County P&Z considers cluster subdivision

By M. Patricia Titus
Staff Reporter

So said Sussex County Planning & Zoning Commission (P&Z) Chairman Robert Wheatley at the beginning of the commission’s Jan. 11 meeting. Applicants’ attorney Jim Fuqua had already warned P&Z Director Lawrence Lank that he expected his presentation on the proposed Isaacs Glen development north of Milton to take two hours. He was right — with 60 seconds to spare.

Questions about and commentary on the 1,630-lot subdivision application would take another 90 minutes during the public hearing, with testimony on both sides.

Isaacs Glen is controversial for more than just its sheer size. It is one of the few cluster subdivisions remaining in the Sussex County planning pipeline under the moratorium the P&Z placed on such applications in recent months, while the cluster subdivision ordinance is retooled to help eliminate the so-called “density” bonus that was an unintended consequence of the original legislation.

That ordinance was the P&Z’s other task for the night, with plans to tackle a series of proposed amendments that would be forwarded to the Sussex County Council and, hopefully, eliminate some of the unintended consequences of the original language.

Issacs Glen is also outside of the county’s designated development areas — primarily in and bordering existing town centers. And it would take some 836 acres of historical farmland out of agricultural use, in an area where other large plots have been put into agricultural preservation.

The combination — especially in light of continuing focus on coastal Sussex as the county’s hotspot for growth — was enough to bring out representatives for citizens’ groups concerned about growth and those championing the rights of farm families to use their properties as the law allows.

Fuqua described the difficulties the Issacs family had been through in trying to develop the property, noting that a previous application for zoning the community as a medium-density residential district residential planned community (MR-RPC) was denied by the Sussex County Council in September of 2005. “It’s been a difficult experience,” he said.

That original plan included not only more than a thousand single-family homes but also 281 townhomes, 220 assisted-living units, 160,000 square feet of office space and an 18-hole golf course. P&Z’s recommendation had been for denial, commenting that the density and mixed-use plan were inappropriate for agriculturally-zoned land (which does allow for low-density single-family residences), and also noting opposition from the Office of State Planning Coordination.

The core of that opposition lies in the area’s designation as an Investment Level 4 area on the Strategies for Policies in State Spending. The state map designates areas in which the state wants to invest its funds, including those that would go toward infrastructure. That, again, means town centers and their environs, which works in conjunction with moves by the state agriculture department to encourage preservation of agricultural lands.

In making his presentation on a revised cluster subdivision application (expedited due to the previous application for MR-RPC), Fuqua said the state agency opposition was based outside the law, since the state cedes its planning authority to the county, which allows for some residential development in the AR-1 agricultural residential zone.

The state spending policies are just that and don’t control which projects the county can approve, though the county is required to stick to the tenants of its own adopted development plan and zoning codes.

And under the existing set of cluster ordinances, Fuqua argued, the proposed Isaacs Glen subdivision meets the county’s requirements, since it does not restrict cluster subdivisions to the designated growth areas.

“I’ve spent a lot of time trying to determine what the burden of proof was for approval,” Fuqua said.

Fuqua said the Issacs family shouldn’t be de facto forced to put their land into agricultural preservation simply because some of their neighbors had made that choice.

“Folks cannot be forced to keep land as farmland because of the Department of Agriculture’s opinion as to the neighborhood’s preference,” Fuqua said. “Farmers respect the rights of others to do what is permitted with their land. They entered preservation voluntarily, and they understand the importance of private property rights.”

Further, Fuqua noted, “The Agricultural Preservation Act requires voluntary entrance into program. No one can be forced. There is no guarantee of compensation.” The property can be placed in preservation for a limited period of time, he added.

“This should be based in rule of law,” Fuqua emphasized, pushing home his point that only the county’s own Comprehensive Land-Use Plan, and subdivision, zoning, cluster-subdivision rules apply. “Only those,” he reiterated. “We recognize there is an inherent conflict between state planning and the county land-use plan, but the Comprehensive Land-Use Plan is law.”

