A code provision specific to and governing land use in the Coastal Area precludes the approval of the Royal Farms application for a conditional-use permit to build a gas station/convenience store/car wash on the corner of Route 24 and Angola Road.
The Sussex County zoning code is intended to implement the comprehensive plan. The comprehensive plan describes the Coastal Area and the government’s need to protect it as follows: This region contains ecologically important and sensitive characteristics as well as other coastal lands which help to absorb floodwaters and provide extensive habitat for native flora and fauna. This area has significant impact upon water quality within the adjacent bays and inlets as well as upon the natural region’s various habitats.
In its legislative capacity, county council enacted Section 115-194(C)(1) to address the types of permitted uses in the Coastal Area. This provision provides as follows: [u]ses permitted in the Coastal Area will be permitted in the underlying zone ... as established by the Sussex County zoning ordinance.
This provision is intended to protect the Coastal Area and accomplishes two things: 1. limits the types of use to those uses clearly contemplated in the underlying zoning district, and 2. requires that the proposed use be established by the zoning ordinance pertaining to the underlying zoning district. The uses permitted in an AR-1 zoning district are listed in Sections 115-20 (permitted use) and 115-22 (conditional use). The word established is not defined in the zoning code. In such situations, the reviewing authority must utilize the term’s common meaning as set forth in the dictionary.
The New Webster Encyclopedic Dictionary defines the word establish as: to settle on a firm or permanent basis or to enact or decree authoritatively. A gas station/convenience store/car wash is not listed as either a permitted or conditional use in the AR-1 zoning district. The general language found in Section 115-22 (residential, business, commercial or industrial uses when the purpose of this chapter are more fully met by issuing a conditional-use permit) clearly does not meet the established-by-the-Sussex-County-zoning-ordinance test. In the law, where there is a conflict between a general provision and a specific provision, the specific provision prevails. The Royal Farms application must, therefore, be denied.
Moreover, county council, in its legislative capacity, has also distinguished the type of acceptable residential commercial uses and commercial uses in other zoning districts by permitting service stations/convenience stores in several other zoning districts without conditions or subject to express conditions, but not in the AR-1/Coastal Area overlap district. See Kwik-Check Realty Co. Inc. v. Board of Adjustment of New Castle County. A gas station/convenience store is not the type of high-intensity land use contemplated for this district given its environmental concerns. The application could also be denied on this alternative basis.
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