Sussex County Delaware

Land Use Again at
Issue on Council

Sussex County Council ...

Approves Consent Ordinance,
Rejects Residential Limits

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GEORGETOWN -- Sussex County Council dealt with two more land use issues at its regular meeting on Tuesday, June 5, 2001.

Council rejected a proposal to separate residential zoning from commercial zonings in C-1, B-1 and Marine zoning districts.

It also finally put to rest the long-standing debate over the process used to make alterations in subdivisions by approving reductions in the homeowners' consent portions of that ordinance.

Residential-Commercial Zoning

Council voted 4-1 to reject a proposal by Councilman George Cole to limit the number of residential units in B-1 Neighborhood Business, C-1 General Commercial, and M Marine zoning districts.

Councilmen Finley B. Jones, Vance Phillips and Lynn Rogers and Council President Dale Dukes voted against the proposed ordinance, agreeing with consultant Walt Bryan that the proposal would amount to a "taking" of property owners' land by greatly reducing its value.

They also agreed with others' sentiments that the issue should be deferred until the county updates its Comprehensive Land Use Plan next year.

Under Cole's proposal, developers would have had to go through the rezoning process to develop land in those districts with high density housing. Currently, those districts automatically grant high density residential zoning. Cole said the two uses should not be mixed in the same district.

Bryan, of Century 21 Builders Marketing Group, said the proposal would reduce land values in those districts by 75 percent. "This borders on eminent domain," said Bryan. "This is a taking of land."

Bryan and the other councilmen did agree with Cole, however, that the residential and commercial uses should not be mixed in the same districts. Cole said that in his research he has not seen any other counties that mix the two uses as Sussex County does.

Also speaking against the proposal were Dan Kramer of Greenwood, Ross Harris of DCI Consulting, Sandra Ware of the Positive Growth Alliance, and Ken Christianberry of Design Consultant Group.

Kramer said high density residential zoning on the eastern side of the county was the best way to preserve farmland in western Sussex. Cole disputed that assertion, saying, "Show me where we've saved any farmland. We haven't saved any."

Kramer responded, saying "The more (homes) we get to eastern Sussex, the more we save farmland."

Ware said her organization believes that more high density zoning can be accomodated in the coastal areas.

In response to several suggestions that the proposal represented a "down-zoning" in the commercial districts, Cole said, "We have not taken away the ablity to build 12 units per acre. What we have done is eliminate these incompatible uses. If you want to build residential units, then you should go through the residential process, and if you want to build commercial, then you should go through the commercial process."

Cole also disputed claims that the ordinance amounted to a "taking" of land and asked County Solicitor Eugene Bayard to research the issue. Council did vote 5-0 to direct the Land Use Advisory Committee to study the issues Cole raised.

Subdivision Alterations

Council voted 4-1, with Councilman Cole casting the dissenting vote, to approve a reduction in the homeowners' consent clause of its ordinance regarding subdivision alterations.

The vote ended two years of wrangling and seven drafts of the ordinance and allows subdivision developers to proceed to a public hearing before Planning & Zoning on proposed alterations, resubdivisions or additions of previously subdivided and recorded plats with only 51 percent consent from homeowners.

Changes or alterations not involving density will go to the Director of Planning & Zoning, who can approve or deny the proposed changes or defer them to a public hearing.

Decisions by Planning & Zoning or the planning director could be appealed to county council.

Currently, all changes in subdivisions require 100 percent consent from homeowners before going to a public hearing before Planning & Zoning.

Cole, attorney Robert Witsil and Nancy Jordan of the Ocean Farm subdivision near Bethany Beach spoke against the change to 51 percent consent because they believed it shifted the balance of power too far in favor of developers.

Ross Harris of DCI Consulting and Deborah Brittingham McGee of Laurel Realty Inc. spoke in favor of the ordinance.

"Most of the instances they're talking about would be brought up in a public hearing," said Brittingham McGee. "Planning & Zoning and Council would be privy to hearing both sides. This ordinance guarantees the protection of all people involved."

