NRAPP claims victory in power plant zoning challenge
Judge rules TDC zoning verification letter ‘has no precedential value’
It’s been almost two years since the University of Delaware pulled the plug on a controversial data center and power plant planned for the STAR Campus, but now Newark residents who opposed the project finally have some closure.
On March 28, Superior Court Judge Andrea Raconelli ruled that the zoning verification the city issued The Data Centers, LLC, back in January 2014 cannot be used as precedent for future projects on the STAR Campus by TDC or any other company.
The verification, which was issued by Planning Director Maureen Feeney Roser, allowed TDC to apply for an air permit through DNREC. Her decision was based on the notion that the power plant was a permitted accessory use to the data center and, therefore, allowed on the STAR Campus.
The grassroots group Newark Residents Against the Power Plant, along with the Delaware Audubon Society, five city residents and retired deputy attorney general Sherry Hoffman, appealed to the city’s Board of Adjustment. After a hearing in March 2014, the board upheld Feeney Roser’s original decision.
Unhappy with the Board of Adjustment’s ruling, NRAPP and the other appellants appealed to the Delaware Superior Court.
Raconelli dismissed the appeal as moot – UD has since terminated TDC’s lease and scrapped the project – and ruled the zoning verification has no precedential value and, according to court documents, “is of no further force or effect.”
NRAPP leader Amy Roe called the ruling a “victory” in the power plant zoning challenge and said she’s happy Feeney Roser’s letter cannot be used by TDC, or a company that takes over TDC, in the future.
“We pushed very hard for that,” Roe said. “We did not want to have any risk of that ever being used again.”
Roe said she and the other members of NRAPP finally have some closure in addi- tion to what the city has done since the project dissolved. She said the campaign against the power plant revealed flaws in Newark’s code, but the city has been making strides to strengthen the sections that allowed TDC to move forward.
“A lot of the flaws have been repaired, which is wonderful,” she said.
In September, council amended the city’s zoning code to redefine the terms “accessory use” and “neighborhood,” definitions of which sparked a legal debate in 2014 regarding the legality of TDC’s project and were disputed by lawyers on both sides of the issue.
Under the new rules, if an impact such as noise, smoke, dust, odor or pollution from an accessory building or use extends beyond the property line, the project will need to come to council for a special-use permit.
Council also replaced “neighborhood” with “surrounding area” in sections of the code that refer to impacted areas. “Surrounding area” is defined as properties immediately adjacent and within 300 feet in any direction from the property in question.
Last month, council modified the city’s noise ordinance to set stricter standards for nighttime noise levels. The changes further protect residents from loud projects like TDC, which was planning to keep the 24-hour noise generated from the engines and turbines under the then 52-decibel limit.
Neighboring residents, however, argued it would still be too loud.
Now, noise in residential areas is capped at 50 decibels from 9 p.m. to 1 a.m and 42 decibels between 1 a.m. and 5 a.m. From 5 a.m. to 7 a.m., noise cannot be louder than 50 decibels.
Roe said she’s proud of how the city has handled the aftermath of TDC and grown from the controversy that at one point polarized the residents.
“It’s terrific,” she said.
Members of the group Newark Residents Against the Power Plant protest the planned data center and power plant project in front of UD’s STAR Campus in September 2013.