County looks at BoA hearing process


Sussex County Council and the county Board of Adjustment met for a workshop this week, to discuss ways to move forward after some residents recently expressed concerns about the BoA and their high approval rate for variances and exceptions to code. Since 1973, the BoA has received a total of 10,685 applications. They have approved 9,015 of those and denied 1,281.

In order for the Board to grant a variance, there are five standards applications are supposed to meet: uniqueness of the situation, possibility of development, the difficulty not being created by the applicant, approval’s effect on surroundings and the extent of the variance requested.

For special-use exceptions, the standards ask whether there will be adverse effects on neighboring properties and about other requirements, such as time limitations.

Board Attorney Rick Berl started the meeting by saying that the statistics often don’t give the whole story, as many applications are not “black and white.”

He also noted that the Board is created by state law and any changes that the council deems necessary to make to the body or its rules will have to be enacted by going to the state legislature.

Berl explained that there are three types of cases that can come before the board – the least likely being an appeal from a county official. The two most common are area variances and special-use exceptions, such as operating a daycare in a residential area.

He explained that it is to be expected that most special-use exceptions will be approved because of their nature and because they are already permitted uses in other areas of the county.

“Last night, there were seven cases and three special-use exceptions, and all three were approved,” he pointed out. “You can expect, by and large, that they will be, because they are helpful to the area and already pre-approved through Sussex County code.”

The three cases he referred to were a daycare center, a manufactured classroom placement for the Cape Henlopen School District and the replacement of an existing billboard.

The board and the council discussed many of the issues that generally come before the board – namely long-standing encroachments, minor variances (sometimes inches, and often less than a foot), minor subdivisions (a property owner wants to carve out a lot for his children, for example), billboards, contractor error issues, hardship applications, daycares and cell-phone towers.

Additionally, the board frequently deals with issues in Swann Keys/Cape Windsor, which stem from the fact that the parcels of land were originally plotted as part of mobile home parks but, today, many owners wish to replace mobile homes with newer, larger, stick-built structures.

One of the longstanding issues discussed at this week’s meeting is BoA applicants who come before the board without preparation.

County Councilman George Cole asked if the board did not have an obligation to ask certain questions of the applicants, to have certain answers on record.

“If they aren’t prepared, it’s not wise for the county to make decisions on poor information given,” he said.

Board of Adjustment Member John Mills suggested having someone walk applicants through the process, so they know what to expect and what is expected of them. He also said wished the media would “print the truth.”

“I address every standard,” he said concerning applicants meeting standards for variances, citing a newspaper article that said he “ignores them every time.”

Cole said it seemed to some as if, when there is no opposition, there is a quick decision to approve everything, and when there is opposition, “we sit back and be thoughtful and defer.”

He also questioned whether the board’s 90 percent approval rate shouldn’t be more like a 10 percent approval rate, since the variances and exceptions are supposed to be exceptions to the rule, to county code.

County council Member Sam Wilson disagreed, saying neighbors should be able to work out differences and everybody should leave happy, and when the board is needed, they should step in.

“Instead of the 88 percent, it ought to be 90 percent,” Wilson said. “The Board of Adjustments is there to make adjustments.”

Council and BoA members hashed out specifics concerning issues that come up often, such as minor subdivisions of large pieces of land and small variances, and discussed putting certain burdens directly on county administrative staff – having them deal with variances of inches, for example – instead of taking up the board’s time.

They also discussed having billboards be allowed by right on certain roads, or certain types of roads, such as a dual-lane highway, to better spell out the rules for the county through ordinances.

Regarding minor subdivisions, they discussed keeping a strict enforcement of the 150-foot road frontage rules for people wanting to subdivide, rather than allowing less, such as 100 feet, at times.

“If you cut if off at 150 feet, then there would be stormwater management, streets, etc., all adding to cost,” said County Council President Vance Phillips.

“Why would we not want stormwater management?” asked Councilwoman Joan Deaver. “We have a flooding problem.”

They discussed possibly also putting minor subdivision decisions at the administrative level. County Planning Director Lawrence Lank reported that there already had been something of that nature in the works for cases of up to three lots, but that it “wasn’t real popular a year ago.” The members agreed it was something to look into again.

Contractor error – something Berl said comes up quite often – is something the board has traditionally looked at with sympathy and compassion for the homeowner.

“It may not necessarily be the perfectly legal solution, but it’s the moral one,” he said. “Complicating things, occasionally the county messes up.”

Berl mentioned a recent letter to the editor in which the Board of Adjustment was chastised for approving six or eight applications in one night. He explained that three of those approvals were because of errors on the county’s part. He asked for directive on the county council’s part for those types of issues.

The council and board also discussed having different type of inspections. For example, inspection is now done for the footing, foundation, framing and final construction. But setbacks are not checked during the foundation stages – rather it is checked simply to see that the foundation is poured.

Lank reported that his staff is cross-training with the Building Code staff, to make inspections more efficient and streamlined.

Before adjourning, members raised the possibility of Lank, Berl and J. Everett Moore – attorney for the county – discussing separately some of the issues brought to the table at the workshop, for future consideration.