Hi-rise apartments coming to rural Sussex

Residential/agricultural-zoned acreage which limits development to two dwellings per acre is being rapidly converted to high density of up to 12 dwellings per acre. 

This alarming rate of conversion is being aided by a loose interpretation of the current county code where the Planning & Zoning Commission is looking the other way. There is a current application before Sussex County Council that no doubt will lead to an onslaught of high-density hi-rises throughout all of Sussex County.  

The issue at hand here is where an application for rezoning consists of more than one land-use designation. In the application before the county presently, the application requests a rezone for a 14.9-acre parcel currently zoned agricultural/residential or AR-1 to be rezoned to a 6.4-acre medium residential or MR portion and an 8.5-acre portion to be rezoned commercial-3. The MR zone allows up to eight dwellings per acre and is for residential multifamily use, i.e., apartments or condos. The C-3 allows for a variety of retail concepts and allows for some residential. Additionally, the county land-use code allows for medium residential-zoned parcels to apply for additional upzoning allowing for up to 12 additional dwellings per acre through a process called conditional use.

The current applicant is asking for approval for 128 dwellings on the 6.4-acre portion of the parcel, which actually equates to 20 dwellings per acre, which far exceeds the allowable density. The applicant’s rationale for the 12-dwelling maximum allowable density is that they are basing the calculation on the combined 6.4 acreage of the MR rezone and the 8.5 acreage of the C-3 rezone. This is despite the fact that their plan calls for 40,000 square feet of retail outlets and an additional 28 apartments to be built on the same C-3 portion of the parcel.

 The current code 115.15.1 Calculating permitted density or the number of dwellings that could be built per acre, states, “For purposes of calculating the permitted density or allowable density in all districts, the gross area, as defined herein, shall be divided by the applicable lot area stated in each district, unless otherwise specifically set forth therein.” “Gross area” shall include the lot areas and the area of land set aside for common open space or recreational use….”

In  county code 115.4 Words and Definitions, the word “district” refers to Zone Districts and is defined as “Any section of Sussex County in which the zoning regulations are uniform.” In the same aforementioned code, the word “lot” is defined as “A fractional portion of a subdivision, measured, surveyed and platted and set apart, for separate use and occupancy, from contiguous parcels of land and having its principal frontage upon a street.”

Clearly, the MR and C-3 zones or districts in the context of the definition do not have uniformity in regulations, meaning each has distinct and separate regulations. 

The two separate and disparate zones or districts in the context of the definition relating to “lot” have “separate use and occupancy.” 

This application at issue here should be approved for MR rezoning with the maximum allowable density to be calculated based on 6.4 acres multiplied by 12 dwellings per acre for a total of up to 76.8 dwellings and approval should be granted for the C-3, but the conditional use must be denied.

The applicant is not entitled by right to this rezoning and conditional-use approval. Sussex County Council has the authority to exercise its will to enforce the proper intent of Code 115-15.1 Calculating of permitted density, and should enforce it accordingly. 

Allowing this misuse of the code on this application will lead to future abuse, and loss of integrity in the land use map and the Sussex County Comprehensive Plan. 

The use of mixed zoning districts in the density calculation encourages the proliferation of such uses in the future. The methodology of calculating density and its enforcement need to be more fully defined and understood by all stakeholders for uniform future development.