The long-going saga of the fate of Stillwater Harbor may be nearing its final chapter, as the Delaware Supreme Court is set to rule on the previous denials by Sussex County officials and Superior Court.

The proposed 123 single-family home cluster subdivision on 57 acres along River Road near Oak Orchard ignited public outcry to deny the project for several reasons including flooding, drainage and potential negative impacts on the environment.

The Sussex County Planning & Zoning Commission denied the application June 22, 2023. Following an appeal by developer Stillwater Harbor LLC, Sussex County Council upheld the commission’s denial.

Following that, the developer filed a petition in Superior Court for a writ of certiorari to reverse council’s decision.

During the summer, Judge Mark Conner issued a denial of the writ. The developer then filed a petition in Delaware Supreme Court.

Conner ruled that county council’s decision was not arbitrary and unreasonable.

He noted that the petition was not the same as an appellant appeal, and the evidence and findings could not be used to decide the merit of the case.

The writ allows the court to review the record of a proceeding decided by a lower tribunal (county council) and also looks at the regulations of the proceedings.

The developer based its petition based on two factors: 1. The county’s planning & zoning commission did not meet a county code requirement to hold a vote within 45 days on Stillwater’s initial submission; and 2. County council erred in affirming the commission’s denial of the application because it complies with the specific set forth in the code.

The judge backed up the timeline the commission based its decision on. He said the commission held the record open to garner additional information to make a more informed decision on the preliminary plan. Stillwater took part in the submission of additional material added to the record.

The record was closed June 8, 2023, and it was at this point the 45-day clock started, the judge said. Fourteen days later, June 22, the commission denied the application, complying with the statutory requirements in code.

The judge found that the application complies with county code. The commission cited 11 deficiencies in the application.

Code requires public access to a subdivision at least 50 feet wide, and River Road’s width ranges from 42 to 46 feet.

The commission found the application deficient with regards to the 17 mandatory code requirements used in decisions to approve or deny.

No clear plan was shown to rectify ongoing flooding issues in the area.

An easement for secondary access on Jackson Draine Lane at the rear of the property will not benefit Stillwater Harbor’s future lots and is inadequate as an emergency access.

“The council and commission clearly articulated the ways in which the application failed to comply with the standards set forth in county code,” the judge wrote.

“Stillwater has failed to demonstrate that the lower tribunal erred as a matter of law or rendered their decision in an arbitrary or unreasonable manner,” he added.

Issue of flooding

Flooding surfaced as one of the major issues. Located across the road from Indian River Bay, it was noted that the road floods five to seven times per year.

Currently during periods of flooding, school children are picked up and dropped off at the Indian River Volunteer Fire Company in Oak Orchard.

County officials said the applicant's plan to use Jack Draine Lane, a 12-foot-wide, unimproved street, was inadequate for emergency access. Questions about an easement to use the street also surfaced.

The development team said while flooding would still occur on River Road, Stillwater Harbor's proposed stormwater management system would lessen the impact in the immediate area.

Stillwater Harbor plans

The plan includes a 100-foot buffer along 2 acres of tidal wetlands and a 30-foot buffer along 3 acres of nontidal wetlands along the western edge of the property. There would also be a 30-foot buffer along farmland adjacent to the property, and a 20-foot buffer along residential areas.

Mackenzie Peet, the developer’s attorney, said projects like Stillwater Harbor are permitted uses under the county's comprehensive land-use plan if all regulations and ordinances are adhered to.

The property contains 54 acres of woods. In the plan, 42 acres of woods would be removed during construction, with 12 acres of woods being preserved. Ten acres of existing forest would be preserved, with nearly 2 acres of restored woodlands.

The plan includes 26 acres of interconnected open space, or 47% of the parcel's total acreage.

Amenities would include a pool, bathhouse, sidewalks on both sides of interior streets and a wood-chip trail to a wooded area on the western edge of the parcel.