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How wetlands should be considered when computing housing density and open space are questions that put developers and county officials at odds. A current case under review by county planning and zoning could set a precedent for future land-use decisions.
Planning and zoning commissioners say Deep Branch Village, located on 202 acres between Georgetown and Millsboro, should be downsized by 35 lots because of its potential impact on the environment; developers say the loss of 35 lots is too much economic impact.
The impasse has resulted in an appeal of the lot-reduction condition. It has also forced the commission to question its own power in making land-use decisions. Commissioners deferred action on the appeal at their June 18 meeting.
“Can we protect the environment and neighbors, and does the law give us the ability to do that?” Chairman Robert Wheatley asked. He also asked, without an answer, if the commission has any leeway in decisions involving density, wetlands protection and potential effects on surrounding areas.
The project was approved May 14, with the stipulation that it be downsized from 298 lots to 263 lots. Five lots have been deleted from the original design of 303 lots to comply with another condition.
Jim Fuqua, an attorney representing developers Deep Branch Road LLC, said downsizing is not feasible.
“It’s not fair or justified and it affects the economic feasibility of the development,” Fuqua said. “We are not aware of any basis to reduce density by subtracting the federal nontidal wetlands.”
He said by his computations, under cluster development regulations, 1.5 lots per acre are permitted, which would allow 298 lots in the development.
Commissioner Michael Johnson, in making the motion to reduce the lots, said 40 area residents turned out at the March 27 public hearing to express concerns about the proposed development, with four in favor. Those concerns included the rural nature of the surrounding area, inadequate roads and the potential impact on the extensive wetlands in the area. He noted the proposed development is located in a Level 4 area, which is designated by the state as an area that will not receive funding for infrastructure.
With the reduction of five lots, the redesign of the development is better, said Kevin McBride, a landscape architect with Morris & Ritchie Associates. He said 85 percent of the lots are adjacent to open space. “You may have another community where you do not have adequate open space, buffers and setbacks, but that is not the case here,” Fuqua said. “This is a case where the total permitted density is OK.”
Fuqua said the development would contain more than 50 percent open space and adequate buffers around wetlands.
Commissioner Rodney Smith said the project presented planners with a conundrum. “It was a good plan, but not in a good location,” he said. “I’m not sure I would have voted for the subdivision without some reduction in density based on comments at the public hearing.”
Debate continues over densite, wetlands, open space
According to county code, approval of subdivisions is contingent on “minimal use” of wetlands and floodplains.
The word minimal is probably not the best word to use, especially when lawyers get involved.
“Some are wanting to argue that point now,” said Lawrence Lank, director of county planning and zoning.
All development plans presented to the county must clearly show all state and federal wetlands. State wetlands are established tidal waters already mapped by the state. Federal wetlands, which include nontidal waters, also include Clean Water Act Section 404 wetlands.
County officials do not allow building lots in state wetlands. In rare cases, permits are granted for walkways and other access devices in federal wetlands.
By county ordinance, developers are required to comply with standards, depending on the type of development, involving housing density and open-space acreage.
Developers are not permitted to include state wetlands acreage when computing how many units can be built in a project. Federal wetlands acreage can be included to compute density in some subdivisions.
“There can be no encroachment on wetlands – they must be left undisturbed,” Lank said.
Technically, the county has no jurisdiction over the actual wetlands areas – that’s left up to the state and federal governments. The county has a regulation in place for a 50-foot setback from all wetlands areas, to act as a buffer.
“And in some cases, all or part of that setback can be used to calculate open space,” Lank said.
Using wetlands as open space is a common practice among developers in Sussex County – even though the land is off limits.
When certain percentages are required, developers grab every square foot they can, and wetlands – and even some stormwater management ponds - are fair game when computing open-space percentages.
Lank said not everyone buys into using wetlands and stormwater management ponds as open space. A new ordinance, soon to be introduced, on open space definitions and regulations is sure to start a chain reaction of debate.
“The key is that the ordinance does not mention open space used for recreation,” he said. “The new ordinance is sure to address passive and active open space.”
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