The Bethany Beach Town Council has formally made known its opposition to a development of six four-unit multi-family structures proposed to be built off Garfield Parkway on property that contains forested wetlands — 1.9 acres of which would be filled in by owners Stanley and Delores Walcek if permits from federal, state and local officials were granted.
At their Jan. 15 meeting, the council voted unanimously to issue an official response to a DNREC request for comment on the Walceks’ application for a federal consistency determination of feasibility for the project from the U.S. Army Corps of Engineers. That response was firmly negative. It was also the latest Town response to efforts by the family to develop the parcel that lies between Garfield Parkway and the Loop Canal, which have been ongoing since at least 2008.
Councilman Bruce Frye noted in his motion before the council that the Walceks were “continuing to seek approval” for the project, speaking to two prior attempts to develop the parcel, in 2008 and 2012, both of which were met with opposition from neighbors and Town officials.
While no plans have been submitted to the Town as yet, in its latest iteration, the development battle requests that the Corps find that the Walceks would be adequately mitigating the loss of the 1.9 acres of forested non-tidal wetlands along the flood-prone Loop Canal in Bethany by creating 4 acres of new wetlands at a location behind 84 Lumber in Clarksville.
Frye said in his comments that he felt new wetlands in that location “wouldn’t do much for Bethany.”
With the Dec. 20, 2015, request for the consistency termination came an opportunity for public comment, and the public has obliged, both through council members’ statements at the Jan. 15 meeting and letters to the editor, as well as letters addressed directly to DNREC and Corps officials, which are due prior to Feb. 12.
“I and many residents do not believe the development would be good for the town, especially in light of the recent flooding study from the Army Corps of Engineers, which basically says we have no cost-effective remedies for flooding,” Frye said. “We want solutions that mitigate flooding and want to avoid projects that would make flooding worse.
“Wetlands are natural sponges and filters for water. We should preserve them,” he added, noting also concerns about loss of wildlife habitat and increased traffic should the development off Route 26 go forward.
Resident Carl Tull also spoke in opposition to the proposal on Jan. 15, noting that filling the property would eliminate one of only two wetland areas near the Loop Canal. “It is one of only two that act as a sponge for all of the water that drains there, from Pennsylvania Avenue to the Loop Canal.”
Those who saw the area during and after Hurricane Sandy and the October 2015 nor’easter “know we have a serious flooding problem,” Tull emphasized, noting a nearby parking lot had been completely flooded and trees knocked down because of floodwaters during the latter storm.
“If you develop that land, you take away one of those two wetlands,” he added, noting also the potential loss of habitat and the ecological, as well as flooding-related, value of the property to the area.
Vice-Mayor Lew Killmer recommended those already preparing to fight the proposed development watch for further action by the Corps and other agencies.
“Even if this got approved by the Corps, the Walceks would have to meet all the requirements set forth in our code to build anything there,” he said, noting also approvals that would be needed from the Sussex County Soil Conservation District, DelDOT and DNREC. “This is one stage in a long process. It is not the end of the road in the event the Army Corps says, ‘Go ahead.’ It’s not that simple.”
Councilman Joseph Healy voiced his own concerns over the potential impact that the loss of the wetlands on the property could have.
“When we have a heavy storm … I drive behind St. Ann’s to look at the water back there. I can tell you it is just absolutely awful. Pennsylvania Avenue is bad, and I think all of us see that, but I go back there… I just can’t support using those wetlands for development,” he said.
Council members voted unanimously on Jan. 15 to send a letter of opposition to the project to the Corps ahead of the agency’s consideration of the Walceks’ request for Corps approval.
A long history of development attempts, opposition
Should the Walceks garner approval from the Corps to develop the land by filling in 1.9 acres, it could be the third time they would come in front of the Town with a plan to build there, with prior attempts made in 2008 and 2012.
