Before the honorable members of Sussex County Council make their decision on the applications for rezoning and conditional use regarding the proposed Love Creek RV Campground, I implore them to consider the following.

First, I urge the council members to consider with caution some of the comments presented by the Sussex County Planning & Zoning Commissioners, specifically Mr. Martin Ross, as regards the importance of public comment received from numerous local citizens. Mr. Ross' comments implied that expert testimony by the applicant should bear more weight than that of the public.

Further, he suggested that the applicants’ expert opinions must be countered with other expert testimony, and that any public comment from "non-credentialed" people must be entirely factual. The foregoing opinion about expert vs. public opinion just that - an opinion about what Mr. Ross finds compelling or convincing. It is not Delaware law.

Consider the following comment from Bayville Shore Development Corp. v. County Council of Sussex County, 1991 WL 202182: "The Council, [however], is free to weigh the evidence presented to it, determine the testimony's credibility and draw its own conclusions.  There is no requirement that the opponents of a rezoning must rebut each opinion expressed by an applicant's expert by their own expert."

Further, the Court of Chancery has also supported the council’s obligation to consider "public comment" in other cases, so long as the public opposition is not just an attempt to deny one property owner the right to do what others in the area are already doing and provided the comments rationally advances the public health, safety or welfare. Therefore, public comment does legally matter.

The members of the public who have spoken out against RV City are not legally required to be experts, and the comments made have not sought to deny a property owner from doing what the neighbors are already doing. Rather, the public comments and opposition were focused on the public health, safety and welfare of the surrounding community and the legal mandates of state law and the Sussex County Code.

Second, as agreed by all parties in the public hearings, the two applications by Lingo Asset Management (one regarding zoning and one regarding conditional use) were definitely inter-related. Legally, one’s ability to request a campground the Conditional Use for a parcel of land only arises if the correct zoning is in place. That is simply not the case for the portion of the proposed RV City site that is currently zoned GR.

Therefore, contrary to Mr. Ross’ opinion, the rezoning decision really needs to be made first because, otherwise, the CU is not even an option for that part of the applicant's land. Only the portion of the parcel that is already zoned AR-1 is eligible for consideration as a campground Conditional Use.

Furthermore, the Delaware courts have ruled that the intended use of an applicant’s property is an important and required consideration when rezoning is requested. With any zoning change, the change must correspond with the Comprehensive Plan, including the Future Land Use maps - that is the law in Delaware (see Delaware Code, Title 9, Sections 6904, 6951 and 6959).

In this case, the Future Land Use map identifies a significant portion of the proposed campground area for which the rezoning is sought as being in a Mixed Residential (MR) area with an Environmentally Sensitive Developing Area overlay. These designations tell us what is appropriate in terms of future rezoning decisions.

This is important because even though, as pointed out by Mr. Ross, there exists AR-1 zoned property adjacent to the GR zoned property for which rezoning is sought (and which is identified as MR for future use), changing the zoning from GR to AR-1 is not in keeping with the Future Land Use map and is certainly not a “slam dunk,” to quote Mr. Ross.

I would argue that any expert would suggest that simply because the proposed rezoning would match up with an adjacent property and simply because it is arguably a “down-zoning” do not automatically translate to compliance with the Future Land Use map and other legal requirements.

Third, I would ask the council to consider the implications of the comments made by Mr. Ross and his interpretation of what it means to be located in an the Environmentally Sensitive Developing Area (ESDA) and the designation of such an area as a growth area.

While it is true that an ESDA is a growth area according to the Comprehensive Plan, the council must take into account the type of growth proposed for an ESDA like that at issue in the pending applications. Here, the proposed use of the subject property is a commercial campground.

Simply because this may, in some persons’ minds, represent "growth," that does not automatically translate to it being allowed. The proposed use must still be appropriate for the area in question and in compliance with state law and the Comprehensive Plan. To simply say a particular use represents “growth” and, thus, is permissible undermines the integrity of the County’s zoning process and zoning regulations.

If one were to use Mr. Ross’ apparent logic, any kind of "growth" would be acceptable in an EDSA and that just does not adhere to the guidance provided by all the laws and regulations in place.  State law, the mandates of the county code and the Comprehensive Plan, particularly the underlying zoning designation on the Future Land Use map - all still matter.

In addition, I urge the council to keep foremost in their minds the requirements of Title 9, Section 6904 with regard to the rezoning.  Two of the most important of those requirements is the "character of the particular district involved" and "the general and appropriate trend and character of land, building and population development."

The foregoing is what makes the residential nature of the vast majority of the surrounding area so relevant.  In fact, this consideration appeared to be at least one of the reasons for the dissenting vote cast by Commissioner Smith.

Finally, in closing, I cannot emphasize enough for the council members that the Future Land Use map, which is part of the Comprehensive Plan and which carries the force of law, is an incredibly important, legitimate and legal issue to focus on when making a decision concerning the pending applications.

I urge the council to first consider the appropriateness of the applicant’s request for a zoning change in light of the above, as well as the overwhelming amount of the public comment received, which was essentially disregarded by some of the planning and zoning commissioners.

Taken in this context, I urge the council to reject the rezoning application C/Z-1725 and, accordingly, also reject the associated Conditional Use C/U 1951 proposed for the RV Campground at Love Creek by Lingo Asset Management, LLC.

Paul Hammesfahr
Coalition to Stop RV City
Lewes