Deaver urges changes to land-use law

In a letter sent May 31 to state Rep. Pete Schwartzkopf (D-14th), state Sen. Gary Simpson (R-18th) and Milton Planning & Zoning Commissioner Virginia Weeks, Sussex County Councilwoman Joan Deaver appealed for a change in state legislation that would no longer permit alteration of the map included in the county’s Comprehensive Land Use Plan (CLUP) after the public hearings are held on the plan’s updates, with only discussion at a public meeting.

“In other words, certain parcels of land may be brought into, or out of, growth areas after the county has had all its public hearings on the Plan update, so long as it is done in public,” Deaver wrote, in reference to a series of letters from Connie Holland, director of Delaware’s the Office of State Planning Coordination, which oversees the CLUP.

“But how is the public to know what was changed and how can they have a say?” Deaver pointed out. “It is very likely that the public might object to such changes, because these changes can facilitate future unwanted up-zonings and can promote uses that the public did not want to live with.

“There are some examples of this happening in my district, and people want to know what they can do about it,” she wrote.

As noted by Deaver, state law requires that “prior to adoption of the proposed comprehensive plan, the governing body shall hold at least one public hearing, with due public notice, on the proposed plan or element thereof.” But Deaver suggested changes made to the CLUP map after such a hearing, without further chances for public input, defeat the spirit of the law.

“If there would be no public hearing on the entire plan with a correct and current map, how can the public have an opportunity to know what is going to happen around them and how can they participate?” she asked.

Deaver said she had received questions and complaints about the issue from her constituents in her Lewes/Milton-area district.

“A number of my constituents have asked me why certain parcels of land were added to the county’s Growth Area after the Comprehensive Land Use hearings, without benefit of specific public notices and public hearings on those parcels. I agree with my constituents,” she wrote in a letter to her peers on the Sussex County Council and to the county attorney.

One such constituent, Deaver noted, after having raised the issue with state planning officials, had received a response from Holland that indicated such late changes to the CLUP map had been legal, because they had been discussed at a public meeting, though not at a hearing.

That constituent, Deborah Schultz of Lewes, inquired about the legality of the procedure from an April 3, 2008, hearing and a June 18, 2008, Planning & Zoning Commission meeting.

Holland, in her response, related Schultz’s concerns as follows: “The minutes of that [April 3] meeting do not list the map amendments under consideration at that time nor do the public comments in the minutes mention these parcels. There is mention of ‘Areas of Concern’; the consultant advised the Commission that those areas are no longer part of the Plan…

“You further state that ‘the actual request for the amendment to the Comprehensive Plan Land Use map series which deals with these two parcel appears in the public records on June 18, 2008, when the Commission heard the request for the map amendment and approved it, without a public hearing. The Council then adopted the 2007 Comprehensive Plan and the map series on June 24, 2008, without a public hearing.”

Holland replied, “It is our position that Sussex County has met its obligations under 6 Del. C. § 6959 (c), because during the preparation of the plan, and prior to any recommendation for adoption, the Sussex County Planning and Zoning Commission held at least three public meetings on the Land Use Plan Update.”

She acknowledged county planning commissioners had moved in May, after the plan’s April public hearings, to accommodate a request from Baker Petroleum of Wilson Baker Inc. “for inclusion of their properties into the Town Center Area around the Town of Milton.” The changes were made and were part of the final update when the new CLUP was adopted in June 2008, without further public hearings.

To Schultz, Holland wrote, “The basis of your arguments are an assumption that, during the preparation of the plan, every time a change is made there must be a public hearing on that change. I believe that this logic is flawed.”

“There is no obligation that the Land Use Plan Update be completed in its entirety before holding a public hearing,” Holland continued. “In fact, hearings of this sort are routinely used to hear the public’s points of view prior to completion of the plan so those views can be incorporated into the finished product if needed.”

Even if that is the case now, Deaver said she feels it should be changed in state law.

In her letter of May 31 she put forward a recommendation from another constituent: “When the comprehensive plan is voted upon, the proposed map amendments should be heard at a separate public hearing dedicated to the map series changes. If land-use map amendments are proposed at times that do not coincide with the five-year cycle of the comprehensive plan renewal, those proposed amendments should be given their own public hearings before becoming part of the comprehensive plan land use map.”

Deaver has asked for a legal opinion on the issue from the county attorney.

Map changes can have real-life impacts

While the changes made to the map could be overlooked outside a public hearing, Deaver points out a few real-life, pending cases in which such a change could have a major impact.

Two of the parcels she says were added to the county’s designated growth areas after the public-hearing phase of the CLUP update are now coming up for possible rezoning as heavy industrial – the very same Baker parcels Schultz pointed to in her letter to Holland.

Owner Wayne Baker has applied for about 28 acres west of Route 30, north of Road 319 and south of the railroad to be rezoned to heavy industrial, where they could then be used for a proposed four-unit industrial park that would include warehousing and/or manufacturing sites.

“Before the vote on the Baker rezoning to heavy industrial, I want a legal opinion as to whether that land and others were legally added to the growth zone with proper notice and proper hearings,” Deaver wrote, having cited her concerns about the easier time an up-zoning request might have in the county approval process when such parcels are already included in designated growth areas.

Another such parcel with a late change on the CLUP map is a 114-acre parcel at Route 1 and Cave Neck Road, which is proposed to be rezoned from agricultural residential (AR) to CR-1, commercial residential, to be used for a shopping center with combined retail space of 890,000 square feet, in the state’s Investment Level 4 zone.

According to the Livable Delaware plan, “Investment Level 4 indicates where State investments will support agricultural preservation, natural resource protection and the continuation of the rural nature of these areas. New development activities and suburban development are not supported in Investment Level 4. These areas are comprised of prime agricultural lands and environmentally sensitive wetlands and wildlife habitats, which should be, and in many cases have been, preserved.”

Inclusion of Level 4 land in county-designated growth zones has often been made as one step toward sanctioning increased development of such property for commercial or residential use, despite the state’s stance on preserving such land and refusing to invest state funding in infrastructure and other needs in such areas.

By classifying the land as in a growth zone, the county accedes to another element of Livable Delaware – focusing development in areas around existing municipalities and other developed areas from which infrastructure can more easily be extended, keeping infrastructure costs down and, ideally, keeping development contained near town centers and out of such prized rural lands.

But even when such changes are technically legal in their adoption, being aware of the final shape of such maps can be difficult, even for state officials.

In a second letter on the issue, dated May 15, 2009, Holland wrote to Sussex County Planning Director Lawrence Lank, to verify that some late changes to the CLUP map were being classified by her office as “housekeeping errors” rather than map errors requiring correction, after having received evidence from Lank that the changes had been discussed at a public meeting and were in place prior to the CLUP update’s adoption last June.

Holland said the map thus did not have to go through state processes for recertification, but she asked that Lank forward a correct map to the state planning office and ensure it was posted on the county’s Web site.

That may be considered too little, too late for those opposed to the changes. And it’s something Deaver is ready to fight to change in state law.

In her letter to the council and the county attorney, she said of the post-hearing changes to the CLUP map, “I do believe that this it is improper, and I want all lands that were added in that manner to be made subject to a public hearing with proper notice to surrounding property owners and residents. The people deserve nothing less.”