In 2008, the property at 501 Garfield Parkway (Lots 10, 9, 8 and part of 5, Block 25, in the R1 zoning district) — on the north side of Route 26, opposite Candle Light Lane and adjacent to the Loop Canal, between Hudson Avenue and Weigand Lane — was proposed for a planned residential development (PRD) or minor subdivision.
A sketch-plan review was held by the Planning Commission in January 2008, which elicited a number of criticisms, comments and suggestions from commissioners. The commissioners don’t vote on approval of a sketch plan but use the process to give the applicant feedback on whether the proposal meets the requirements of town code and whether it fits in the area proposed, as well as to offer a chance for neighbors to comment on the proposed project.
In addition to seeking to confirm whether the project would be a PRD or minor subdivision, the commissioners in 2008 suggested the Walceks better describe the wetlands on the property and make changes to proposed roadways within it, as well as make changes to proposed setbacks and better illustrate features including ditches and recreational areas, and consider drainage issues.
Further, the commissioners told the Walceks: “At the meeting, a number of neighbors whose properties are adjacent to your property expressed their concern as to a possible negative impact that your proposed development will have on stormwater-related flooding in this area of the Town that is currently prone to flooding.
“Their concern is directly addressed in the Town Code: §200-43. Lots. C: ‘Where there is a question as to the suitability of a lot or lots, the Planning Commission may, after adequate investigation of flood conditions, wetlands or similar conditions, withhold development approval of such areas.”
The project did not move forward in the Town’s approval process at that time. Typically, a more formal plan would have been submitted thereafter by the applicant.
Then, in March 2012, a new PRD application was submitted to the Planning Commission, immediately garnering public attention as it once again went for sketch plan review of the proposal for six four-unit buildings, with an entrance on Route 26.
Official minutes from that meeting state, “Mr. Killmer acknowledged that there is much public interest involved with this application, which is why it will be advertised much in advance, even though it is not a requirement. He asked the Commissioners to review the requirements in the Zoning Code prior to the meeting to be sure that there is no violation of the Code.”
Killmer “explained that Mr. Walcek informed the Town that, in essence, before the Army Corps of Engineers makes a final decision on an application, they prefer to have knowledge of how the Town views the application. He added that the Army Corps of Engineers ultimately votes on all applications submitted to them, and it is difficult for the Planning Commission to make a decision on the application without having knowledge of the concerns of and/or conditions the Army Corps places on the property in question.”
Then-commissioner (now Councilman) Chuck Peterson said at the time that “determining the Corps’ assessment of filling wetlands for the feasibility study could solve this issue.”
Then-commissioner (now Councilman) Fulton Loppatto also raised the issue of a lawsuit and appeal in federal courts by the Walceks over issues related to past efforts to develop the property and denial of approvals from the Corps.
In April 2012, the commission deemed the submitted plan to have met the requirements of the zoning code but noted that the entire property was composed of roughly 12 acres of wetlands and that an application was before the Corps, asking them to allow the Walceks to fill in about 2 acres so that they would not be classified as wetlands.
“No further action by the Town will take place until the Army Corps of Engineers approves the project,” the meeting minutes stated at that time.
Corps has fought past efforts to develop property
Four years later, the Corps has yet to issue such an approval, but the agency could potentially offer some form of approval when answering the Walceks’ most recent request for a consistency determination.
In the past, the Corps has blocked development of the wetlands property, even issuing cease-and-desist orders when the family had previously proceeded with filling portions of it, despite having been warned about their status as protected wetlands.
The Walceks’ appeal of a related case in the federal courts resulted in September 2002 in an upholding of a finding against them. The decision in that case notes that the Walceks had purchased 14.5 acres of land for $117,731, in two transactions, in 1971, shortly before passage in 1972 of the Clean Water Act (which would later come into play), with the intent to develop the property to supplement their retirement income.
According to the decision, “The Walceks failed to investigate the potential physical or regulatory impediments to development of the property prior to purchasing it. The Court of Federal Claims found that: Before purchasing the Property, neither Mr. Walcek nor any of the other plaintiffs conducted any systematic studies of the Property, regarding such things as soil type, underground springs or other circumstances that might impact on its suitability for development.
