County inundated by cluster business

By Sam Harvey
Staff Reporter

The P&Z considered two possible amendments to the Cluster Development Ordinance, and heard public hearings for three new cluster developments, amid other business.

For a bit of background, clustering is a new option in the county’s Agricultural-Residential (AR-1) lands. The old standard subdivisions require lots roughly half-acre in size, minimum, and some Sussex County Council members have begun to equate them with post-World War II “cookie-cutter” developments.

With clustering, minimum lot sizes are reduced to about one-sixth acre (but overall density still can’t be more than two units per acre). This gives developers greater flexibility, thereby augmenting their ability to present superior designs.

At least, that was the idea — with the cluster ordinance in place, there’s been some debate regarding how often this actually happened, and how often developers simply took advantage of the smaller lot sizes to fit additional homes onto a piece of land.

Again, as part of receiving the smaller lot sizes, developers guarantee a minimum 30 percent of total acreage will be held in “open space,” but there’s some debate regarding what they should be able to take credit for as open space. One stark example — lands set aside for spray irrigation of wastewater effluent.

That remains a separate topic for debate. But the P&Z did make their final recommendation to council, unanimously, regarding an amendment to the Cluster Development Ordinance that will: 1) require developers to take a 25-percent reduction to total acreage before calculating density if, 2) they want to build clustered subdivisions in low-density areas (outside designated growth areas).

Clustered subdivision will be permitted as previously, in growth areas (around designated Town Centers and Developing Areas).

But Commission Member Rodney Smith offered one change. Because developers could already garner sixth-acre lots in the Environmentally Sensitive Developing Area (ESDA), and because there were already cluster-style design standards available for such areas, he said allowing clustering there would be redundant. Smith recommended council strike that reference.

(Council later accepted those recommendations, on Jan. 31. With adoption of the amendment, a moratorium on new cluster subdivision applications lifted, and the county is accepting them once again.)

Some have suggested this amendment acts as a sort of Transfer of Development Rights (TDR), since it actively directs developers toward more densely populated areas, and away from less densely populated areas.

And it’s arguable that a second proposed amendment to the Cluster Development Ordinance, considered that same night, accomplishes a similar goal. But it’s more complicated.

As the name suggests, the “Cluster Density Trade” offers developers the option to pay for higher density in the growth areas, and those funds go toward land preservation. The Sussex County Land Trust (SCLT) would act as administrator, offering council top-priority or best-bang-for-your-buck recommendations for land purchases.

While Council Member Vance Phillips has clarified that there may be opportunities even in the growth areas — green relief via “viewshed” conservation, for instance — land prices in those areas may preclude many such opportunities.

So, the Cluster Density Trade may, again, encourage movement toward more densely developed areas, while preserving open space in the countryside.

However, as P&Z Chair Robert Wheatley pointed out, there would be no direct and immediate corollary between purchase of additional density and preservation of a specific piece of land, as there is with a TDR. “The other land’s still out there (and available for development),” Wheatley noted.

Smith questioned whether the Cluster Density Trade might not amount to “contract zoning.” In general, the courts have frowned on contracts (where there’s consideration involved, in this case monetary) between government and private citizens, regarding how a piece of land will be developed.

The P&Z eventually deferred to legal counsel, directing a few additional questions toward County Planner Rick Kautz. They left the record open for additional written comments, until Feb. 1.

Council will hold public hearing in the coming weeks, but won’t be able to act until the P&Z passes along some kind of recommendation. In the meantime, a few particulars: developers get a density bonus, in Town Centers and in Developing Areas and the ESDA, in exchange for cash contributions toward land conservation elsewhere.

Maximum densities could increase from two units per acre (again, the AR-1 standard) to four units per acre. For every additional housing unit the developers are able to build, they pay either $15,000 (Town Centers, Developing Areas) or $20,000 (Environmentally Sensitive Developing Area).

This money would be earmarked to the SCLT.

SCLT President and CEO Wendy Baker offered a bit of background, referencing the county’s “unique and diverse environment,” and the risk that, without active conservation, it might be destroyed forever.

The SCLT chairman is a developer, the vice-chairman is a developer and Baker is a financial analyst for a developer. Other board members include Council Members Phillips and Dale Dukes, banking executives, and attorney Jim Fuqua, who’s gained a reputation as a developer’s representative.

It is perhaps not what one might expect in a land conservation group, but they do produce.

According to Baker, the SCLT has attracted $3 million in private contributions (alongside $4 million in pledges from Sussex County government).

Locally, Carl M. Freeman Communities granted 280 acres along the Little Assawoman Bay (at nascent Bayside, west of Fenwick Island) into SCLT’s stewardship (placed in conservation easements). And the Carl Freeman Foundation places $5,000 a year into an endowment for the SCLT.

Also nearby, the SCLT manages a county-purchased tract of land on Pepper Creek, and 240 acres at the Peninsula on Indian River Bay (north of the river). SCLT received a $50,000 endowment for managing those Peninsula lands, plus $1,000 per lot.

At 1,400 lots, that’s $1.4 million — enough to preserve a little acreage almost anywhere.

As Baker explained, the SCLT prioritized potential acquisitions based on site visits and rankings in 17 areas of public benefit, and 10 areas of feasibility.

Any land purchases required approval from a super-majority on county council, she added.

All this said, Baker didn’t offer an opinion on the Cluster Density Trade. But Dennis Forney, a local newspaper publisher (Cape Gazette) and SCLT board member traded places with Baker at the podium and offered his support.

Speaking as a private citizen (Lewes resident), Forney called the Cluster Density Trade “an unusual and progressive opportunity,” suggesting the county should take advantage of a thriving economy and do something positive with it.

Illustrating a need, he referenced comments made at the annual Today & Tomorrow conference, a few months back – comments indicating there were still another 300,000 acres of developable land around Sussex County. With two units per acre permitted by right in the AR-1 lands, that would be plenty of room for a million additional Sussex Countians, Forney pointed out.

“As long as we have this ordinance before us, we should take this opportunity to preserve some open space,” he said. And because the cash would be used to preserve open lands, he suggested the trade would be, in essence, density-neutral.

“I don’t believe we should give away free zoning, when we can leverage,” he said.

He pointed to lands the county had already managed to preserve, suggesting a few more parcels could connect a grand “Sussex County Wildlife Loop.”

This loop has the potential to be “a wildlife corridor of international caliber,” Forney pointed out. It would arc from the refuge at Prime Hook, westward to the Nanticoke River, and Trap Pond state park, southeastward to the Great Cypress Swamp and back to the Delaware Seashore State Parks (Fenwick Island, Bethany Beach) and Cape Henlopen.

But Forney admitted he’d want the county to give Cluster Density Trades some extra scrutiny if they were being considered in his neighborhood. He recommended these added-density subdivisions receive a second review before council.

Again, the commission held off on a formal recommendation to council. And it proved to be a big night for deferrals, as they did likewise on each of the three clustered subdivisions up for consideration that night (178 lots northeast of Millsboro, 350 lots near Milton and 46 lots near Milford).