The City of Lewes and the developer of the controversial Fisher’s Cove major subdivision have reached a settlement that will allow the development to move forward.

Lewes Mayor and City Council voted unanimously March 2 to approve a settlement agreement and general release with developer Burke and Rutecki LLC.

The agreement results in the removal of one lot from the original 18-lot plan. The removed lot will be acquired by the city as additional open area to enhance permeability. A landscape buffer will be planted at the beginning of construction. The agreement also provides funding for an account to be managed by the homeowners’ association that assures the stormwater management system will be professionally managed in perpetuity. The city will receive annual stormwater inspection reports from the homeowners’ association.

The agreement provides that Rodney Avenue will not be modified, addressing concerns from residents about the impact road improvements would have on their properties.

The developer will not be required to gain preliminary consent or final approval from the city.

“The agreement requires the developer to seek all the outside agency approvals that would be required for final approval,” said City Solicitor Glenn Mandalas. “Under the consent decree, so long as the approvals are obtained, final approval is authorized. Consequently, the plan will not be reviewed any further by the planning commission or the city council. For clarity … city council honored the spirit and requirements of the city code. The agreement ensures that the approved plan will be completely compliant with the city code. The mayor and city council did not relax any requirements through the settlement agreement.”

Mayor Ted Becker, speaking on behalf of city council, said the agreement secures the best possible outcome for the city.

“While there was strong community sentiment that the area remain undeveloped, city council recognized that the owners have the right to develop the property,” Becker said in a prepared statement. “Although city council would have preferred a more modest development, both city council and the developer worked diligently to resolve this matter in a way that ensures the residents in the new development and those living in the surrounding communities, including Rodney Avenue, will continue to enjoy the quality of life that is emblematic of the City of Lewes.”

Developer Burke and Rutecki LLC submitted a major subdivision application to the city in 2018, seeking to build 18 single-family home lots on an 11.08-acre parcel off Rodney Avenue near the University of Delaware’s Pilottown Road campus. The property is located in the R-2 low-density residential zoning district. 

The planning commission recommended denial of preliminary consent in November 2019, but mayor and city council remanded the issue back to planners in April 2020 for further analysis of stormwater concerns and proposed changes to Rodney Avenue.

Developers returned to the planning commission in June 2021, providing a much more detailed explanation of the plan, including approval of the stormwater facility from Sussex Conservation District. In September, planning commission members again voted to recommend denial of preliminary consent for the subdivision, citing flooding concerns and impact to the quality of life for existing neighbors.

By a 3-1 vote, mayor and city council denied the project in October, citing many of the same concerns as the planning commission.

The developer responded by filing three lawsuits against the city. The developer alleged the review process was fraught with bias, outside communications with private opposition groups, unnecessary delays, and the imposition of arbitrary and capricious standards, including standards not found in city code. 

After legal action was taken, the developer and the city worked together to address concerns. According to a press release from the city, “The result of these discussions is an outcome that is not only compliant with the city code and allows Burke and Rutecki LLC to develop Fisher’s Cove, but also secures significant benefits for the Lewes community.”