Sussex delays vote on Old Mill road apartments

Sussex County Council has yet to rule on a controversial high-density rezoning of a parcel east of Route 1, north of the Nassau Bridge near Lewes.

Following a 3-1/2 hour July 23 hearing, council voted to leave the public record open for 15 days to acquire additional information from county staff and state agencies.

Nassau DE Acquisition Co. LLC has filed to rezone a 15-acre parcel near the Old Mill Road and Route 1 intersection from AR-1, agricultural-residential, to HR-1, high-density residential planned community, for 168 apartments and a small commercial building. As proposed, 21 of the units would be part of the county's affordable rental program.

Up to 12 units per acre are permitted in HR-1 zoning districts.

With a 3-2 vote at its July 18 meeting, Sussex County Planning and Zoning Commission recommended approval of the application.

Residents who opposed the rezoning said high-density development is out of character with the surrounding neighborhoods of single-family homes and small commercial businesses.

In addition, residents said the Minos Conaway Road-Old Mill Road grade-separated interchange project with service roads should be completed before any development of the parcel could begin. State transportation officials said the project will start in 2023 and be completed in 2025.

SARG: 'A serious flaw'

Jeff Stone, representing Sussex Alliance for Responsible Growth, read a 6-page statement in opposition to the rezoning.

He called the application a “serious flaw” in the county's approach to development review. “It seems the county assumes all projects are good and does little to evaluate the impacts of the proposal, but depends on residents to go up against well-funded developers, accomplished land-use attorneys and paid experts, and often DelDOT, to try to prove a negative – that a project is not in the county's best interests and that it will do more harm than good,” he said.

Even when credible negative information is provided, it is often ignored, he said.

Stone referred to a 1988 memorandum of understanding between the county and DelDOT concerning rezoning applications. Under the agreement, he said, road improvements must be completed concurrently with the development or county council will not approve the rezoning. “To our knowledge, over the past 30 years, neither party has ever fully invoked its provisions,” he said.

Burton: 'Zoning scares me'

Councilman Irwin “I.G.” Burton of Lewes said he didn't see much change from the previous application that was rejected by county council. “You didn't ask for HR last time, and that was turned down. There are other ways to do this,” he said, adding there are no other similar high-density projects in the area.

He said the 42-foot height limit proposed by the developer is not accurate because it does not include pitched roofs, chimneys or tower structures. “There is a whole lot of residential in that area,” Burton said. “This zoning scares me.”

The height limit in HR zoning districts is 52 feet.

The developer's engineer said council could place a condition on approval restricting the height to 42 feet including all architectural and mechanical construction.

Change to high density

John Tracey, the developer's attorney, said no one disputes the need for affordable housing in the county, especially in the beach area for the many workers who now commute from other areas in the county.

“County council has made it clear there is a need for affordable housing,” he said.

He said Delaware State Housing Authority supports the proposed project because of its location in an area of opportunity where land has the highest value and is in short supply.

In December 2018, county council denied the same developer's application for a conditional use and rezoning on 12.5 acres of the parcel for 150 apartments. However, at the same time, council approved the developer's application for a commercial rezoning to build a 4,700-square-foot office complex on the same parcel.

The application has now been been resubmitted to rezone the entire 15-acre parcel under HR-1 zoning.

Tracey said a new, separate direct access to Route 1 for the parcel makes high-density zoning appropriate. “Density is a good thing because it allows the developer to fund the infrastructure,” Tracey said.

The attorney said the developer also made changes in the preliminary site plan based on comments from area residents during previous hearings. Changes include an enhanced buffer with a 7-foot privacy fence at the rear of the property along Broeders Lane, removal of exterior garages in the rear of the parcel and a change in the orientation of some of the six buildings so they are not facing or backing up to Old Mill Road.

Tracey said central water and sewer service to the parcel would be an added value to other properties that could connect in the future.

