on Subdivision Denial
on Farm Near Mount Joy
SC Online Publisher
GEORGETOWN -- Sussex County Council heard arguments in an appeal over a denied subdivision plan in the Mount Joy area at its regular meeting on Tuesday, July 10, 2001.
The plan denied by the Planning & Zoning Commission drew an appeal to council from Donald Ward of Sussex Ventures Inc.
The proposed subdivision would put 71 lots on 82.61 acres in an AR-1 District in the Indian River Hundred south of Road 297 and west of Route 30.
According to Shane Abbott of the Planning & Zoning office, the Planning & Zoning Commission denied the application 4-0 on April 5, 2001.
In the appeals process, council acts as a judicial body to determine if the denial should be overturned or upheld, if it should be sent back to Planning & Zoning for more evidence supporting the rejection, or if it should be sent back to Planning & Zoning for more specific reasoning.
After hearing 45 minutes of arguments from attorney John Sergovic, representing Sussex Ventures Inc., and attorney David Weidman, representing Mount Joy Citizens for Concerned Growth, council members were advised by county solicitor Eugene Bayard to set aside a period of several weeks to review all evidence presented during the April 5 hearing along with video tapes prepared by the opposition and letters regarding the project.
Council also instructed the attorneys to present memorandums on the issue within 15 days.
The hearing before council drew a packed house, almost all of whom were part of the Mount Joy Citizens for Concerned Growth in opposition to the application.
The main concerns expressed by the Planning & Zoning Commission in rejecting the application were farmland preservation, the length of the main street in the subdivision, and the plans for only one entrance.
Councilman George Cole raised the major issue right off the bat when he asked Abbott if any other subdivision applications had been rejected due to concerns about farmland preservation. Abbott said he could not recall any off the top of his head.
Councilman Vance Phillips referred to a 1997 ordinance that imposed 17 conditions that the Planning & Zoning Commission may use in denying an application.
He felt that Condition No. 4 regarding the preservation of open space, Condition No. 11 regarding safe vehicle movement, Condition No. 13 regarding the preservation and conservation of farmland, and Condition No. 15 regarding the effect of a development on area roads all applied to the Sussex Ventures case.
Sergovic questioned the Planning & Zoning Commission's use of the 1997 ordinance. Reading from the ordinance, Sergovic noted that the ordinance states that Planning & Zoning shall "consider" the 17 conditions, not necessarily follow all of them.
Weidman, however, said Planning & Zoning did apply the conditions properly. "Those factors do not support this application," he said. "Clearly, there are sufficient reasons to support Planning & Zoning's 4-0 denial."
Sergovic said his clients had demonstrated that their plan would actually benefit farmland rather than erode it because property owners would be able to enter the subdivision area as opposed to strip farmland development that would eat up much more farmland.
"My clients have established a housing demand in that area," said Sergovic. "They are experienced developers. They see the demand and that the existing developments are sold out. The soil is sandy and easy to use septic on. It is not on a major travelled road. This is the only time I have ever seen Planning & Zoning say they are denying a subdivision because they want to preserve farmland."
Cole then turned to the viability of the proposed land as farmland. Abbott said there had been no comments from the Delaware Department of Agriculture and that the property had not been rated.
Council President Dale Dukes, citing the Comprehensive Land Use Plan's stipulation that density should be increased in areas where there is no prime farmland, then questioned how the county could determine the suitability of the property for farming without such a rating.
Sergovic said the county had established no standards or criteria for what constituted acceptable farmland preservation and that his client was not informed of any such standards that would be held against his application.
"In our view, Planning & Zoning denied the application for arbitrary reasons," said Sergovic. "There are no guidelines for conservation and preservation of farmland. A lot of the opposition (at the April 5 hearing) spent the bulk of its time and effort on what's needed in the 'final' subdivision plan. I think Planning & Zoning was influenced by that. We didn't have final septic approval, final roads, final soil and sediment control. If this is remanded (to P&Z), it should be made clear that you can not apply final conditions to a preliminary plan."
Weidman called the preservation of open space and farmland common sense that didn't need strict guidelines and standards. "Planning & Zoning could hang its hat on any one of these for denial," said Weidman, referring to the conditions that discuss farmland and open space preservation.
Weidman also said that the land in question is "unique" because it's not a flat piece of farmland and the state has purposely directed runoff water to the property. He also cited the tax ditch on the property that directs water to "the exact location of the subdivision."
"This has been used for 40 years as tillable farmland," said Weidman, addressing the farmland viability issue.
As for the length of the main road, Abbott said that although the road was more than 1,000 feet, a bubble in the middle of the road did provide for a turnaround at less than 1,000 feet.
Sergovic also addressed the issue of the subdivision having only one entrance, saying that the Delaware Department of Transporation would only allow one entrance.
Weidman countered, saying the road the entrance would be off of has a significant history of accidents, according to DelDOT. "There is a sharp curve 100 yards down the road," said Weidman. "This subdivision dumps onto Road 297 with a sharp curve with no plans for capital improvements."
Land Acquisition Program ...
After much discussion, council decided to hold a workshop on July 24, 2001, to debate establishing a Land Acquisition Program for the purpose of buffering county facilities such as former landfills or sewer plants or to expand on areas owned by the State of Delaware.
The program, which could not be limited to agricultural purposes, would be funded by a general obligation bond of $6 million with an annual cost of approximately $463,000.
According to County Administrator Robert L. Stickels, $1 million from the Fiscal Year 2002 Capital Improvement Fund of $2.4 million could be used to fund the program in its first year with future budgets allowing for the budgeting of funding to expand the program and pay the debt service.
Stickels said the county could pay the debt through its realty transfer tax, through a tax increase of 2.3¢ per $100 of assessed value, or by dedicating a portion of its $10 million reserve for land acquisition.
The program would be overseen by a Land Use Advisory Committee composed of one person from each councilmanic district, the county administrator, the county finance director, and the county attorney. The committee would review and make recommendations on land acquisitions but council would have the final decision.
Councilman Vance Phillips questioned the merit of a program that would take properties off the county's tax rolls and expressed concerns about government buying up private property.
"The former Soviet Union collapsed under that policy," said Phillips.
Phillips also questioned whether setting aside money specifically for buying land wouldn't cause the county to buy up land just for the sake of using the money. "If it's not a property in a location that makes sense, we could end up deviating from the criteria we've established here," he said.
Council President Dale Dukes said he didn't support a tax increase to repay the debt. He said he would prefer to establish an account for that purpose.
"If we had a pool of money, we could buy land if we feel it's necessary for a specific purpose," Dukes said.
Councilman George Cole suggested that council direct Stickels and county solicitor Eugene Bayard to draft an ordinance regarding such a program but Phillips said he didn't want to "rush into an ordinance. I think it's premature to move forward."
Phillips then questioned what the ultimate goal of the program was to be and said it might best be used to prevent strip development of farmland.
Cole, however, said "Farm acquistion isn't benefitting anyone but a few influential farmers. They're selling their land and buying more land and going out and developing it. I know any number of farmers who have done that. It's a bogus program."
Cole reiterated his suggestion that council put specific limits and criteria into the program.
"I think the public would be more concerned about us having something unstructured," he said. "That we're just out there buying land for no reason. That would scare the heck out of people."
In Other Business ...
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