Sussex council to tackle height ordinance

Council discards moratorium; could amend zoning code
These are the first two buildings in unincorporated Sussex County to exceed 42 feet since the inception of zoning. The buildings, part of The Vineyards at Nassau Valley project along Route 9 near Lewes, have retail space on the first floor and apartments on the top two floors. BY RON MACARTHUR
October 18, 2013

Sussex County Council will not enact a moratorium as it debates building-height regulations. County officials have introduced an ordinance that changes wording relating to the maximum height buildings can be constructed in unincorporated areas of the county.

Enacting a moratorium requires the same public hearing process as amending an ordinance. “It doesn't make a lot of practical sense,” said assistant county attorney Vince Robertson. “By nature, a moratorium is contentious and can lead to litigation. It's better to follow the ordinance process.”

The question arises after developers filed plans to build 60-foot buildings based on wording in county code that Councilman George Cole, R-Ocean View, says is a loophole and has been misinterpreted. County lawyers contend the action is not a loophole and is provided for in county code.

Buildings in the county have long been limited to 42 feet, but wording in the code permits “semi-public” or “public buildings” to exceed that height up to 60 feet tall. The proposed amended ordinance removes the words “semi-public” and “public.”

The amended ordinance would better define buildings that could be built up to 60 feet including buildings owned by a political subdivision of the state of Delaware, the federal government or hospitals, institutions and schools when permitted in a zoning district. Churches and temples could be constructed as high as 75 feet.

All buildings exceeding 42 feet must have side and rear setbacks increased by at least one foot for each one foot of additional building height. For example, a building at 60 feet tall with a 10-foot side-yard setback would be required to have a 28-foot setback.

Cole, who brought up the issue up at the Oct. 8 meeting, said he contacted former County Administrator Joe Conaway who told him the interpretation during his administration in the 1970s and mid-1980s was that buildings were restricted to 42 feet.

“I can't remember it changing,” Cole said. “It worries me that one attorney can walk in and it's all changed.”

“What the ordinance says might be a good idea,” said Councilman Vance Phillips, R-Laurel. “There is a school of thought out there that it's better to build up and not out.”

Phillips added it's not fair to compare the county's 60-foot limit to places like Ocean City, Md., where buildings tower 200 to 300 feet tall.

“Why are you so dead-set against 60 feet?” Councilman Sam Wilson, R-Georgetown, asked Cole. “Who would want to do that anyway?”

Two hotels along Route 1 have also submitted site plans that exceed 42 feet, said Lawrence Lank, director of county planning and zoning.

Robertson tried to cut off the debate. “This is a discussion for public hearings when we get to the hearing stage,” he said.

Councilwoman Joan Deaver, D-Rehoboth Beach, introduced the ordinance to be placed on a future planning and zoning and council agenda.

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