Sussex council considers Lockhaven appeal

The fate of the Lockhaven subdivision is now in the hands of Sussex County Council.

After Sussex County Planning and Zoning Commission denied the application, developer Don Lockwood appealed the decision to council, which has until Jan. 14 to render a decision. The matter will likely be placed on council's Tuesday, Jan. 11, 2022 agenda.

The proposed subdivision with 25 lots averaging 2.5 acres is planned for a 126-acre parcel along Round Pole Bridge Road near Milton.

Debate on county code

During the Dec. 14 meeting, Fred Townsend, the developer's attorney, said the commission exceeded its authority by denying the application based on what he called impact concerns and not county code considerations. Among those impact concerns are comments from the Preliminary Land Use Service review of the project, he said, adding the denial was not based on substantive evidence.

He said the commission has 17 factors to consider in Section 99-C of county code when evaluating a subdivision. “But you can't use these factors to deny a code-compliant application, but to only apply reasonable conditions to a plan,” he said. “You are on a path to arbitrary and ad hoc results, and you don't want to go down that road; 99-C is only to apply reasonable conditions.”

He said the commission did not conclude that the land was unsuitable for development. “It exceeded its authority by relying on impact concerns,” Townsend said.

Assistant county attorney Vince Robertson disagreed, saying denial is one of the options in the 99-C section of code. He said only when a developer satisfies the items in 99-C can a subdivision be approved.

“There is not enough record to go on and too many unanswered questions,” he said. “Based on the transcript and record, the commission came up with the appropriate decision to deny the application.”

Although Townsend called the denial based on 99-C a first in Sussex County history, that statement was disputed by Robertson.

Townsend said the developer is proposing a standard subdivision and not a cluster subdivision, which has become the norm in the county. “My client is not interested in maximizing density of the property,” he said.

The attorney pointed out that there are different regulations in code for the two types of subdivisions. “Wetlands can be subdivided. That's not prohibited in standard subdivisions, but is prohibited in a cluster,” he said.

Septic concerns

Much of the testimony during the appeal centered around a soil analysis feasibility study done on the parcel, which is being used to determine placement of on-site septic systems.

“Septics were a real concern for denial,” Robertson said. He said the soil study was done in 2006 and reviewed by Department of Natural Resources and Environmental Control staff in 2015 for a different subdivision planned for the same parcel. “Some soils were marginal and some were bad. But there is no record where problematic lots were,” he said.

Townsend said the feasibility study is not done on a lot-by-lot basis, but on the entire tract of land. “DNREC says it's valid, and supplemental information was offered that the parcel is suitable for on-site septic. It's up to the developer to site lots based on the feasibility study,” he said.

Robertson said the applicant had options of either getting an updated DNREC review based on the new subdivision plan or connecting to central sewer service. He said those options were not considered, and that left a big question mark for the commission.

He said although DNREC officials said the feasibility study does not expire, there is no way to confirm whether soil conditions have changed since 2006. “There is a gap in the record,” he said. “The commission needs an accurate record to make a decision; it's not their role to design a subdivision.”

Townsend said while the commission questioned the validity of a soil feasibility study for on-site sewer availability, DNREC officials concluded the study was valid. “DNREC has spoken and sewer is available,” he said.

Environmental issues

Other key questions centered around environmental issues and assurances of minimal disturbance of natural resources, including preservation of the 38 acres of woodlands on the property.

“You can define a woodland area. Where the woodlands and wetlands are were shown on the plan for information purposes only,” Robertson said, adding much of the wooded area could be cleared to make way for in-ground septic systems.

“We don't know where the preserved woodlands would be. There is not a sufficient record to consider,” he said. “There is no justification that tree removal would be minimal. There would be extensive tree removal for septics.”

Townsend said scenic preservation and minimal disturbance are not precise and cannot be measured. “What is minimal?” he asked. “The code does not say trees can't be removed. You can't measure preservation of woodlands,” he said.

In addition, he said, the site plan includes 50-foot buffers from wetlands.

Robertson said it was unclear how many acres of wetlands were on the parcel. He said numbers of 28 acres and 65.9 acres were both in the record. “There are extensive wetlands, but we are not sure of the total. There is no protection, because all of the wetlands are within lots,” he said.

In addition, he added, the preliminary site plan contains a sentence stating there are no wetlands on the property.

Location of subdivision

Robertson said the commission was also concerned about the location of the subdivision along Round Pole Bridge Road, with the proposed entrance in an area with 90-degree and 45-degree turns. “This is a bad place to put a subdivision,” he said.

He said the narrow road, which is used by farm equipment, has sight issues, especially during the corn-growing season.

Townsend said state transportation officials do not have an issue with the location. “DelDOT has granted a letter of no objection and concluded the project would have minor impact on roadways. That can't be a basis of denial,” Townsend said. “The developer is code compliant, and that's already been determined,” he added.

District 5 Councilman John Rieley asked whether or not the applicant could reapply.

“They can address unanswered questions and come back. Nothing is stopping them,” Robertson replied.