Cluster ordinance stirs up debate

Opponents claim measure is being rushed through the process
November 20, 2020

A Sussex County Planning and Zoning Commission public hearing on adding superior-design standards to cluster subdivisions in the coastal area morphed into a debate on politics and timing of the hearing.

Some opposed to the ordinance said it was being rushed through for a vote before two new council members are sworn in to start 2021. Many agreed the record should remain open to gather more written comments, and others said a working group should be formed and workshops should be scheduled.

During the Nov. 12 hearing, those in support said the ordinance is working in three-quarters of the county and will also work in the coastal area, which includes land along the coast and Inland Bays.

Assistant county attorney Vince Robertson said the cluster ordinance allows all developers to use the basic density in AR-1, agricultural-residential, zoning at two units per acre. “This would make the cluster requirements already in place in AR-1 zoning apply equally in the coastal area. It's a question of fairness for all of Sussex County. It's a fix to make all equal,” he said.

Sussex County Council will have a public hearing on the ordinance at 10:30 a.m., Tuesday, Dec. 1, in the county administration building, 2 The Circle, Georgetown. Commissioners will make a recommendation to council members, who have the final vote on the ordinance.

Differing requirements

It was Sussex County Councilman Irwin “I.G.” Burton of Lewes who requested the ordinance be scheduled for public hearings.

Regulations for cluster subdivisions differ in AR-1 zoning districts and AR-1 land in the coastal-area district.

On land served by central sewer service, developers can build on 7,500-square-foot lots using the cluster option instead of 20,000-square-foot lots for standard subdivisions in AR-1 zoning. Because of the advantages of smaller lots, and more space for amenities, stormwater management and open space, nearly all subdivisions over the past decade have been constructed using the cluster option.

In the coastal area, in order to obtain cluster status, developers must provide an environmental assessment and public facility evaluation report.

However, in all other AR-1 districts, requirements include buffers from wetlands, tidal water, farm areas and adjacent residential areas, as well as 30 percent contiguous open space, sidewalks on at least one side of all streets, and preservation of scenic views and natural and historic resources. Homes must be clustered on the least environmentally sensitive areas of a parcel.

Developers are required to submit a report outlining lands to be preserved, developable areas, roads and trails, and where lots are located.

None of those elements are required in the coastal-area district to build a cluster subdivision.

Developer Tom Natelli, president and CEO of Natelli Communities, spoke for several developers when he said the requirement for 30 percent contiguous open space would restrict design options. “That removes flexibility for design, and a lot of lots end up back to back,” he said. He said developers should be given the opportunity to spread out open space and create what he called pocket parks instead of one large area.

No support for yield plan

Many of those opposed to the ordinance spoke out against the yield-plan provision, which was eliminated last year from the ordinance but placed in the draft ordinance for discussion purposes, Robertson said.

Previously, applicants were required to submit a yield plan showing the maximum number of dwelling units possible under a standard subdivision with 20,000-square-foot lots. The number of lots in the cluster subdivision design couldn't exceed the number of lots in the yield plan.

Even planning and zoning commissioners are against the yield plan.

“I'm not sure why it's back, because there is not much support for it,” said Chairman Bob Wheatley. “It's a safe bet the yield plan is not happening.”

Some developers who spoke during the hearing said using the yield plan would cut density by up to half in most subdivisions, driving costs up to developers and ultimately to consumers. “It also creates sprawl. More and more people would be spread over more acres, and infrastructure cannot keep up with it,” Natelli said. “It would not be economically feasible for most developers.”

Questions about timing

Local developer Christian Hudson said he has had an application for housing and retail on a 15-acre site at the intersection of Cave Neck Road and Route 1 ready for public hearings since spring. He said hearings have been postponed several times.

Hudson said he was told that because of COVID-19 seating restrictions in council chambers, hearings that would attract large crowds, or were complex or controversial would not be scheduled in the near future.

He said the cluster hearing was contrary to the county's policy. He said his application would impact 15 acres, while the cluster ordinance would impact thousands of acres.

“This is a sudden and rushed process that is highly controversial and complex,” Hudson said.

“Applications need to be heard, and we are working on it,” said Wheatley, adding that officials are looking at a change of venue to allow for more seating at the beginning of next year.

