During an appeal of the Stillwater Harbor subdivision denial, the attorney for the developer said Sussex County Planning & Zoning Commission members did not comply with existing county code and state law by not citing specific reasons for their decision. The attorney for Sussex County said the commission presented a 20-page motion, one of the longest in county history, citing numerous specific reasons for the denial vote.

In addition, attorney Robert Forsten, representing applicant Stillwater Harbor LLC, said the commission did not follow state law requiring the commission to take a vote on the subdivision within 45 days. He said by his count, the commission voted on the subdivision 48 days after the record was closed May 5. By law, an application is considered approved if not acted on in 45 days.

The record had been kept open for 10 days following the hearing for more information on a proposed easement and resource buffers.

Vince Robertson, the county’s attorney, disagreed with his assertion, stating the official record was closed June 8, with the vote taking place June 22.

“On June 8, the record was closed. That started the 45 days, and there is no doubt about it,” he said. “It's important to everyone that the commission has all the information before a decision is made.”

Forsten said the commission said the subdivision plan did not comply with the county's comprehensive plan.

“The parcel is in a growth area and it does comply with the county's zoning and subdivision codes; it's consistent with the comprehensive plan,” Forsten said.

An applicant has the right to appeal the planning & zoning commission’s rulings to county council and, if needed, to Chancery Court.

Council deferred a vote on the appeal to a future meeting. In recent appeals of decisions against Terrapin Island and Coral Lakes, now known as Brentwood, council ruled in favor of the developers.

About the subdivision

Located along River Road near Oak Orchard, the Coastal Area cluster subdivision plan includes 123 single-family home lots on 57 acres. The application was opposed by many nearby residents during a May 11 public hearing. A petition with more than 1,600 signatures in opposition is part of the public record.

The plan includes 27 acres of open space and amenities.

Forsten said the applicant is asking for preliminary approval. “We still have to come back with the final plan. There is lots more engineering work that needs to be done,” he said.

Different points of view

Although many issues were discussed during the three-hour appeal, most attention centered around code compliance, flooding and the use of an easement for emergency access to the property.

“There is tons of evidence on the record to uphold the commission's decision,” Robertson said. “It was an orderly and logical decision.”

Forsten cited a Delaware Supreme Court ruling requiring the commission to provide specific criteria to make a denial. “It was based on general criteria,” he said.

“There was a lot of testimony in opposition, but that’s not a reason to deny a subdivision plan,” Forsten added.

“I urge you to read the motion and see all the thought and deliberation that went into it,” Robertson said. “It's true, there was public opposition. But the commission knows it's not a popularity contest and their decision is based on the record, which does not support approval. There is no way the commission could condition this to approval.”

“The commission was very specific with its reasons, including an adverse impact on roads, unsafe vehicular movement, inadequate integration into the natural features of the parcel and excessive tree removal, which will impact flooding,” Robertson said.

Forsten said commissioners are allowed to not like the plan, but they have to act on its compliance with code. “It does comply with code,” he added.

Flooding is an issue

There is documented flooding on River Road from Indian River Bay during periods of extreme high tides and coastal storms. On average, River Road floods four to eight times a year in the area of Chief Road and Layton Davis Road.

“The flooding is down the road from this project. We received no recommendations from state agencies regarding flooding,” Forsten said.

“We will not make flooding worse,” he added. “Our engineer testified the stormwater management system would reduce stormwater flow to Chief Road and River Road by 21%. We have to manage stormwater on our property. There will be no adverse impact,” he said.

Although no project is planned, the Delaware Department of Transportation has recommended that River Road be raised 2 to 4 feet. The project is estimated to cost more than $1 million.

The Indian River Volunteer Fire Company had issued a letter in opposition to the application because of access to the subdivision during flood periods.

Forsten said an easement along Jackson Draine Lane will allow emergency access to the property. “The easement could also be used by the residents of the community. We have a legal opinion it can be used. The fire department withdrew their opposition,” he said.

