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Is 60 feet the new 42?

Sussex officials debate height regulations
These apartment/retail buildings at the Vineyards along Route 404 near Lewes are among the first built at 60 feet tall in the county's unincorporated areas. BY RON MACARTHUR
October 11, 2013

A Sussex County councilman says he had no idea developers have exceeded what he thought was the county's 42-foot building limit.

Councilman George Cole, R-Ocean View, said for the past four decades 42 feet has been the accepted building height limit. At an Oct. 8 meeting, Cole said he was disturbed to discover some buildings exceeded the limit, and more were planned.

“We have lots of good developments, and everybody has toed the line at 42 feet,” Cole said. “Then all of a sudden a couple of projects have slipped through, and we have been kept in the dark.”

Recently, developers have used a sentence of the code that allows for buildings up to 60 feet tall for projects of “public or semi-public use.” Cole said the 60-foot height limit was intended for hospitals and schools, not hotels or shopping centers.

Cole asked county attorneys to look into the legality of imposing a moratorium on any building plans exceeding what he called the true intent of the county's code when it was adopted more than 40 years ago.

To date, the only project that has been built to 60 feet is the Vineyards at Nassau Valley along Route 9 near Lewes, where two retail/residential buildings were built.

Plans for a Route 1 hotel now under construction near the Old Landing Road intersection call for a 60-foot building, and another 60-foot hotel is proposed on Route 1 near the entrance to Rehoboth Beach, said Lawrence Lank, director of county planning and zoning.

Vince Robertson, assistant county attorney, told Cole these projects had not slipped through. “It's in your code; you will need legislation to change it,” he said.

During a presentation to council, Robertson admitted that many people are not aware of the 60-foot supplementary regulations regarding height. He said the code allows that public service buildings, hospitals, institutions and schools can be up to 60 feet tall as long as the property is located in a zoning district that permits that use.

Robertson said, the code defines public or semi-public use as open to common use. “Something open to common use could include shopping centers, hotels, restaurants, museums, sports facilities, grocery stores or any number of buildings and uses where the public is invited,” he said.

In addition, under county code one of the criteria for approving a conditional-use application is that the application is of public or semi-public character.

“The terms are broadly defined and broadly used in Sussex County zoning code,” Robertson said.

Cole said following that logic every project approved with a conditional use would fall under the 60-foot regulation.

In addition to considering a moratorium, Cole requested county staff to draft an amended ordinance that would better define the 60-foot provision. If introduced at a future meeting, the ordinance would be subject to public hearings before the planning and zoning commission and county council before action could be taken.

Councilman Vance Phillips, R-Laurel, disagreed with a moratorium. “I know the law doesn't matter to you,” he told Cole. “But we don't want to end up in court. To many it's a benefit going up instead of building out. Those arguments will be made in public hearings. There is not a rush of applications for 60 feet.”

He said a knee-jerk reaction has previously landed the council in court.

Cole said he wanted a line drawn quickly to halt any projects in the near future. “Ninety-nine percent of people thought 42 feet was the limit, and now the game has been changed,” Cole said, adding he welcomed a debate on the issue, but he also wanted a moratorium in place during the debate. “It's done all the time,” he said.

Cole said for 40 years everyone was under the assumption that 42 feet was the building limit in Sussex County. “Then an attorney walks in one day and says you've got a loophole when the intent has always been clear. It's ridiculous to think that [42 feet] was not the intent,” Cole said.

Robertson said the regulation was not a loophole but a section of county code. “You can't go back to what you wish it said,” Robertson said.

“This could have a major impact on development in the county,” Cole said, adding that his antenna would have gone up had he been aware that buildings were exceeding four stories. He said he was made aware buildings were exceeding 42 feet after reading a story in the Cape Gazette.

Robertson said the issue surfaced when the developer of the Vineyards at Nassau Valley questioned the code's maximum height regulations. He said a proposed hotel could be built at 60 feet because it was a permitted use in the C-1 zoning of the parcel, and it would have met the requirements of a public building.

“The code is clear as to the 60-foot height limit,” the attorney said. “It is not based on some stretched interpretation of the code but is instead based upon plain wording in the code,” he said.