With a 4-1 vote, Sussex County Council denied a controversial application that would have allowed a 7-Eleven convenience store on Angola Road and Route 24 between Lewes and Long Neck.
The Jan. 7 action ignored a recommendation for approval from Sussex County Planning and Zoning Commission.
KH Sussex LLC had filed a conditional-use application for a 3,500-square-foot convenience store with gas pumps on a 3.5-acre parcel. It was the second application council denied for a convenience store by the same developer. In December 2018, council voted 3-2 against a rezoning from AR-1, agricultural-residential, to C-3, heavy commercial, citing incompatibility with surrounding uses.
Pointing to traffic and environmental concerns, area residents mounted a campaign against the application, which included a protest outside a council meeting. Council was inundated with numerous emails, letters and phone calls from opponents, even after the public record was closed.
Dennis Schrader, the applicant's attorney, said his client is considering options including a possible appeal of the decision in court.
Making the motion for denial, Councilman Doug Hudson of Dagsboro said the proposed use was too intense for the parcel. “This was a tough decision that stirred up a lot of passions,” he said.
He agreed with concerns council expressed about the 2018 rezoning application and said a precedent would be set for more commercial development in that area.
Hudson said the current conditional use on the parcel allowing for boat repair and storage, lawn cutting and construction businesses has low impact on the area and does not generate much traffic. He said the proposed use would lead to major congestion on nearby roads with improvements not scheduled until fiscal year 2022. “There are no other major businesses in this area. It's out of character,” he said. “It's not appropriate to start a commercial trend on all four corners.”
Councilman Irwin “I.G.” Burton of Lewes said the proposed convenience store would generate traffic that could negate upcoming road improvements at the Route 24-Angola Road-Robinsonville Road intersection.
The applicant testified during hearings that upcoming improvements – some funded by the developer – to the intersection would alleviate traffic concerns in the area.
Burton agreed with Hudson that a 24-hour convenience store with gas pumps is a big change from the current use of the property. He said the proposed use was not a good match for the surrounding area.
Burton said he was also concerned about possible impact on water resources in the area.
“There was a lot of public outreach, but we have to make our decision based on the public record and the comprehensive plan,” Burton said.
Councilmen Hudson, Burton, President Mike Vincent of Seaford, and John Rieley of Millsboro voted against the application. Councilman Sam Wilson of Georgetown said he supported property rights and voted for the conditional use.
Opponents join forces
“We are relieved it went this way. We were prepared to take legal action if we had to,” said Angola by the Bay resident Jens Wegscheider, who helped organize residents in opposition to the application. “It's that important to us. This application was not fair to existing and new homeowners in the area.”
Opponents presented county officials with a petition signed by 618 residents, and more than three dozen opponents carried protest signs around the county administration building during an Oct. 22 council meeting.
“You can fight city hall and win, but that's only because we had momentum thanks to lots of people who really care,” Wegscheider said.
Wegscheider said he's sure the applicant did not expect the outpouring of opposition during the first hearing before the planning and zoning commission. “A conditional use for a 24-hour, 365-day operation with gas pumps is not a reasonable expansion of the existing conditional use on the property,” he said. “There were so many reasons against this. It should have never been a conditional use in the first place.”
He said residents were also concerned that just a few conditions were placed on the application in the planning and zoning commission's recommendation of approval.
Wegscheider said the outpouring of opposition has opened the eyes of many residents in the Angola area. “We will continue to be in touch to oppose inappropriate applications. That had been missing from people in our area in the past,” he said. “The lesson we have all learned is that you have to get involved.”
Wegscheider said residents realize another application will likely surface at the location. “It should fit in the area. I don't think they would encounter similar opposition for a project such as medical offices,” he said.
Attorney: Evidence was on record
In a Dec. 16 letter, which is part of the public record, Schrader alluded to the outpouring of public comment on the application, reminding council of the standards they must use to render a land-use decision.
Schrader said public comments must be considered by council, but opponents are required to substantiate their generalized concerns with specific evidence about the threats posed. He said there was substantial engineering and scientific evidence on the record to support the application.
Schrader wrote that based on case law involving previous lawsuits filed against Sussex County, applications must be supported by substantial evidence on the record and that “council is not free to bend to the prevailing breezes.”
He said the cases echo the Delaware Supreme Court ruling from more than 50 years ago that giving one neighbor a heckler's veto over the use of another neighbor’s property was an “intolerable situation in a free country.”