During the Sussex County zoning process, developers often claim they can develop a tract of land by right. They may even claim that public hearings are unnecessary, as the Cape Gazette reported May 6, which was then refuted by a letter to the editor from Bill Mailander May 13.
The Sussex County zoning code does not mention by-right zoning. Rather, the zoning code section, Section 115-5, creates residential, business and commercial, industrial and flood-prone districts. The code and future land-use map establish the permitted uses in each district. These are permitted uses established by Sussex County Council, not the rights to build. The zoning code, Section 115-216, and state law also provide that council can change by ordinance the boundaries of districts and put conditions on the uses in those districts.
The Delaware Supreme Court has decided that while a county may not deny proposals that meet the code’s requirements, the county may condition its approval on the impact of land uses where those conditions bear a reasonable nexus to the impacts on the community.
Lost in the claim of by-right zoning is that the zoning code, Section 115-3, provides that it requires the consideration of “present and future needs,” “lessen[ing] congestion in the streets or roads” and “adequate provisions of public requirements” for both urban and non-urban development.
It is time to hold Sussex County and its developers to the requirement of adequate provisions for traffic, schools, emergency services, medical care, woodlands and the prevention of urban sprawl. This requirement emphasizes the need for balance in the decisions that impact all of us. No one has the right to develop property to the detriment of the greater community.
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