Proposed road improvements

Proposed road improvements the developer would be required to fund include 11-foot travel lanes and 5-foot shoulders on Old Mill Road from Route 1 to the property line of the proposed complex. In addition, the developer could be required to pay for improvements at Route 1 median crossovers in the area.

The developer would also be required, based on traffic impact, to contribute funding for the Minos Conaway Road-Old Mill Road interchange. Included in the project are two service roads on both sides of Route 1. Access to Route 1 from the parcel would eventually be by a service road, which is expected to be complete in 2025.

The developer's traffic consultant, Nicole Kline-Elsier, said because of studies already completed on traffic and road conditions in the area, DelDOT is not requiring a traffic-impact study, if agreeable by county council. Instead, she said, the developer would pay $10 – or about $9,000 – per daily trip into an area-wide traffic study.

She said the developer would be required to provide a traffic operational analysis for the parcel. Residents who testified in opposition to the application said county council should require a traffic study.

George Dellinger, who lives on Sandpiper Drive, said there is a marked difference between the two studies. He said a traffic-impact study provides data to county officials before a vote is taken. An operational analysis provides data only after an application has been approved, he said.

Dellinger said traffic safety concerning the proposed complex is not DelDOT's job. “Safety issues are the job of Sussex County Council,” he said.

Dellinger said council must require a traffic-impact study. “You had a half hour of Q&A today [with DelDOT] and nobody knew the answers,” he told council.

He said immediate improvements are needed at the Route 1 median crossovers, especially at the crossover at Old Mill Road where he and his neighbors access the highway.

Kline-Elsier said about 450 vehicles would exit and enter the complex a day. From 57 vehicles to 73 vehicles would exit and enter the complex during morning and afternoon peak hours. She said one additional vehicle per minute would be added to traffic during peak times.

Limit of 90 building permits

The developer would also pay for the right-in, right-out access to Route 1. But only residents in 39 apartments would be permitted to use it. DelDOT would require a physical barrier to block other residents from using it, with other access from Old Mill Road.

Tracey said, if the rezoning is approved, apartment construction would be underway in 2022 to 2023.

Residents said there would be a two-year gap between the projects, aggravating safety concerns.

Among conditions approved by the planning and zoning commission is a limit of 90 building permits until completion of the interchange. Council has the option to keep the condition or amend it.

“We would prefer that not be a limitation,” Tracey said.

He said the fully funded interchange project would bring relief to traffic concerns expressed by residents. In addition, he said, the restriction would delay construction of needed affordable units and also have more impact on neighbors with construction starting, stopping and starting over.

Residents oppose rezoning

Bill Landon, who lives on Landon Road, across from the parcel, said communities east of the property are zoned AR-1 with single-family houses on wooded lots. There are 70 residences in five communities that use Old Mill Road.

Landon said, recalling a familiar Eagles song, 168 apartments would have too much impact on the area. “It will be Hotel California. Everybody can check in, but nobody will be able to get out,” he said.

He also asked why traffic from neighboring communities was not considered in the traffic analysis provided to DelDOT.

“This is not a good location for this density. This does not pass the common-sense test. Affordable housing needs to be in the right location. We need to work together so as not to have blood on our hands,” Landon said.

Erwin Villiger, an Old Mill Road resident, said approval of the rezoning would set a precedent for other high-density zoning. He said adding 18 units to the original application does not address concerns raised by the community on the previous project.

Villiger said the section of the parcel where the majority of the apartments are planned is in a state-designated Level 4 area where development is not supported. “This should be denied for this reason alone,” he said. “There are so many problems trying to fit it in here; it doesn't belong.”

Vincent Brady, an Oak Drive resident, said DelDOT does not have the 60 feet of right of way needed to make intersection improvements at Old Mill Road and Route 1. “And homeowners will not provide it,” he said.

Celeste Marvin, a Sandpiper Drive resident, said the current zoning allowing 2 units per acre is appropriate for the area. She said the actual building footprint has a density of more than 13 units per acre.

“It's not in character of the area, and that's the key factor here,” she said. “It can set a precedent, and the county won't have a leg to stand on to protect the area.”