Residents turn out in opposition to special-events ordinance

Date Published: 
Jan. 19, 2018

This week, the Sussex County Council heard more than 30 county residents speak in opposition to an ordinance to amend the county code related to “Special Events,” as permitted uses in the AR-1, GR, B-1, C-1, CR-1 and M districts.

The council had discussed the code back in May of 2017, after Councilman George Cole had received complaints regarding a concert held at Hudson Fields, an 18-acre parcel zoned AR-1 and located near Milton. Following discussion by the council, County staff was directed to rework the ordinance.

At this week’s Jan. 16 meeting, Assistant County Attorney Vince Robertson gave a presentation on the amendments and clarifications offered in the draft ordinance.

“We also looked at some other jurisdictions to get a feel, and I can tell you they’re all over the place,” he said. “We also recognize that no two events are the same… You quickly realize you cannot legislate every single event.”

He noted that the code, as it currently reads, does not set a limit on the number of times a special event can occur in a calendar year. There was no clarification as to whether set-up and tear-down are included in the three-day special-event time limit, and no guidance given to the Planning & Zoning director as to how to decide whether to approve or deny any event of less than three days.

“Theoretically, someone could request three-day events every weekend on a property, and there would not be any guidance or clear basis whether to approve or deny them,” said Robertson.

In the draft, it states:

“Special events such as circuses, carnivals, midways, promotional and tent sales events; fairs, festivals, concerts, rodeos, shows, races/walks or any other event or mass gathering being held outdoors or within a temporary structure or at a site and for a purpose different from the permitted use and usual occupancy of the premises or site.

“Such special events may be administratively approved by the Director or his or her designee, when, in his or her judgment, the proposal will not impair the purpose and intent of the zoning ordinance, and when the use is not so recurring in nature as to constitute a permanent use not otherwise permitted in the district, and when the use will not significantly affect the surrounding properties.

“In determining whether to administratively approve the special event, the Director or his or her designee shall take into account considerations including (but not limited to) the following: the estimated number of attendees; the size of the parcel where the special event is to be located; the parking requirements of the special event; roads and traffic patterns providing access to the special event; prior events conducted by the applicant; noise, light, odor, and dust generated by the special event; proposed hours of operation and number of consecutive days; and such other considerations that may be applicable to the requested event.

“The Director or his or her designee may impose conditions upon an administrative approval, including (but not limited to) hours of the event and maximum attendance. No more than three (3) special events shall be approved for the same property or premises during a calendar year. Each calendar day of a special event shall be counted as a separate special event, not including reasonable time required for set up and removal when the event is not otherwise underway.”

“How did we get here today?” asked Councilman Rob Arlett.

Robertson noted that the County had been receiving more applications for special events, calling attention to an application for a rodeo on the western side of the county.

“We were directed by council at some point…” he added.

“It’s like so many other things. We need to update the ordinance and bring it into modern times,” said Cole.

He added that he believed the County needed to provide more information to its citizens regarding special events being held, including if they had received approval from the Office of Alcoholic Beverage Control Commissioner to sell alcohol, insurance information, the number of people, and availability of parking, portable toilets and emergency services, et cetera.

“Is the County held harmless if someone gets hurt because we didn’t ask for enough information?” said Cole. “The world is so different nowadays. This is the time to come up with an application to get good information, so if there’s a problem after the fact we have some good information for them.”

“What you essentially said is, you’ve taken something relatively simple to ‘you’re going to build a building.’ At that point, I don’t know if it’s special anymore,” Robertson responded.

“The ordinance, as presented, does not have a lot of the considerations that Mr. Cole is speaking of,” clarified County Administrator Todd Lawson, adding that, if the council wants those included, staff would need to be directed to include those items.

Robertson said those who are denied a special event permit may appeal the decision to the Planning & Zoning Commission or to the Delaware Courts.

During the public hearing — at which everyone who spoke was in opposition to the proposed ordinance — there was question as to how three had been selected as the number of special events to be permitted per property per year.

“There’s been no justification or information by the council as to why that number three is important,” said one speaker, suggesting the number was chosen arbitrarily.

“Three has been around for 30 years,” said Cole, noting it has been used by the County for decades.

VFW, Moose remind council of benefits

Many individuals representing community groups, such as Moose International and Veterans of Foreign Wars posts, attended and spoke in opposition, stating that special fundraising events outside and under their pavilions help raise a lot of money to support the community.

