Lewes residents vent about Brittingham decision

Council opted to exempt project from possible code changes
January 21, 2019

Lewes residents are angry with city council, and they insisted on letting council know Jan. 10. 

“I have never been more upset with city council than I am tonight,” said resident Dave Ennis, a former state legislator. 

Three days before the meeting, where residents expected to discuss how density is calculated on lands annexed into the city, mayor and city council met in executive session to discuss a related issue: Would any new regulations apply to the Brittingham property on New Road? City council approved annexation for the 34.64-acre parcel in November. Developer Joseph Setting of Setting Properties Inc. then submitted a subdivision plan Dec. 7 for a 90-unit townhouse project called Lewes Waterfront Preserve.

Residents held out hope that potential changes to city code could be applied retroactively to decrease the density of the Setting project. 

“I don’t believe in changing the rules after the process has already started,” said Deputy Mayor Fred Beaufait.

City Solicitor Glenn Mandalas said it is not common practice in Delaware to apply new or amended ordinances to already-submitted proposals. At a Dec. 14 meeting, Mandalas said that it is possible to apply ordinance changes if the applicant hasn’t already invested a significant amount of money into the project to establish vested rights.

Many residents were angry that council discussed the issue of excluding the project from future changes in executive session. The executive session was noticed properly, but it did not say what council was to discuss behind closed doors.

The agenda met the requirements of the Freedom of Information Act, Mandalas said, but it could’ve been clearer. 

“I think the agenda could’ve been better prepared,” he said. “In Lewes, we typically do a pretty good job of giving some indication as to what the executive session is going to be about. [This agenda] didn’t go further. I think that could’ve been done better. We’ll do better next time.” 

The meeting was contentious from the start. Beaufait attempted to prohibit any public comment about the Brittingham property and council’s decision, as it was not specifically mentioned on the evening’s agenda. That statement drew groans and anger from the audience, and one person had to be escorted out of city hall by a police officer.

Beaufait defended the city’s decision, saying a committee developed the regulations for two new annexation zones over the course of a year.

“If you don’t know how this was done, then that’s your problem because it was all done here,” he said. “We had public hearings, and all meetings were open to the public.”

Councilman Dennis Reardon further defended the city’s position.

“[The committee] presented a recommendation to council, and they approved it,” he said. “Now you want to come along six months later and question everything? I’m sorry. It doesn’t work that way.”

In early December, Sussex County Council approved a change to the density calculation for development, excluding tidal wetlands from the equation. Mayor Ted Becker said he’s spoken to Sussex County Councilman I.G. Burton, who drafted the ordinance, who said the county is still struggling to define how wetlands are delineated.

If Lewes were to adopt a similar ordinance, Becker said, they would have to clear similar hurdles.

Beaufait said the city was a better option for the Setting development. Under county regulations, Beaufait said he was told Setting could have sought 138 townhouses via a conditional use.

Resident Debra Evalds said council made a mistake assuming the county would approve a conditional use for townhouses on the Brittingham property.

“I think right now the county is really watching what they’re approving east of Route 1,” she said. “They’ve rejected variances again and again recently. I don’t think their recent actions indicate to us that this is the way they are zoning right now.”

John Hurlock, who lives just steps from the Brittingham property, said the city needs to reconsider its decision.

“There’s got to be a loophole,” he said. “There is no contract you can’t get out of.”

Becker assured Hurlock there is still plenty of review left in the process and that the site plan could still change.

Planning Commission Chair Drew McKay said he anticipates his group will first discuss the application in February, hold a public hearing in March and make a recommendation on preliminary consent in March. The proposal would then go to city council, which will hold another public hearing before making its decision.

Lewes annexation committee re-established

Now that the issue of the Brittingham parcel has been settled, Lewes Mayor and City Council have re-established an annexation regulation review committee to tackle density, buffers and setbacks in the annexation zones.

Deputy Mayor Fred Beaufait, committee chair, said he expects to report back to council with recommendations within 120 days. Beaufait said his group needs to take its time to carefully evaluate the county’s recently adopted ordinance and consider any potential changes, whether similar to or different from the county’s regulations.

“We’ll tackle this as fast as we can,” Beaufait said. “We need to take time to look at other issues to make sure we haven’t missed an opportunity or overlooked something in our haste. You have my word that we’re not going to fiddle-faddle around.”

To ensure potential applicants are on notice, council set a public hearing for Wednesday, April 24, on density related to wetlands and buffers. City Solicitor Glenn Mandalas said that should be enough to prohibit any developer from filing a subdivision application in the meantime.

City Manager Ann Marie Townshend said she has not fielded any recent calls from developers or land owners seeking to annex into the city, so it’s unlikely they’d be able to file a subdivision application to beat the April 24 hearing.

“The annexation process is a lengthy process that is separate from the development application,” she said. “If somebody contacted the city about annexation, we would make them aware of this so they’re annexing knowing this could be the change.”

The annexation review committee is expected to begin meeting in early February.

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