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Sussex council seeks to revamp board's role

Officials want permitted uses, assisted-living projects off BOA's agenda
April 17, 2019

Assisted-living facility applications would go to Sussex County Planning and Zoning Commission and Sussex County Council, not the board of adjustment under a new proposed ordinance.

In addition, officials have proposed another new ordinance to update the process for determining permitted uses in the county's various zoning districts.

The changes would remove ambiguity and the need for duplicate applications.

In what is called the assisted-living ordinance, those types of facilities would no longer be subject to board review. Developers would be required to file an application for a conditional use in noncommercial zones. However, facilities would become a permitted use in B-1, C-1 and CR-1 zoning districts.

Assistant county attorney Vince Robertson said currently, developers with assisted-living-type projects usually also require a rezoning or conditional use as well. The assisted-living project would go to the board of adjustment and the other application would go through the planning and zoning commission and county council public hearing process.

The board of adjustment would no longer make those types of decisions. Robertson said council wanted those moved to planning and zoning and council for consistency with the jurisdiction over other land-use decisions. He said council members consider the applications as land-use decisions, which are the jurisdiction of planning and zoning and council.

“That splits the process with two separate paths that do not cross. It doesn't make sense to happen that way,” Robertson said. “County council is really concerned that should go through planning and zoning and county council.”

Two years ago, on Feb. 20, 2017, the board of adjustment approved a plan filed by Truitt Homestead LLC for an 88-unit assisted-living facility as part of a 90-lot, aging-in-place subdivision along Shuttle Road near Rehoboth Beach. The developer later withdrew the plan and is constructing multifamily housing along with 90 single-family houses.

At its Dec. 10, 2018 meeting, the board approved Tranquility at Breakwater, a 75,000-square-foot, 104-bed assisted-living facility along Old Orchard Road near Lewes.

Another area of confusion involves permitted uses in zoning districts. Currently, if a use is not specifically written in county code, it requires a board of adjustment special-use application. Under the proposed ordinance, planning and zoning staff could make a determination or request the planning and zoning commission to clarify if the request is a permitted use or would require a conditional-use application.

“The thought behind it is that in most cases this can be dealt with more efficiently at planning and zoning rather than the board of adjustment, and without the necessary scheduling time and filing fees required through the board,” Robertson said.

As an example, Robertson said there is no reference to internet businesses in county code. “A livestream studio would not be a permitted use. Under the new ordinance, staff could make an approval or they could send it to planning and zoning,” he said.

If the proposed special-use exceptions are removed from the board's agenda, the board will primarily rule on variances. But there are still other special-use exceptions, including child-care centers, nurseries, commercial dog kennels, commercial greenhouses, stables and temporary buildings, or trailers primarily used for sales, rentals and construction.

“Neither one of these should be seen as critical of the board,” Robertson said. “It's just the county trying to get some of these processes a little better organized and consistent.”

At its March 28 meeting, the planning and zoning commission recommended approval of the ordinances. County council will have public hearings Tuesday, April 16, at 10:15 a.m for the permitted uses ordinance and at 10:30 a.m. for the assisted-living ordinance.