Developer Rick Banning is requesting a zoning change and conditional use for increased density to build a 219-unit apartment complex on an 18-acre parcel off Plantation Road and MacKenzie Way.

The project would be the first to take part in the county’s affordable rental program by providing 32 units at below-market rents. For participating in the program, the developer received an expedited review and 20 percent bonus density.

The application is one of the most multifarious to confront county officials in some time. Not only is the parcel the location of a former illegal dump – now a state-certified brownfield – it may also be the site of a Nanticoke Indian burial ground.

Add in the strong opposition of nearby residents, particularly from the adjoining Eagle Point neighborhood, and traffic and environmental concerns, and it was enough to force Sussex County Council to take unusual action following a Tuesday, Sept. 22 public hearing.

The council voted to leave the public record open, but only for two weeks, allowing council members time to request information from other agencies.

“This might warrant an environmental impact study, and we’ve heard nothing from the school district,” said Councilman George Cole, R-Ocean View. “We need more time.”

Planning and zoning commissioners will decide on a recommendation to council at their Wednesday, Oct. 14 meeting.

The original conditional use, approved in 2004, allowed 80 condominiums, but it has since been voided per county code under the five-year sunset regulations.

The remediation process
One major area of concern expressed by the Eagle Point Coalition is remediation of the brownfield. Mary Cox, coordinator of the coalition, said removal of solid waste would be the only acceptable alternative; capping was not acceptable.

Doug Seavey, an environmental engineer with J.C.M. Environmental, who was not at the planning and zoning public hearing, explained the remediation plan would include the excavation of as much waste from the site as possible.

He said no construction would take place on buried material.

J.C.M. Environmental would carry out the work outlined in the remediation plan once it was approved by the Department of Natural Resources and Environmental Control (DNREC).

On the question of responsibility, which was raised during the planning and zoning hearing, Seavey had an answer. “The state oversees the work, and the state takes over liability,” he said. “DNREC takes this very seriously because they are accepting liability for any problems in the future.”

Seavey told council the brownfield remediation process with the proposed applications is the only way the site would ever be cleaned up.

“It’s not one of the state’s priority sites for cleanup; the state does not have money for cleanup,” he said.

He said in a 2008 environmental survey of 17 test pits, methane gas was detected in three pits, and carbon dioxide was detected in 12 pits, all tied to the breakdown of organic material on the site.

He said the remediation plan would include expelling methane through vents placed above roof level.

Glenden Jackson, who has lived in the area all his life, said his uncle owned the parcel when it was a borrow pit, known as Jackson Pit. When it was closed, it became an illegal dump, as well as a permitted area for disposal of construction debris. Material was dumped at the site for at least 30 to 35 years.

“No one has any idea what is dumped there,” he said.

He said the long list includes household garbage, vehicles, batteries, appliances, building materials, concrete, asphalt, sludge and even raw sewage. He said motor oil was routinely sprayed on the dirt road, MacKenzie Way, leading to the site.

Need for rental housing
Dennis Schrader, attorney for the developer, acknowledged some serious concerns have been raised. “Some we agree with, and some we dispute,” he said.

He reiterated that everything possible would be done to clean up the site. He said when he walked into the hearing, he saw an Eagle Point resident holding up a sign that he didn’t want his children living on a toxic dump.

“We don’t either, and for that reason we have brownfield legislation to see that sites are cleaned up,” Schrader said.

Schrader said the parcel is in a county-designated growth area, and the project received a letter of no objection from the state planning office.

James Willey Jr., an engineer with George, Miles and Buhr, said there is a demonstrated need for rental housing in eastern Sussex County, and the county comprehensive plan identifies a need for workforce housing.

He said the 18-acre parcel is not in an area of concern, a possible annexation area, on protected lands, or in a wellhead or excellent recharge area.

Cole, who is a Realtor, questioned the need for high-density rental housing. He said people would always choose lower density housing when given a choice.

Linda Smith, a multi-family housing consultant, disagreed with Cole. She said people who are looking for rentals would prefer to live in a high-density, professionally managed complex with amenities.

Opponents offer conditions
Although those in opposition provided testimony on concerns relating to the rezoning process, existence of a Nanticoke Indian graveyard, environmental and traffic concerns, the opposition’s case was encapsulated in the testimony of one person, Eagle Point resident Dale Houck.

Houck outlined 11 possible conditions to be placed on the approval of the application.

Those included the following:

• The developer maintaining a systematic monitoring program of nearby private wells and public water supply

• Removal of all solid waste material

• No street or sidewalk interconnectivity with Eagle Point.

• Reduction of impervious cover in the design plan

• A new traffic-impact study taking into account the new design plan

• An archeological study of the property before construction to determine any Nanticoke Indian burial sites

• Reduction of the density back to the originally approved plan for 80 units plus any units in the county rental program to conform to the density and character of neighboring communities

• Assurance that the U.S. Army Corps of Engineers has released the property from its jurisdiction over wetland.

• A thorough contaminant-testing program, in conjunction with DNREC, to include water and soil sampling to form the basis for the brownfield remediation plan.

Questions on density
Mike Tyler, president of Citizens Coalition, said his organization is opposed to the rezoning and conditional-use applications. “This is probably the highest density, not in a commercial district, you have ever been asked to approve,” Tyler said. “You would be going against what is established for density by other councils.”

With the new applications, and the bonus density for participation in the county’s affordable rental program, the density of the project would be 11.8 units per acre. “That’s consistent with other projects in Delaware, and it helps the developer reduce costs,” Willey said.

Opponents argued that the increased density is out of character with existing subdivisions and would add to existing traffic problems.

Russell Huxtable, a resident who lives one mile from the parcel, said most residents in the area are not opposed to the original application.

“If this project were reintroduced with AR-1 zoning with conditional use and the bonus density of 20 percent for a project of 88 units, then I believe most of the people here tonight would agree with a reduced-density design that offers more open space,” Huxtable said.

The proposed apartment complex is projected to add an additional 1,700 more vehicle trips per day to Plantation Road.

Derrick Kennedy, traffic consultant with Orth-Rodgers working for the applicant, said improvements would take place along Plantation Road and at several key intersections in the area. Some of those improvements would be paid for by the developer, such as the entranceway to the project, others would be paid in part by the developer and some are DelDOT-funded projects. Councilwoman Joan Deaver, D-Rehoboth Beach, said any road improvements with DelDOT funding involved are hopeful at best. “Some may happen and some may not happen at all,” she said.

Among the proposed improvements are three new traffic signals on Plantation Road at Shady Lane, Robinsonville Road and Postal Lane.

Lawrence Lank, director of county planning and zoning, said petitions in opposition have been received from residents in the Eagle Point and Henlopen Landing developments. In addition, Harvey Morris, chairman of the administrative council of Israel United Methodist Church, read a letter from the church in opposition to the project. “It’s unwise to add to the traffic congestion,” he said.