Casinos ban could get extended ahead of new zone

Sussex County officials are continuing to work on an ordinance that might someday create a CGD – Commercial Gambling District – in which any Sussex County casino outside municipal limits would have to be located, though they could pass another moratorium on the facilities until that work is done.

Assistant County Attorney Patrick Vanderslice presented to the council on Tuesday, Sept. 13, a draft ordinance based on input from the council and others that would limit CGD zoning to areas along Route 1, 113 and 13 only. Under the ordinance, any casino application for another area of county-controlled land, such as the Route 54 corridor, could not even be considered, he said.

The draft ordinance would also require impact studies by a third-party consultant not affiliated with the applicant, but for which they would pay, to report on community impacts and traffic impacts – studies that would have to be approved by the County and DelDOT, respectively.

Vanderslice said he had also included related on-site businesses and structures, such as a hotel attached to the casino, under restrictions on the casino structures in the proposed CGDs, including requirements for 150-foot setbacks and a maximum 42-foot height.

One problematic area for developing the ordinance has been how to create a “sunsetting” provision, which Vanderslice said he had not seen put in place in similar districts elsewhere in the country. Council members have said they wanted to make sure that CGD projects that were never actually developed could have their prior zoning restored, rather than being left as CGD and perhaps forgotten by residents and government until a new project unexpectedly came into being.

“In other areas, the government has the power to bring it back by its own accord,” Vanderslice explained, stating that there were concerns about creating a “slippery slope.”

“If sunsetting is desired,” he said, “you really need a conditional use.” Conditional uses were the way the council had originally considered permitting casino projects to be approved, before they considered instead creating a special district to more specifically dictate where such projects might be located and the other restrictions that might govern them.

“So it’s not impossible, but it is problematic?” Councilman George Cole inquired. Vanderslice said he simply hadn’t seen it done anywhere.

Planning Director Lawrence Lank told the council that the county had rezoned some parcels back to agricultural zoning in the past, after developments failed to materialize, “But it has been many years,” he said. Lank said some commercial parcels along Routes 1 and 113, for example, had been changed back to AR-1 Agricultural-Residential zoning. He noted, though, that the process had been stopped after it became controversial.

Lank said many of the AR-1 rezoned parcels were special cases, too, in which owners of the undeveloped-but-rezoned parcels had ultimately decided to sell their development rights in favor of agricultural preservation. He said those rezoning cases had been instigated by the state’s Department of Agriculture, as preservation easements have to be on AR-zoned land, and that, while the owner had applied for the down-zoning, the County hadn’t assessed fees for the applications, either.

“If they had objected, I don’t think it would have gotten done,” commented Councilman Sam Wilson.

Cole said he was still had concerns about what might happen to parcels left zoned as CGD never developed.

“Knowing how controversial casinos are in this county, if someone got 15 acres rezoned and didn’t do anything for 10 years,” he posited, “and then someone rediscovered it was there… If nothing happens, we ought to be able to address it.”

Lank emphasized that rezoning traditionally runs with the land, persisting regardless of which owner applied for it or who owns it in the future.

“With a conditional use, you can put limitations on it. You can sunset it for lack of development,” Lank explained, noting that the only “zoning” the county currently has that can be sunsetted is the residential planned community (RPC), which is, in fact, an overlay in the county’s residential zoning districts. There have already been cases in which that has been done, he said.

Cole said he had concerns about what might happen if a project were to lapse and then the underlying land was purchased by a new developer with a new project in mind.

“If one gets approved in Sussex County, it’s going to be very controversial to begin with,” he said. “Once it’s approved, it’s going to be very difficult to regulate, because once they meet these criteria…”

Councilman Vance Phillips said he also had concerns about the ability of developers to get variances to the requirements for the CGD zoning, such as setbacks and height requirements.

“Very few casinos are 42 feet tall,” he noted.

Phillips also pointed out that the county’s proposed restrictions wouldn’t keep developers from annexing land into a neighboring municipality in order to avoid any county restrictions on casinos.

“So we have no ability to prohibit a casino by a school or church?” he asked Vanderslice of such projects, receiving a negative reply.

“That’s why they annex into towns,” Cole agreed.

Lank said restrictions on proximity to churches and schools could be included in the county’s CGD regulations, though those would only apply if the project isn’t annexed into a town. “You could require a greater setback from a school, for example. Billboards have to be 300 feet from another billboard, or from a church or residence,” he offered as an example of existing county regulations.

“How about 5 miles from a church, school or residence?” Phillips suggested.

“You wouldn’t have any commercial gambling districts,” Lank replied.

“I think that could be considered arbitrary and capricious,” Cole said of Phillips suggestion, raising concerns about whether such restrictions would be upheld in the event they were contested in court.

“We want to make sure people know we’re not inviting casinos to the county,” Councilwoman Joan Deaver said adamantly of the proposed regulations.

Council members were of a consensus on Tuesday that issues remain to be addressed in the draft ordinance, and that they should be addressed prior to its introduction by the council, opting for patience above expediency at this point. They asked county staff to consider their comments for further changes to the draft.

That could mean another extension for the county’s moratorium on applications for casino-type projects. The council most recently reinstated the moratorium on March 22, 2011, with that moratorium set to expire six months from that date. That would be Sept. 22, 2011 – next Thursday. The council has placed on the agenda for its Sept. 20 meeting consideration of a further moratorium on casino applications.