Citizens dispute board of adjustment procedures

Delaware Coalition for Open Government members say Sussex County residents are fed up with the operation of a key agency in county government – the Sussex County Board of Adjustment.

In response, Sussex County Councilman George Cole, R-Ocean View, wants to air out issues during a joint workshop with council, the board and the planning and zoning commission.

“We are hearing issues with the board seemingly on a weekly basis,” Cole said.

Cole asked County Administrator Todd Lawson to schedule the workshop before the end of the year. The veteran councilman is retiring this year after serving 32 years on council.

“There are a couple guys I want to tell them something. I want to do it public,” Cole said.

One of those issues Cole is referring to has been brought to council's attention several times.

Earlier this year, council passed a series of code amendments in an effort to reduce the number of variances heard by the board, including new setback requirements for nonconforming lots.

Paul Rieger, a Georgetown-area resident who follows board action, has complained to council that this type of variance still surfaces and the board's actions are inconsistent.

Coalition outlines board issues

Cole's request comes after county officials received a letter from the Delaware Coalition for Open Government containing four issues the group says prevent the board from being truly open to the public:

• Accessibility to the board’s key documents in a useable format

• Lack of public input to the board's operation during a meeting

• Lack of an administrative mechanism for opponents of cases brought to the board to challenge board decisions

• Failure to properly administer oaths and affirmations in obtaining testimony at hearings.

Before the board considers an application closed, it must approve findings of fact, which can take up to 60 days.

The coalition notes that when the findings – which document the board's decisions – are approved, no indication of cases to which they pertain is included. In addition, there is no discussion of the findings, and they are not made available to the public prior to a meeting.

According to the letter, the findings are not posted online; only hard copies are available at the county planning and zoning office.

“Why they are not posted online is a mystery,” the letter states.

The coalition contends while the public can comment on specific applications, it cannot comment or provide suggestions on how the board operates. “Nowhere in the rules of procedure does it explain what this process looks like or how the public is to take action,” the letter states.

According to board procedures, applicants have the option to file for a rehearing within 10 days of a decision, but the public's only recourse is to file a lawsuit in Superior Court within 30 days of the approval of the findings of fact. “The two-tiered way of handling challenges to board decisions is neither fair nor equitable to opponents,” the letter states.

The coalition contends there is a conflict between the board's rules of procedure and the county's zoning regulations. The board's Rule 2 requires the board attorney administer the oath for those offering testimony; the code requires the board chairman or acting chairman to administer the oath, according to the coalition.

“The consequence may be that the board has not been in compliance with county code and cases where the attorney administered oaths and affirmations may not be valid,” the letter states.

Keith Steck, who helped write the letter, said people want the board to follow its procedures and regulations. “A lot of people are fed up with the way things are going on,” he said. “They don't feel they have any input on the way the board operates. That's a problem. It is a public body.”

Conflicts between the board's procedures and county code should be addressed, he said.

Steck also said county council must assume more of an administrative role in the board's operation.

“You go to county council and they say they don't have control over the board. That's passing the buck because they do have control. They passed the board's regulations and appointed these people,” he said.

The letter was signed by 34 coalition members.

What is the board of adjustment?

According to the county website, the Sussex County Board of Adjustment is a five-member panel, as stipulated by Delaware law, appointed by Sussex County Council to hear requests for variances or special-use exceptions to county code. Members are appointed for three-year terms. The board functions as a quasi-judicial body, hearing individual cases brought before it. The board of adjustment meets two Mondays a month in open session.