The Sussex County Planning and Zoning Commission will have to review the record on the Coral Lakes subdivision and render another decision.
With a 3-2 vote following an appeal hearing at its May 24 meeting, council voted to remand the application back to the commission with a deadline of Aug. 31. Another public hearing will not be scheduled and the commission will have to reconsider material already in the public record.
At its March 10 meeting, the commission voted 4-1 to deny the cluster subdivision application for 315 lots on 152 acres along Robinsonville Road near Lewes. Developer Schell Brothers LLC appealed that decision to Sussex County Council.
Making the motion to remand, Council Chair Mike Vincent said the commission followed an orderly process and acted within the 45-day requirement. However, he said, the commissioners erred by not providing reasons for their denial votes or did not provide a written decision to the applicant.
Vincent said this time around, the commission must provide reasons for their votes and also provide a written decision. Vincent said court decisions affirm that governmental bodies like the commission must state their reasons for votes on the public record.
The council could have voted to reverse the commission's decision. “That is not an appropriate remedy,” Vincent said.
Council members Mark Schaeffer and Cindy Green voted against the remand motion. They said that the commission acted properly and the application did not get the three required votes for approval.
Besides Vincent, council members John Rieley and Doug Hudson voted for the remand motion.
Arguments during appeal
During the appeal, Katharine Mowery, the applicant's attorney, argued that a reversal was the only decision council could make based on state and county statutes. She based the appeal on the following: the commission did not act within the 45-day requirement; did not provide reasons for their votes; and the application is a permitted use in AR-1 zoning as the developer complied with all county code provisions.
Mowery said the commission did not act within 45 days of submission of the application, which was made in Nov. 25, 2020, and again on Jan. 18 this year. She said Delaware code and county procedures require a vote within 45 days.
She said if a vote does not occur with the time frame, it is considered approved. She said a remand would only add more days beyond the 45-day rule.
Assistant county attorney Vince Robertson argued that the commission considers the 45-day deadline to start when the public record is closed on an application. He said the commission's vote complies with state and county statutes as the vote took place 42 days after the record was closed.
He said it's unrealistic for county and state agencies to complete their review of an application in the amount of time if based on the date of submission. He said demanding an approval after the 45-day deadline, as requested by the applicant, would not provide enough time for the commission to receive additional information or to schedule a public hearing.
Robertson said Delaware code requires that no plan can be acted on without a public hearing. “We can't exclude the public from the process,” he said.
Robertson said time is required to complete the land-use application process, which includes staff, technical advisory committee and DelDOT and other state agencies reviews, plus three to four weeks to schedule a public hearing. “For all of that to occur in 45 days would not result in a meaningful hearing,” he said, adding not having as much information as possible is a disservice to the applicant and the public.
Mowrey said by Delaware code, if an application is a permitted use under the zoning district and it meets all zoning and subdivision requirements, the commission must approve it. “It's not based on opinions. In this case, the commission acquiesced to political whims,” she said. “It was not an orderly and logical review.”
Mowrey also said three sections of code were violated when the commissioners did not provide reasons for denial. “This was unprecedented. Commissioner [Kim Hoey] Stevenson denied her own motion and there were no findings or conclusions provided for their action,” she said. “The motion given stated the reasons Schell met the requirements.”
She noted that following the March 10 meeting, commissioners are now are required to state reasons for their votes.