The developer of Fisher's Cove and many interested nearby residents will have to wait until March to hear what Lewes Mayor and City Council has to say about the controversial project.
City Solicitor Glenn Mandalas said the potential for litigation stemming from council’s decision sparked a need for more public comment.
“It may seem like a delay, but given the litigation possibilities with this application, it is in everyone’s best interest to go through this procedural step of allowing one last opportunity to submit these written comments,” Mandalas said at mayor and city council’s Jan. 13 meeting.
The developer and members of the public may submit comments to the city until Friday, Feb. 28. Comments are limited to what was on the public record as of the planning commission’s recommendation for denial Nov. 14.
“It is our expectation that city council will have time to review those submissions and will convene during its March 16 regular meeting … to make a decision on preliminary consent,” Mandalas said.
Preliminary consent is the first of a two-step process for approval. If mayor and city council gives preliminary consent, the developer may move forward with more in-depth planning before submitting a final plan for approval.
Developer Burke and Rutecki LLC is seeking approval for 18 single-family homes on about 11 acres near the University of Delaware College of Earth, Ocean and Environment. Rodney Avenue residents have protested the application from the start, saying their quiet street and quality of life would be forever changed if the city allows the developer to use their street to access the development.
Planning commission members listed a variety of reasons for voting against the application, including effect on neighbors, and other issues including flooding, traffic and future impacts of climate change.
Developer seeks easement
As action on the Fisher's Cove plan remains delayed, the developer is urging the city to move forward with a minor subdivision for the historic Fisher House property along Pilottown Road, which abuts the Fisher's Cove property. The developer is seeking an easement for a 20-foot-wide tract to connect Fisher's Cove to Pilottown Road. The sliver of land would be used for a pedestrian walkway, and for utility and emergency access. A quarter-acre piece of property on the back side of the Fisher House property would be added to the Fisher's Cove parcel if the request is eventually approved.
The planning commission has twice tabled the request until the Fisher's Cove major subdivision issue is resolved. However, the developer has a buyer for the Fisher House and would like to move forward with the sale.
The planning commission considered the request a third time Jan. 15, when commissioners again decided to defer action.
Several commissioners have discussed using the 20-foot pedestrian walkway as the preferred access to the Fisher's Cove development. Some said approving the minor subdivision request would eliminate that option in possible future versions of Fisher's Cove.
“I thought when we were talking about the larger development there was a real push to have a second way in,” said Commissioner Mark Harris. “The end of Rodney Avenue is a perfectly acceptable way into it, but if it’s the only way in, it creates a difficulty.”
Commissioners discussed approving the request with a condition that the developer provide for a 40- or 50-foot right of way, which could cause the Fisher House property to be noncompliant with city code.
Commissioners ultimately deferred action to leave it up to the developer to come back with a revised minor subdivision request.
“I think we’re trying to solve someone else’s problem,” said Commissioner Melanie Moser. “This whole point of access needs to be explored thoroughly, and I think that by approving this minor subdivision we’re really precluding some creative thought about what happens here. I’m very concerned about cutting this off from the rest of the parcel without a resolution that’s comfortable for both us and the developer.”
Tim Willard, attorney for Burke and Rutecki, said the commission is hung up on adding conditions for the Fisher's Cove project, which has already received a recommendation to mayor and city council in November. He said the request is for a 20-foot easement only.
“This easement would be pervious, not paved, would save existing trees and preserve the integrity of the historic home,” Willard said. “The only legal public access to the Fisher's Cove proposed community is Rodney Avenue, which is a recorded public right of way owned and controlled by the city.”
Commissioner Joe Hoechner said a decision should be made on the minor subdivision request.
“I get the feeling that we’re holding this piece hostage based on the larger development,” he said. “The property owners want to move forward with this little piece and put it to bed.”
Mandalas said the applicant’s attorneys have threatened the city with an mandamus action, which is a legal action used to compel someone to act where they have a legal duty to do so.
Willard said the planning commission’s continued delay on the minor subdivision request “makes no sense and seems like an orchestrated, unnecessary delay, jeopardizing the efforts to preserve the historic Fisher House.”