The Superior Court decision in Smokey Hollow v. the Sussex County Planning & Zoning Commission was the subject of a recent Cape Gazette editorial. In this decision, the court found the commission acted contrary to law when it imposed two conditions, not expressly provided for in the code, and not otherwise sufficiently related to minimizing any adverse impact on nearby landowners. The editorial proclaimed the decision to be a “[a] lesson in land-use law” and opined that the decision should be a reminder to planning boards and elected officials that it must follow the law on the books, regardless of public opinion, and cannot arbitrarily deny conforming projects or force unreasonable conditions for approval. Fair enough, but I think the court would find it equally true that an application must be rejected if not in compliance with the law as written.
At a public hearing held Sept. 16 to consider the Belle Mead application, a decision was deferred until officials had the opportunity to ask and receive answers to questions of DelDOT and DNREC. Prior to voting on the motion, two of the three new members of Sussex County Council appeared willing to approve the application. While these members indicated they would maintain an open mind about their vote, their ability to do so remains to be seen.
At the public hearing, little attention was given to the issue of whether council must deny the application for failure to have any interconnectivity to adjacent parcels as required by the zoning code.
The record demonstrates that Belle Mead does not have any interconnectivity to any adjacent parcels. The applicant rejected the point of interconnectivity suggested by the P&Z commission as a condition of approval because it would be near its proposed residential buildings. An owner of undeveloped land to the southeast of the site is opposed to any interconnectivity to his property. The other adjacent parcels include residential properties and Beacon Middle School, neither of which would support interconnectivity.
Interconnectivity with adjacent parcels is a minimum district requirement for a C-4, planned commercial district. Council is not Humpty Dumpty in Lewis Carroll’s “Through the Looking Glass” and does not get to apply whatever meaning it chooses to the zoning code to support its decision. The facts and law are clear. Council must deny Belle Mead because it fails to meet the interconnectivity requirement contained in the zoning code.
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