Sussex council denies rezoning for Overbrook Town Center

Sussex County Council has denied a rezoning request for a 114-acre parcel of farmland that would have paved the way for Overbrook Town Center, the largest shopping center ever proposed in Sussex County.

Council voted 4-1 to deny the rezoning request by TD Rehoboth LLC, a Timonium, Md., developer. The project was met with opposition from farmers whose land surrounds the parcel as well as numerous nearby homeowners. Sussex County Planning and Zoning Commission previously voted 3-2 to recommend approval of rezoning.

Councilman Sam Wilson, R-Georgetown, voted against the plan. "I'm really the only farmer on this board," Wilson said. When Wilson cast the third and deciding vote, the large crowd erupted into wild applause. He said the county has lost a lot of farmland and the highways are already crowded.

Protecting farmland and farmers' rights appeared to be the prevailing reason council voted against the application. “A section in farmland preservation adjacent to the parcel was a very key issue,” said Rob Witsil, an attorney representing the opposition group Overbrook Town Center Coalition.

Also voting no was Councilwoman Joan Deaver, D-Rehoboth Beach, who noted the parcel is surrounded by farmland and in proximity to the Great Marsh. She said the requested CR-1 zoning was not appropriate. "There is nothing in the county that would compare with this," she said. "It exceeds anything else on Route 1 … It doesn't promote the orderly growth of Sussex County."

Deaver called the application an unprecedented rezoning request with nothing existing in the area comparable in size or scope. "We are not voting for a shopping center, but the many uses permitted under CR-1 zoning," Deaver said. “We have to take into account that the area is predominantly agriculture. There is trouble transitioning from this to the farmland around it.”

Jim Fuqua, the applicant’s attorney, said the developer is reviewing the record and will decide within the 60-day deadline if an appeal will be filed. “The applicant is disappointed in council’s decision. It’s not consistent with the county’s land-use regulations,” he said. “Plus there is the loss of $8 million in road improvements and the loss of a thousand jobs.”

The decision may be appealed within 60 days to Court of Chancery after the county publishes the findings of fact, which takes about two weeks.

Councilman Mike Vincent, R-Seaford, also opposed rezoning, as did Councilman George Cole, R-Ocean View, who said it was not appropriate to place the county's most intensive land use in such close proximity with the least intensive land. Three historic family farms surround the parcel that was proposed for the shopping center.

Cole said he agreed with the 14 reasons stated by Planning and Zoning Commissioner I.G. Burton who voted against the application. “There is not a large enough population base to support this large commercial operation. The traffic headed to the beaches will not stop there when there is ample shopping near the beaches,” he said. “There is nothing positive about this.”

Vincent said he supports property rights to a point. "My property rights should not affect your property rights," he said.

Councilman Rob Arlett was the only vote in favor of the plan. He said commercial enterprises should be built along major roadways in the county, such as Route 1.

Arlett acknowledged that farmland had to be sold to build houses so his family could move in 2007 to Sussex County. “We are an agricultural county, and we take pride in that. It’s something we enjoy; it’s an important story,” he said. “But we are also a tourist destination, and we have to accommodate that.”

Arlett said jobs – such as those for the proposed shopping center – are needed throughout the county, and council should not be the judge of the scope of those jobs.

Witsil said the vote was not a popularity contest and not a vote in favor of public sentiment, but a vote specifically on the language of the zoning code and the county's land-use plan.

He said the applicant focused on one line in the code, directed toward uses in environmental sensitive developing districts, which was the parcel's zoning designation. “It provides for large-scale development on a major artery – that's the phrase that opened the door for the this application. But that doesn't entitle an applicant to a change of zone. There are so many other hurdles an applicant has to overcome. I'm sure this will be a battle on appeal,” Witsil said.

Witsil called the debate over the application the biggest zoning fight he has witnessed in his 36 years of practicing law in Sussex County, including four years as county council's legal representative.

He credited the opponents, headed by the grassroots Overbrook Town Center Coalition, with keeping the application in the public eye. “That brought an awareness to the application which I think is unprecedented,” he said.

Councilman Sam Wilson casts deciding vote

Republican County Councilman Sam Wilson, who lives on his farm near Georgetown, has served on council for nearly eight years. During his tenure, he has been a strong proponent of property rights. At times, he has lectured council and the public on the importance of protecting the rights of property owners and keeping government out of their lives. He rarely votes to deny land-use applications.

For that reason, many people who pay attention to council votes expected Wilson to vote for the Overbrook Town Center rezoning application. After council members Joan Deaver and George Cole cast negative votes, it was Wilson who cast the the third and deciding vote against rezoning.

He listed several reasons to vote for and against the application before he stopped and said, “I guess you are waiting for me to vote.”

When he said he was voting for denial, the large crowd in the council chambers exploded, cheering loudly.

Rob Witsil, an attorney representing the Overbrook Town Center Coalition, said it was clear that Wilson struggled with his decision. “You could tell that Sam was very concerned and thought about both sides,” he said. “As he went through his soliloquy, I couldn't tell which way he was voting. But bless his heart, he voted the right way.”

Wilson's term expires this year.

Overbrook coalition reacts to decision

The decision to deny the rezoning application for the possible OTC site is a major victory for the vast majority of local residents who have expressed their opposition to this project,” said coalition member Rich Holtkamp. “The majority vote, along with their explanations, clearly indicates that council had carefully considered all of the numerous and real issues involved and acted responsibly to preserve individual rights and environmental resources.”

“The Overbrook Town Center Coalition was extremely pleased with the 4-1 decision. It clearly demonstrated the time and effort the council dedicated to an extremely important decision,” said coalition member Rich Borrasso. “We would also like to recognize the engagement of the community in understanding the critical issues regarding this land use decision and for their relentless efforts to be heard. Additionally we want to recognize both state and county officials and agencies for their support and guidance.”