Earlier this week, the Sussex County Council introduced an ordinance to amend Chapter 115 of the county code relating to building height restrictions. The draft ordinance was a result of concerns expressed by Councilman George Cole at last week’s council meeting, relating to what he said was a possible loophole in what the council understood was the existing height limit.
Currently, the code reads, “Public and semi-public or public service buildings, hospitals, institutions or schools, when permitted in a district, may be erected to a height not exceeding 60 feet.”
Cole requested that the county solicitor look into whether or not the council could place a moratorium on accepting applications for structures taller than 42 feet, which he said was the limit the council believed to generally be in place.
“We’re not changing the code to create a 60-foot height limit. That was in the code. We’re simply clarifying what that means,” explained Assistant County Attorney Vince Robertson.
“Really, for the purposes of this ordinance amendment, a moratorium does not make a lot of practical sense,” he added. “Moratoriums, by their nature, are contentious and often lead to litigation. The most appropriate means to have them enacted is to follow the ordinance process, since they are technically a change to the code or what you can do under the code.”
County Solicitor David Rutt added that it would be redundant to introduce both an ordinance and a moratorium, and suggested that the council simply introduce an ordinance.
“Is it possible just to have a request to Planning & Zoning not to accept any applications that exceed the 42-foot historic height limit that has been the standard of this county?” asked Cole. “In other words, we’re not stopping any applications — we’re saying the interpretation of the Sussex County Council at this time is the 42-foot, which has been the standard… and anything that exceeds it will not be accepted at this time, until this ordinance has been heard.”
“That’s a de facto moratorium,” responded Rutt, adding that the ordinance regarding the 60-foot height limit was passed in 1990.
“It’s all in the current interpretation,” said Cole. “The trouble is the County has interpreted it for many, many years that it’s 42-feet and only the schools… Still, I haven’t seen any memos. I haven’t seen any interpretations from any attorneys. It just worries me that an attorney can walk in and everything changes. We were never involved in this process… Unless it snuck by me somehow, I don’t recall it happening. I don’t see any literature suggesting that change.”
Lawrence Lank, director of Planning & Zoning, reported to the council that, so far, the code interpretation permitting a 60-foot height has only affected three projects — some apartments on Route 9 and two motels, one of which is under construction and the other in the preliminary stages.
“It seems that the attorney that represents Americana Bayside is the one that discovered this loophole,” said Cole.
“It’s not a loophole. It’s a section of the code,” said Rutt.
Cole said he also wants the residential planned community (RPC) section of the code, related to residential structures, to be looked at.
“It very may well be that the ordinance says that because it’s a good idea,” said Councilman Vance Phillips about the 60-foot height restriction. “There is certainly a school of thought out there that it’s much better to go up than go out. I think it’s important to put this into perspective. It’s 60 feet.”
Phillips added that the council may want to put the 60 feet into perspective and compare it to buildings in Ocean City, Md., that are 300 feet high or the 165-foot-high Sea Colony near Bethany Beach.
“For anyone to compare this 60-foot reference in our ordinance to Sea Colony or Ocean City is just trying to create a red herring. How do you compare 60 feet to 300 feet?”
Councilman Sam Wilson questioned why the County would want to change the height regulation when it won’t affect higher-population areas or Sussex County municipalities.
“Why are we so dead set against building at 62 feet way out in nowhere?” he asked.
Councilwoman Joan Deaver introduced the ordinance, which is scheduled to be discussed at the Oct. 22 council meeting.