The Sussex Planning & Zoning Commission has reversed an earlier vote and approved preliminary approval for the controversial Coral Lakes cluster subdivision on Robinsonville Road west of Lewes. 

In a 3-1-1 vote June 23, commissioners heeded the advice of assistant county attorney Vince Robertson, who said the commission could not deny an application if it meets county code. 

At its March 10 meeting, the commission voted 4-1 to deny the application for 315 single-family home lots on 152 acres. Developer Schell Brothers LLC appealed the decision to Sussex County Council. Following the appeal, at its May 24 meeting, county council voted 3-2 to send the application back to the commission to reconsider material contained in the public record. After reviewing the record and receiving a lengthy review of relevant case law from Robertson, commissioners voted again and came to a different conclusion. As part of the revote, the 11 bonus-density lots were denied, dropping the maximum number of lots to 304. The plan includes 75 acres of open space, of which at least 30% must be contiguous. 

Robertson said he understands the public wants to be involved in the process, but residents often get involved too late.

“This is sort of the part the public doesn’t necessarily understand,” Robertson said. “At the time there’s a subdivision hearing, it’s almost too late in the process. The time to get involved is when we do the comp plan every 10 years because the big picture sets the themes and goals we want to do. And then get involved in changes to the code, whether that’s zoning code or subdivision code, because that’s what sets the rules.”

Robertson referenced the 2008 Delaware Supreme Court case Tony Ashburn Son Inc. v. Kent County Regional Planning Commission. In that case, it was determined that when people own land zoned for a specific use, they’re entitled to rely on the fact they can implement that specific use so long as a proposed project complies with specific criteria and is subject to reasonable conditions in order to minimize adverse impact. 

He also referenced the 1994 Superior Court case East Lake Partners v. City of Dover, where it was determined that while the desires of the public for uses are pertinent to the zoning when initial land-use rules are established, such evidence is not pertinent to site-plan review. 

Quoting the judge’s opinion, Robertson said, “The planning commission has no power to reject a site plan because the residents do not want the land used for a project that is a permitted use under the applicable zoning regulations.” 

Commissioner Keller Hopkins was the lone vote against, saying he still had concerns about wetlands on the property. 

Commissioner Kim Hoey Stevenson chose to abstain. “What our counsel said was we can’t deny it,” she said.

“I am not opposed to this property being developed, even at the proposed density, but I do have serious concerns,” she said. “Testimony and photos shown during the public hearing showed the wet, swampy area of this tract that is marked as a nontidal wetland.”

She cited comments from the Department of Natural Resources and Environmental Control during the State Office of Planning Coordination’s Preliminary Land Use Service to support her concerns. 

“As a lifelong Sussex Countian, one who has lost a shoe or two when stepping into one of these swamps and sinking up to my knee, I agree with their general assessment,” Hoey Stevenson said. 

Jon Horner, attorney for Schell Brothers LLC, said the plan complies with all laws and codes regulating wetlands. 

“We are pleased with the planning & zoning commission’s decision,” he said in an email June 24. “As recited by planning & zoning’s own attorney, there is no discretion for a by-right subdivision to be denied when it complies with county code. Planning & zoning’s staff confirmed the application complied with county code. Despite some of the comments during the public hearing, Coral Lakes abides by all laws and codes regulating wetlands. Our plan does not encroach on protected or regulated wetlands. Ultimately, the rule of law prevailed, and property rights and the law were respected.”

Commissioners Holly Wingate, Bruce Mears and Chair Robert Wheatley voted in favor. 

“I [previously] voted against this application because of the trees, the wetlands, the flooding, etc.,” Mears said. “Unfortunately, as counsel explained, it complies with the subdivision and zoning codes.” 

Wheatley said he voted in favor for the simple fact that the commission has to honor the rule of law as it’s written.