County institutes moratorium on casino apps

There will be no casinos or gaming venues approved in Sussex County for at least the next six months. The Sussex County Council on Tuesday, May 18, voted 3-2 to approve a six-month moratorium on applications for casinos and gaming or gambling venues, to give the county time to decide how it wants to address such businesses through planning and zoning regulations.

The council had previously voted to institute just such a moratorium after introducing a resolution to that effect on March 30 but discovered that a recent Delaware Court of Chancery ruling regarding Kent County had indicated that a court would find that the county had not, in fact, created a legitimate moratorium with that prior vote.

The court found that, as the moratorium would fall into the category of zoning regulations, it required public hearings before both the council and the county Planning & Zoning Commission before the council could vote.

“We discovered that action may be put at risk if it is taken to the Court of Chancery, so we decided to go to the public hearing process to formalize the moratorium,” Council President Vance Phillips explained on May 18.

The Planning Commission split on the issue after its hearing last week – 3-2 in favor of recommending the council not institute the moratorium. The majority of commissioners said they felt the regulations the county would develop during the moratorium should be considered in normal process of revising the county’s zoning ordinances, rather than as a “panic” action during the moratorium’s six-month period.

The council itself was split this week as to whether the time period and details of the proposed moratorium were what they had wanted.

“P&Z felt 6 months was too short. You think it’s too long,” Councilman George Cole said in reply to comments from Georgetown-area resident Littleton T. Dryden. “I agree that it might be too short.”

Cole said his first intent in considering the regulation of casino and gaming operations in Sussex County was to address large-scale projects, such as a racino, in which a combination of activities surrounding a racino or other gambling activity would be planned.

The Bethany Beach-area councilman said he was concerned about the moratorium’s definition of “gambling venues” and that it would impact small, low-impact venues, such as poker rooms (several of which already exist in the county), and might not prevent the larger-scale projects he had envisioned as being impacted by the moratorium.

Cole said he was particularly concerned about the county’s C-1 commercial district, which has been closed to new zoning applications in favor of a more restrictive CR-1 zone. “It permitted a whole bunch of stuff. I would have guessed that that would have been permitted in that district,” he said of gaming venues. “Could somebody in the past have done that in the C1 district?” he asked of County Attorney Everett Moore.

“What we felt is that it is a district where someone could apply for this type of use,” Moore said of his discussions with P&Z Attorney Vince Robertson and Planning Director Lawrence Lank.

“If someone owns C-1 land today, would this moratorium affect them?” Cole asked.

“The moratorium would be on anyone who would come in and file,” Moore explained. “It would stop anyone from applying, even if they’re in that district. And I think that was the intent,” he added.

“That was the intent,” Cole confirmed, though he admitted that, historically, the county had shown a reluctance to “go back and take people who’ve gotten some zoning and then restrict things in that zone.”

But the moratorium, Cole emphasized, had been aimed specifically at addressing concerns about casinos and racinos, and would not, he said, be targeted at venues such as the poker rooms.

“Gambling and gaming is permitted under our state law, and even in Sussex County it’s a permitted use,” Cole noted. “If someone has a location, such as some of these poker rooms, would we inhibit legal activities, or are we allowed to stop only illegal activities? Anything going on currently is permitted by law.”

Moore said owners of existing C-1-zoned properties would have to make an application for such a facility, which the moratorium prevents for the next six months.

Assistant Planning Director Shane Abbott said he felt even owners of C-1 property would have to apply to the county for a conditional use to build such a facility or add on to existing operations. He noted that the county’s C-1, AR, GR, B-1, CR-1 and Marine zones all include a catchall phrase that might permit a casino or gambling facility but that would require the county to approve a conditional use before creating such.

Cole said his concern about the facilities was their potential impact on infrastructure, such as roads and sewer, and quality of life, which would be minimal with poker rooms and their like. He said he was further concerned that the moratorium might be too loose, if it wouldn’t prevent a new poker room from opening.

“I believe it would stop poker rooms, if they were new,” Moore said, but Cole said he wasn’t aware of conditional uses having been approved for the existing poker rooms in Sussex County.

“I don’t know if this is tight enough,” Cole said. “Or is it too all-encompassing? I don’t think that one little poker room is going to have a big impact on land-use issues, where if you come in with a large-scale application – there were concerns about one in Millsboro that would have an impact on traffic in the county.

“One little storefront doing something that is permitted by the State of Delaware – I don’t know if we need to have that caught up in a moratorium,” he added, recommending the council consider a group of three county officials to determine if a proposed project would have enough potential impact on county infrastructure that it should fall under the moratorium.

Phillips, though, said he felt that would be too big of a change to the proposed moratorium to permit the council to vote on it on May 18.

“The P&Z had concerns,” Cole reiterated. “Is six months enough? Six months is awfully aggressive,” he continued. “We’re not under pressure. There are no applications.”

“But there could be,” Councilwoman Joan Deaver interjected before Cole suggested the council reject the proposed moratorium and consider a different one.

In voting to adopt the moratorium, Deaver said, “I would feel better with the moratorium in effect while we work on an ordinance.” The idea also received support from Councilman Sam Wilson.

Cole, citing “no sense of urgency” to adopt a moratorium and that he felt it was “too all-encompassing” and would impact too many people, voted against the moratorium. Councilman Michael Vincent cited P&Z’s recommendations before voting with Cole.

In a deciding vote, Phillips supported the moratorium, without making further comment.

The moratorium went into effect immediately upon its approval, and the council can extend the moratorium with a majority vote in the future.

Prior to opening the floor for comments at Tuesday’s public hearing on the moratorium, county staff advised those present to address only the issue of the moratorium and not the substance of any regulation of casinos and/or gambling venues that would be decided during the moratorium period.

Comments on the proposed regulations will come into play after the council introduces such regulations, which will also – as zoning ordinances – require public hearings before the P&Z and the county council.

Vocal elements of the county population have indicated they, too, are divided on the issue.

County staff received 17 e-mails prior to the P&Z hearing on the moratorium. One supported casinos and gaming venues as a permitted use, while two expressed opposition. Four e-mails expressed opposition specifically to a proposal for a casino facility at the Indian River Inlet, while another 10 e-mails supported that specific proposal.

No one, however, was present at the P&Z hearing to express opposition or support for the moratorium, and only two members of the public turned out for the May 18 hearing – Dryden and anti-gambling activist Eric Bodenweiser.

Bodenweiser thanked the council for considering the moratorium and expressed hope that they would move to make regulations on such operations “so stringent that those who choose to prey on the weaknesses of society will think twice about it.”

Dryden, emphasizing that he had no position on gambling, encouraged the council to consider issues of private property rights, fairness and maintaining a level playing field between property owners.

County staff are already working on developing the regulatory ordinances that would control any casinos or gaming venues in Sussex.