Sussex County Council is mulling a decision – for the second time – that could pave the way for the largest shopping center in county history.
The controversial rezoning application is not on the Tuesday, April 24 agenda, which means it will tentatively occur Tuesday, May 1, ahead of a court-imposed 30-day deadline, said County Administrator Todd Lawson. He said council had previously scheduled a budget workshop Tuesday, May 8, the closest date to the May 10 deadline.
During a nearly six-hour April 10 public hearing, council heard conflicting testimony adding to a public record that includes a stack of documents two feet high.
Council voted 4-1 on April 12, 2016, to deny a rezoning request filed by TD Rehoboth LLC, a Timonium, Md. developer, from AR-1, agricultural-residential, to CR-1, commercial residential, for the 114-acre parcel.
The developer has submitted plans for an 850,000-square-foot shopping center.
The developer filed suit June 8, 2016, in Chancery Court against council, stating three council members who voted against the application made statements not supported by the public record.
On Aug. 11, following briefings and oral arguments, the court granted the plaintiff's motion and ordered a new public hearing.
Farmers worried about future
Two farmers, who live adjacent to the parcel, spoke about the effects the center would have on their properties and the Great Marsh, which acts as a buffer between their farms and nearby Delaware Bay. Both farms date to the late 1800s.
Kenny Hopkins, who lives directly behind the proposed site, made an impassioned plea to council.
“I was raised to appreciate farming. We must preserve our farmland,” he said. “I'd like to pass this family farm down to future generations, but now I'm concerned I will not be able to do that. If this is passed, my life will change forever.”
Hopkins said under the proposed plan he would have to share the access road to his property with delivery trucks going to the proposed shopping center.
John Vincent, whose land has been in the agriculture-land preservation program since 1998, said one of his major concerns was runoff from the acres of impervious surface from the proposed center. He said the runoff would cut channels through nearby properties and eventually find its way to Roosevelt Inlet, which is one mile east of the parcel.
“It will fill in the inlet. Where will they get rid of the salt-infused mud? Who will pay the bill?” he asked.
He said that bill would range in the millions of dollars.
“This will impact businesses in Lewes; it's not just agricultural impact,” he said.
He said council needs to contemplate a long list of other unintended consequences. He said farmers' access to their properties would be impeded, and getting machinery out onto congested roads would become harder and endanger farmers.
In a letter to council, Delaware Secretary of Agriculture Michael Scuse opposed the project, saying approval of the application would significantly impact farms in the surrounding area, increasing the chances farmers will give up farming.
Scuse listed concerns including: odor complaints from farming operations; complaints of water mist drifting from spray irrigation systems onto cars and parking lots; noise complaints concerning farm machinery and low-flying aircraft involved in spraying operations; dust complaints from tillage and harvesting; increased water runoff into area streams and farms from the impervious surface; and challenges presented by increased traffic, including the inability to move farm equipment along and across Route 1.
Scuse said approval of the application would likely result in the loss of operations on area farms such as aerial chemical and seed applications due to the proximity of the shopping center.
“These constraints will hamper the surrounding farms' ability to make a profit, thereby increasing the likelihood that their owners will ultimately convert them to nonagricultural use,” he said.
Jim Fuqua, the developer's attorney, addressed the secretary's letter, reiterating that the 114-acre parcel was designated a growth zone in the county's 2008 comprehensive plan. “It could have been designated a rural area, but that's not what happened,” he said, adding council's decision to place the parcel in a growth zone on a future land-use map has the force of law.
“These Department of Agriculture concerns should have been addressed 10 years ago,” he said.
Property rights an issue
Fuqua said the owner of the parcel has a right to sell his land. “It's his 401k and retirement plan,” he said. “Both of the potential uses are protected – farming and commercial.”
Rich Holtkamp, a member of the Overbrook Town Center Coalition, said the group understands the property owner has rights under AR-1, agricultural-residential zoning, but his rights are restricted to what is allowable in an AR-1 district, which does not include large-scale commercial development.
