Sussex OKs mandatory standards for cluster developments

Measure requires superior-design elements in some subdivisions
June 17, 2019

With a key change, Sussex County Council voted 3-2 in favor of an amended cluster subdivision ordinance.

The ordinance now makes superior-design standards mandatory – and not optional as in the previous ordinance – but removes a controversial yield plan as one of those standards. In cluster subdivisions, developers are permitted to build on 7,500-square-foot lots – much smaller than the 20,000-square-foot lots otherwise required for standard subdivisions – in return for adherence to superior-design standards.

The Sussex County Planning and Zoning Commission had recommended approval of the ordinance.

Councilman I.G. Burton, R-Lewes, said the commission voted in favor of it in 2008 and then again in 2019. He noted the commission and not council votes on subdivision applications. “They saw it as the right thing to do,” he said.

Developers were given a wide loophole when the superior-design ordinance was amended in 2008, making all design requirements optional in cluster subdivisions. That was not the unanimous recommendation passed on to county council by the planning and zoning commission, which had proposed making all regulations mandatory.

It was Burton who recommended council remove the yield-plan standard based on testimony during council's May 14 public hearing. Farmers and developers voiced opposition to the yield plan because, they said, it would decrease land value. “We had some pushback from a select few. I agree with the yield plan being removed. It's important to keep the economic engine running,” Burton said.

Under the previous ordinance, an applicant was required to submit a yield plan showing the maximum number of dwelling units possible under a standard subdivision with 20,000-square-foot lots. The number of lots in the cluster subdivision design couldn't exceed the number of lots in the yield plan.

But that requirement is no longer part of the ordinance.

Many residents were surprised to discover that superior-design standards are not required in the Coastal Area, which includes areas around the Inland Bays, Rehoboth Beach and Lewes.

Burton said he understands people's concerns that the super-design ordinance does not apply, but it will be addressed in the future. “It's in the comprehensive plan to look at that,” he said.

Open space an issue

Contiguous open space turned out as one of the sticking points in the ordinance. One of the key standards is 30 percent contiguous open space.

Burton said in his 11 years on the planning and zoning commission, he looked at more than 1,000 subdivision plans. Burton said developments were built with any green space counted as open space, including stormwater management areas. “That was never the intent,” he said. “What they deemed as open space, I don't deem as open space. It was supposed to be smaller lots for increased open space,” he said.

According to the new ordinance, the required 30 percent open-tract space “should be beneficial to subdivision residents,” include a pedestrian trail and be adjacent to an existing park, woods, farm, preserved area, waterway, wetland or other eco-sensitive parcel. The open-space border can be broken by waterways and one street.

Councilmen Burton, Doug Hudson, R-Dagsboro, and Council President Mike Vincent, R-Seaford, voted in favor of the ordinance.

Councilman John Rieley, R-Millsboro, who voted against the ordinance, said it would impose higher design standards in areas away from the coast. “This could have a propensity to raise housing prices when we should be looking for ways to create affordable housing,” he said.

He said cluster subdivisions are a good development tool, but the market should be the driving force and not forced government regulations.

Councilman Sam Wilson, R-Georgetown, who also voted against the ordinance, said it will harm the county and help destroy farming. “Why are we forcing this on people? Why will this be mandatory?” he asked.

Assistant county attorney Vince Robertson said landowners and developers will still have options other than cluster subdivisions including standard subdivisions and residential planned communities to choose from.

In AR-1, agricultural-residential, zoning districts, two units per acre are permitted. Under an ordinance passed last December, state, or tidal, wetlands can't be used to compute density of a parcel.

Robertson said based on work being done by the council-appointed wetlands buffers group, there will probably be changes to the ordinance dealing with buffer widths. “We know we will have to come back and revisit it,” he said.

The ordinance will take effect in mid December.


Cluster subdivisions

• 7,500-square-foot lots instead of 20,000-square-foot lots in standard subdivisions

• Open space must be beneficial to residents and adjacent to either preserved lands, wetlands, parks, waterways, farmland or woods

• A pedestrian trail is required in open space with connection provided to any other existing trails

• Sidewalks on at least one side of all streets

• Central water and sewer

• Superior design elements: 30 percent open space in one contiguous land tract; preservation of existing wetlands, waterways, wildlife corridors, farmlands and woodlands as part of design; minimum 25-foot setback from wetlands; limited removal of trees; scenic views preserved to the greatest extent possible

• Developers receive expedited review

• Minimum buffer regulations include a 25-foot setback from all wetlands, 50-foot setback from tidal waters, streams and rivers, 30-foot forested buffer from farmland and 30-foot vegetated buffer from other developments