Unusual 2-1 vote gives preliminary consent to New Road project

Lewes Waterfront Preserve subdivision plans move forward
August 20, 2019

Story Location:
New Road
Lewes, DE 19958
United States

The nine-member Lewes Planning Commission voted 2-1 to grant preliminary consent for the proposed Lewes Waterfront Preserve major subdivision on New Road near Canary Creek. 

Only five members of the panel attended the Aug. 19 meeting, which met requirements for a quorum. Voting members dropped to four when Vice Chair Kay Carnahan recused from discussion and vote, and left the room. Carnahan said planning commission members do not disclose their reasons for recusing.

One of the four remaining members, John Nehrbas is new to the commission and abstained from voting because the Aug. 19 meeting was his first.

That left three of nine members to vote on the Lewes Waterfront Preserve application, a controversial project since developer Setting Properties Inc. submitted an application for annexation last fall.

Commissioners Tom Panetta and Mark Harris voted in favor of preliminary consent for a plan to build 90 townhouses on 34 acres, while Melanie Moser voted against.

When Carnahan recused, Harris took up the gavel – an imaginary one because there was no actual gavel at the meeting. To complicate matters, Harris was forced to pass the imaginary gavel to Moser in order to second Panetta’s motion to grant preliminary consent. City Solicitor Glenn Mandalas picked up the imaginary gavel and gave it to Moser, to the enjoyment of the few dozen people in the audience. Mandalas said the chair – or acting chair in this case – typically does not make motions or second motions.

Despite the bizarre nature of the meeting, Mandalas said the proceeding was aboveboard.

“It worked out legally,” he said. “It looks a little odd from a numbers perspective. A quorum is five, and we had five when we started the meeting. That’s enough to open the meeting, even if you know someone is going to recuse or abstain.”

Rosemary Seghatoleslami, the District 1 director of the National Association of Parliamentarians, experts in the field of legislative procedure, said Mandalas’ analysis was correct. Although Carnahan was present at the meeting and Nehrbas chose not to vote, she said, a quorum was present and business could move forward as usual. 

The commission was also up against a deadline. Per city code, the planning commission must make a decision on preliminary consent within 90 days of the public hearing. The Aug. 19 meeting marked 82 days since the hearing, meaning there was  little time to reconvene. In previous versions of city code, Mandalas said, preliminary consent was automatically granted if a decision was not made by 90 days. Currently, it’s not as clearly stated what happens if the deadline is missed, he said. 

Mandalas said the deadline was not the reason for moving forward with so few commissioners in attendance.

Moser opposed preliminary consent because she said the project does not fall in line with the city’s core values. She focused on the orientation of units parallel to New Road. The way the community is designed, one road will be used to enter the development. All units then front interior roads, and the back side of some townhouses will face New Road.

“You’re turning a back on the [Lewes] community,” she said. “That’s a very poor way to introduce people to Lewes. They won’t get any sense of the face-to-face intimacy.”

Acknowledging there will be a landscaped buffer, she said she’d prefer to have the front of the townhouses face New Road.

“There are a lot of ways to skin a cat,” she said. “I think there could be a much better design of this community.”

Jim Fuqua, attorney for Setting Properties Inc., said, “We skinned the cat exactly how the city told us to.”

He said there is a 30-foot setback from New Road, when only 10 feet are required. He pointed to the Reserves at Nassau, where the back sides of single-family homes face New Road. He said the developer also agreed to build the New Road-fronting units lower than the rest of the community to limit the view from New Road.

Fuqua said face-to-face intimacy should also be considered for the internal community. If they turn the townhouses to face New Road, then the back sides of the townhouses will face the rest of Lewes Waterfront Preserve.

Moser also said the proposal was out of scale, does not adhere to heritage through design, does not maintain the historic character of Lewes and lacks compatibility with the neighborhood.

“This sets a poor precedent for future development in the city,” she said.

Panetta said there are a number of issues to still work out, but not enough to deny the developer preliminary consent.

“This is by no means carte blanche for final approval,” he said. “We have asked the applicant, through conditions and recommendations, to address some pressing needs of the community to make this townhouse development fit in.”

Harris agreed the application met the requirements to move forward but said the city should consider changes to its code as it relates to interconnectivity.

“The trouble with most single-entry development designs is that they are designed precisely to be walled communities,” he said. “I have a lot of concerns about the design, but we are given what we are given. Within the limits of what’s required, there has been a good-faith effort.”

With preliminary consent, the developer can move forward in designing the finer details of the project before coming back to the city for final approval. 

To review the draft list of conditions and recommendations the planning commission placed on the developer, go to

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