Sussex P&Z should not be a court of equity

September 12, 2023

The Sussex Planning & Zoning Commission stands poised to choose sides in an ongoing dispute between DelDOT and the developer of Mitchell’s Corner commercial site. It would be a mistake to do so. Instead, it should remain neutral in the ongoing discussions between DelDOT and the developer.

This issue was explained in a letter to the editor by Jay Tomlinson published by the Cape Gazette Sept. 8. A decision on the parking exception has critical implications for the future of Kings Highway, and this was indirectly recognized at P&Z’s August meeting when a decision on the exception request was delayed. Now the issue is scheduled for consideration again at P&Z’s 3 p.m. meeting Thursday, Sept. 14.

What has changed? DelDOT still has not announced final plans for Kings Highway improvements. The critical difference appears to be a letter from the developer’s attorney dated Sept. 7, providing a fuller explanation for the exception request. 

The letter gives two basic reasons for seeking the exception: The developer has committed to pay for temporary improvements to Kings Highway that go beyond their minimum obligation; and DelDOT is taking more of the property owner’s land for the projected Kings Highway improvements “than typically should be expected.” 

Both of these justifications revolve around the developer’s discussions with DelDOT. The request for an exception is quite clearly an effort to bypass DelDOT and enlist P&Z on its side in the ongoing discussions. Approving the exception would foreclose important design options for the highway engineers. 

Nor is it clear that the property owners somehow deserve an exception. The earlier decision to rezone the property from AR-1 to C-2 provided an enormous financial benefit to the property owners. With that benefit came certain obligations in the form of regulations. The setback requirement is one of those obligations that the developer now wants lifted. 

Approving this parking exception would make it virtually certain that another, even larger exception will be approved for the shopping center to be built at the corner of Gills Neck and Kings Highway. Both projects use the same developer. In contrast to the developer’s argument, it is not just a question of one more row of parked vehicles. The problem is the cumulative effect that rows of parked cars have on the heart of the gateway to Lewes. In 2016, after months and months of public discussion, the community endorsed a dramatically different vision for this historic road and explicitly rejected looking like Route 1.

Sussex P&Z should not choose sides in a dispute with DelDOT. If developers believe they have been wronged by DelDOT, they need to resolve the dispute through a different route. P&Z should not be a court of equity.

Joseph A. Pika
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