Obscure provision allowing higher buildings in Sussex

Contractors on the site of the former Colonial Oaks Motel are finishing up site work for the hotel being built by Hudson Management company. BY DENNIS FORNEY
September 6, 2013

Unless Sussex County Council takes action not currently in the works, or anticipated, the height limit for all buildings in the county that have any kind of public component will be 60 feet. That’s 18 feet higher than the 42-foot limit that has been the norm for the past several decades. It means that almost any kind of commercial building can go up to 60 feet.

The higher limit is based on an obscure passage in the county’s zoning regulations that states: “ ... public and semi-public or public service buildings, hospitals, institutions or schools, when permitted in a district, may be erected to a height not exceeding 60 feet.”

It states further that churches and temples may be built up to 75 feet high. The additional height allowed for all such buildings is permitted so long as “side and rear yards are each increased by at least one foot for each one foot of additional building height above the height regulations for the district in which the building is located.” So, for example, a 60-foot building in a commercial zone must have 18 more feet of side and rear setbacks than is required for 42-foot buildings.

Public and semi-public are broad terms. Do they mean public buildings in the sense of courthouses and other government buildings or gathering places, or do they mean buildings that have any kind of areas open to the public, such as stores or even an apartment building with a public lobby? Would that pass the semi-public test and give the property owner an additional 18 feet over the 42 feet that has been the norm?

Since the provision was discovered a few years ago by attorney Jim Fuqua, who does a lot of land-use work in Sussex, the county has taken the broad-brush approach. Fuqua found the 60-foot exception when he was preparing to go for a variance for the mixed-use buildings at the Vineyards project on Route 9. Prospective tenants asked for first-floor commercial space with 20-foot ceilings. The developers wanted three floors of residential units above the stores, which the commercial zone’s 42-foot limit wouldn’t allow. When Fuqua discovered the 60-foot provision, he asked county officials for an interpretation.

“It was news to us,” said Sussex Planning and Zoning Director Lawrence Lank. “That was five or more years ago. Apparently it had been in the ordinance for years. We didn’t pick up on it, and the lawyers didn’t pick up on it. Then there was lots of discussion among lawyers. The county attorney ultimately interpreted the provision to say that the proposed Vineyards buildings fit the description of public or semi-public buildings. I’d rather have a better definition than an interpretation, but it’s never been corrected to bring that height back down, and I don’t see any pressure or rush to make that happen.”

Lank said the Vineyards buildings are the only ones in Sussex built to 60 feet under the special provision. So far. Now at least two more are in the works.

Hudson Management is building a new hotel on the site of the former Colonial Oaks motel on the northbound side of Route 1 just south of Midway Presbyterian Church. And Bill Lingo said his firm is planning a new hotel on part of the open parcel they own along the southbound lane of Route 1 south of County Bank. Both are being designed for the 60-foot limit allowed for public or semi-public buildings. “I think it’s good,” said Lingo, whose project is in the design phase. “You can put up more units without taking up all your land space.”

Christian Hudson of Hudson Management said he agrees. “It makes sense. If we don’t want to have sprawl, we have to go up. Forty-two feet is very constrictive for commercial buildings. It keeps you to a flat roof. If you want something architecturally pleasing, you need flexibility. And, the more you can go up, the more you can leave open space.”

Hudson said the nationally branded hotel being put up by Hudson Management should be complete by next June. “We had hoped for April, but rain has delayed the project.” He said he should be able to announce the name of the hotel brand that will occupy the building within two months. “They’re very tight about this.” He said it’s a brand that targets middle-class families.

The project will create 149 temporary construction jobs and 35 full-time jobs, said Hudson. “We’re told this will spin out $19 million for the local economy. Real Hospitality out of West Ocean City will be managing the facility, and some local boys from Salisbury - Gillis Gilkerson - are building the structure.” He said Freddy Bada, a Lewes architect, designed the hotel, and Bank of Delmarva is providing financing.

“We’re trying to do everything with small, local businesses as much as possible so it keeps coming back to the local economy,” said Hudson. “We think you get better service and quality from local contractors. A lot of guys are fighting each other to get to the table to bid. The local guys can compete. Contractors from other areas have higher taxes and more regulations to deal with. We don’t have as much here.”

Hudson noted that his is one of the first new hotel projects on Route 1 since the start of the recession.

With the economy reviving and Sussex County’s broad interpretation of the 60-foot provision - which amounts to a general increase in height limit for commercial - it won’t be surprising to see more such activity and a new, higher look starting to characterize Route 1.

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