In any case, Forsten said, by state law, emergency vehicles can use any available access, even if they trespass.

The Indian River School District has a plan in place during flooding periods. Parents are forced to take their students to the fire station in Oak Orchard for bus pickup and drop-off. Buses will not travel on flooded roads.

Councilman John Rieley asked Forsten how kids would get home from school.

“I don’t know. I haven’t thought about it,” he replied, adding the commission could have discussed their concerns with the developer and not issued a denial.

Robertson said the developer knows that River Road floods and accessibility issues occur. He cited a 2015 Department of Natural Resources and Environmental Control Oak Orchard Drainage Study on flooding issues in the area that were listed as frequent from a nuisance to severe. The study outlined several projects to improve drainage in the area.

Robertson said the fire company was not just concerned about emergency access, but also how it would impact safe passage of any prospective residents. “Their engineer said flooding will occur and there is no way to get rid of it,” Robertson said.

Use of private lane

Councilman Mark Schaeffer said Jackson Draine Lane is a 12-foot unimproved street with residents holding a private easement.

“The law says emergency vehicles can trespass with immunity responding to an emergency. That puts this issue to bed,” Forsten said.

Rieley said neighbors are opposed to anyone using Jackson Draine Lane. “Only in flooding events we will use it, about three to four times a year,” Forsten said.

“In a flood, residents will be stranded with no way in and no way out. This is something people should know before they build there,” Rieley said.

Robertson said the easement is problematic. The land between the proposed subdivision and Jackson Draine Lane is owned by Millsboro Holding Co. LLC. “Stillwater Harbor is not one of the owners,” he said, adding the recorded easement lists the only residents who can use the lane.

“Stillwater Harbor does not have the right to use Jackson Draine Lane. If we had that as a condition, we would face litigation from the residents,” Robertson said. “They have no legal right to use the easement.”

He added there is no way the lane could handle an additional 1,258 vehicle trips from the proposed subdivision.

Robertson said a secondary access point should be required because code stipulates that a subdivision has to have safe vehicular access to and from the site.

“Residents would be stuck during documented flooding issues,” Robertson said. “You can't make this go away.”

Tree removal

Forsten said commissioners did not support the plan because they said too many trees would be cut down. “That’s not a reason. They can’t tell property owners what to do with their trees,” he said.

Nearly the entire parcel is wooded. The county does not have forest preservation requirements.

“There is no prohibition on clear-cutting,” Forsten said, adding that clear-cutting is not part of the plan.

Robertson said 78% of the existing forest would be removed. He cited a letter from Department of Agriculture Secretary Michal Scuse in opposition to the application based on the environmental impact and the effect on schools. “Why make a problem worse with new families?” he said.

“Have you taken into account that the trees will be removed and only stormwater ponds will be used?” Rieley asked.

Forsten reiterated that all stormwater runoff management must take place on the parcel and the amount of discharge will be reduced by 21%.

River Road width

There was a lot of debate concerning River Road, the access road to the proposed project. Forsten said the road is 42 to 50 feet wide but will be expanded to 50 feet wide on the final site plan, which he said is not unusual for subdivision projects in the county.

Under county code, a 50-foot entrance/exit road is required along a subdivision's frontage. Forsten said Delaware Department of Transportation would not approve the plan without the width. “DelDOT knows we are going to do it. It’s not on the list now, but will be addressed,” he said.

Robertson said River Road must be 50 feet wide at the point of access, and the applicant admitted their plan for access does not comply with code.

“Code requires 50 feet. The road is low-lying with inadequate or nonexistent drainage. They will not raise the road, and none of the residents would be willing to sell their land for the road right of way,” he said.

“That problem gets solved easily. DelDOT would not approve a plan without 50 feet,” Forsten said.

The developer would be required to contribute funds to improvements at the Route 24-Mount Joy Road-Oak Orchard Road intersection and a proposed traffic signal at the Route 24-Gull Point Road intersection.