County grants blanket extension for approvals from 2009 to present

Months after Sussex County officials first began to consider whether to grant across-the-board extensions to approvals the county had granted during the recession, the county council this week voted narrowly to adopt the extensions, with the majority citing the potential positive impact of the extensions on the county’s economic picture.

County Planning Director Lawrence Lank on Aug. 9 completed his presentation of the numbers involved in the proposal, based on the Planning & Zoning Commission’s recommendation to grant the extensions – until at least Jan. 1, 2013 – to all subdivisions, residential planned communities (RPCs) and conditional-use projects approved by the county after Jan. 1, 2009.

The final numbers: 45 subdivisions, including 421 lots; 23 RPCs, containing up to 7,315 single- and multi-family units; and 41 projects where conditional uses had been granted – about 12,000 units that could potentially be built that might not have otherwise been or might have been developed differently if their approvals were allowed to expire.

But those numbers didn’t make for the kind of detail some had been looking for ahead of a vote on the blanket extensions.

“There’s no way to know where they were, what they were…” said Councilwoman Joan Deaver, who had championed since the proposal was first made that the county indicate addresses for each of the potentially impacted projects and even provide a map to give a better perspective on what might be built under the extensions.

Lank said his list had referenced the tax-map parcel identifiers for the projects but that he hadn’t even tried to put their road locations into the list, “because we would still be doing road locations.” He said he had included information on which projects were substantially complete or at least under way, as well as which projects could be voided (for reasons such as subsequent subdivision).

“Some legal research has to be done,” he said. “Some time extensions ran out, but they were after the date of discussion,” he added of the Jan. 1, 2009 timeframe suggested by the P&Z.

Deaver said she hadn’t believed that the council was talking about granting extensions to projects whose approvals had already expired. But Lank said that, based on the date of the ordinance, some of the projects would have expired. He said at least one ran out back on June 27 of this year, but many more would be included if the date in the ordinance was Jan. 1, 2009, or Jan. 1, 2010, as was alternatively proposed.

“So we’re bringing them back from the dead?” Deaver asked.

“It depends on how the ordinance is adopted,” Lank replied. “Some are clearly void. I went back to Jan. 1, 2006, for my review,” he noted.

Extensions will eliminate need for individual review

Another issue of concern for the council, and others, has been the simple nature of the blanket extensions – applying to all projects approved during the stated time period, rather than requiring individual applicants to state their case before the council as to why they deserve an extension, as has been regular practice.

“The only criteria to qualify is that they were approved during that time period?” inquired Councilman George Cole.

“That was how it was presented,” Lank confirmed, adding that the P&Z commissioners had suggested the extensions have a clear end date, so that those projects not substantially under way already could get that way by Jan. 1, 2013.

He said the extensions would essentially add two years to all of the approvals, extending the total eight-year maximum for a subdivision project, for example, to get from preliminary approval to final approval (three years) and then from final approval to substantial completion (another five years), by two years, to 10 years.

“I saw very few that were soon to expire,” Deaver pointed out about the projects in Lank’s report. “Some were approved until 2013 already,” she noted.

Cole said he was concerned about what would happen if the county moved unilaterally to extend the approvals.

“We have a lot of problems with subdivisions getting permits and the timeframes associated with them,” he said. “Don’t we have to coordinate with the State and their permitting? … We can extend it, but if they don’t extend it, we’ve done nothing. … This hasn’t been coordinated with the state permitting agencies?”

Lank said it had not and would not until the county council took action.

“If we’ve extended something for two years and in those two years their permit has expired…” Cole suggested.

“It’s up to the highway department to do that,” put in Councilman Sam Wilson.

“If we extend it two years, I would think DelDOT and DNREC would have to be willing to extend their permits two years,” Cole reiterated.

“In some cases, the entrance permit has expired, and the project is already started but is not substantially under way,” Lank said. “That’s our call,” he noted of the determination of substantial completion.

“Some of these don’t even have entrances,” Cole pointed out. “That’s the one I’m worried about – the ones that haven’t done anything and they’ve got an entrance permit.”

Lank said that would be an issue of coordination with state agencies once the county granted permit extensions. “Every agency has a different permit period,” he said.

Deaver said she was concerned about the potential for projects that hadn’t had substantial progress to remain undeveloped with the extensions.

“How long do we go before we decide it’s not going to happen?” she asked. “Some of the projects that were voided started back in 1973.”

Lank said that was sometimes difficult to determine – especially in the case of RPCs, where a project might have gotten to one stage of development and approval but not the next or might have been purchased and changed multiple times.

“One was approved. Then it was voided a second time, and then it was finally built,” he offered of one project that was successful after several false starts. “It went through a public hearing three times to get approval. The number of lots is the same, and the project is now complete.”

Dead projects could come back to life

Deaver said she still had concerns about both the lack of geographic information on the impacted projects and the lack of ability for the council to individually consider the projects for extensions.

“If we’re not going to judge any of these, I don’t know what we’re here for,” she said. “That’s our job. We’re responsible for the way this county grows. I can’t see wholesale sending everything, regardless of its condition… We’re talking about taking something that was already voided and bringing it back.”

“If this ordinance is adopted,” Lank said, “most of those projects will go forward.”

“That’s not even legal, is it?” Deaver inquired. “I thought it was people who had valid permission at this time, that they still had time – maybe they were going to expire next month or in two months…”

Lank said that the intention of the ordinance had been not to grant extensions one project at a time, but to create a time frame that would be the same for all of the projects involved and apply regardless of their circumstances.

But Deaver said she didn’t believe she, or the public, had had enough time to fully understand the impacts of what was contained in Lank’s report. She resisted voting on it on Aug. 9.

