Council Must Act
To Avert Injustice
What has occurred in the Caine Woods community in north Ocean City is something that should never occur in any town in America. An injustice to the residents of this subdivision has unfolded that no community should have to endure. When Delmarva Power & Light (DPL) approached the Town wanting to expand their existing substation between 137th and 138th Streets, they learned that it could not be done under the existing zoning code. The site of the expansion is zoned R-2A. The existing substation in an R-1 zoning district has been non-conforming since 1993. Ever since the 1989 Comprehensive Zoning Plan and the 1993 Update were adopted, R-1 and the then newly established R-2A zoning districts prohibited public utilities. The clear intent of the Comprehensive Plan was to eliminate the adverse impact of public utilities in R-1 and R-2A districts.
Ignoring the intent of the Zoning Code, DPL and the Town staff decided to do an end run around the code. Thus, plans were set in motion to provide for a substation expansion by changing the code to allow it as a Conditional Use. A public hearing by the Planning & Zoning Commission (P&Z) was held on Aug. 16, 2011. With hardly anyone in attendance, and no one from the audience speaking, P&Z went on a mission to allow the expansion. Why bother with zoning intent? P&Z was going to allow for the expansion of a public utility and nothing was going to stop them. After all, they could hold hearings in the future and go through the motions and appearance of having the utility company make it compatible with the neighborhood and safeguard the existing residents.
The result of the public hearing on Aug. 16, 2011 was that P&Z sent a favorable recommendation to the Mayor & City Council (M&CC) to amend Section 110-304 of the zoning code to allow the expansion of the substation as a conditional use in an R-2A district. The M&CC had 1st Reading of the Ordinance 2011-30 to amend Section 110-304 on Sept. 6, 2011. It was adopted into law upon 2nd Reading on Sept. 19, 2011. However, in the town’s haste to allow for the expansion, the ordinance failed to include language recommended by P&Z. The ordinance was passed without some of the recommended text change. But why let a technicality get in the way? After all, DPL was on their mission to expand and the town was here to facilitate that mission, at the expense of the community.
To further illustrate the fast track that this substation expansion was on, DPL was buying up property on the proposed site of the expansion before P&Z even held its initial public hearing on the code change. The deed to the first property was signed on Aug. 19, 2011, just three days after the initial public hearing on Aug. 16, 2011. The deed to the second property was signed on Aug. 26, 2011, just 10 days after the public hearing. Both of these purchases were made before the M&CC had been briefed on the code change at a work session on Aug. 30, 2011, and several days before the Ordinance was presented for 1st Reading. Within a month following the passage of the ordinance, the third deed was signed on Oct. 14, 2011. The last deed was signed on Oct. 24, 2011. DPL paid $600,000, $425,000, $715,000 and $1,000,000 respectively for the four homes and their lots. The lots were only between 4,852 and 5,024 square feet in size. Later, DPL had the houses demolished, when they could have been sold and moved off the site. The Zoning Administrator informed the M&CC at the work session on Aug. 30, 2011 that the houses were “under contract”, when in fact, two of the four properties had actually been acquired by DPL.
With the language now changed in the zoning code, DPL went before P&Z for a Conditional Use request to expand the existing substation. A public hearing was held on Aug. 7, 2012. The P&Z Commissioners were rude and verbally combative to the Caine Woods residents who spoke at the hearing. They cut off testimony of those opposed to the expansion, while giving DPL all the time that they wanted to speak and present their request. The commissioners ignored exhibits and testimony presented by the opponents. They ignored information provided from the World Health Organization (WHO) regarding Electromagnetic Fields (EMF). They ignored “aesthetics and public sensitivities” as recommended by WHO. P&Z then held a hasty deliberation, ignoring pertinent data presented at the hearing, including information that they had requested from DPL’s witness on EMF. Apparently, that requested information arrived at City Hall the next day, after they had already rendered a decision on the matter. They sent a favorable recommendation to the M&CC allowing for the conditional use and expansion. Fortunately, the M&CC realized that P&Z had not adequately addressed a number of issues raised by the opponents to the expansion and remanded the matter back to P&Z to address the physical effects of electro-magnetic field exposure, property value, aesthetics, noise, alternative locations, changes in neighborhood density since 1974 and underground wires and equipment.
On remand, a second public hearing was held on Dec. 4, 2012. While this hearing was more cordial; essentially, a repeat of the first hearing occurred in that P&Z after a continued deliberation on Dec. 12, 2012, reaffirmed their initial recommendation and sent another favorable recommendation to the M&CC. A reading of the revised finding of fact by P&Z shows a total disregard of the testimony presented by residents of Caine Woods. The P&Z chairperson was quoted at deliberation in OC Today (Dec. 14, 2012) that “We have to have reliable electricity. That’s part of what we’ve been entrusted to do here as a planning commission.” This comment implies that her mind was already made up even prior to testimony.
There were four errors in the legal description of the newspaper ads announcing both public hearings on the conditional use. When I addressed this at the second hearing, the P&Z Chairperson asked, “Did you know about the hearing?” I responded “Yes”, for I knew about the hearing, but that is not the point! The second remand hearing was not advertised for two successive weeks as required by Section 110-161, para (2) of the zoning code. The chairperson was quoted in OC Today (Dec. 14, 2012) that “I personally feel confident that everyone who wanted to participate in these hearings was able to.” How can she be sure when basic notification requirements are ignored?