“Your decision cannot diminish the property rights of others. We all have an implicit right to our quality of life,” he told council.
Overpass before development
Another major issue surrounding the application is traffic and road improvements along the Route 1 corridor.
Fuqua said a grade-separated interchange with overpass would be required at the Route 1/Cave Neck Road intersection before any construction could begin. “This would include a substantial developer's contribution to the project,” the attorney said.
In the original application, Fuqua said the developer would provide $8 million to the project. In the second hearing, he did not provide a figure.
Intersection improvements are part of the state's Route 1 Corridor Capacity Preservation Program. As projects move southward, construction at the Route 1-Route 16 intersection near Milton is expected to begin in summer 2020.
Public workshops have taken place on proposed improvements at the Route 1-Minos Conaway intersection, but no workshops are on the schedule for the Route 1-Cave Neck Road intersection.
Fuqua said the developer has three options: assume the total cost; wait until DelDOT does the construction; or enter into a public-private partnership to share costs, which is the preferred alternative for the developer, he said.
“This project would expedite construction of the road improvements,” Fuqua said.
Coalition provides reasons for denial
Holtkamp said the coalition has been working for three years to educate residents about the application and the possible consequences if rezoning were approved.
He said the group's website has received 18,000 hits and helped to generate an estimated 1,600 letters and emails to the media and county officials. He said a new petition presented to council contains more than 600 names of people opposed to the application.
The coalition offered council five factors to use for denying the application.
1. If the commercial rezoning is approved, the developer could build any combination of permitted commercial uses on the property.
Holtkamp said there is no guarantee what project would eventually end up on the parcel because everything allowed in a CR-1 district would be in play. “It's a shot-in-the-dark situation. What's certain is what's uncertain,” he said. “It's like buying a plane ticket without knowing where you are going.”
2. The rezoning is out of character with the zoning and the agricultural and residential uses on surrounding properties.
Holtkamp said the parcel is surrounded on three sides by farmland and existing businesses near the parcel are small operations on small parcels. “This application is not even close to being compatible,” Holtkamp said.
Fuqua said county officials need to plan for future commercial development in eastern Sussex because the commercial corridor along Route 1 from Lewes to Dewey Beach is nearly built out. He said the proposed site is the only parcel available for large-scale commercial development.
3. In Level 4 areas, the state promotes retention of the rural landscape and preservation of open space and farmland. The parcel's designation was changed from Level 3 to Level 4 by state planners.
Rich Borrasso, another coalition member, said the change was supported by the vast majority of residents who provided comments to state planners. “Based on this, the application should be denied,” he said.
Fuqua said the change occurred after the public hearings and should not be a factor in council's decision, but county attorney J. Everett Moore said council can consider the change as part of the record.
4. The parcel is subject to the state's corridor capacity preservation program, which requires any development must not increase traffic congestion.
Borrasso said according to state transportation records, traffic in the area around Route 1 has increased 16 to 18 percent since 2014. It's estimated the proposed center would generate about 2,000 vehicles per hour during peak weekday times and about 3,000 vehicles per hour during peak Saturday times.
“That's a 60 percent increase in traffic,” Borrasso said.
Fuqua said proposed road improvements – approved by DelDOT officials – would help alleviate traffic issues at the intersection.
5. DNREC has determined that a significant portion of the parcel is in an excellent groundwater recharge area. Any use that increases impervious cover could adversely affect groundwater, and any contaminants could impact water and the surrounding ecosystem, according to the coalition.
Borrasso said the proposed site plan includes 78 percent impervious surface including rooftops and parking lots.
Fuqua said the developer would be required to follow all existing stormwater standards that would have to be approved by state environmental officials.
Fuqua said taking the 114 acres out of farm production and implementing a stormwater management system with ponds and ground infiltration would reduce nitrogen loads by 100 percent and phosphorus loads by 91 percent.
Lewes City Council against application
Lewes City Councilman Rob Morgan presented county council with a letter of opposition from Lewes council. Among other issues, he said, infrastructure for the proposed center is far from adequate.