A Delaware court ruling Sept. 5 will allow development on the former Pike Creek golf course; however, the ruling states that 130 acres of 177 acres must be set aside for an 18-hole golf course, regardless of whether the course is ever built and operated.
Superior Court Judge Paul R. Wallace made the ruling in the case of New Castle County vs. Pike Creek Recreational Services LLC (PCRS). The ruling involved one case from Superior Court and one case from Chancery Court that were consolidated under a single judicial officer.
In his ruling, Wallace referred to the original plans for the land in documents from 1964 and 1969.
The county and citizens from the Pike Creek Valley Civic League were trying to prevent the land from being developed, arguing that the original plans stated that what is now PCRS property was to be used as a golf course.
HISTORY OF THE CASE
According to court records, Three Little Bakers operated the golf course until 2008 when the property was sold to PCRS. Before the sale, the title to the Three Little Bakers property was divided to separate the golf course from the other operations on the land. PCRS took title to the golf course, including the Hogan Drive lots, while Pike Creek Healthcare Services took title to the remaining land which was commercially zoned. To build a nursing home, Pike Creek Healthcare asked to have restrictions on the original master plan removed. The Department of Land Use and Planning Board agreed, and County Council approved the removal of deed restrictions on the commercially-zoned land, but the golf course was "unaffected by this 2008 deed change."
PCRS closed the golf course in 2010, with plans to build a development called "The Terraces at Pike Creek" with 288 residential dwellings, and commercial buildings totaling 62,000 square feet.
The first engineering plan submitted was for development of the 20 Hogan Drive lots. The county said it couldn't grant approval until PCRS could show that the development of Hogan Drive would not violate any other deed restrictions affecting the property.
The county's main contention was that the master plan prohibited any development on the entirety of the golf course as it was configured, including the Hogan Drive lots, and filed a complaint in the Court of Chancery on Nov. 9, 2010, arguing that the PCRS development plan for the golf course violated the applicable restrictions, covenants, and dedications.
PCRS countersued to get the county to review the plans. The county amended its complaint, saying it would review the plans but would not issue any building permits until the county approved the deed restriction changes it deemed necessary.
Previously, Judge John A. Parkins Jr. had ruled that PCRS couldn't develop 288 homes on the former golf course, but could proceed with the 20 townhomes on Hogan Drive.
Page 2 of 4 - However, the case was transferred to Judge Wallace for a written decision.
JUDGE WALLACE'S DECISION
In his decision Sept. 5, Judge Wallace wrote, "The Master Plan does not require PCRS to operate the golf course, but does preclude development on 130 acres of the set-aside open space."
"The Court cannot say that the restrictive covenant, itself, prevents PCRS from constructing the proposed Hogan and Terraces developments…The restrictive covenant does, however, require PCRS to demonstrate how their planned development projects would conform to the Master Plan, and does require PCRS to set aside a minimum of 130 acres of land which may feasibly be developed as an 18-hole golf course," Wallace wrote. "The court agrees with PCRS that it can develop the Hogan Drive property: The approximately 1.4 acres of proposed development may be accomplished without contravening the golf course restriction created by the Master Plan. Absent a finding of technical or regulatory non-compliance, the Hogan Drive development must be allowed to proceed."
REACTION FROM PCRS
Kimberly Hoffman, one of the attorneys from Morris James representing PCRS, said her client plans to proceed with developing part of the 177-acre property, leaving the required open space.
Hoffman took time to answer questions from the Hockessin Community News about the case.
Q What was your client's reaction to the Court's ruling?
A The owner has always intended to preserve a minimum of 130 acres of open space on this property as reflected in its plan submissions. It is always a relief when a client's intentions line up with what the Court orders.
Q What was the most important part of the ruling to your client – the 130 acres number for the open space requirement instead of 177?
A That is certainly very important since preserving such a large parcel in its entirety with no income stream to support upkeep is unrealistic over time. The client was also gratified that the 11th hour motion for additional parties to intervene was denied, as that would have complicated the litigation.
Q Does PCRS still plan to develop the property, leaving the 130 acres of open space, or does that open space requirement make the development plans unfeasible?
A They always planned to leave at least that much open space. In fact, after the litigation started we presented an alternate plan to the community to preserve up to 156 acres and still do the development with a different unit mix. The litigation continued, though, instead.
Q How about the Hogan Drive development plan – is PCRS going to build 20 townhomes there?
Page 3 of 4 - Q Is there anything else your clients would like to say?
A It has always been very important to the owner to develop a community with a lot of usable open space, preferably with recreational amenities. The design the owner submitted for review is also sensitive to the types and sizes of dwellings already built; in other words we tried to preserve as many people's open space views as possible and put single family next to single family, townhome next to townhome, etc. The client wishes that we were working on refining that concept, but the County sued us before we could make much progress. By this time we could have had nice landscaping, walking trails, a fishing dock on the big pond – all up and running and sustainable for the future. We'll probably have to finish the entire court process including appeals before that is a possibility.
REACTION FROM COUNTY COUNCILWOMAN
Councilwoman Janet Kilpatrick (R-Hockessin) represents the district which includes the former golf course property. She said this decision created more questions than answers. She's asking for a briefing from the county's attorney at the county executive committee meeting on Tuesday.
Kilpatrick took some time to answer questions from the Hockessin Community News about the case.
Q What was your reaction to the Court's ruling?
A I was disappointed that the written ruling was not the same as that given from the bench by the original judge. This ruling diminishes the amount of mandated open space, leaving 47 acres in question.
Q What will this mean for residents in that area?
A I don't think that it is yet clear as to how this will affect the outcome of development in the Pike Creek area. Keeping in mind that this 130 acres of open space must "feasibly be developed as an 18-hole golf course" and "must be a parcel of land of sufficient quality, quality and configuration to meet the specific purpose," I would presume that this open space cannot be located in the floodplain, marshland, riparian buffers or steep slopes, taking away the discretion of the developer as to what acreage he can use for mandated open space. The question remains as to whether this open space counts towards the regulatory open space required in any new development.
Q What have you heard from constituents about the ruling?
A There is a fear that we could go back to the original submitted plan for "The Terraces" but I doubt that could happen. The county went to court because of a dispute involving the original county ruling of that submitted plan. The court made it very clear that the developer use the land use process in place for any future plans.
Page 4 of 4 - Q What's the most important part of the ruling?
A I believe that the most important part is how the open space must be configured. That will limit what, if anything, can be built on the remaining acreage. There are now specific criteria for placement of the open space. What will be available for any future development will be determined through the Department of Land Use and council, when and if a plan is submitted.
When you consider the open space, stream, floodplain, riparian buffer, setbacks, steep slopes, road bed placement; and now adding in the court decision about what kind of land has to remain open that 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," I don't believe that there is a substantial amount of usable land.
Any previous proposal of 130 acres of random open space is a lot different than keeping 130 acres in a configuration so that a golf course could actually be recreated. If there needs to be an interpretation of the judge's opinion there is always the option of going back with that question.
Q What's next for this proposed development?
A Understanding that the Hogan Drive plan can be built, any additional plan is at the discretion of the developer. He must decide how he is going to proceed. Per the court, "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...."