The proposed Governor’s budget for FY 2023 includes $30 million to protect additional Open Space Land. Delaware takes pride in the Open Space program, and this is a popular initiative. However, while planning to preserve more Open Space land, the Carney administration has allowed Grassdale to be illegally sold for $5 million.
Jeff Randol’s departure provides an opportunity to reconsider the Grassdale sale. Below are reasons this transaction can and should be reversed.
I. Why Grassdale Can Be Reversed
A. The General Assembly has provided a Statutory Remedy
Title 7 Conservation Chapter 45 Public Land provides a statutory remedy to void the Grassdale sale as quoted below:
Whoever purchases any of the public lands under any restriction or condition imposed by the Department of Natural Resources and Environmental Control, and fails for a period of 5 years to comply with the restrictions or conditions mentioned in the deed of grant from the Department, forfeits such lands to the State, and the title to such lands shall thereafter rest in the State.
§ 4508. FORFEITURE OF PUBLIC LANDS TO STATE
FDRPC purchased Grassdale from the State in March 2016, so the Corporation has been the “steward” of this public land for more than 5 years. Below is a list of 5 failures “to comply with the restrictions or conditions mentioned in the deed of grant from the Department” during FDRPC’s more than 5 years of “stewardship”. This link provides documentation of these failures.
1. Annexation by Delaware City– May, 2016
2. Rezoning by Delaware City—March 2017
3. Sold without a specific Act of the General Assembly–October, 2021
4. Public Land Not sold at Public Auction—October, 2021
5. Proceeds not deposited in Endowment Account
This shameful record of statutory violations started almost immediately following FDRPC’s acquisition of Grassdale and is punctuated with the closing near the end of 2021. This history richly merits the imposition of TITLE 7 CHAPTER 45 § 4508 restoring Grassdale to state control.
B. The Grassdale Sale was Illegal
Grassdale was purchased with funds from the Delaware Land Protection Act and is protected Open Space land as documented on the DNREC website. Here’s a list of 10 reasons this sale was illegal.
On March 35, 2021 FDRPC signed an Indemnification Agreement which stated:
The key phrase here is “the Seller (FDRPC) is not able to correct such TITLE DEFECT”. This is an admission that FDRPC lacks legal authority to sell Grassdale.
C. Contract Documents Were Not Approved by FDRPC Board
On December 3, 2019 the Board provided conditional approval of a draft agreement. The original Purchase Agreement was signed on December 30th. (See meeting minutes below)
IV. Adjourn to Public Session
A motion was made to return to public session by Mr. Parets, seconded by Mr. Diliplane. Motion carried.
Mr. Walton outlined the five conditions relating to the Blue Water Development draft agreement as discussed in Executive Session. Those conditions are as follows:
1. Financials & Tax Return from Todd Burbage to be submitted to the Finance Committee for approval during the Approval Period and the necessity for ensuring that the Guarantor remains financially able to back the Note.
2. Clarification of Design Guidelines during the Approval Period to address the concern/objection to the Kampgrounds of America reference.
3. Completion of the Exhibits as referenced in the Agreement.
4. Clarification that the improvements to N. Reedy Point Road will be per DelDOT specifications.
5. Corporation’s right to extend would be changed from 90 days to 180 days.
Mr. Baylor made a motion to conditionally approve the draft agreement subject to the five points raised during Executive Session, as just stated by Mr. Walton. Motion was seconded by Mr. Diliplane. Motion carried.
FDRPC Board Minutes December 3, 2019
The draft contact was “conditionally approved” subject to these five points which were presumably demands/concerns expressed by Board members in Executive Session. These five points are extremely significant. The first point is financial due diligence to determine whether Todd Burbage remained financially able to pay the $5 million purchase price.
Normally, this fundamental due diligence would be performed earlier in the process. As stated above, these financial records needed to be reviewed by the Finance Committee and presumably by the entire Board. However, with less than a month between this conditional approval and Jeff Randol signing the contract, that didn’t happen.
Our own due diligence reveals that Todd Burbage was a former client of Max Walton’s making the Grassdale sale a major conflict of interest. Todd Burbage also has a criminal record.
