A horse farm and an Elks Lodge were protected and open space was redesigned for the Northstar development, where 758 homes and nearly 100,000 square feet of commercial space will be built near Lewes.

The 253-lot Chase Oaks, west of Lewes, was amended to cluster homes on one side of Robinsonville Road and avoid building on the other. Vacant land was donated to the Sussex County Land Trust for preservation.

Plans for the 39-home Wilson's Landing, south of Harbeson, were changed to work around an old cemetery the developer did not realize was on the site.

The projects were among examples cited July 28 by Sussex County officials to show how information residents and state agencies provided at public hearings helped improve subdivision proposals. But that was in the past.

The General Assembly in June passed Senate Bill 23, eliminating the requirement for a public hearing for by-right residential proposals, which comply with local laws.

Assistant County Attorney Vince Robertson and County Administrator Todd Lawson explained at the July 28 county council meeting the repercussions of the legislation and the lengthy process to amend local rules to comply with it.

The county planning & zoning commission canceled public hearings scheduled July 15 for two subdivision applications. They are among 17 pending major subdivision projects using the cluster design option that are now on hold while the county drafts a new approval process.

Lawson said the county tried, with no success, for three months to convince the legislature to amend key provisions of the proposal or reject the legislation drafted by Sen. Russ Huxtable, D-Lewes. Rep. Alonna Berry, D-Milton, was a co-sponsor in the House.

Huxtable did not return a message seeking comment. 

“The legislative intent for Senate Bill 23 has been clear since the day it was introduced: this bill is designed to increase the stock of affordable housing in communities across Delaware,” according to a statement from Senate Democratic Caucus Communications Director Sarah Fulton.

“After hearing feedback on the initial bill draft, the final version that has been passed by the General Assembly gives even more flexibility to local jurisdictions regarding their comprehensive plans,” Fulton added.

Lawson blasted the General Assembly for ignoring Sussex County’s concerns and warned the legislation will have serious unintended consequences.

“Let’s be clear, this bill was framed as a housing bill and tools to develop more affordable housing throughout the state,” Lawson said. “It is not. This bill is a Trojan Horse – to use a metaphor – because everyone believed it is a solution to affordable housing, but once you look closer at the legislation, it did so much more to the land-use process as we know it today. And it will likely not generate one single affordable home as a result.”

The state law undercuts recent amendments to the Sussex County Rental Program that expedited approvals of affordable housing and provided incentives for creating such housing, Lawson said.

Developers will find that building more profitable, expensive single-family homes for people moving to the county from out of state will be no more difficult than creating affordable housing for local residents. County officials say, given that choice, single-family homes are the easy option. 

The county staff expects that drafting and approving a new approval process will take months. Council members recommended hiring a consultant to assist.

“We have to figure out a new review process,” Robertson said. “We have to determine how information is gathered and considered, and by whom. Because now that is an administrative process, not a public one. We have to determine what is the decision and who makes it. The bill’s not clear on it.”

The county discussed the possibility of convincing the state to amend the law. But that would take a long time, as the next legislative session does not begin until January.

SB 23 allows municipalities to hold a public meeting on subdivision projects but they cannot accept verbal comments. Written comments can be submitted as part of the approval process.

“What is even the point of a public meeting?” Councilman John Rieley asked.

“We’re going to have a public meeting,” Robertson said. “It’s on the agenda, the commission sees it, we have a packed room like Mr. Lawson is talking about, and the commission or me or the chair has to say, ‘Well, thanks for coming; we don’t want to hear what you have to say.”

“This eliminates transparency,” he added later.

Making residents aware of projects and encouraging written comments will be important, Lawson said.

Hearings are critical in building the public record on which projects are approved or denied, and that affects how appeals are based, Lawson said.

The county will have to establish objective criteria that will be used in reviewing subdivision proposals, Robertson said.

There is a question whether project approvals would be made by county staff or if there would be a vote by county council.

The state law will also limit the county’s ability to impose conditions on developments, which are commonly used to shape a development based on concerns raised by the public.

County officials said SB 23 is a continuation of the state moving in recent years to usurp the traditional responsibility of local governments to make land-use decisions.

They cited the General Assembly overriding the county’s limits on cannabis retail sales and the county’s rejection of a conditional use for an electrical substation outside Millsboro for a planned offshore solar power project.