Witsil, speaking on behalf of clients Richard and Susan Osborne of Middleford, asked council to revise the proposed amendments to include:

  • Raising the consent requirement from 51 percent to 66 2/3 percent of lot owners in a subdivision;
  • Making any change, such as deletion of amenities including recreational facilities or entrances, be subject to the consent requirement;
  • Requiring notice of changes by certified mail;
  • Including a grandfathering provision so that previously developed subdivisions would be governed by the old ordinance's requirement of 100 percent consent.

None of Witsil's suggestions was included.

Cole expressed concerns that a developer could easily get 51 percent consent by virtue of owning a number of unsold lots and casting a vote for each of those lots.

County Attorney Dennis L. Schrader agreed with Cole and said a smart developer could also retain power of attorney on voting rights for sold lots. He emphasized, however, that the 51 percent consent figure only entitled a developer to a public hearing.

A motion by Councilman Vance Phillips to strike the increase in application fees from $100 to $300 failed 4-1.

Planning & Zoning Director Lawrence Lank said that the increase was needed to cover the county's administrative costs for subdivision alterations such as advertising and mailing notices, but Phillips said that since the county's $10 million reserve has been created by development fees such as realty transfer taxes, he believed developers were already covering those costs.

During the vote, Phillips said he favored the amendments to the ordinance because it would give the public an opportunity to hear both sides.

Other councilmen were not as strong in their support of the revisions.

"It's a sad time that some developers have put us in this predicament," said Councilman Lynn Rogers in voting yes. "But I believe that this is headed in the right direction."

Council President Dale Dukes said he didn't believe the revisions would strip rights from property owners.

"I'm a proponent of property rights and people buying into a subdivision, their rights should remain," said Dukes. "Surely this will ensure that the rights of buyers and developers are protected."

Cole, however, disagreed with those assessments.

"When you record something with the county, it should take an extraordinary step to change it," he said. "It shouldn't be easy. I think 100 percent was excessive, but 51 percent is not enough. It should be 75 percent. Even though it does face public scrutiny, the people closest to it, the people most affected, should have the greatest say, not a bunch of officials in Georgetown."

CHSD Sewer Negotiations ...

Council unanimously directed the county's engineering department to enter into negotiations with the Cape Henlopen School District to provide sewer service for the district's new middle school on Route 24, 1.5 miles west of Route 1.

The new school will not be contiguous to an existing sewer district but County Administrator Robert L. Stickels said because the school district is a state agency, the county can provide sewer service.

The school property is about a mile from the outer edge of the West Rehoboth Expansion of the Dewey Beach Sanitary Sewer District.

Assistant County Engineer Russ Archut told council that the district will be responsible for building a pump station and force main to connect to the Dewey Beach system. The district would also be required to pay all fees including impact fees, service charges, user fees and front footage assessments.

Archut said the county entered into a similar agreement with Lord Baltimore Elementary School in Ocean View before the construction of the Ocean View sewer system.

In response to a question from Councilman George Cole about the unserved area between the school property and the boundary of the Dewey Beach district, County Engineer Michael Izzo said the county doesn't have the capacity to serve that area. He said it does have the capacity to serve the 700-student school.

County Administrator Robert L. Stickels said the county does have plans to expand its capacity in that area because it will most likely be included in the adjoining development district during the update of the county's Comprehensive Land Use Plan in 2002.

Ellendale Sewer ...

Council voted unanimously to reject two bids for the construction of the Ellendale Sanitary Sewer District based on the recommendation of the county's engineering department.

County Engineer Michael Izzo told council that the bids from Teal Construction Inc. of Dover and Bearing Construction of Sudlersville, Md., came in much higher than anticipated.

Teal bid $7.988 million while Bearing bid $8.8 million on a project the engineering department estimated would cost $6 million.

Izzo told council that the major discrepancy between the estimate and the bids was the cost of the 8-inch gravity line. The engineering department estimated that part of the project at $2 million while the bids came in at $4.2 million.

Izzo said that the engineering department went back to 1998 to see the costs of 8-inch gravity lines in previous county sewer projects and that they ranged from $49.37 to $58.95 per foot. He said the Ellendale bids came in at $99.80 per foot.