On that point, the attorney further cited the case of Gibson v. Sussex County, heard in the state’s Court of the Chancery. In that case, the county council was found to have illegally required an applicant to have met burdens beyond the county’s existing code, for a conditional-use application where the requested use was permitted.

The court dismissed council’s reasoning that an approval might set unwanted precedent because, they said, a desired change in requirements should be put into law rather than simply acted upon. (The case mirrored similar issues recently hashed out locally, in Ocean View.)

While the previous MR-RPC zoning request allowed for council’s denial, the new cluster-subdivision request falls more in line with the Gibson case, or so Fuqua argued.

Fuqua said he and his clients (developers Reynolds Pond LLC) disagreed with the previous decision of the commission and county council but had taken the particulars of those denials to heart in seeking to develop the parcel. “We literally went back to the drawing board,” he said.

The details of the new cluster subdivision do make some significant changes. Density is less than two lots per acre, as required by the county subdivision ordinance. The office space is eliminated, as is the multi-family housing and golf course. The resulting road traffic was estimated to be reduced by around 30 percent.

And Fuqua might have been remiss if he had failed to note the estimated $3 million in county real estate taxes, not to mention transfer taxes and other funds that would be brought into the local economy by the project.

Proponents of the project included representatives of the Isaacs family. Their attorney said, “There is no standard retirement plan for farmers. The land is their future. Unfortunately,” he added, “this project has become the poster-child for differing opinions in the area of land use.”

A son-in-law recounted his own decision to go to work on his wife’s family farm, working long hours, seven days a week. Of the decision to develop the land he said, “This choice is not a privilege, it is a right.” He said the family’s hard work had kept the farm going to the point where they could sell now and benefit. Emphasizing that others had had no part in that hard work, he said no one else should now be able to tell the family they couldn’t use their land as legally allowed.

Several other supporters noted their preference for the original MR-RPC design but still voiced support for the cluster-subdivision version. Some also voiced concern that the family’s next option, if denied, was to sell off pieces to individual developers for a number of smaller, individual developments. That could mean a similar number of homes, but less in terms of planned open space and other development bonuses for the county.

While one supporter opined that the new development could mean a better chance for additional water capacity for nearby water-limited Ellendale, opposition came from the Town of Milton, which reiterated its concerns about the original MR-RPC plan. (Commissioners were advised that the town’s original statement of opposition could not be applied directly to the new application, but that they could take the continued opposition under advisement.)

Milton’s town manager also noted the state spending plan and the location of the proposed development outside the Milton growth area on the county’s Comprehensive Development Plan. (Such a limitation on cluster developments was one amendment suggested for consideration at the Jan. 12 meeting, but is not yet in place.) The town manager opined that approving Isaacs Glen would render the CDP “null and void.”

Mike Tyler, president of the Citizens Coalition, said, “We’re not against farmers selling their properties. The problem we have is with the development. Is it right to follow the law even if it goes out the window?” he asked in response to Fuqua’s earlier arguments. “The state agency recommendation is in line with state policy to discourage sprawl and preserve agriculture,” he emphasized. The county’s ordinances allow for small-scale subdivisions in agricultural residential zones, he said. “This is not a small-scale subdivision.”

Tyler cited what he said was an increase in impervious area by about 13 percent and 31 acres of forested land removed. “The developer’s goal is profit, at the expense of Sussex County,” he concluded.

On the odd side of the list of opponents was a crop-duster who said he routinely operates in the area of the proposed development. Between the restrictions on where he could fly and the posting of notices required every time he was to do so, he said the development would put him out of business.

Wheatley concluded the hearing by asking for a show of hands in favor and in opposition to the application. Taking that count — and the gradual leave-taking of some initially in attendance — he all but ordered the gallery cleared in favor of a five-minute recess from a meeting that had already taken some 3.5 hours.

After the close of the night’s public hearings, commissioners unanimously agreed to defer action on Isaacs Glen for further thought on the matter.