County planning process leaves room for confusion

For someone not well-versed in county politics, the Sussex County Council’s recent decisions to deny both a conditional-use application for a parcel near Double Bridges Road and a change of zone for a parcel near Muddy Neck Road might have seemed a clear-cut victory for the voice of opposition. Around 400 people either spoke or wrote letters in opposition to the Muddy Neck proposal alone, in an effort organized by a dedicated few, and the council vote to deny the applications supported their position. End of story, right?

For some, though, there’s a deeper story to the votes cast on the two applications as they worked their way through the county’s planning process – a story of how much weight is given to the recommendations of the county’s Planning & Zoning Commission and to the opinion expressed at public hearings held before P&Z and the county council, and whether the process itself might influence the end results.

In Sussex County, the appointed P&Z is a recommendation-only body. Its votes on individual applications serve merely as a recommendation to the county council before council members make their own votes on those applications and thereby determine the final outcome.

Regardless of the P&Z recommendations, the council has the final decision regarding these types of changes and has, in the past, not infrequently differed in its final vote from what was recommended by P&Z, often in those cases favoring development when P&Z discouraged it. And, while denials were made in these two most recent cases, as recommended strongly by P&Z members, those votes by the council were on slim 3-2 and 2-2 margins, respectively – in the latter vote, a tie vote meant a denial, for lack of a required majority.

Though public opposition was strong in both cases, County Councilmen Sam Wilson and Vance Phillips both voted in favor of the applications, while Councilman Michael Vincent and Councilwoman Joan Deaver voted against both, citing both the recommendations of P&Z and their own findings. Councilman George Cole abstained from the Muddy Neck vote while voting against the application near Double Bridges.

Sandy Pool of Frankford took exception to the votes in opposition to the P&Z recommendations in an e-mail to the Coastal Point, saying, “Mr. Phillips chose not to listen the whole night. He voted yes to approve everything. The Planning and Zoning recommended three denials out of the seven on the agenda. Two were ultimately denied by County Council, per Planning and Zoning recommendations. The third by Planning and Zoning was approved by the council.”

“Vance Phillips ignores the public’s voice and Planning and Zoning’s recommendations,” Pool said.

Asked about the not-infrequent splits of council votes with the planning commissioners, Cole this week emphasized that the council is not obligated to go with the P&Z recommendation, saying it is a “judgment call.”

“You weigh the facts, the public hearings and ask, if you don’t understand,” he said, adding that many people don’t understand that county council has the final say, regardless of how P&Z votes. “A lot of times, P&Z [hearings] will have a greater attendance than we do,” he noted.

Motion rule generates concern

The process for considering such applications may also have a bearing on the outcome of the applications, or at least the perception of that process by the public and participants alike.

At the June 9 county council meeting, county planning Director Lawrence Lank presented the council with Planning and Zoning’s reasons for recommending denial of one of the projects and then proceeded to read prepared reasons for approval. The latter came in accordance with the council’s policy to read the motion “in the affirmative” – as if it was something the council wished to pass – something Deaver later questioned.

Reasons for denial of the change-of-zone application, as noted by P&Z members and read by Lank, included that, in addition to the public record, the orderly growth of the county did not justify the requested zoning and the permitted uses available under that zoning classification and the residential area where the property is located; the applicant had not expressed a clear need for the change of zone in this location; and the availability of other, more appropriate, existing commercial areas or businesses along Route 26.

Lank then read reasons to support the motion, as prepared by the applicant. Reasons A through P included the property being in state strategies for spending Level II, it being in the 2007 Comprehensive Plan Update developing the area as a growth area, the project being in the short-term annexation area of the town of Ocean View and location on or near a road classified as a major road.

“Mr. Lank, where did all those statements come from? It sounds like you’re… you’re trying to… What is it you are tying to tell us here? You’re giving us all these reasons. Do you think we should to vote for it? What are you saying here?” Deaver asked Lank.

“Did you listen to me when I read the first paragraph?” countered Lank.

“Yes, you said it was a policy of the county council to vote in the affirmative,” said Deaver. “So if everything is voted yes, why have a hearing?”

“It is not to vote in the affirmative,” explained Lank. “The council has requested for years that all motions for zoning issues be in the positive. Thereby, your vote — for or against. And what I just read, as far as findings, it wasn’t prepared by me, it was prepared by the applicant. I read it both ways, the recommendation for denial by Planning and Zoning, and the findings and conditions as prepared by the applicant.”

“Since Joan already had her mind made up, she only heard the positive,” put in Wilson, a property-rights advocate who has frequently butted heads with Deaver over development issues since the two joined the council in January.

“The commission represents the people,” replied Deaver. “This is nothing personal to Mr. Lank. I was questioning the policy.”

“I don’t like reading them either,” admitted Lank. He then said it was not something he has ever felt he should be reading – a motion in the affirmative after P&Z recommended denial. Council President Phillips then told Deaver “not to get too excited about it” and offered that, if it was a policy she would like change, she could bring a motion forth.

“It has been the council’s policy to offer the applicant the ability to submit findings and conditions [when a denial has been recommended by P&Z]. It doesn’t obligate you to support it in the least,” Phillips said.

“It’s done so the council can follow the rules of procedure of needing three affirmative votes,” explained assistant county attorney Vince Robertson this week. “If you don’t get three, it’s a denial [if the motion is made in the affirmative]. But if it’s made in the negative, and you don’t get three votes, would you get the unusual result of a de facto approval? It can get cumbersome.”

Such might have been the case in the instance of the recent 2-2 tie vote, if the motion on that application had been for denial instead of approval. With a failed vote for denial, would the project have been deemed to have been approved?

Later, Deaver said she understood that point but still didn’t understand why the applicant-supplied reasons to approve an application were read at the time of the council vote.

“It’s a bad practice. It seems as if our own employee is up there lobbying for some lawyer. People who are new — and that is half of my constituents — don’t have a clue what’s going on. It’s misleading, it disconcerting, and I don’t appreciate it.”

She also said she had requested that the “findings of fact” be presented to the council on a piece of paper in the future, so they could have them in front of them.

“I agonize over these votes sometimes,” she said. “We do what we can do, but the system needs work. We are expected to listen to testimony, letters that are written, but sometimes I don’t always get copies unless I go to Planning and Zoning myself. If you send a letter in to Sussex County Council and think we all see it, you’re wrong. If someone sends a letter to county council, every one of us should get a copy.”

“What we read and what the law says, amazingly, we don’t have to up-zone anything. Did you know that? I am going to be doing a lot of teaching, teaching, teaching,” the longtime proponent of controlled growth added.

In these specific cases, the first application was for a change for a property in an AR-1 Agricultural Residential District to a B-1 Neighborhood Business District pertaining to about 4 acres of land west of Muddy Neck Road (Road 361) and northwest of Parker House Road (Road 362). The second was for a conditional-use application in an AR-1 agricultural residential district for antiques, gifts and produce and barbeque sales to be located on abut an acre of land on the westerly side of Double Bridges Road (Road 363) and 700 feet south of Muddy Neck Road (Road 361).

Residents near both properties spoke put in opposition, citing traffic and safety concerns. Hours after the council voted to deny the project on Double Bridges Road, with Cole citing the traffic dangers posed by the nearby curve in the road, there was a fatal motorcycle crash at that location. Days later a car ran off the road there, knocking down a fire hydrant and severely damaging a produce stand.