Delaware Bayshore Initiative Extended from Delaware City to Lewes
This is the 3rd post in the “The Privatization of Public Land” series by Jack Guerin, concerning the saga of the Fort DuPont Redevelopment and Preservation Corporation (FDRPC). Jack Guerin is an anti-corruption advocate with FightDECorruption.com. This series currently consists of 10 posts, and may grow to more. A post will be published every day Monday through Friday over the next two weeks (April 22, 2024 to May 3, 2024). Click Here for access to all published posts.
In a 2020 interview with the News Journal, then House Majority Leader, Valerie Longhurst credited “former Governor Jack Markell with the vision for the project.” A 2014 News Journal story reported:
“Gov. Jack Markell began exploring the concept while serving as state treasurer, citing potential economic development benefits. He continued to press the idea as governor. Lawmakers approved $250,000 for a study in 2011.”
For the Markell administration, Fort DuPont was part of the Delaware Bayshore Initiative which extended from Delaware City to Lewes. The purpose of this initiative was to conserve protected land, increase public access to outdoor recreation, and reduce flooding impacts on local communities. Unfortunately, the Fort DuPont public private partnership has done the opposite: privatizing protected land, eliminating public access, and increasing flood risk.
Valerie Longhurst along with then Senate Majority Leader, Nicole Poore, sponsored the enabling legislation creating the Fort DuPont Redevelopment and Preservation Corporation (FDRPC) in 2014. There have been several follow-up bills revising the FDRPC legislation. No other member of the General Assembly has sponsored any of these bills.
A City Solicitor with Multiple Clients
Delaware City Manager Cathcart hired Max Walton as City Solicitor in 2011. Max Walton had deep roots in the Fort DuPont Redevelopment and Preservation Corporation (FDRPC) initiative. Mr. Walton was a legal advisor to Jack Markell’s administration and authored the first draft of the FDRPC enabling legislation.
In 2014, Mr. Walton also became Counsel for FDRPC. The minutes of the first meeting of the FDRPC Board on October 16, 2014 list Max Walton as staff and he continued as FDRPC Counsel until August, 2021.
His joint tenure as both Delaware City Solicitor and FDRPC Counsel was approximately six years. Holding both positions was a conflict of interest and was questioned by Delaware City Council members. When Max Walton’s resignation was announced at the August 11, 2021 board meeting, a board member asked whether FDRPC would consider a replacement from Connelly Gallagher, Mr. Walton’s law firm. David Baylor, Delaware City Manager, stated that “there could be a conflict with the firm if FDRPC were to keep Connolly Gallagher, and that the city might have concerns.”
Legislative Process Was Deeply Flawed
At a Delaware City Council meeting on September 1, 2020, Max Walton was asked if he wrote the Fort DuPont Enabling Act. He stated that he had spent more than 100 hours writing the “first draft”, but that the Governor’s Counsel wrote the second draft. Governor Markell’s Chief Legal Counsel was Andrew Lippstone. Based on Mr. Walton’s account, Mr. Lippstone drafted the substitute bill.
Mr. Walton’s “first draft” was introduced as HB 310 on April 24, 2014. The original bill was 15 pages long. Five weeks later on June 3, this bill was replaced by House Substitute 1 which was only 6 pages long. Two thirds of the text of the original bill was eliminated.
Exhibit A lists passages which were eliminated in the substitute bill. These lost passages include many fundamental protections which should not have been eliminated.
The much briefer substitute bill was introduced in the House on June 3, 2014. The House Administration Committee passed the bill the next day, and the following day the substitute bill was passed by the full House. Following introduction, this bill went through the entire House process in only two days. The Senate passed the bill on the last day of the session.
This quickie substitute bill included the provision below putting FDRPC above all Delaware statutes:
“The Corporation shall be empowered, without limitation and notwithstanding any other laws…”
This process allowed no time for consultation with Delaware City residents or members of the General Assembly. This chaotic process has resulted in multiple legislative revisions since 2014.
Valerie Longhurst and Nicole Poore dutifully introduced both the original and the substitute bill. In recounting the history of this legislation, Mr. Walton made no mention of any input by the sponsoring legislators.
These legislators acknowledged the flaws in the FDRPC Enabling Act when they introduced HB 355 which passed in 2022—almost a decade after the original bill. The following language was belatedly added:
“The power in this paragraph (2) does not exempt development and construction on the Fort DuPont Complex from otherwise applicable environmental law and regulatory requirements. All activity on the Fort DuPont Complex must comply with otherwise applicable permitting processes of the Department (DNREC).“
Conclusion
The remaining posts in this series will focus on a proposal for a luxury RV campground which would privatize almost half of the former Fort DuPont State Park. This proposal was not included in the original master plan for Fort DuPont. This campground project is antithetical to the Bayshore Initiative, privatizing protected open space land, eliminating public access, and increasing flood risk.
Exhibit A
Fort DuPont Enabling Legislation
HB 310 was introduced on April 24, 2014. The original bill was 15 pages long. Five weeks later on June 3, this bill was replaced by House Substitute 1 which was only 6 pages long. Below are passages from the longer original bill which were not included in the substitute bill:
If sold as provided in this subchapter, real property interests in the Fort DuPont Complex may only be sold under covenants, historic conservation easements, or other appropriate legal restrictions approved as to form by the Board that protect economic, historic, archaeological, and natural resources.
In the exercise of its powers, the Corporation shall at all times comply with the laws and regulations of the State of Delaware and of the City of Delaware City, including ordinances, regulations, and laws pertaining to and governing flood mitigation.
Dedicate and maintain parkland, open space, and other areas for preservation from development as a component of the Redevelopment Plan.
Develop rules and regulations governing the use, sale, lease, rent and other disposition of portions of the Fort DuPont Complex as well as rules for competitive bids (emphasis added) and the procurement of goods and services.
The accounts of the Corporation shall be audited annually an independent auditor selected by the Board. If no independent auditor is selected, the audit shall be performed by the State Auditor or the State Auditor’s legally authorized representative, and the cost of such audit shall be borne by the Corporation. (no audits were completed until FY 2020).
Any member of the Board with a personal or private financial interest in the outcome of any matter before the Board shall disqualify himself or herself from any consideration of that matter and shall inform the Chairperson who shall note such interest in the record of the matter.
SYNOPSIS (last sentence)
The Corporation is required to comply with all laws of the State of Delaware and the City of Delaware City in the exercise of its powers.
Jack Guerin is an anti-corruption advocate with FightDECorruption.com. He is plaintiff in a lawsuit to stop the development of the campground. Click to send an email to legislative leaders asking them to pass the Joint Resolution and return this protected land to the State Parks Department.
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