County’s buffer ordinance moves forward

Sussex County Councilman George Cole (R-4th) wants to protect the views of major subdivisions neighboring lands developed across the county in the future.

But discussion at the council’s Sept. 18 meeting made it clear that he faces opposition from developers and his peers on the council as he pushes for the county’s new ordinance requiring 30-foot forested buffers on major subdivisions next to agricultural lands to be expanded to cover more of the county’s major subdivisions.

Since initial discussion on Aug. 21 of a new definition for forested buffers — defining them as 30 feet in width and containing a mix of at least 70 percent native, deciduous, shade trees at least 6 feet tall and 1.5 inches in trunk diameter, and 30 percent evergreens at least 5 feet tall, planted in a staggered, natural manner — Cole has pushed for that definition to be included across all sections of the county’s zoning code.

That kind of change would mean buffers would not only be a required feature for developers creating major subdivisions neighboring existing agricultural lands but also for those built next to commercial property or forested land, for example.

County Solicitor James D. Griffin noted Tuesday that even the subdivision/agricultural buffers had already received negative feedback from developers.

“We were already getting letters from developers suggesting that this was overkill,” Griffin cautioned.

But Cole said he felt that if the county is granting additional density to developers — as it frequently does in rezoning and approving major subdivisions — that should come with a tradeoff in the form of a buffer requirement.

“We permit the developers to have the density,” he said. “It might be better to require it for all subdivisions. They’re developing cluster subdivisions and it would contribute to their open space, and they receive added density.”

A major plus for Cole: “There’s the potential to preserve 30 feet on both sides if this is changed.”

Cole also focused on undeveloped, forested parcels that might someday be cleared for agriculture, citing those cases as a kind of loophole in the ordinance that might mean no buffer would be built on a new subdivision only to have neighboring forested land is cleared for agriculture later on.

In such a case, residents of the subdivision would end up with no view-filtering buffer between them and agriculture or whatever future development might take place on the neighboring property.

“If we require it not only when it’s next to agricultural land, we will preserve the trees even if the forested land is later converted for agriculture,” Cole explained, noting that the recent push for corn production — particularly related to its use in alternative fuel sources — is likely to push more of the county’s forested land into agricultural use in the near future.

Councilman Vance Phillips (R-5th) acknowledged Cole’s perception of a loophole but said he didn’t necessarily agree with Cole’s recommendation. Councilman Finley B. Jones (D-2nd), however, said he did see the logic in Cole’s concern, adding that there might an innate unfairness to the ordinance if only applied to subdivisions neighboring existing agricultural lands.

“The first (developer) in has to do it,” Jones said. “The next one doesn’t.”

“It would be more fair for all,” Cole added. “This should be required not only with projects adjacent to agriculture. It should be required with residential next to commercial.”

“The developer will get a lot more money in the end,” Cole said, citing the added value of residential property that has a forested buffer.

Council President Dale Dukes (D-1st), however, said he was concerned about the end result if developers were forced to retain existing trees or build even more buffers than originally proposed.

“You could end up with something that looks bad, with scraggly trees, if it’s not maintained,” he argued. “This is typical of what we do,” he added. “We run the cost up.”

But Cole questioned that assertion of added cost, emphasizing that developers starting with forested lands would simply have an area with which they would not have to tamper, since the proposed ordinance already allows for existing trees to be retained so long as they meet the goal of the buffer ordinance, even if the otherwise required mix of deciduous and evergreen trees is not met.

Cole said he felt the council should redraft the ordinance to apply to all developments where major subdivisions and other types of zoning meet, if only to test the waters as to the response of the public when it goes to public hearings.

“If we put it in, we can take it out later,” he said. “We’re in the update process for the comprehensive plan now,” he pointed out, saying that it was an appropriate time to consider wider land-use concerns, such as more expansive buffer requirements.

Jones concurred, saying, “This is why we have public hearings,” and supporting the change being made to the draft buffer ordinance before the public hearing stage. Despite some objection to the change, the consensus of the council was to do just that.

The ordinance, as currently drafted, requires buffers along the outer edges of all major subdivisions in the county that neighbor agricultural lands — such as those used for the raising of livestock such as poultry and cattle, as well as horses, sheep, etc., as well as the cultivation of crops or trees (for nurseries, lumber, etc.) That would expand under Cole’s suggestion to include all major subdivisions, regardless of the neighboring zoning.

The requirement for the buffers excludes areas within a subdivision that are planned for use as residential lots, stormwater facilities (including ponds), open space, recreational areas and streets.

Plans for buffers would have to be certified by a Delaware-licensed landscape architect and be approved by the county’s Planning and Zoning Commission. The buffers would have to be in place no later than 18 months after the project receives a notice to proceed. Developers would be required to replace trees that died and to maintain the buffers, with homeowners’ associations later taking over responsibility for their maintenance in subdivisions where the developer hands over amenities and other features to an HOA.

The buffers would not only be required of new major subdivisions but also potentially on lands where the county approves a conditional use or zoning change in the future.

The council is set to review the latest draft of the ordinance at the Sept. 25 meeting, complete with Cole’s recommended changes. That meeting is set for 10 a.m. in county council chambers in Georgetown — breaking the usual schedule of alternating evening and morning meetings for the council, as a public meeting on the latest draft of the county comprehensive plan update is set for Sept. 25 at 6:30 p.m. at the Rehoboth Beach Convention Center.