Izzo also said that Chatty Reed of Teal Construction blamed much of the increase on the rising cost of the petroleum used in the asphalt for repaving roads.

Izzo held out little hope for much of a reduction in the bids. He said the $99.80 per foot bids for the gravity lines were ridiculous but because there is so much more attractive work for construction companies than sewer projects, there is little competition in the bidding process.

"Teal knew it was bidding against itself," said Izzo. "There is no reason for Teal to dial down to a lower bid."

Izzo said the alternatives now would be to re-bid the Ellendale project as a series of smaller contracts to attract the interest of smaller local contractors or value engineer the project again.

County Administrator Robert L. Stickels said Ellendale community leaders were notified of the bids and supported their rejection.

Airport Ground-breaking ...

Council held a ground-breaking ceremony for the new Sussex County Airport Terminal Building before the council meeting on Tuesday.

During the meeting, it unanimously approved a bid of $669,123.90 from Spar Associates Inc. to build a new terminal apron at the facility to add parking space for planes.

The bid was $69,000 more than the engineering department's estimate of $600,000. "We only had one bid and he wasn't that interested," said Izzo.

The project is eligible for grants from the Federal Aviation Administration and the State of Delaware that would cover 95 percent of the construction cost. The bid was accepted contingent on receipt of the grants.

In Other Business ...
  • The June 12 Sussex County Council meeting will be held at 4 p.m. instead of its usual time due to a public hearing scheduled for that evening at the CHEER Center in Georgetown. The public hearing will be on the Association of Coastal Towns' proposed rezoning moratorium in the coastal zone. With a 7 p.m. starting time for the public hearing, council decided it would be more convenient for everyone to hold the regular council meeting at 4 p.m. and then go to the hearing. The rezoning moratorium would be in effect until the update of the county's Comprehensive Land Use Plan in October of 2002.

  • Council will conduct its 24th Annual Prayer Breakfast on Monday, June 18, at the Delaware Tech Student Service Center Dining Hall in Georgetown. The guest speaker for the 7:30 a.m. breakfast will be Dr. Richard Foth, who works with the breakfast groups of the U.S. Senate and the U.S. House of Representatives. Tickets may be obtained by calling the county council office at 855-7743.

  • County Administrator Robert L. Stickels reminded council and the public that the Region 3 Planning Meeting will be held on Thursday, June 7, at 10 a.m. in Fenwick Island Town Hall. Region 3 includes the Dagsboro, Frankford, Selbyville, Millville, Ocean View, Bethany Beach, South Bethany and Fenwick Island areas.

  • By a 5-0 vote, Council approved a resolution to expand the Dagsboro-Frankford Sanitary Sewer District to include property owned by the Dagsboro Church of God on the west side of Rt. 113. The vote followed a public hearing. The county will annex 30 acres into the district.

  • Council voted 5-0 to accept a bid of $858,000 from Tri-J Systems Inc. for Phase II of its SCADA System. The bid was $72,000 less than the estimate of $930,000.

  • Council voted unanimously to reject two bids for new postage equipment. Frank Shade, the county's Purchasing Director, told council that due to a glitch in the bidding process the bids needed to be re-done. According to Shade, the county received two different types of bids because of wording in the bidding contract that asked for a 24-month lease in one section and a 36-month lease in another. Council agreed with Shade's recommendation to re-do the bids next year.

  • Council heard a proposed ordinance to amend a B-1 District to GR. The request for 1.01 acres in Cedar Creek Hundred is from Allen Jester.

  • Council unanimously approved a couple of funding requests. Council agreed to donate $250 from both Vance Phillips' and Dale Dukes' councilmanic funds to the Christian Fellowship Softball League in Laurel. It also donated $300 from Lynn Rogers' councilmanic funds to the City of Lewes for Mayor George Smith's trip to the City Council Steering Committee seminar. It agreed to contribute $1,250, or $250 from each councilman's Sports Activity Fund, to help defray expenses incurred by the Delaware Tech baseball team on its trip to Millington, Tenn., where it won the Junior College World Series last week. And finally, council agreed to give the Nanticoke Riverfest event in Seaford $500 from Council President Dukes' fund.

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