Dagsboro project hits zoning snag

Dagsboro’s Planning and Zoning Commission (P&Z) has been mainly occupied with residential projects of late since its reactivation in November 2005. But commission members added a commercial project to their list in recent weeks, with William Mills’ application for several retail buildings near the intersection at Warrington and Sussex streets on the north end of town.

Or did they?

The project’s future may be in doubt, at least as commercial development, Main Street resident William Chandler pointed out, at a P&Z meeting on April 5.

Chandler, a chancellor for Delaware’s Chancery Court, warned commission members that action on the project could turn out to be illegal, because of a disagreement between the town’s zoning map and the town’s Comprehensive Plan — specifically, the Comp Plan’s future-land-use map.

According to Mills’ attorney, John Sergovic, the parcel in question appeared to be zoned commercial, not residential. Town code appeared to refer to a 1994 zoning map, which showed commercial zoning on the parcel, Sergovic said.

William Stephens, the engineer on the project, went a step further — he suggested Mills’ land had been zoned commercial “since time immemorial.”

But the comp plan listed the parcel as residential (which does permit professional offices for doctors, dentists, architects, engineers or attorneys, but that’s it for commercial uses).

Chandler advised the P&Z of a recent Chancery case with bearing on the matter (not one of his — Vice Chancellor John Noble handled it).

Noble ruled on “O’Neill v. Middletown” in January 2006. Members of the O’Neill family sought redress after Middletown’s mayor and council approved a re-zoning — to accommodate a new Wal-Mart, as it happened.

From Noble’s opinion, Middletown’s 2001 plan update had recommended the area in question be designated for “industrial and office use that transitions to preserved agricultural land,” and that’s how Middletown had zoned the property when it was annexed into the town (Manufacturing-Industrial).

But no industry materialized, and in 2004, a group of developers came back to Middletown with plans to build the Wal-Mart. They requested re-zoning to commercial to accommodate that project.

Here’s a twist — the Office of State Planning Coordination (OSPC) reviewed the project, and found it consistent with the town’s 2001 plan update.

According to Noble, the OSPC had largely based its approval on the fact that the land lay within the town’s growth area. “That, however begs the question: what kind of growth?” Noble pointed out.

He would ultimately agree with the town that the re-zoning made sense in 2004 – but that didn’t make it any less inconsistent with the comp plan.

From Noble’s opinion: “a right of action does exist for these Plaintiffs to assert a claim for enforcement of the General Assembly’s command that ‘no development shall be permitted except as consistent with the plan.’”

That language comes from Delaware Code — a passage specifically giving town Comprehensive Plans the “force of law.” Prior to that amendment, Noble pointed out, Comp Plans had been mere advisory documents. But no more.

Middletown has since gotten to work on squaring up the discrepancy, and Chandler suggested Dagsboro should probably do likewise.

This matter subsumed some of the other concerns broached on April 5 (including a petition opposing the project, submitted by one of the neighbors). However, with Town Solicitor Tempe Steen absent, P&Z members had little to say on the zoning-map-versus-future-land-use-map controversy, and tabled it for another day.

Other developers had better luck. Builders for the Chapel Crossing project (originally called Beach Air Landing) — 97 townhouses south of Clayton Street — received a recommendation for final site-plan approval, on a unanimous vote.

Bill DeHaven, the town’s acting code enforcement officer, noted a pair of outstanding code-related matters that needed to be settled, but all other issues seemed to be resolved. The ball’s now in mayor and council’s court, and they’ll probably give Chapel Crossing a last look at the April 24 council meeting.

And developers for the big General’s Green project — 430 residential units on 116 acres north of Clayton Street and sprawling toward the north end of town — took another step forward.

It took a few extra meetings until commission members felt confident developers had addressed all of their concerns, in writing. But as of April 5, it seems they’d received the assurances they were looking for.

Mayor and ex officio Commission Member Wayne Baker added another request, for a temporary service road, along the railroad tracks (which cross Main Street at the north end of town, and curve south toward Clayton Street). Baker asked that the town have access there, through the project’s early stages.

(He’d asked the developers to channel construction traffic toward that end of town at an earlier meeting. More than one commission member has voiced concern regarding the construction traffic impacts on Clayton Street, especially with several major and concurrent projects pended along that stretch.)

The commission forwarded council its recommendation for approval of the site plan, as a preliminary.