A lesson in land-use law

Judge Craig Karsnitz just taught everyone a lesson in property rights. 

The Sussex County Superior Court judge struck two conditions placed on the approval of the Smokey Hollow cluster subdivision by the county’s planning & zoning commission. By doing so, Karsnitz is telling all planning boards in Sussex County that they must have statutory reasons for adding conditions. 

In the case of Smokey Hollow, the county’s conditional approval forced the developer to remove a legally conforming lot from the plan. The only arguments made against the lot at public meetings were from neighbors who thought it was too close to their homes. 

Also, the planning & zoning commission required the developer to adhere to a fixed buffer even though there was no buffer requirement for tidal wetlands in county code. That condition would have eliminated another eight lots from the plan. 

Like it or not, Karsnitz made the correct decision in striking both conditions. Commissions simply cannot force a developer to eliminate a lot without good reason. Likewise, setting a buffer when no such requirement exists in law is overstepping. 

Coincidentally, Sussex County passed a new buffer law shortly after the approval of Smokey Hollow. In it, the county set a buffer average instead of a fixed buffer. 

In an attempt to reach a compromise, the developer of Smokey Hollow offered to follow the buffer average requirement even though it wasn’t subject to the rule since the subdivision was approved before the law was in place. The planning & zoning commission denied the request and stuck with its original condition for a fixed buffer. 

Karsnitz’s decision to strike the conditions is a reminder that planning boards and elected officials cannot arbitrarily deny projects or force unreasonable conditions for approval. It shows they must follow the laws on the books regardless of public opinion. The only way to ensure real change is to amend land-use code.