In front of a standing-room-only crowd, Sussex County Council affirmed a decision by the Sussex County Planning and Zoning Commission to approve the Coral Lakes subdivision, and in effect, denied two appeals filed against the decision.
At its Oct. 11 meeting, after nearly three hours of testimony from the appellants' lawyer, county legal staff and Schell Brothers lawyers, council voted 4-0 to uphold the commission's 3-1-1 vote during its June 23 meeting.
The commission had denied the application with a 4-1 vote during its March 10 meeting.
That denial was appealed by applicant Schell Brothers LLC to county council. Following the appeal, council remanded the application back to the commission for further review and reconsideration of the public record and for commissioners to clearly state reasons for their vote.
The commission voted to approve the 304-unit community planned on 152 acres on Robinsonville Road west of Lewes.
Councilman John Rieley recused himself from the Oct. 11 hearing.
More than 100 Schell Brothers employees and Schell homeowners packed council chambers. Many wore stickers supporting property rights and jobs.
Following an executive session, Council President Mike Vincent read both motions affirming planning & zoning commission’s approval. The motions are provided as attachments as part of the online story.
Residents file appeals
The appeals were filed by attorney Luke Mette on behalf of Jill and Bill Hicks, Sergei Boboshko, Kerry Russo and Susan Petze-Rosenblum, who all live on Aintree Drive adjacent to the Coral Lakes parcel, and by Terry Bartley, a resident of the Sea Wood Estates community near the Plantation Road-Robinsonville Road intersection, who represented himself.
As part of the revote in June, 11 bonus-density lots were denied, dropping the maximum number of lots to 304. The plan includes 75 acres of open space, of which at least 30% of the space must be contiguous. The commission also required that a road near the five acres of non-tidal wetlands be removed and relocated.
The council sided with assistant county attorney Vince Roberston and Schell Brothers’ attorneys Jon Horner and Kate Malloy who refuted every argument made by the appellants.
Hicks et al. appeal
Mette argued that the commissioners who voted for the application did what the assistant county attorney told them to do and did not comply with the council's remand order. He said the decision was not based on the entire record, there was no discussion and no reasons given for their votes. In addition, he said, the written notice of their decision was not produced. He said his clients were requesting the application be remanded back to the commission for a second time.
He said commissioners did not state individual reasons for their votes. “In fact, they ran from the record and voted the way they did because they were told they couldn’t deny it,” Mette said. “They must state their own reasons and not someone else’s.”
Mette said the three votes in favor of the application were based on counsel’s direction. “They did not make their own determination of co-compliance so the record can’t stand on appeal. It was not an orderly and logical review,” he said.
Mette said counsel cannot tell the commission how to vote or how to apply the law. “This is not how government is supposed to work. It’s contrary to any notion of good government. Why did the commission do a 180? Is something else going on? The only way to find out is to remand it.”
Robertson answered the accusations.
“The motion was read by me, which is permitted,” Robertson said. “It was an independent vote. The commission approved a detailed motion and created the record through its motion.”
He said council's remand order requested that the commission consult with legal counsel.
In addition, Robertson said, the commission provided a written decision June 24, which was mailed to the applicant following county regulations. “It’s not required that it be signed by individual members. It’s not in code and not in the rules,” Robertson said.
“Planning and zoning did follow council’s instructions and did an orderly review,” he added.
Mette asked council to consider if the commission considered the applicant’s compliance with the code’s superior design standards for a cluster subdivision.
Robertson said the application is not a cluster subdivision but a standard coastal area subdivision and the design standards do not apply.
“People may not like it but this application is by right. That’s the law, and if code is followed, it must be approved,” Robertson said.
He said the appellants were ignoring the fact that the motion contained 16 findings and 21 conditions. “It was an orderly and logical review,” Robertson reiterated.
Robertson listed several of the conditions noted in the motion including its compliance with the county comprehensive plan and the county’s buffer requirements, 30% contiguous open space, preservation of trees and vegetation in the open space and even relocation of a road away from a section of undisturbed wetlands.
Mallory, Schell’s attorney, said the appellants were saying the commission did something wrong by following legal counsel’s advice and advice on Delaware law read into the record.
She cited the recent appeal hearing on the Terrapin Island subdivision as prior precedent. Council denied that appeal. “It was a very similar motion and council found that the commission’s process was orderly and logical,” she said.
She said commissioners who voted to affirm the application based their vote on the motion and conditions. “I’m not sure what else the appellants want. They agreed with the motion and conditions and nowhere did their lawyer tell them which way to vote,” she said. “Their decision complies with case law, county code and Delaware law,” she added.
In the appeal filed by Bartley, the commission found that most of what he outlined was not part of the public record and could not be considered in the appeal. That included questions about adequate notice of the meeting, density calculations and the lack of a grading and easement plan included in the preliminary plan.
Vincent noted that the grading and easement plans are part of the final site plan and not the preliminary plan.
Bartley stated that DNREC records indicate that up to 25 acres of wetlands would be filled in, and under the county’s cluster ordinance, there can be no development in wetlands. “There is no evidence that they have complied with the code,” he said.
Robertson stated again that the project is not a cluster subdivision. He said there are 5.6 acres of non-tidal wetlands on the property, which are regulated. Robertson said the developer has stated those wetlands won’t be disturbed and they will have a 50-foot buffer. In addition, he said, the commission required that a road near the wetlands be relocated. “The wetlands are adequately protected in the conditions,” he said.
Robertson said that the low, wet areas on the property are not designated as wetlands by the state or the county.
Horner, Schell’s attorney, said the by-right application on AR-1 land is a permitted use. “Property rights demand approval of this project,” he said.
“Mr. Bartley lacks standing and his appeal must be dismissed,” Horner said. He said Bartley has not demonstrated any injury or is not aggrieved by the decision, and he also lives several miles away from the proposed development.
“He did not attend the public hearing, he did not write any letters or offer any testimony. He did nothing. Appeal rights are reserved for those with standing – that’s the law,” Horner said.
Rieley recuses himself
Councilman John Rieley, who recently won the District 5 Republican primary, recused himself from the appeal hearing. County attorney J. Everett Moore read a statement on his behalf. “In spite of the lack of any prior involvement, consideration, conclusion and/or pre-determination of the merits of Coral Lakes appeal in any form or fashion, he wanted to avoid any appearance to the contrary to the citizens of Sussex County,” Moore said.
Moore said Rieley decided to recuse himself based on an interview he did this summer during the campaign that was posted on social media. “That interview referenced the existence of the Coral Lakes subdivision process,” he said.
Jan. 27 – Planning & zoning public hearing
March 10 – Planning & zoning denies application 4-1
April 15 – Developer Schell Brothers LLC files appeal of commission's decision
May 24 – Following an appeal hearing, county council votes 3-2 to remand the application back to planning & zoning
June 23 – In 3-1-1 revote, the commission approves the application
Aug. 2 – Residents file appeals of commission's approval
Oct. 11 – Following second appeal hearing, county council votes to affirm commission's approval