Arlett asked the council’s legal counsel as to how one might know if their event would fall under the proposed ordinance.

“What discretion is being used to make that determination based on the normal use?” asked Arlett. “It can get really dicey.”

Robertson said it would be similar to any use of zoning code.

“If you’ve got something you want to do in the commercial zone … that is not exactly listed word-for-word, the [Planning & Zoning] director is going to make that decision… You’d have to call and find out.”

Robertson said the County hasn’t been in the business of sending out violations, but rather educating people on the correct process.

County Attorney Everett Moore said that places like the American Legion and VFW are used for social gatherings and thus would be excluded from having to apply to hold special events.

Robertson agreed, saying it has been interpreted that way in the last 15-plus years.

Christian Hudson of Hudson Fields testified that his family’s property has been used for events since 1953, prior to the County even being incorporated.

Hudson said that, at the October meeting at which the policy had been discussed, the proposed ordinance was interpreted as not grandfathering in such organizations as the Moose and American Legion.

“It’s so nebulous. You’re trying to build a shifting policy,” he said. “Today, the VFWs, we’re saying they’re specifically excluded by the same language… The language hasn’t changed since October.”

Hudson noted that he had paid an engineer from Pennsylvania to measure the decibels emitted from his property during a concert.

“The concerts are less than 100 decibels, but the airplanes, tractor-trailers on Route 1 and the helicopters are well in excess of 100 decibels,” he said. “There’s so many things wrong with this ordinance.”

Hudson’s comments were met with applause from the audience.

Julie Hudson, who is the events coordinator for Hudson Fields, asked if the council was actually familiar with what the special events application looks like currently.

She asked if the County was ready to have the P&Z director become an “event czar,” as the changes in the ordinance would create a large influx of applications, she said, noting blueberry festivals, fall festivals and strawberry festivals (among others) that already take place throughout the county.

She also noted that she has submitted a number of applications — one of which she never received a response to.

“The email goes to four different County emails,” she said. “No nothing. I’m just wondering, if I’m applying and no one is responding to me… I’ve done everything I’m supposed to do… Then I could be fined, shut down? What happens if I am doing something wrong?”

Arlett asked if there was a “technical glitch somewhere,” and it was determined that there are two separate portals to apply — one through the County and one through the public safety office. The council noted that they need to address that aspect of the County website.

Proposal cited as poor update to ordinance

The Hudsons’ attorney, Stephen Spence, said the County was trying to fix a poorly written ordinance, but they are trying to replace it with an equally poor update.

Spence said that, while the County doesn’t require event organizers to contact other state agencies, such as DelDOT, ABC or Delaware State Police, the majority do, so as to not “get arrested.”

“It’s not in a vacuum that all of this happens,” he said.

He also said there is very little guidance in the proposed ordinance for the P&Z director to follow when reviewing special events applications. Spence said giving absolute discretion to an employee is not right, as the employee should be guided by the council.

“You took a bad ordinance and just made it worse,” he said.

Spence also called attention to sports organizations that rely on the kindness of property owners who allow the use of their property.

“For a county that chooses not to invest money in public parks… to take away one of the best locations we’ve ever had because of this process you’re going through, to me is silly.”

Spence recommended the council start the process over and offered his services to help.

Larry Mayo of Lewes said he lives between the Hopkins farm and Hudson Fields, and says when the fields have manure on them, he can’t really enjoy his property, but that he is OK with that because they are using their property.

Lewes resident Judy Mangini said she doesn’t understand how the County got to where it is with the proposed ordinance.

“We have to come ask our employees for simple things, like have a concert on our property, or have a fundraiser on our property,” she said. “I have to laugh, because of all the development you all approve, that also affects the dust, noise… An ambulance coming to my house that once took five minutes can now take 40 minutes.”

The council motioned to leave the public record on the proposed ordinance open to accept written comment over the next 30 days. Councilman Sam Wilson and Arlett voted against doing so, which would have allowed the council to move to address the proposed ordinance.

“I think today has been very clear to me,” said Arlett of the ordinance.

Councilmen I.G. Burton, Michael Vincent and Cole voted in favor of leaving the record open for 30 days, which could lead to further discussion of the ordinance in the future, and that motion passed.