NRAPP claims vic­tory in power plant zon­ing chal­lenge

Judge rules TDC zon­ing ver­i­fi­ca­tion let­ter ‘has no prece­den­tial value’

Newark Post - - Local News - By KARIE SIMMONS ksim­mons@ches­

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.

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