“The public hasn’t gotten the whole report,” she said. “We just got it Saturday.”

Council members debate potential impact

Cole addressed the rallying cry of the ordinance’s supporters.

“You say you’re doing this because it’s a great economic tool that could put people back to work,” he said. “If anybody believes in supply and demand, there’s just no way there’s a demand for 12,000 units in the next couple years. If anybody believes in market forces, this is going to do nothing. If anybody believes the county council is going to take any kind of action…

“It’s a slight-of-hand,” Cole asserted. “I’m concerned we have appeal process that worked for more than 30 years. People who have real good reasons come in front of us and say they need an extension, and nine times out of 10 they got an extension.

“I don’t see why anybody thinks doing this is going to create jobs,” he said, suggesting that projects that have good locations and are being sold at good price points will sell and have been selling, while those that don’t won’t, even with an extension. “I don’t understand how my fellow conservative Republicans could grasp hold of this concept and believe it,” Cole added. “It’s wasting time. You’re doing something feel-good. I don’t know if you’re doing it for some particular application…”

“You want to waste time saying, ‘Come back,’” Councilman Sam Wilson countered. “You’re approving the same piece of land again and again. That’s a waste of time.”

The council was clearly divided on the issue.

“If we were to vote for this, we would be voting in the dark,” Deaver said in voting in opposition to the extensions. “I wish it were on the computer so I, and other people, can even know where we are. This goes back to a different council and time,” she said of the bulk of the projects impacted. “It artificially props up the value of lands in a way that was never intended by the council when they were approved. It doesn’t have a fair basis. Maybe it has a legal basis, but not a fair basis.”

“I don’t believe it will provide a boost to the economy,” Cole said in also voting in opposition. “It won’t do anything for jobs,” he added, suggesting facetiously that the council also order a jobs report in 2013 to see exactly what the impact had been. “It’s feel-good stuff. It’s slight-of-hand. It’s just totally a waste of time.”

Supporters say extensions will do no harm, may help economy

Councilman Vance Phillips, who had championed the ordinance on economic grounds since the idea was first raised, voted in support of the extensions, noting the ordinance had been recommended by the county’s economic development director and committee, as well as P&Z.

“I believe this will cause no harm to the public, as the applications have already been vetted and approved,” Phillips said.

“The process of permitting can be difficult, time consuming,” Wilson added in also voting in favor of the ordinance. “We’re talking about people out of work. They’re wanting to get things going, and we’re saying, ‘We want to give you a harder time, and we want you to go back through the process again, when you’ve already been approved.’

“Why go through same long process just so we can say, ‘We’re going to be lords over you!’ What kind of security do people have in that kind of government?” he concluded.

Council President Michael Vincent was in agreement.

“It might be a feel-good thing to some people, but it’s not to me,” Vincent said. “These projects were already approved. It’s not like we’re waiving some kind of requirement.”

“I’ve talked to a lot of people out there who are really hurting,” he continued. “They need some kind of help. They’re selling furniture, selling landscaping, banging nails. This is not the economy of five years ago, 10 years ago. These are tough, tough times. I don’t see where it hurts a thing to give people a one-time extension. … I don’t see any way in the world this hurts anyone in any way, and maybe it gives one person a job…”

On that 3-2 vote, the council approved the extensions, which will apply to all projects approved by the county after Jan. 1, 2009, and will extend the approvals until at least Jan. 1, 2013, or later where the existing expiration date for the approval is after that date.

Citizens express continued opposition to blanket extensions

Though the voting was done, at least two Sussex County residents wanted to let the council members know they opposed the granting of the blanket extensions.

Katherine Ward thanked Lank for the extensive report, on behalf of the League of Women Voters of Sussex County, but she said she still had concerns about its contents.

“To assume that report was in any way clear or gave us any real understanding of what the impact was going to be of 12,000 possible properties is illogical,” Ward told the council.

Addressing Wilson and Philips, Ward said, “You say there’s no harm from this. But when a property comes up for approval, it’s long work finding out what impact it will have on sewer, on transportation, and to assume you know what impact a project that was approved years ago and all of the other possible properties have on each other is just illogical.”

To Vincent, she said, “As Mr. Cole said, demand drives jobs, not the selling of properties back and forth. We don’t need any of these properties in Sussex County. If I thought any jobs were going to come out of this, I would be behind it 10,000 percent. But that’s not the way the economy works. The economy works on supply and demand.”

Ward said she also shared Deaver’s concerns about the legal basis of voting with the information available and timeframe the council had to consider it.

“I wonder about the legality of the passage of this,” she said, noting that she had just been handed, under a Freedom of Information Act request, “a piece of this with 262 new possibilities. The spirit of the law is different than the absolute law that was practiced today. It was supposed to be open to the public to review before that vote was taken. It was supposed to be given to you so that you could make an intelligent review, and you can’t tell me that in 30 minutes anybody could have intellectually evaluated that situation and made an intelligent vote.

“We have Planning & Zoning for a reason, so that Sussex County does not have unwarranted, undisciplined growth that would work to the negative of the citizens of Sussex County,” Ward asserted. “I’m sorry you passed that.”

Ward was joined in her dismay by fellow LWVSC member Sandy Spence, who said she personally disagreed with any notion that the extensions would not cause harm.

“When my husband and I moved here, we bought a three-quarter-acre lot. It’s a burden now to cut the grass and take care of that property,” she explained. “I would like to move into a small unit, a condominium with no maintenance. However, I can’t even think of putting my house on the market because there are too many houses here, too many houses already approved. I can’t possibly sell my house for anywhere near what I paid for it and what I have invested in it.

“I heard today that there will be nobody hurt by what you did with the extension, but I’m hurt and I want you to know that, because I can’t sell my house.”