Planners mull request for guidance

Just how much accommodation can county officials make for a family tragedy and the impact it has on an estate? County planning officials are now aiming to determine the answer to that question, after Sussex County Planning and Zoning commissioners heard a unique request from the developers of the Seasons at Bethany project on Wednesday.

The multi-family townhome development had obtained approval for a conditional use from the county in June of 2003. That was the result of the process set into motion by Alfred Melson the patriarch of the Melson family, who died in late 2002. What resulted from his sudden death were legal wrangling over his estate and numerous delays in proceeding with the Seasons project.

But county approvals allow just one year to proceed with construction of infrastructure elements, to a point called “substantial construction.” That led to Alfred Melson’s widow, Debbie, applying for time extensions from the P&Z in 2004 and 2005, which she received.

When further extensions were needed in 2006, P&Z had already fulfilled its maximum allowed extensions to be granted with the prior two, so the matter went to the Sussex County Council, which granted an additional year extension. They also granted a six-month extension in June of 2007, which is set to expire on Dec. 3.

That has led Debbie Melson, her attorney Jim Fuqua and engineer Jeff Clark of LandTech to return to the P&Z with an unusual request: to come up with a definition for “substantial construction” that will allow the project to meet that requirement by Dec. 3.

According to county planning staff, the county already has a definition for “substantial construction.” That involves clearing the rights-of-way, roads being rough-graded, erosion and sediment controls in place, and stormwater elements rough-graded.

It is in the county’s subdivision ordinance, but staff said Wednesday that they believe creating some other sort of definition to apply to the Seasons project and its problems would not be advisable. Between issues of tailoring such a change and setting a precedent for future projects, commissioners were reluctant to do so.

They also cannot issue another time extension on the project, leaving such an option up to the county council.

Fuqua argued Wednesday that Debbie Melson has not had adequate time to decide how to proceed with the project, since legal wrangling over the estate between her late husband’s son and herself was only ended about a year ago. He pointed to her lack of experience in the field of development and said that she had been trying to promote the project herself, in a difficult real estate market, with limited success.

He said that if she were forced to move ahead with construction to meet the existing “substantial completion” definition, the result would be “a waste of time and money,” because she is likely to eventually sell the property to a developer who would likely find the prior plan not to their liking and have to tear out those now-required elements before amending the plan with the county or filing a new one.

Clark noted that the project has received all of its needed agency approvals, except for a traffic signal agreement that is due to arrive any day. He said the project really needs no time extension to meet the requirements for substantial completion, but argued that it made more sense for Debbie Melson to have an alternative arrangement with the county while the project’s status is resolved.

For instance, the two argued, she could post a bond guaranteeing the cost of the work involved in “substantial completion” and that the project was being worked on “in good faith,” even though the required construction work is not actually taking place. The alternative is to return to the county council for another time extension, Fuqua noted.

“We’re asking for guidance on how we can get this project ‘substantially under way,’” he explained, adding that Debbie Melson was hoping to construct the needed improvements on perhaps two-thirds of the site, with the remaining third already zoned commercial, where the project is a use-by-right with no requirements for “substantial completion.” Alternatively, he added, they would like “any kind of relief you would deem appropriate.”

He emphasized that allowing the project’s approval to lapse would likely mean additional time and money for the county, with a new developer eventually needing to come to the county for approvals of a totally new project, instead of just a minor amendment to the existing plan.

Commissioners were concerned, however, that the posting of a bond would not be a sufficient remedy. “How would the county be satisfied with the dollar amount of a bond if the improvements could change?” they asked.

“The county would have the assurance that the money would be there to complete that work when needed,” Fuqua countered.

He said Debbie Melson was very concerned that allowing the project approvals to lapse would mean her property would lose some of its value.

But commissioners labeled the issue more one of “perception of value,” conceding that that additional value for the property exists only if the approvals are current.

They expressed deep sympathy with Debbie Melson’s plight due to her husband’s death and the resulting estate issues, but were at a loss Wednesday as to whether the P&Z can make any sort of accommodation for the many-times-delayed project, nearly five years after Alfred Melson’s death.

Commissioners voted to defer a decision on the request for guidance for Seasons at Bethany in order to consult with legal counsel, but they could return with a decision on how, or whether, the P&Z can proceed, as soon as next Thursday.

Those involved in the project could still choose to apply to the county council for another time extension, which only the council itself can grant at this point.