County considers P&Z authority on plans

Can the county Planning and Zoning (P&Z) Commission members use subjective judgment in denying subdivision plans, if those plans technically meet code requirements?

This was the question attorney Heidi Balliet (Tunnel & Raysor) posed, at the Sept. 13 Sussex County Council meeting. Council voted to defer (4-1, over Council Member Dale Dukes objection), but in light of several recent legal actions, Council Member George Cole suggested it might be time to revisit the cluster ordinance.

Balliet was representing the Spring Breeze application, which first came before the P&Z as 275 lots on 139 acres (for a gross density of 2 units per acre).

The P&Z denied that plan in January of this year, the applicants appealed the decision and the county granted them a re-hearing. Balliet came back before the P&Z in June, with a revised plan showing 235 lots (1.7 units per acre).

P&Z turned them down again — commission members said the plan didn’t show the necessarily superior design required for clustered subdivision. As an ordinary subdivision, with three-quarter acre lots, individual wells and on-site septic, the developers could have built no more than 169 homes.

Clustering permits much smaller lot sizes (7,500 square feet, or roughly one-sixth acre), hence the higher overall numbers. But these lots would be on central water — and most beneficially, central sewer. (Artesian was tentatively pegged to build both of these systems.)

As Balliet pointed out, they were showing more than 50 percent open space, and above minimum, 9,000-square-foot lots (one-fifth acre).

However, the vast majority of those 235 proposed lots are grouped in close proximity to one another — some people had envisioned clustering as an opportunity to build houses in small bunches and clumps (not by the hundred-lot), interspersed with enclaves of parkland.

As one neighbor (John Furbush) pointed out, “If this falls within the guidelines of cluster housing, so be it — but I think the P&Z was right to consider this a worst-case scenario.”

And while clustering does leave larger, aggregated sections of open space, 18 of the proposed 75 acres will accommodate the wastewater treatment plant and discharge areas, and some portion of the remainder accommodates unbuildable wetlands, stormwater management ponds and required buffers.

Council has debated what should and should not be considered open space, but from Balliet’s perspective, the clustered design was in any estimation superior to what the developers could build as a regular, “cookie-cutter” subdivision.

But as another neighbor (John Davidson) wryly remarked, this project looked more like a sardine can than a cookie-cutter.

Balliet stood by her argument — the commissioners had cited a lack of superior or innovative design in denying the plan, but hadn’t referred to written, objective guidelines in making that determination.

Perhaps some of the objections related to the inevitable impact on the existing old-growth forest at this site, whether or not clustered development might mitigate that impact.

But as the point came up, Council Member Vance Phillips offered a reminder — any property owner could, by right, hire a lumber company to come in and take every last tree off their land.

Council retired for further deliberations, and to bounce thoughts off County Attorney James Griffin in one-on-one settings.

• In other business, council recognized this year’s crop of graduates from Delaware Tech’s paramedic program. Sussex County Emergency Medical Service (SCEMS) Director Glenn Luedtke introduced Paula Moore, Gabriella “Gabi” Evans, Jon Offen and John Wright — Evans and Wright are locals, and have served as volunteers at Bethany Beach and Millville volunteer fire companies, respectively, for some time now.

• Council voted unanimously to donate $10,000 to the American Red Cross — the funds will be used statewide, primarily to help people who fled Hurricane Katrina’s aftermath and have relocated to Delaware.

• The Indian River High School volleyball boosters association received a $500 grant to purchase uniforms (Cole and Phillips split 50/50).

• Council unanimously approved Charles and Bonnie Zonko’s application for conditional use, to build a construction company office and storage buildings in Roxana, 4-0 (Dukes recused himself, noting Zonko as a customer).

• Council introduced three ordinances — (1) to refine the subdivision appeals process, instituting a rational/reasonable test, and fees, but offering the right to any parties that feel aggrieved, not just applicants, (2) to codify the recently formulated moderately-priced housing program, which would provide certain developer incentives in exchange for housing near-median income families might be able to finance and (3) to increase various permit and application fees, like site plan reviews, changes of zone, variance, etc. These ordinances will return for public hearing in coming weeks.