The Sussex County Council this week responded to an August letter from the Delaware Coalition for Open Government, which sought to bring to their “attention a number of issues about the operation of the Sussex County’s Board of Adjustment.”
“Subsequently to that letter, we’ve received some public comments in our meetings related to the Board of Adjustments. We thought it was worth our time to put it on the agenda and go through some of the topics that were raised,” said County Administrator Todd Lawson at the County’s Sept. 18 meeting.
The letter, dated Aug. 16, 2018, cites four “obstacles and issues” the coalition found with the board:
• Accessibility to the Board’s key documents in a usable format;
• Lack of public input to the Board’s operation during a meeting;
• There is no administrative mechanism for opponents of cases brought to the Board to challenge Board decisions;
• The Board is not properly administering oaths and affirmations in obtaining testimony in cases.
“I do not agree with every point the coalition makes,” said Lawson. “Some of those points are simply not based on or supported by law. On the other hand, the County will consider the feedback and make necessary improvements.”
Addressing accessibility to the board’s “key documents,” the coalition noted the County does not provide oral versions for those with vision issues, nor does it provide transcripts for those who are hearing-impaired.
The coalition emphasized the need for the Findings of Fact to be posted online so that everyone may access the documents.
“Before the Board considers a case closed, it must approve the Findings at a subsequent hearing — up to 60 days after the vote,” wrote the coalition. “At the hearing where Findings are approved, the Board simply generically lists ‘Findings of Fact’ as an agenda item without indicating which case they pertain to, then the Board votes on them without publicly identifying the applicable case(s), without a reading or discussion of the Findings, or making them available to the public prior to the vote.
“The public only knows a week or so before that hearing that some Findings will be voted on, when the Board posts the agenda that lists the Findings. Further, even after the vote, the Findings of a case are not posted online nor is an oral version made available; if someone wants them, they have to go the Planning & Zoning Office in Georgetown to obtain a hard copy — no electronic version is available. Why they are not posted online is a mystery.”
In response, Lawson stated that the County and Board “operates and remains compliant” with all State and County laws, including the Freedom of Information Act.
“The Findings of Fact are not posted online, but they are available should someone request them by contacting the Planning & Zoning office. In addition, the land-use application docket is available online and has a wealth of information about the applications pending before or decided by the Board of Adjustment,” he explained.
“That docket includes a synopsis of application; the decision — for example, whether it was approved or denied; a notice of the application; a link to the hearing audio archive where you can hear the entire hearing; and a link to the site on the tax map showing where the application is pending on our County’s tax map.
“However, given the coalition’s feedback, the County will explore the option to posting the approved Findings of Fact on the docket in the near future. We’re working with our IT department to make those findings available online as soon as we can. I would expect that to be live in a number of weeks.”
Lawson said the coalition is seeking the ability to make comment to the board regarding the board’s operations, and to do so during board meetings.
“The Coalition’s pursuit is misguided. The Board of Adjustment is a quasi-judicial board, appointed by this County Council. The board’s authority is derived from the powers delegated to it by this council. As such, if the coalition seeks to amend the board’s operations, it should pursue those recommendations with this body.”
In response to the coalition’s concerns regarding a lack of administrative mechanism for opponents of cases who wish to challenge the board’s decisions, Lawson said, “This is simply not true.”
“We believe the coalition misunderstands the re-hearing procedures for the board,” said Lawson. “Requests for re-hearings are available, and are spelled out in the Board’s Rule 18. The relief is not limited to applicants; it is available to opponents as well.”
As to the coalition’s concerns that the board does not properly administer oaths and affirmations in testimony during cases, stating that there is conflict between rules as to who should administer the oath — the chairman or the attorney — “Again, this is not true,” said Lawson.
“Sussex County code provides that the chairman ‘may,’ and I put that in strong terms —‘may’ — administer the oath. There is no requirement that the oaths be solely administered by the chairman. There’s also no evidence that the chairman’s authority to administer oaths is exclusive.”
Lawson said the seven-page letter of response from the County would be sent to the coalition on Tuesday afternoon.
By Maria Counts