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“We just want our buffer back,” say Jewell and Jeffrey Marsh, who have repeated that statement so many times they are sick of it.
The couple, who maintain a 20-acre horse farm off Stockley Road near Lewes, say they are reaching their breaking point. They have been waiting for the county to take action ever since March 2006, when a 30-foot swath of mature trees along their property line was removed. The trees stood as a buffer between their property and the Heron Bay housing development on Beaver Dam Road.
Their long wait may be over in the coming week. Sussex County Administrator David Baker said a new plan worked out by the developer, state forester, county and Sussex Conservation District will be unveiled within a few days.
“We have worked hard to get everybody on the same page,” he said.
Buffer on first plan
In the meantime, the newest wrinkle in the Marsh’s battle to maintain a forested buffer is the apparent revelation of two sets of Heron Bay site plans – the original plan, filed in 2003, and the set that was approved by county planners and by the council in 2005.
Shane Abbott, assistant director of county planning and zoning, confirmed that the original preliminary site plans for the development included a 30-foot forested buffer along the Marsh property line, as required by county development ordinances.
“But those plans were changed, which is normal for preliminary plans, and were not presented during the public hearings,” he said.
When the project was approved by county planners and by the council in the spring of 2005, the only forested buffer shown on the plans is along the R.L.W. Morris family land in the eastern quadrant of the site plan.
The Cape Gazette has obtained a letter dated April 14, 2003, from Bryan Hall, who was then a community forester with the Department of Agriculture, to Abbott, which confirms the existence of a forested buffer at one time during the process.
In the letter, Hall writes: “The forested buffer as defined on the site plan date March 3, 2003, is sufficient to meet county code requirements. A forest buffer should be maintained for those pre-existing residential properties.”
Based on the letter, information presented to Sussex County Planning and Zoning and all other information presented in 2003, the Marshes presumed plans were in place for a 30-foot forested buffer along their property line – in perpetuity.
“We never thought there would be a problem, and we would always be protected by a 30-foot buffer,” Jewell said.
“I have said all along that there are two sets of plans – there is something fishy going on,” Jewell said.
The set of plans she and her husband based their actions on, filed in the spring of 2003, showed a 30-foot forested buffer along their property line, in addition to a 4-acre stormwater retention pond for the Heron Bay development.
But the forested buffer called for in the plans has been cut down and replaced with an 8-acre retention pond – one of two in the development. Samuel Frabizzio, attorney for the developers, contends the site plan with the 8-acre retention pond as a buffer was approved. He also said that a 30-foot forested buffer is not required because there are no building lots in Heron Bay within several hundred feet of the Marsh property line.
Frabizzio’s interpretation of the buffer requirement is backed up by Abbott, who said county planners interpret the buffer ordinance the same way.
Abbott said the planning and zoning commission has not required buffers in areas such as the Marsh property because their land does not abut residential lots in the Heron Bay development.
The Marsh property is bordered, instead, by one of the development’s ponds. “This is the way it has been enforced,” Abbott said. “Now we are trying to get that ordinance changed.”
Baker also confirmed that interpretation of the ordinance. “The Heron Bay issue is an example of the concerns we have with the ordinance,” he said. “The current definition doesn’t exclude stormwater ponds within a forested buffer and on occasion, planning and zoning has interpreted the ordinance to allow stormwater ponds within the 30 feet,” Baker said.
“Often times people don’t see this as a problem, but this is atypical agriculture use,” he said.
New ordinance pending
County officials say the definition of a forested buffer is too vague, so they are rewriting the ordinance.
Baker said the new ordinance could be presented to the county council, and eventually planning and zoning, at the Tuesday, Sept. 18 meeting. “They can choose to introduce it or request additions,” he said. It will eventually be discussed at a public hearing.
The developers are prepared to provide a forested buffer on the western boundary of the Marsh property.
Today, only a thin line of bushes and weeds separates the Marsh farm from the retention pond and the Heron Bay development.
The county’s original plan to remediate the problem, which included replanting trees along the shoreline and bank of the stormwater retention pond, was met with little support.
Marsh said a state forester who looked at the plan said the trees would not survive on the bank of the pond.
She said they would prefer that the shoreline and bank be restored to its original state and the woods be replanted.
Jessica Watson, manager of the Sussex Conservation District, said the conservation district approved the stormwater management plan for the development without a forested buffer along the Marsh property line. But, with or without a forested buffer, the conservation district’s purview in the approval process is limited to stormwater management.
She said if the county and developer decide to add trees along the retention pond adjoining the Marsh property, the conservation district would have to approve any plan involving modifications to the pond.
Marsh said legal action would be their last resort. “That would only hold this up longer if we go to that point. It could go on forever,” she said.
“To us, it doesn’t matter who is responsible. They just need to shut down the operation and get this fixed,” she said.
Contact Ron MacArthur at ronm@capegazette.com
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