Wheatley answered those who said the ordinance was being rushed through the process.

“We have been given lots of information,” he said.”We will need time to process it. We are not compelled to be on any timetable. We will do the job you expect us to do. And no one sitting here cares about the politics.”

No complaints about ordinance

“Three-quarters of the county is operating with this ordinance with no complaints. No one is running to county council with pitchforks,” said Rich Borrasso of Sussex Alliance for Responsible Growth.

He said the cluster ordinance complies with the county's comprehensive plan to preserve open space and natural areas, protect mature trees, and promote better design. “It doesn't solve all problems, and it does not alleviate traffic congestion. The comp plan is a blueprint how we want to grow, and this ordinance is one small step to help us get there,” he said.

Borrasso said he believes the request for more time and more data is hiding the real reason for a delay. “The best chance to standardize [subdivisions] is with the current makeup of county council,” he said. “It's disingenuous when it's really about politics.”

More time to vet ordinance

Marty Ross of Delmar, a former planning and zoning commissioner, said time should be taken to rewrite ambiguities and provide better definitions.

He agreed the cluster ordinance has been successful in protecting open space and natural areas. “It's not negatively impacting property values, and it's not costing taxpayers one cent,” he said.

However, he did agree with others that workshops would help gain more input, and more time is needed to properly vet the ordinance to determine intended and unintended consequences.

He said one of those unintended consequences is the lack of affordable housing for families making $55,000 or less per year. “We are setting a record this year for building in Sussex County, but there are virtually no projects of affordable housing,” he said. “We are preventing the development community from building affordable housing.”

Lawyer John Paradee of Dover said the ordinance is flawed and would easily be defeated in court. He said a change in zoning code determining what property owners can and can't do with their property requires the county to notify all property owners seven days in advance of a public hearing. “That has not occurred,” he said.

Questions were also asked about how the cluster ordinance would affect other residential zoning districts in the coastal area such as GR, general residential, and MR, medium-density residential.

Farm Bureau: Land will lose value

Sussex County Farm Bureau President Steve Breeding said the 650-farm family member organization is opposed to the ordinance. He said the ordinance would devalue farmland by about 50 percent. He said it would also create sprawl and add to consumption of more farmland, the county's No. 1 resource.

Georgetown-area farmer Jay Baxter questioned why the hearing was scheduled during a busy time for county farmers. “This can affect the future of family farms.You don't want farmers to come to the table,” he said.

Baxter said any action should be delayed to allow time for farmers to study the ordinance and understand what they have to lose.

Bobby Horsey of Laurel said his family's companies are helping to make Sussex County a better place. “This ordinance does not do that. It will slow down growth and mean fewer jobs for our kids,” he said. “More ordinances and regulations create lower density. There should be increased density to save farmland.”

Several speakers who called in via phone during the hearing questioned the farmland devaluation number provided by the Farm Bureau, asking for a source.

Gail Van Gilder of Lewes said land value and equity will be protected with the proper ordinance in place in the coastal area.

She said the ordinance was clean and straightforward. “You don't have to remake it or change it, and not delay it for months and months,” she said. “It's worked for the majority of the county and it should have been in the original ordinance.”

Van Gilder said the two new council members ran on an element that they would not support the ordinance.

“Delaying this would be a big mistake,” she said.

Sussex P&Z debates ordinance

Planning and zoning commissioners seemed split on taking action on the ordinance as it's written.

Commissioner Bruce Mears asked, “Why is this so seamless in AR-1 districts and putting it the coastal area makes it so over-the-top complicated?”

He said developers still have the option for high-density projects.

“We heard some good ideas, and there could be some possible tweaks to be made,” Wheatley said.

“Why are we jamming this? Why are you not offended by this?” Commissioner Keller Hopkins asked his fellow commissioners. “We need to look at this.”

“Couldn't we get together and write a better ordinance that's best for all of Sussex County?” asked Commissioner Kim Hoey Stevenson.


Where is the coastal area?

The coastal area includes regions around Lewes, Rehoboth Beach, Dewey Beach, Bethany Beach, Ocean View and Fenwick Island inland to Route 113 in southeastern Sussex County, as well as locales around Dagsboro and Selbyville.






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