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Dewey Beach Commissioner Marc Appelbaum wants the town to closely examine its comprehensive plan before it passes a new zoning code and makes the plan law. His appeal threatens to delay approval of the zoning code by the end of January, as required by the state.
“We need to get our arms around what the comprehensive plan means before we adopt the zoning code and make it law,” Appelbaum told his fellow commissioners during a Saturday, Nov. 1 workshop. The comprehensive plan does not have the force of law today, he said.
But state officials say it’s too late to delay having the plan become law because the plan has had the force of law since it was certified by the state on July 29, 2007. “When certified, the comprehensive plan has the force of law that governs the town and its conduct,” said Connie Holland, director of the Delaware Office of State Planning Coordination during a Wednesday, Nov. 5 interview.
Issues regarding whether the comprehensive plan is binding upon the town were raised when Commissioner Rich Hanewinckel asked if Dewey has any current policies and procedures that are counter to the plan.
Commissioner Diane Hanson responded by saying that if the town doesn’t like something in the plan it can be changed by ordinance. “Ordinance trumps comprehensive plan,” Hanson said.
Commissioner Marty Seitz said the comprehensive plan is just recommendations, and recommendations can’t have the force of law.
Holland disagrees. The trump statement is inaccurate and the plan does not consist of mere recommendations, she said. Holland explained that the plan sets forth guiding principles the town must follow in enacting its ordinances.
A municipality must amend its comprehensive plan if it finds it has a need to enact an ordinance that is contrary to the plan, Holland said. Intending to use the plans as long-range tools, the Office of State Planning Coordination asks local jurisdictions to avoid modifying their plans for five years, if it is possible to do so.
Dewey Beach Planning and Zoning Commission member David King told the town commissioners that the town already adopted its comprehensive plan and is committed to everything in it. Addressing the possible delay, King reminded them the town is to adopt its zoning code by the end of January, that being 18 months after the state certified the plan.
Mayor Dell Tush said the town thought there was a state mandate requiring the town to adopt a comprehensive plan, but later found out there was none.
Holland said that four of Delaware’s 57 municipalities do not now have a certified plan, but Magnolia, Hartly and Kenton are in the process of completing theirs. Only the town of Woodside is not creating a plan, she added. Whatever the circumstances, when a municipality’s plan is certified by the state it then has the force of law, Holland said.
In a Nov. 5 interview Appelbaum said he still has questions regarding the legal effect of Dewey’s comprehensive plan. He specifically questions the plan’s use of recommendations. He suggests that the town’s current zoning ordinance, though at odds with the comprehensive plan, is the law and takes priority until after the new zoning code is passed.
The comprehensive plan is a mechanism, a blueprint, Appelbaum said. Until the plan’s recommendations are followed or the plan amended, he questions whether it has any legal effect.
For details, goto www.townofdeweybeach.com
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