One of the commissioners was quoted during the last deliberation in OC Today (Dec. 14, 2012) as stating: “I don’t think one more piece of equipment is going to affect property values.” Another commissioner was quoted in The Dispatch (Dec. 14, 2012) as saying: “What we are looking at is a Conditional Use, adding a piece of equipment to an already existing substation,…” It appears that these two commissioners did not even review the preliminary site plan, as required under Section 110-122 (a) of the zoning code prior to submitting a recommendation and report to the M&CC. A review of the preliminary site plan shows the following planned for installation: Power Transformer, Reactors, Capacitor Banks, Current Transformer, Surge Arrester, Bolted Link, Control Room (858 square feet in size), Resistors, Thyristor Valves, Pump Station, Cooler, Surge Capacitor, Voltage Transformer, Grounding Switch and Circuit Breaker. Does this sound like a single piece of equipment? By their comments, it appears that at least two commissioners totally ignored the preliminary site plan.
The P&Z Commission ignored pertinent information regarding the adverse impact of the substation expansion on property values. One commissioner was quoted in OC Today (Dec. 14, 2012) that “The land value [on the surrounding homes] is the same, which is the only thing you can look at.” Another commissioner is quoted in part during deliberation in OC Today (Dec. 14, 2012) that “Everything with a property value has already been taken into account,” and that the substation “…has been there, people know it’s there.” What do these comments have to do with the impact on property values if the proposed expansion doubles the size of this facility?
Apparently, in response to the community’s request for an independent EMF study, one commissioner stated during deliberation in OC Today (Dec. 14, 2012) that if DPL’s witness on EMF “…had been hired by the city…his testimony would be exactly the same.” How does this commissioner know this for certain?
One of the reasons cited by one of the commissioners in OC Today (Dec. 14, 2012) for approving this expansion at 138th Street as opposed to elsewhere in town was the supposed cost of putting in new substations or tearing up Coastal Highway “…at the expense of the rate-payers.” What about the $2.74 million paid for four residential properties? Then, there was the cost of demolishing the homes, as opposed to selling them and moving them off site. What about the $1 million dollar wall that is proposed to supposedly appease the community? Are these not costs borne by the rate payers? Furthermore, what price do we put on the safety of residents and visitors?
Regarding safety, one commissioner was quoted during deliberation regarding EMF in The Dispatch (Dec. 14, 2012) as saying “…there is no worldwide concern or evidence that this is a problem anywhere,” Where has this commissioner been? She certainly was not listening or reading the testimony presented at the hearings. The WHO document dated June, 2007, which arrived in the file the morning after the first deliberation states in part: “Government and industry should monitor science and promote research programmes to further reduce the uncertainty of the scientific evidence on the health effects of ELF field exposure. Through the ELF risk assessment process, gaps in knowledge have been identified and these form the basis of a new research agenda.” ELF stands for extremely low frequency electric fields.
The P&Z Commission indicated that if upon approval there were any violations occurring at the substation such as noise exceeding the permitted levels, then the plant could be cited and even shut down by the Town. Who is going to shut down a power substation? If it were built, the community would have to live with violations if they occur.
The City Solicitor is quoted in OC Today (Dec. 14, 2012) regarding conditional uses as saying: “What you have to find is that the burdens of this use are more severe at this particular location than would be at other locations that have the same zoning.” Herein lies the problem. There are no other areas zoned R-2A where a public utility could be built. The code has clearly been amended to facilitate this single expansion. Again, R-2A was never created to accommodate a public utility. If this isn’t Spot Zoning, I don’t know what is.
I hope the M&CC put an end to this nonsense.
Vincent dePaul Gisriel, Jr.
(The following letter was addressed Berlin Mayor Gee Williams and Council members.)
I would like to thank all of you and the town employees for your support to this year’s New Year’s Eve Celebration. Berlin Public Works, Berlin Electric and Berlin Police did an excellent job with the event setup, dropping the ball, crowd control and the late night clean up. I really appreciate all of the staff that worked so late at night to make the celebration a success.
We again had a great attendance and a beautiful night for this premier event. I wanted to improve the event this year by investing in a new, first class, 48-inch diameter New Year’s Eve ball. I was able to reuse most of last year’s materials, including the original mirror ball and lights, but I also added 340 new LED lights. I also added a new heavy duty metal frame, which was custom made by a Maryland craftsman who supports our local economy. The new ball was a great hit. There were so many people who commented on how beautiful new ball is.
Thank you again for your support of this event and to the town employees who worked so hard and so late for the enjoyment of the New Year’s Eve event.
A Writer Responds
In response to Paul St. Andre’s letter two weeks ago, about the economy, repealing the 16th Amendment sounds wonderful but people want their Social Security checks, unemployment checks, Medicare, a military to defend them in countries we have no business being in (Iraq, which greatly increased the debt), public schools, free libraries, PBS, safe roads, bridges and air travel, etc, etc. The president is very willing to negotiate and only wants to raise taxes on the wealthy, not the other 98%.
I never said I was either for or against abortion. I said many Catholics don’t agree with the Church’s policies. I can’t read Deuteronomy 5 since I don’t have a Bible but I know it is the Ten Commandments. If there is a Judgment Day (and certainly no one can say for sure there will be), I feel I’ve lived a "Christian" (moral) life. I think a true Christian respects all peoples and religions. What about people who were born before Christ or after and never heard of Him? Judge not lest ye be judged.
This will be my last letter on the subject since I won’t change your mind and you won’t change mine.