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Lewes passes wetland buffer ordinance

New measure only affects major subdivision applications
October 16, 2020

After more than a year of work, Lewes officials have established a 50-foot wetland buffer requirement for new major subdivisions. 

Council voted unanimously to approve the ordinance at its Oct. 12 meeting.

Deputy Mayor Bonnie Osler said the ordinance is the first piece of a much larger puzzle aimed to protect Lewes from the impacts of changing climate.

“We obviously have a lot of important climate change issues facing the city,” she said. “This is the first step. It’s well thought out and provides immediate protection.”

There are two zones within the 50-foot buffer where various activities are permitted or prohibited. Those areas include a 20-foot zone nearest to wetlands and a 30-foot zone closer to proposed development. The 20-foot zone is very restrictive, allowing only docks with permits, tax ditch maintenance, and construction related to bridges, stormwater outfalls and flood plain creation. Temporary and permanent structures are not permitted in the wetlands or wetlands buffer unless certain criteria are met.

The ordinance also permits buffer averaging, which allows a developer to have a buffer less than 50 feet in certain areas due to nonconformities along the shoreline. Averaging is only available in the 30-foot zone of the buffer. The eliminated space must be made up elsewhere in the property’s buffer.

As part of approval, city officials are required to review the ordinance after two years and make any necessary adjustments based on real-time conditions.

The city’s comprehensive plan calls for wetland buffers, and the idea for a buffer originated from the city’s hazard mitigation plan in 2011. The planning commission submitted a draft buffer ordinance to mayor and city council in 2018, but it was sent back for more work. The first draft would’ve been in effect for all properties in Lewes, not just major subdivisions like the most recent version.

A draft of the ordinance was discussed at a planning commission water workshop in November 2019. After it got a fair share of tough love from the experts at the workshop, a subcommittee was formed, which has worked to refine the ordinance since the beginning of 2020.

LPC members Kay Carnahan and John Nehrbas along with city planner Janelle Cornwell met six times to work on the ordinance before presenting a final draft to the planning commission, and eventually mayor and city council.

At an Oct. 8 public hearing on the buffer, Cornwell said the subcommittee used an existing buffer ordinance from the Town of Ocean View as a guide for developing the list of permitted and prohibited uses within the buffer.

When asked by council why the subcommittee used Ocean View, Carnahan said the town has a situation similar to Lewes with a canal and bordered by the bay. Ocean View has also already gone through difficult legal challenges, she said.

“We thought we could take advantage of what they had done,” Carnahan said. “They had a lot of resistance from residents about doing any sort of buffer. They walked a fine line to get their ordinance passed. People are now seeing it for what it is, and they’re very supportive of it.”

In the weeks leading up to the vote, city officials received several letters from the public calling for a wider buffer. Many residents pointed to Kent and New Castle counties, which each have tidal wetland buffers of 100 feet.

Osler said the width of the buffer should be whatever works best for Lewes.

“It appears to me that a 50-foot buffer is a reasonable minimum and makes sense,” she said. “I think the whole point here is to be guided by science. I think what we need to do is look at what’s applicable to the City of Lewes.”

At the public hearing, resident Janice Pinto advocated for a wider buffer. She said the science says the climate is changing and sea levels are rising, making wide wetland buffers all the more important.

“We here in Lewes have an existential risk to ourselves and our property,” she said. “The ordinances about flood plains and buffers need to be much more significant than the minimum of 50 feet.”

Resident Marta Nammack was also critical of a one-size-fits-all approach.

“Would it be better to look at sea-level rise and where inundation is expected to be higher, and customize the wetland buffer a little more so we can ensure this works into the future?” she asked.

A lack of input from the scientific community was a common critique of the wetland buffer ordinance. Councilman Andrew Williams recognized that oversight and suggested the planning commission supplement the new ordinance with science-based subject matter.

Immediately upon passing the the ordinance, city council sent the issue back to the planning commission to continue work on wetland buffers.

Osler, who made the motion, recommended the commission reach out to scientific experts to better create a more informed ordinance. If the commission determines changes are needed, they may submit those to council for consideration.

Osler said the ultimate goal is to expand buffers to all properties in the city.

“If we were to have gone to some of the buffer widths that were suggested by people and that were to be applied to existing parcels of land, we would really cause a great restriction and change on people’s ability to use the land they have,” she said. “If the planning commission comes back with recommendations that would have a significant direct impact on parcels, I would like to get [the city solicitor’s] guidance on legal implications for the city.  We have to follow science, but also the effect on our citizens and also our legal liability.”

The next pieces of the larger puzzle of climate change will come out of other planning commission subcommittees. In the works are ordinances that address fill in flood plains and sea-level rise. A public hearing on the flood plain fill ordinance is set for 6 p.m., Tuesday, Nov. 10. The planning commission also has a subcommittee working on an action plan, which will guide the planning commission’s future work.

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