Planning & Zoning defers action on Riverview project

Members of the Sussex County Planning & Zoning Commission (P&Z) voted unanimously on March 31 to defer action on the application of Riverview LLC (a Caldera Properties holding) to rezone as MR-RPC (medium-density residential district, residential planned community) a nearly 80-acre parcel off Walters Bluff Road.

The planned development of 72 single-family detached condominiums and related recreational facilities would be permitted under the requested RPC overlay in the county’s medium-density residential district. Development of the parcel would be much more severely restricted (particularly in number and density) without the RPC overlay.

The main sticking point for the project has been access — restricted by limited upland areas between Walters Bluff Road and the portions of the property where homes would be built.

Developers have proposed primary access to the development be via a 1,300-foot timber bridge that traverses both tidal and non-tidal wetlands. No other access to the property is currently available, though the developers said they have pursued alternate access through negotiations with a neighboring property owner, Barbara Murray.

The bridge plan is a concern for some area residents (including Murray) and the Office of State Planning Coordination (OSPC). Their concerns have focused on the bridge’s environmental impact on the wetlands, as well as potential safety concerns related to a single entry and exit point over a wooden bridge and across wetlands.

Representatives of Riverview noted that they would prefer to use an alternate access, if one could be obtained; but barring that, they focused on attempting to allay concerns about the bridge access at the March 31 meeting.

Wetlands mitigation and permitting scientist Ed Launay of Environmental Resources, appearing on behalf of Riverview, spelled out a plan for the wetland area where the bridge would be built. He described the bridge-building process as minimal in its impact, citing his firm’s previous work and similar construction practices on the Route 54 bridge project over wetlands near Fenwick Island.

Launay also described the immediate area of the planned bridge as “degraded wetlands,” subject to low tidal flow and vegetated largely with non-native, invasive phragmites. He said the bulk of nearby wetlands were, in contrast, “high-quality wetlands.”

And with mitigation for wetland impact likely to be required by the state, Launay went on to describe a mitigation plan in which the degraded area could be excavated to become similar to the nearby “high-quality wetlands,” increasing tidal flow, and could be treated with methods intended to eradicate or substantially reduce the presence of phragmites in favor of preferred native wetland vegetation.

Launay noted that no permits would be required from the Army Corps of Engineers for the bridge project, just project coordination, while the Delaware Department of Natural Resources (DNREC) would require permits for work in a mapped wetland area. He also rejected concern from OSPC that a permit from the U.S. Coast Guard might be required, saying the area contained no navigable waters.

Rich Polk of Riverview LLC discussed the bridge itself, noting its similarity to one at nearby development Ellis Point. He said the bridge would be constructed as to have none of its support structure inundated by flooding and would be designed and constructed to “public bridge standards.”

Those standards would allow even heavy trucks (all legally allowed on public roads) to use the bridge if needed, Polk said. It would have a 25-foot vehicular pathway (3 feet wider than required) and a separate pedestrian walkway with guardrail. The planned bend in the bridge path, he said, would accommodate even two large tractor-trailers passing each other. The bridge would have a 25-mph speed limit, he said.

Polk noted that concerns had been expressed about the bridge’s length, specifically by the state fire marshal’s office. He said discussions had been held about establishing a series of water connection points along the length of the bridge, something that would allow local fire departments to hook up on either side of the bridge or along its length.

Riverview had also requested an evacuation study be performed to help evaluate safety concerns about the single exit route in case of an emergency.

Assuming full population of the development at any one time, with an audible alarm, two vehicles per residence, a 15 mph speed limit and all stop signs obeyed, evacuation of the development via a single lane of the bridge would take 8.3 minutes for all residents to reach Route 346A, Polk said.

The evacuation study had also included a potential exit scenario trespassing across the farmland of Murray’s property, he noted — an exodus that would take only 6.3 minutes. Commissioners questioned the realism of that scenario, citing the nature of farmland where some areas might be flooded (particularly in a flood evacuation emergency) and the likely reluctance of residents to drive their vehicles across such an area, even in an emergency.

Polk emphasized that the scenario had been explored for information purposes only, with the bridge envisioned as the functional plan.

Of the bridge construction plans, Polk noted that the Corps does not consider construction of a timber bridge to be of significant impact to wetlands. He said the construction method would entail only foot traffic on the wetlands during the process.

The bridge’s anticipated lifespan is approximately 80 years, he said, with the timber running surface to be replaced every 25 years by the development’s homeowners association (HOA) and a 10-year renewable maintenance agreement with the manufacturer — who had never had such a bridge fail, Polk said.

Describing the site’s existing access as “scenic” but “unfortunate,” Frank Kea of Riverview/Caldera discussed the overall plan for the development, citing its similarity to Ellis Point, including in the configuration of homes — 2- to 3-story homes, with lofts, that he described as “in character with the area.”

He said the timetable for starting construction (with permits and sewer arrangements complete) was approximately two years.

Kea said that once over the bridge the development was “straightforward,” providing a central open space (adjacent to the existing Walters family cemetery, which would be maintained by the HOA), a pool and a large cul-de-sac and bridge that he said met safety requirements, such as access for fire-fighting apparatus.

Kea went on to describe a walkway to provide access to the water, with 16 acres of upland area to actually be developed (outside of tidal buffers). The remaining land would remain in a conservation easement controlled by the HOA, he said.

