By Leann Schenke

DOVER — In an 8-1 vote Monday, City Council denied a rezoning application for a little more than 5 acres of land on Forrest Avenue that could have been the site of a gas station and convenience store.

The property, owned by Draper Farm Properties LLC, is located on the north side of Forrest Avenue, adjacent to Cranberry Run Drive.

The 1617 Forrest Ave. parcel is also near Dover High School and its traffic — a point of contention for many who voiced their opposition to the potential rezoning.

Councilman Matthew Lindell was the sole vote in favor of the application, following a lengthy meeting during which council heard close to an hour of public opposition. Additionally, more than 20 emails were submitted opposing the measure.

While the vote was meant to be solely for rezoning the property, its potential uses were a hot topic among council members and residents who testified against it.

Calling the decision a “precedent-setting” one, Councilman Andre Boggerty said that since he began his tenure in May, council has been keeping potential uses in mind when voting for or against rezoning.

He hypothetically asked if council should even take a vote on rezoning or if time would be better spent on hearing site plans.

“If we’re going to make a decision, at some point, we’re going to have to decide if we even hear rezoning,” Councilman Boggerty said.

The Draper Farm Property is situated on the edge of the city, in what has been referred to as the western gateway to Dover. The land, currently being used for farming, is surrounded by residences. The area also experiences high volumes of traffic due to nearby Dover High School.

The city’s Planning Commission also did not give approval to the proposed rezoning during its June 21 meeting. As the property’s rezoning was subject to a protest, City Council was required to have a three-quarters vote in favor for it to have passed.

David Hugg, director of planning and inspections, said in introducing the item that the vote and discussion was meant to be about rezoning the property — not the site plan.

John Pardee, an attorney with Baird Mandalas Brockstedt who represented the landowners, also said council should be voting solely on whether to open up zoning, rather than potential use.

“Let me say one thing right off the top: This is not a site-plan application, and there is no specific use before you tonight,” he said.

When Councilman Lindell voted in favor of the rezoning, he said he did so because the “battle is better fought” during the site-plan approval process.

He cautioned against limiting the rights of the property owners to do what they want with their property, while also being respectful of neighboring residents who vehemently do not want property rezoned.

“I sympathize with the residents surrounding the proposed property,” Councilman Lindell said early in the meeting. “Looking at the property rights of the individual applicant, also, I’m just trying to navigate a way where we respect the rights of the property owner that is applying tonight, while also allowing the citizens surrounding the proposed property to have a say when it gets to the Planning Commission.”

Councilman David Anderson clarified with Mr. Hugg that, by approving the rezoning, council is essentially giving an OK to any of the permitted uses within the new zoning. Then, the Planning Commission and public would be able to provide input on property uses when the site plan is presented.

“You’re no longer debating the use of the property. You’re just debating how to do it,” Councilman Anderson said.

Mr. Pardee called it an “exercise of pure conjecture and speculation” to evaluate the application based on what might be built there. He said the only question for council to answer ahead of taking a vote is if the rezoning is consistent with the city’s comprehensive plan.

He added that the property’s engineer listed a gas station and convenience store on the rezoning application as a valuable use for the property but that the property owners had no plans as of the Monday meeting to build anything specific.

“The plain and simple reality here is that even if this application is approved tonight, no one, not even the applicant, has any idea what particular specific use may ultimately be made on the property,” Mr. Pardee said.

During the 2019 comprehensive plan update, the property was recommended for change in its land-use classification from Residential Medium Density to Mixed Use or Commercial, per request of the property owners. The change was approved by council Jan. 13, 2020, as part of the review and adoption of the comprehensive plan.

The public was given the opportunity to provide input during that update process.

While Mixed Use does permit the proposed zoning of the Draper parcel, the goals of that classification lean more toward the creation of walkable or bikeable neighborhood centers. Mr. Hugg said Mixed Use does allow a “variety of zoning districts, including the one being requested by the applicant.”

Saying the comprehensive plan has the “force and effect of the law,” Mr. Pardee said the rezoning application is consistent with it.

“Your comprehensive plan is your constitution for all land-use decision-making, and you are duty-bound to follow it,” he said.

In a written testimony against the rezoning, Jamie and Lenni Palanca said that opening up the zoning to a gas station would ruin the “quiet and almost rustic” setting of the neighborhood that attracted them to the area 25 years ago.

An 18-year resident of Forrest Avenue, Beverly Sutton wrote that a gas station could further increase traffic in front of her home.

“To change the zoning and to add a commercial store would only amplify adverse issues with traffic and safety of our mainly residential area,” she said.

Other residents added that a gas station would increase noise levels, could attract rodents and lead to higher levels of school truancy. “I feel it is totally inappropriate since residents of the community want to keep this area residential and not invite more traffic in and out of our neighborhoods,” Judi Weiner wrote.

Councilman Ralph Taylor asked if a traffic study was completed prior to the comprehensive plan update. Mr. Hugg confirmed that a study had not been completed, noting they typically take place as part of site plans. He said that area has been part of traffic studies, though not attached to that specific property.

Mr. Hugg added that Forrest Avenue has been identified in the comprehensive plan as one of the city’s major corridors that staff are “concerned about.”