday News Journal, July 24, 2016]
Critics and political opponents of County Executive Tom Gordon have accused his administration of playing favorites in proposing to purchase the development rights for the Lester Farm and the Warren Farm located on Port Penn Road.
This accusation is misplaced, as the Gordon administration is simply trying to implement a legal settlement that it inherited from the Coons/Clark administrations that dates back to 2010. As the late Sen. Daniel Patrick Moynihan sagely instructed: “Everyone is entitled to his own opinion, but not his own facts.”
So here are the facts.
New Castle County had wrangled for about a decade in federal and state courts with the Warren and Lester families over sewer service and subdivision approval issues. While that litigation was proceeding the General Assembly in 2004 passed Senate Bill 99, authorizing utilities regulated by the Public Service Commission (PSC) to provide wastewater service. The law required municipalities and counties to submit maps of their existing sewer service territories to the PSC and prohibited wastewater utilities from invading those territories without consent of the local governments. New Castle County filed maps claiming all unincorporated areas as its sewer service territory, including areas where it had no infrastructure or plans to build infrastructure.
In 2009 a wastewater utility applied to the PSC for a certificate of public convenience and necessity (CPCN) to serve eight parcels of land in the Port Penn area, including the Warren and Lester farms. New Castle County intervened in the docket before the PSC and opposed the application. The county argued that Senate Bill 99 contained no explicit provision giving the PSC authority to remove these parcels from the county’s self-designated service territory. The utility and property owners argued that the PSC had inherent authority to do so when and where the county had abandoned any plan to provide sewer service to its “sewer service territory.”
In March of 2010, the PSC sided with the county on their interpretation of SB 99 and denied the CPCN. However, two of the four commissioners expressed sympathy for the property owners and suggested that their remedy was to go back to the General Assembly and seek an amendment clearly giving the PSC jurisdiction to grant a CPCN under these circumstances.
The wastewater utility appealed the denial of the CPCN to the Superior Court. The wastewater utility and property owners also requested and obtained the introduction of House Bill 442, which provided that the PSC shall grant a CPCN for properties south of the C&D Canal and north of Middletown and Odessa that are zoned for suburban development and for which the county has no ability to provide sewer service within five years after it is requested. House Bill 442 was introduced on June 8th of 2010 and assigned to the Transportation/Land Use and Infrastructure Committee. On June 9, the bill unanimously was voted out of the committee over the objection of the county’s representatives.
While settlement discussions between the county and the Warren and Lester families sporadically had occurred previously, those discussions intensified after House Bill 442 was released from committee. Ultimately the county agreed to construct at its own cost a force main underneath Route 1 and Route 13 to a point on Port Penn Road. The Warren Farm and Lester Farm owners agreed to pay for their costs to connect to that force main and to pay all connection fees and other fees required by county codes. Those agreements were finalized in 2011, after Paul Clark succeeded Chris Coons as County Executive. That is the legal settlement that Tom Gordon inherited when he was elected in 2012.
The county has a choice: pay to install expensive sewer infrastructure or find a way to purchase the development rights for the Warren and Lester farms. This choice is unique to these two farms, so comparing it to routine farmland preservation transactions in other areas is not appropriate. Mr. Gordon has proposed that the County contribute toward the purchase of development rights the amount of money that the county would otherwise have to spend to build the sewer infrastructure.
People can have their opinions about Mr. Gordon’s proposal, but those are the facts.
[Editor's note]Jack Schreppler has practiced land use law and public utility law in Delaware for more than 30 years.
[This DELAWARE VOICE by Jack Schreppler also was published July 18, 2016, on The News Journal Media Group website, Delawareonline.com, under the headline, "Setting the record straight on Port Penn Farmland preservation" with a sub-headline, "People can have their opinions about Mr. Gordon's proposal, but there are facts."]