A land deal struck between New Castle County, a prominent developer, and several farmers ends years of litigation and closes the chapter on a controversial farmland preservation deal in Port Penn, bringing new homes and a new park to an area South of Summit Bridge.
"This action will preserve, partially through private action, partially through public action, will reserve hundreds of acres of land without spending a single dollar of public money directly on preservation," said County Executive Matt Meyer.
Developer Louis Capano has purchased Transferable Development Rights (TDRs) from the landowners of the Carter, Gillespie, and Warren farms to build 1,000 homes south of the canal. It's likely those homes will be built on the Carter farm property, just south of the Summit Bridge, though not required.
The settlement requires the developer to file a new plan for development within a year's time. Capano's attorney did not return WDEL's request for comment on the developer's plans.
"They don’t have to use [the TDRs] at the Carter farm; they have to smartly stay within what’s called the planning area which is essentially south of the canal, but the developer could use them anywhere within in that planning area south of the canal. It does not have to be, and we’re not 100% sure he’s going to use them on the Carter farm. When they’re going to be used, the development plan that’s submitted, where he wants to use the TDRs that he bought, that has to be part of the proposed plan," said New Castle County Land Use General Manager Rich Hall.
"[The Carter farm] has been in litigation...for over 10 years. The developer has a right without this transaction to build approximately 1,000 homes there and was intending to build off of our sewer system. They were intending to build their own--what's called a 'rib system,'" said Meyer.
A system similar to the rib system described by Meyer failed in the Leara Farm community and will not be used on the new development.
"It totally collapsed and became a disaster," said Meyer. "[It] cost taxpayers millions and millions of dollars--something we're still paying for in our sewer system," said Meyer. "
Public Works General Manager Tracy Surles called this an important aspect of the deal.
"It's significant that we're minimizing septic, that we're getting people on a central sewer system--that we don't have any standalone systems--so I think it's important for water quality as well," she said.
Now, the developer can build south of the canal on the county's sewer system, with the county's decade-old obligation per a prior legal settlement to provide sewer in that area coming to fruition. It will cost the county approximately $20 million to expand and provide the force main sewer system and pump station. Surles said costs will be recouped through capital recovery fees from all developments that will connect.
"In addition, that landowner purchased...transferrable development rights from two farmers...east of Route 13 --the Warren farm and the Gillespie farm that I believe in total is about 250 acres of farmland," said Meyer. "Through the purchase of those development rights, the [developer] in Carter farm is able to build with a little bit of additional density."
Also as part of the deal, a 40-acre park will be becoming to the Carter Farm property, located at 1208 Bethel Church Road. The park's frontage will be on Bethel Church Road, just west of the Biggs Farm subdivision.
"It is a positive chapter in years and years of litigation," said Meyer. "A situation in which there's been tremendous public expense both in time and financial resources, and we're looking to leverage this transaction to turn a new page in the area. The preservation of these two farms in Port Penn will enable additional farmland preservation across the area--an area that has been under serious threat of development for well over a decade."
"I know some people wouldn't want any growth at all, but I guess I would sum this up as what we're really trying to do is make the best of the cards that we were dealt, quite frankly," said Hall.
Deal still 'shrouded in secrecy'
Years ago, then-County Executive Tom Gordon tried to strike a "sweetheart deal" to preserve the Warren and Lester farm properties using $6 million taxpayer money, in a deal WDEL exposed, that advocates said would have threatened the future of farmland preservation in the state.
A WDEL investigation involving dozens of Freedom of Information requests exposed emails showing insider access and questionable appraisals inflating property values in an effort to justify the deals to Gary Warren, former state Farm Bureau president and Jaymes Lester, a former Public Service Commission member. The Lester property is not part of this current deal.
This transaction involves contracts between Capano and farmers Gillespie and Warren. The details of those contracts aren't public, according to the county attorney.
"We've never seen that agreement; we don't know what the amounts paid were," said Wilson Davis.
The county promptly replied to WDEL's Freedom of Information request for conservation easements for the Gillespie and Warren properties as well as settlement agreements between the county and the three farmers. You can read those documents below.
The Meyer administration could not put a dollar figure on how much this controversy has cost over the years, but Davis estimated 1,000 hours of county attorney time, at the taxpayers' expense, was spent on the matter.
County Councilman Dave Carter, whose district is south of the C&D Canal, criticized the deal, saying it was shrouded in secrecy.
"While the settlement has some benefits, it is deeply concerning that it was done in secrecy under settlement terms that excluded the public. Other farmers had no opportunity to be considered to sell their development rights, and the communities getting the additional development density were given no chance for input," he said. "Unfortunately, it sends a message that if you want to gain personally in NCC Land Use and cut out all public involvement to do so, you should sue the county and then cut your sweetheart deals in secrecy. I deal with developers, their attorneys, and landowners every day that play by the rules who were cut out of this type of special treatment."
Councilwoman Janet Kilpatrick, who chairs the county's land use committee, called the criticism "unjust."
"We cleared two lawsuits with this agreement that allowed for a private settlement not costing the taxpayers," she said in an email.
Carter said the deal does have some benefits, including protecting land in Port Penn, at no cost to the taxpayers.
"It looks to me, in viewing it, that it was a private transaction between I guess the developer and a couple land owners, so at least if it is a sweetheart financial deal, the county is not on the hook for it, although the county is on the hook for the guaranteed [sewer] infrastructure," he said.
He added the park is also a plus.
"There is an need for parks in that area...it will be accessible to the public," said Carter.
But benefits aside, Carter called for an open and transparent process in land use decision-making.
"The bigger concern that this secret process was occurring simultaneous with the efforts for New Castle County Master Planning...and it wasn't disclosed to the public, and it really just gives me real concern that there was a predetermined outcome, and it just kind of ran my constituents through an insincere process in hopes to get them to go along with what had already been determined," said Carter. "The public has no say in it despite the impacts that it has both good and bad in different areas of our community."
The councilman introduced legislation on April 27 that sought to make TDRs a transparent, public process. The legislation was originally slated to be introduced on April 13, but the county law department opposed the ordinance, in a document obtained by WDEL.
"Interestingly, just a few weeks ago the administration had the county attorney raise a technicality about the fiscal note to delay its introduction and try to block it. It was originally on the agenda to be introduced April 13. But introduction was blocked I guess to allow Matt Meyer to rush and sign the settlement," he said. "So much for transparency."
Settlement agreements and conservation easements
Gillespie conservation easement:
Warren conservation agreement:
The address is 1208 Bethel Church Road- but that is the address of the entire Carter Farm property.
The park will have frontage on Bethel Church Road just west of the Biggs Farm Subdivision.