Council debated the number of units, finally deciding on a 3-2 vote to reduce the project by 48 units from the original 216-unit request.

Councilwoman Joan Deaver, D-Rehoboth Beach, and Councilman George Cole, R-Ocean View, had requested a more substantial reduction of at least 120 units.

Supporters of the project said their paramount reason for approval was to clean up the site, a former dump known as the Jackson Pit. Cleanup is one of the conditions for approval and construction.

“The community will be far better off because of the cleanup,” said Councilman Sam Wilson, R-Georgetown.

“The Department of Natural Resources and Environmental Control (DNREC) will not allow them to build on this site until it’s cleaned up.”

Voting with Wilson to approve the conditional use for the project were Council President Vance Phillips, R-Laurel, and Councilman Mike Vincent, R-Seaford.

Opposing the conditional-use application at the Tuesday, Feb. 23 meeting were Deaver and Cole.

“This is the worst conditional use in a MR district I’ve seen in 20 years on council,” Cole said. “Most jurisdictions would not even allow this. Not every piece of ground out there is suitable for development.”

In a 4-1 vote on the zoning change, Cole joined Phillips, Wilson and Vincent in support of the change from AR-1, agricultural-residential, to MR, medium-density residential. Deaver voted against the rezoning.

Vincent said among the 17 conditions placed on developer Rick Banning is one for protection of two existing nearby cemeteries and further protection should any other gravesites be found. Possible disturbance of gravesites was one of the main objections by representatives of the Nanticoke Indians and nearby Israel United Methodist Church.

Council voted to change two conditions placed on the developer by planning and zoning. The word “rental” was placed in one condition to better define the type of housing being built, and council voted 3-2 to increase the number of units from 160 to 168, which was six more units than recommended by the planning and zoning commission.

Other conditions include the construction of a 50-foot landscaped buffer and 6-foot fence between the project and adjoining Eagle Point subdivision and a 40-foot landscaped buffer from the delineated boundaries of any cemeteries.

The project’s amenities, a pool, clubhouse and playground, must be constructed within one year of issuance of the first building permit.

Density at heart of debate

Deaver and Cole pushed for a reduction in the density of the project, but were defeated, 3-2, on two tries. Deaver first made a motion for 80 units, as was originally approved for the project more than five years ago.

She then proposed 96 units, which was proposed by Planning and Zoning Commissioner Mike Johnson. The rationale for allowing 96 units was to permit 80 units as originally approved plus a 20-percent density bonus, or 16 more units, for participation in the county’s affordable rental housing program.

Wilson accused Deaver of using subterfuge to kill the project by requesting 80 units.

“I think I have enough business sense to know the developer would never build the project at 80 units. It’s just an excuse to turn it down,” he said.

The project will be the first to take part in the county’s affordable rental housing program. By allowing 30 percent of the total units to be included in the program, the developer was given a 20-percent density bonus and an expedited review.

Under the approved applications, the developer will have to provide about 50 units to be rented by Sussex County residents based on income and not market price.

Deaver took no solace in the fact that the county’s rental program is getting off the ground. “I’m ashamed this is our first. I’m ashamed that people will be living on a dump,” she said.

Cole said the project will have a density of nine units to an acre. Without a conditional use, the maximum allowable number of units in an MR district is just over four units.

“This is a travesty for the MR zone,” Cole said. “Doing this is a major deviation from code.”

“This is not an ideal site,” Deaver said. “It reflects on the reputation of council to allow that number of units on that site.”

Deaver said she didn’t understand how planning and zoning commissioners said the project was compatible with other housing in the area. “There is nothing close to this along Plantation Road,” she said. “I know because it’s my neighborhood.”

Opponents disappointed

The project created a wave of opposition that united three nearby homeowners associations, Israel United Methodist Church, the Nanticoke and Lenape Indian tribes, Rep. Pete Schwartzkopf, D-Rehoboth Beach, and the City of Lewes.

Mary Cox, spokeswoman for the Eagle Point Coalition, said the real density is not nine units per acre but 16 units per acre because the plans contain 10 buildable acres, taking out parking, open space, buffers and stormwater management areas.

She called that an unprecedented and uninhabitable condition, and hinted the group is contemplating legal action.

Council decisions can be appealed to the Court of Chancery.
“The Eagle Point Coalition is disappointed, but we’re not ready to let such an injustice come to fruition,” she said.

Correction: The print version of this story incorrectly stated the project included 50 affordable housing units. The correct number is 26 units, or 15 percent of the total units.