Addressing the issue of flooding, Kea noted that the project is in the 100-year flood plane, with requirements of ordinances accordingly imposed. Both the bottom of the bridge and the first floors of homes would be above the 100-year flood level, he said. Breakaway walks and other structures would be used to limit damage in case of a severe flood.

Kea also said the development would meet the 40 percent TMDL reduction requirements, using sand filters, swales and the like. No traffic study was required.

While one chief objection to the project was that no apparent modifications to the plan had been made as a result of advisory committee recommendations, Kea noted that the developers had pursued alternate access with Murray as a result of the recommendations.

Attorney Michael Malkovich, appearing on behalf of Murray in opposition to the application, noted that no agreement to provide alternate access to the parcel had been reached between the parties. He requested the commissioners deal with the application as if no such agreement would ever be reached.

Malkovich also emphasized that the property had been purchased by the investors in 2001 for only $250,000 and could still technically be developed without the RPC overlay, providing a fair profit for that original investment. Without the overlay, he said, at least one home could still be constructed on the upland portion of the parcel — as opposed to the maximum of 72 allowed as a RPC.

He further noted that Murray had attempted to purchase the property herself in years prior, having first purchased other sections of the larger parcel originally owned by her family and at one time approved (in total) for a development that never happened. Her plans were to farm the land, Malkovich said, a notion that had crippled her ability to obtain a loan large enough to actually purchase the property before Riverview had done so.

Malkovich described the decision before the commission as “a very significant one for Sussex County.” He argued that there currently exists in the county “no wooden bridge of this magnitude, which runs through the woods, across a pond and wetlands,” and he cited the potential precedent that could be set by approving the plan.

Riverview representatives had cited the property’s designation as an “environmentally sensitive growth zone” in the comprehensive development plan as targeting it for future development.

But Malkovich said he believed building it as requested would actually be a violation of that plan. He said the planned bridge should be considered “development” — something prohibited for tidal wetlands under the plan. (The bridge would traverse 6.8 acres of non-tidal wetlands, but only .22 acres of tidal wetlands, according to Riverview.)

Malkovich further argued that the development would violate the purpose of the zoning ordinances, which mark the area as one in which development design should “protect existing and future development” — something he said the proposed Riverview development does not do.

He also questioned whether the lack of in-person representation from DNREC and other regulatory agencies at the advisory committee meeting on the development had possibly led to a less-than-vigorous examination of the proposal. (Written comments from the agencies were provided and attached to the committee’s findings.)

Murray’s attorney also objected to the idea that Riverview had not responded formally to those recommendations — a fact noted by the OSPC. “Can you in conscience approve this when the experts asked for a response and didn’t get one?” Malkovich asked the commissioners.

He went on to describe a laundry list of objections and concerns, focusing on the development’s compliance with the comprehensive development plan and zoning ordinances, safety and health concerns, and its impact on the surrounding area — including Murray’s property.

For her part, Murray said she was concerned about the project’s compatibility with environmental protection, open-space policies, and existing properties and homes in the area. Of particular concern to her was the potential introduction of noise; shadows; light; and vehicle, road and bridge treatment chemicals to the wetlands area.

Ed Howe, a neighbor of Murray farm and the developer of Bethany Forest also stated his objections to the project, saying he knew the area’s deer by name, its wild turkeys and ducks. He also pointed to flood risks, saying, “The water won’t get to the first floor of the houses, but you’re not walking out of there.”

Howe said he had empathy for the developers, “but that little island and putting 70 to 80 houses out there is overkill. If they have an evacuation, you’re not getting out of that area. The traffic is unbelievable.”

Bethany Forest resident Alfred Mindel objected to the idea of a walkway to the water in Riverview, saying he hadn’t been allowed to have one at his property. He also opposed the addition of any lights to the area.

“I’m a permanent resident, and this is going to be a permanent pain in the neck to me,” Mindel said.

Without further discussion, commissioners opted to defer action on Riverview’s application. If no further action is taken, the application would be deemed as approved by the commission after 45 days. However, the application is already on the agenda for the April 14 meeting of the commission and could be given a formal yea or nay at that time.

Also at the March 31 meeting, the commission:

• Unanimously approved the application of Robert E. and Kim C. Kuhl for conditional use for a multi-family dwelling on Lot 6 within the Tower Shores subdivision, south of Admiral Road and east of Route 1, in a MR medium-density residential district.

The planned three-story duplex, on piling foundation, was described as matching existing duplexes on the road and in the community, which also contains some vacant lots, single-family homes and lots approved for multi-family dwellings. The submitted site plan is to be revised to arrange parking so it does not back up to Admiral Road.

• Unanimously approved the final plan for phases 4, 5 and 8 of Americana Bayside. The only change the preliminary plans were minor changes to lot lines. All required approvals had been received.

• Unanimously granted approval for a site plan for a 40-unit multi-family development at North

Beach on Road 360. The initial plan was approved by the Sussex County Council in December of 2003, with an extension in August 2004. The site plan addressed all 15 conditions imposed on the development, including providing 11 more than the 120 parking spaces required.

• Unanimously approved dropping a previously imposed condition on the Swann Cove development. The original condition stated the development could not exceed 60 building permits per year. The county’s engineering department said engineers were no longer concerned about having sufficient sewer capacity for the development, and the commission recommended the 60-permit cap be removed.

• Deleted from the agenda consideration of street layout at Seagrass Plantation and Bennett’s Beach on Road 348.