Sussex Council denies Overbrook rezoning 3-2

Sussex County Council has again rejected a request to rezone a 114-acre parcel along Route 1 at Cave Neck Road. The request, to change the zoning from AR-1, agricultural-residential, to CR-1, commercial-residential, was filed by TD Rehoboth LLC, a Timonium, Md. developer.

Developers had presented plans for the Overbrook Town Center, a 850,000-square-foot retail center, the largest ever proposed in the county.

Council voted 4-1 on April 12, 2016, to deny the application but was later ordered by Chancery Court to rehear the application and vote a second time.

Voting to deny the application were Councilmen I.G. Burton, George Cole and Council President Mike Vincent.

Voting in favor of the application were Councilmen Rob Arlett and Sam Wilson, who had voted against the application during the previous vote.

Reasons for denial

Making a motion for denial, Burton said the proposed rezoning was not in compliance with the 2008 county comprehensive plan aimed at preserving farmland and promoting agricultural uses. "There is a great potential for negative impact on adjacent farms," he said.

The parcel sits between two farms, one of them in the state's farmland preservation program.

He said goals within the comprehensive plan include protecting critical natural areas through strategies such as guiding growth, preserving the rural environment and conserving open space.

“The size and scale exceeds anything else that exists along Route 1 since zoning was established, and it is inappropriate for this location,” Burton said. “This is a rezoning application so we have to look at what could be possible under CR-1. Any large-scale development would be inconsistent with the area."

Jim Fuqua, the applicant's attorney, said council should not take into account a change in the Delaware Strategies for State Policy and Spending, which shifted the parcel from Level 3 to Level 4 since the change occurred after the public hearings, the three who voted against the application all mentioned the change as a reason for their vote.

Burton said retail development and development unrelated to agriculture is discouraged by state planners in Level 4 areas.

"It is within a developing area, but that does not require that the parcel be rezoned commercially," Burton said. "AR-1 is the most appropriate zone for the property at this time given the location and its surroundings. This is completely supported by the county's comprehensive plan and Delaware Strategies for State Policy and Spending.”

He also agreed with opponents that flooding, drainage and pollution could all seriously affect the nearby Great Marsh.

“Rezoning this 114-acre tract of land, which is unprecedented in size and scale for a single commercial rezoning in Sussex County, is inappropriate,” Burton said. “Approval of this change of zone would have domino effect of high intensity commercial use on other properties located south of the applicant's site, which would be in conflict with the AR-1 properties remaining.”

Vincent said the county's zoning map shows a depth of 600 feet for commercial development along Route 1. “From 600 feet to 2,800 feet as proposed by the developer is a big step for me,” he said. “And once the land is rezoned, it's changed forever. We can't undo it.”

Cole said dropping this rezoned parcel into the area would be spot zoning. “It's not required that the land be rezoned. AR-1 is the most appropriate classification for this property,” he said.

He agreed with Burton that the size and scale of the rezoning has no comparison in the county. “It would be better suited in a more confined highway commercial area like between Five Points and Rehoboth,” he said.

Arlett, Wilson vote in favor

Voting in favor of the application, Arlett disagreed with Burton. He said the parcel is in a growth zone where large retail businesses are appropriate as long as they are located along a major arterial road, which Route 1 is designated.

"If you can't build on a national highway, where can you build?" Arlett asked.

He said the site plan would be heavily scrutinized by state agencies and the county's planning and zoning commission.

Arlett said council needs to take proactive measures in planning for large-scale commercial development.

At first, Wilson voted against the application, but he changed to a positive vote saying he agreed with Arlett's reasons.

During the April 10 public hearing, attorney Fuqua said the developer was prepared to submit a new plan for the parcel with 135 single-family lots on 64 acres and 50 acres of commercial land with a 312,000-square-foot shopping center.

Arlett said council was aware of the new plan, but it was submitted after the public record was closed. “It would have been nice to have that when the record was open,” he said.

Applicant can appeal decision

County attorney J. Everett Moore said anyone can appeal the decision within 30 days. However, he said, he feels confident the county has developed a strong record with strong reasons presented by council for their votes.

Moore said if the applicant would refile to develop the entire parcel with a similar plan, there is a one-year waiting period. But, he said, if a substantially different plan is presented there is no delay. He said the proposed mixed-use plan for commercial and residential units would not require a one-year waiting period.

The residential project was reviewed in September 2017 by state agencies through the preliminary land use service process.