On the Blue Water website, 17 sites are listed as part of the company’s “Portfolio” of RV Campgrounds. Five of the 17 Blue Water sites are labelled KOA for “Kampgrounds of America”. These sites are apparently KOA franchises. KOA gets mixed reviews online, and Board Members must have expressed concern about Fort DuPont becoming a KOA franchise.
Since the original Purchase Agreement was signed on December 30, 2019, there have been three amendments plus the “Indemnification Agreement”. The second Amendment signed August 11, 2021 assigned the contract before it closed. This link provides a review of the convoluted contract documents.
There is no record that the Board was informed about any of these subsequent agreements including the closing documents. The more than 120 pages of contract documents obtained through FOIA provide no indication that the Board’s concerns were addressed with the exception of point five.
II. Why the Grassdale Sale Should be Reversed
A. Fort DuPont May Not be Viable for an RV Campgrounds
The initial FDRPC due diligence was a Blue Water PowerPoint and a Blue Water tour of their Massey’s Landing Campground in Millsboro, Delaware. There is no evidence that FDRPC consulted with anyone in the RV Campground industry except Blue Water.
During the Board discussion of the Massey’s Landing Campground at the May 8, 2019 meeting, Shawn Garvin questioned whether the Massey’s Landing model translates to the Fort DuPont site as the fort site does not have a beach. This is the only mention in Board minutes that Grassdale might not be a competitive location for an RV Campground.
The Massey’s Landing Campground is located on Rehoboth Bay with access to the Delaware beaches. In contrast, Delaware City, along with its huge refinery, is a more industrial area. In 2012, the Delaware River was named the 5th most polluted river in the United States. Even though the river has had some success with the cleanup of pollution, the Delaware River still does not meet the standard for swimmable or fishable conditions in the region.
This website lists the top ten RV Campgrounds in Delaware and all ten of them are in Sussex or Kent County closer to the beaches. There are no private RV Campgrounds in New Castle County.
B. Proposed RV Campground will Destroy Fragile Wetlands
A Preliminary Land Use Service (PLUS) report on the Campground plan was completed by the office of State Planning Coordination in July, 2019. This report stated:
DNREC mapping indicates presence of forested wetlands which encompass a large portion of the subject parcel. Mapped hydric soils that have been identified, are typically associated with tidal wetlands. Tidal wetlands comprise a majority of the proposed project area. Non-tidal wetlands are also present.
Plus Report July, 2019
The parcel search below shows the Grassdale triangle with the planned roads for the RV Campground marked in white and a rendering of wetlands protected by both the federal and state governments. This map clearly demonstrates how the Campgrounds would be encroaching on and removing protected wetlands.
Additional perspective is provided by the winter landscape below taken from Reedy Point Rd with the Branch Canal in the distance. This photo delineates the wetlands because the tall grass obscures the snow. This image validates the conclusion of the Plus report that most of Grassdale is wetlands.
The PLUS Report also stated:
“To protect the function and integrity of wetlands, a minimum 100-foot buffer should be left intact around the perimeter of waterbodies or remaining wetlands on site. Buffers reduce the amount of non-point source pollution entering waterways that could negatively affect habitat function and aquatic organism survival.”
When the Delaware City Council met to approve the Grassdale plan on 12/2/2020, they passed a motion to require the minimum 100-foot buffer as required by both the state and county. This motion required that the plan would be brought back to Council for re-consideration if the 100-foot buffer was reduced.
However, at that point, the Fort DuPont complex had been re-zoned providing for only 25-foot buffers. Blue Water made clear from the beginning that the 100-foot buffer was a non-starter and FDRPC supported their position.
Another important environmental consideration is vulnerability to flooding. The Plus Report stated:
Almost the entire site is located within FEMA’s mapped Special Flood Hazard Area, and existing grades appear to be 3 to 5 feet below Base Flood Elevation (BFE). DNREC mapping indicates the majority of the site could also be impacted by permanent sea level rise inundation. 1 l5 acres of the site could be inundated with I.0 meter of sea level rise and 127 acres at 1.5 meters.