Lewes Planning Commission stumbling

April 11, 2014

The Lewes Planning Commission must process Preliminary Consent for the Harbor Point subdivision correctly because Preliminary Consent is a prerequisite for later annexation of this land. So far, procedural and substantive errors have plagued the commission’s actions, and the commission has been silent about addressing them.

The recent Cape Gazette article about the commission’s April 2 public meeting grossly simplified the issues. Public comments centered on adherence to law: The commission must follow its own bylaws for scheduling agenda items and have a complete Initial application and other required reports meeting city code requirements before scheduling a subdivision public hearing and formal review

The subdivision and its R-3 zoning agenda item for presentation and consideration at the commission’s Feb. 19 public meeting violated the commission’s own procedural posting bylaws. If the building official must review it, he must send the item to the city manager’s office 30 days prior to posting on an agenda. The subdivision revised plans and engineer report were received no earlier than Feb. 4; yet the agenda item appeared on the agenda published Feb. 12 for the meeting on the 19. Simple math shows the commission violated its own procedural rule.

The developer has told the city it wants a speedy process and even provided a proposed timeline. Cui bono as the Godfather asked: Was the procedural violation for the benefit of the developer or Lewes citizens?

State law dictates “at annexation” Lewes “shall by ordinance rezone the area being annexed to a zoning classification consistent with the adopted comprehensive plan,” in this case, lots of two to 10 acres for this environmentally sensitive area.  Further, if any subdivision requests a change in zoning, i.e., a “rezoning,” city code mandates the subdivision hearing and review take place only after rezoning is determined. The commission was to consider the R-3 zoning at its Feb. 19 public meeting, but refused to discuss it even after a citizen stated the requirement publicly. The commission has been informed the R-3 zoning with 5,000-square-foot lots is not consistent with the comprehensive plan. It is only 5.7 percent of the minimum comprehensive plan lot size of two acres.

A commissioner stated land comes to the city as a “tabula rasa,” i.e., with no zoning, at annexation, and it isn’t rezoned, only zoned. The cited state law says otherwise, as does common sense: The land loses its Sussex County zoning and is rezoned to be consistent with the comprehensive plan at annexation.

Completing the initial application also requires the commission to address subdivision of a parcel before a subdivision hearing and review. This 108-acre subdivision will be subdivided from a 635-acre parcel, and the developer intends to subdivide the 108 acres into two parcels. The commission has said nothing about subdivision.

The developer hasn’t indicated the status of a state-required review. State review is required before subdivision hearing and review if zoning is inconsistent with a comprehensive plan. Mr. Moore’s comments were on point: The Lewes Parks and Recreation Committee report, necessary for subdivision hearing and review, fails to satisfy code requirements.

The commission gave no cogent responses to these concerns. In correspondence with commission counsel, he merely stated disagreement with them without any rationale. At the meeting, counsel seemingly opined just the existence of a report was sufficient. Is content irrelevant?

Commission counsel stated he could provide a written legal opinion for these issues under attorney-client privilege if the commission requested it. The Freedom of Information Act requires a public process since there is no pending or potential litigation. The legal reasons for rejecting citizens’ concerns should be stated in a public forum on the record. The commission should not deign to hide behind the cloak of attorney-client privilege.

These are important issues and go to the heart of good, open government. Lewes has involved, knowledgeable citizens, and the commission owes them answers to their questions about these alleged serious procedural and substantive errors.

The commission should weigh the comment by a sitting Chancery Court master at the meeting: The commission is traveling a road that could make its decision “voidable ab initio” (from the beginning, as if never made). That is a waste of taxpayer money and effort.

Yet despite the public input and warning, the commission passed a motion for scheduling the public hearing. Is that motion unwise right now? Does the commission’s conduct create an adversarial situation between it and the citizens? Why rush? Cui bono?

Gerald A. Lechliter
Colonel, U.S. Army (Ret.)

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