“Nor, prior to the purchase, did any of the plaintiffs contact any engineering or land-use consultants regarding the Property, or attempt to secure any information regarding any existing or impending federal restrictions on the development of the Property.”
The decision states that somewhere between 4.5 and 5.2 acres of the property were mapped as wetlands by the State and that filling any portion would require approval from the State. It also states that it was understood that there was “no reasonable likelihood that such approval would be granted [by the State] to allow residential development.”
A portion of the property also falls below the mean high-tide water mark, which makes it subject to federal regulation, which prohibits construction that impacts navigable waters without approval by the Corps, with the Corps’ “public interest review” adding as concerns environmental and conservation issues, as well as purely navigational impacts.
In 1972, 13.2 acres became subject to regulation under the Clean Water Act, as federally regulated wetlands. That meant a permit from the Corps to fill and develop the property, as well as a Water Quality Certification and Coastal Zone Management Consistency Certification from the State of Delaware, were all required to be obtained before the property could be developed.
According to the 2002 decision, in March 1984, the Walceks entered contract to sell the property for $1 million to a group of investors, contingent upon the buyer obtaining necessary permits for the construction and sale of 60 or more townhouse units. The decision states that it was at that time, Stanley Walcek said, that he first realized the property was wetlands.
Having asked the Corps to identify the contours of the wetlands on the property, Walcek was subsequently told that there were 13.2 acres of federally regulated wetlands, with 4 to 5 of those acres being State-regulated tidal wetlands. The Walceks then released the buyer from the contract, the decision states.
In 1987, it was noted, the Walceks had pursued a border-to-border 77-lot residential development on the property, and began filling and developing the property without permits. The Corps issued a cease-and-desist order, with which the Walceks eventually complied, the decision stated.
In 1998, the family submitted to the Corps and DNREC applications for the authority to fill and develop the property. The Corps denied that approval and instead proposed alternatives, which the decision stated the Walceks considered economically unviable.
According to the 2002 decision, in 1994, the Walceks filed a federal complaint alleging the Corps had engaged in both permanent and temporary taking of the property, arguing that the 1993 decision by the Corps had rendered useless the economic value of the property and that a temporary taking had happened based on the delay between the 1986 cease-and-desist order and the 1993 permit denial. A summary judgement had found that no taking had occurred.
In 1996, the Corps issued the Walceks a permit to authorize some development of the property, but less than the Walceks had requested. The Corps authorized a 28-lot residential development on two cul-de-sacs, allowing them to fill up to 2.2 acres, conditioned upon their mitigation of that loss of wetlands by creating or restoring 4.4 acres of other wetlands.
(That is a similar situation to that currently proposed, with a specific location of those new or restored wetlands having apparently been determined by the family but not yet approved by the Corps. The federal consistency determination by the Corps that the Walceks are currently requesting could decide whether the Corps finds the replacement wetlands sufficient to meet their previously stated condition for development of the Bethany property.)
In the 2002 decision, the court determined no compensable taking had taken place as a result of the Corps’ cease-and-desist order but allowed that there had been a non-compensable diminution in value, though the determination by the Corps had still allowed the Walceks “to realize to a not insignificant degree their reasonable expectations in developing the property.”
All of this information was made available to the council in the briefing book for their Jan. 15, 2016, meeting, via a request for information (a copy of which is online at http://www.townofbethanybeach.com/archive.aspx?amid=&type=&adid=1866), with the full 2002 court decision online at http://caselaw.findlaw.com/us-federal-circuit/1161108.html.
The closing date for comments on the current application to the Corps is Feb. 12. It is unknown when a feasibility determination from the Corps might be forthcoming. No new proposal to develop the project had been received by the Town as of the council vote Jan. 15, and their most recent action on the prior proposal had been the commissioners’ ruling that no action would be taken without Corps approval of the proposal to develop the property.