Sent Monday, Oct. 19, to Sussex County Council President Vance Phillips from Lee Ann Walling, chief of planning for the Department of Natural Resources and Environmental Control (DNREC), the letter states: “DNREC’s primary concern is that the development as proposed would adversely affect the Lewes region’s available water supply and water quality, which combined would impact public health in the area.”

It restates concerns expressed during the state’s Preliminary Land Use Service (PLUS) reviews in March 2007 and April 2009, Walling said. “We wanted to refocus on the PLUS report and make sure people understand the impacts,” she said. Most of the Village Centre would be in the City of Lewes’ well field, Walling said.

However, information contained in the letter does not reflect the current public record as presented by the developers at two public hearings.

Dennis Schrader, attorney for the applicants, said the council should not be permitted to even look at the letter since the record has been closed. “It looks like they are trying to influence the outcome of the vote,” he said. “Whether you are for or against this application, we have tried to do everything right and use good science.”

Calls to the county legal staff to answer the question about putting the letter on the public record were not returned.

The council is scheduled to vote Tuesday, Oct. 27, on the rezoning of 46 acres from AR-1 to CR-1 along Kings Highway and Gills Neck Road. If approved, the rezoning would pave the way for the 320,000-square-foot Village Centre shopping and office complex. Sussex County Planning and Zoning has recommended denial of the application. The public record was closed following the Sept. 29 council hearing.

Frank Kea, spokesman for LT Associates, said the letter is one of the most unethical things he has ever seen. “Trying to influence a vote from a state agency is real, real bad politics. I’ve never seen anything like this,” he said.

Kea said all Walling had to do was pick up the phone and call the county planning and zoning office to see if anything had changed since the April PLUS review. “She didn’t bother to check. The letter is incorrect in every point. We responded to DNREC’s PLUS comments and said we would comply,” he said.

Not based on current record

Concerns expressed in Walling’s letter are not based on the current record as presented during two public hearings before county officials when the LT Associates team responded to the recommendations contained within the PLUS report.

Walling wrote the developer estimates impervious cover at 59 percent while the PLUS report recommended the impervious cover be reduced below 50 percent.

In testimony before county officials, Frank Kea, LT Associates spokesman, said the project has been altered, reducing impervious cover to 50 percent. Walling also wrote that DNREC urged the developer to adopt green infrastructure best-management practices, such as pervious surfaces. “These recommendations were not integrated into the project,” she wrote.

Kea and engineer James Willey have both testified that green technology, including infiltration swales, rain gardens, sand filters and pervious pavers would allow the same amount of or more surface water to percolate into the shallow aquifer as current farming practices allow.

In addition, Kea said, with the abandonment of two agricultural water wells, far less water would be drawn from the aquifer than is now drawn.

Walling said she was unaware of changes to the proposal as it was presented to county officials based on recommendations from the PLUS report.

“The developers have not set down with us as an agency,” she said.

Walling also said that the issue is really about a rezoning and not a site plan. “The proof will be in the actual site plan,” she said. “And I think we will still get a crack at the site plan if the area is rezoned.”

She said it is her understanding that the Village Centre site plan would be required to come back through the PLUS process. Connie Holland, director of the Office of State Planning Coordination, could not be reached for comment.

The developers were unaware that another PLUS review was possible.

An unusual step for DNREC

Walling called the letter an unusual step for the agency to make at this late hour in the process.

“The secretary has had a lot of interaction with the Citizens Coalition and the county council, and he is trying to build some relationships,” she said. “He wants to ensure the people of our concerns. We realize it’s too late to take a position on the rezoning. We are concerned about the resource and the impact on the city’s drinking water.”

Walling said the agency is also concerned about the cumulative effect of development in the area.

Flaws in the process

John Mateyko, spokesman for Managing Growth Around Lewes, said the information in the letter was all contained in the PLUS report, but it was summarized into a few paragraphs. Even so, he said, the letter shows flaws in the PLUS process.

“The state was negligent by stating no objection because the record clearly showed some objection,” Mateyko said.

Mateyko said the residents of Lewes paid for the DNREC letter. “The citizens bought that letter with their Save Lewes advertising. That letter cost Lewes $15,000,” he said. “The sad fact is in Delaware you don’t get protection under the law unless you do this. Land-use protection has become totally politicized. “You only get protection if you scream the loudest.”

He said the $15,000 covered the cost of the Save Lewes yard signs and advertising against the application in the Cape Gazette and on the radio. “It’s not just this case, although this is the poster child. Land-use planning in Delaware is broken,” he said. “We can have growth. It needs to be scaled, in character, quantitative, in-fill, and you can make money at it,” he said.

The scheduled vote on the application is coming one month after the council’s public hearing. The council is under no deadline to make a decision on the application; the original 2008 rezoning application was not placed on the agenda until nearly nine months after the public hearing.

But Councilwoman Joan Deaver, D-Rehoboth Beach, said there was no reason to delay a decision.

“Why not?” she responded when asked why she requested the matter be placed on the agenda.