County council takes buffer ordinance

Sussex County Councilmen wrangled on Tuesday with a proposed ordinance change that would define the 30-foot forested buffer the council requires of developments adjacent to existing agricultural lands.

The draft defines such buffers as strips of at least 30 feet in width — exclusive of residential lots, stormwater management elements, open space and surface improvements — that run along the entire perimeter of a subdivision where it is adjacent to any lands primarily used for agriculture.

A landscape plan would be required to be submitted from a licensed landscape architect, and the plan would be sent to the state forester and the county’s Planning and Zoning department for review. The forested buffer would be a mix of deciduous and evergreen trees, planted in a staggered manner instead of in rows. It would be designed to filter views on both sides of the buffer.

Developers would be required to install the buffer within 18 months of commencing work on the site, and the buffer would have to be maintained by the developer or through covenants in a subsequent takeover by a homeowners association. Trees in the buffer that die would have to be replaced with similar ones.

The final plat for the buffer would have to be approved by the Soil Conservation District, which is currently being done by county policy rather than as required by an ordinance.

Councilman George Cole (R-4th) applauded the new definition for the forested buffer. “We’re moving in the right direction,” he said. But he found fault in that it only pertains to buffer zones between subdivisions and agricultural lands, saying that conflicts between residential and commercial zones, for instance, would benefit from the same definition being applied, and that projects such as planned residential developments (PRDs) and conditional-use applications might also benefit.

P&Z Director Lawrence Lank said the addition of the definition to those areas of county code was possible but would require its insertion in each separate section, as well as an acknowledgement that building setbacks do vary between different types of uses, making the 30-foot buffer not necessarily appropriate for all situations.

Cole resisted using a variety of definitions for such buffers, however. “Where we have decided it’s appropriate, it ought to be that definition,” he said. “Right now, it depends on who’s standing in front of me. It needs to be consistent. This would let us avoid the need to debate what a forested buffer is every time it comes up.”

Lank noted that the P&Z and council already have a right to recommend buffers as they desire for conditional-use applications or when rezoning.

But Cole favored the large 30-foot buffers across the board, emphasizing that the resulting wildlife corridors and open space would likely be seen as a plus by buyers. “It might just be better if we just required it everywhere,” he said, requesting P&Z staff draft such a change in writing for later review by the council.

Councilman Vance Phillips (R-5th) said he thought Cole’s ideas were taking things a step too far. “We have to be careful not put too much in,” he said, emphasizing that too much of a change could generate opposition. “That’s the reason we don’t have an open space definition,” he added. “Sometimes you have to accept a slice of the pie instead of the whole thing.”

Rehoboth Beach resident Tiffany Derickson came forward before the council on Tuesday to talk about problems with existing buffer rules — namely enforcement.

“The current problems with the 30-foot buffer law extend far beyond ambiguous language,” Derickson said. “The county acts as though laws were meant to be discretionary. There is no enforcement. There are no penalties. It is critical to enforce this law because it was made to protect agricultural lands and the people who live in the county.”

Derickson said she had been trying to get a timetable for compliance at the Independence development adjacent to the N&M Burton farm district, where she had noted and reported a violation in the missing forested buffer and in the presence of a dry pond within 10 feet of the agricultural lands. She said she had reported the violation more than 10 weeks ago and requested that the building permits be pulled for the project until the situation was corrected.

There was no response from the county for three weeks, Derickson said, after which she had called the county about the problem. There was no response to that call for a month, she added, at which time she arranged a meeting with county officials, who met her at the site and documented the violations.

Derickson said the subsequent letter from the county stated that the dry pond, which she faulted for negative impacts on insect control and other issues, was temporary (it has since been filled). She was eventually told that the developer had filed a revised site plan for the development. But Derickson still had two major questions: when will the buffer be built and were fines issued to the developer for the violations?

“Accountability and enforcement is just as important as definitions, because the definition doesn’t matter if no one will enforce it,” she admonished the council on Tuesday.

Phillips asked county officials whether there was a written process for the withholding of permits and certificates of occupancy for a project in which non-compliance was found.

He took particular issue with the language in the letter of violation sent by the county, stating that it “may” pull permits, instead of that it “will” pull permits.

Planning officials said that the county’s engineering department and other agencies can request that permits be held and already make such requests daily. But they were not entirely clear whether the authority for the county to do so is a matter of practice or one of authority written into an ordinance.

“How do we follow a process that doesn’t have any guidelines?” Phillips asked, requesting research into the issue so that, as Derickson requested, county ordinances might have more teeth.

Council members on Tuesday said they wanted more time to review the buffer ordinance, asking for its return before them in September.

Private roads agreement raises concerns

Council members also delayed action on another item on Tuesday. Public Works Director Tom Baker brought to the council a proposed agreement between the county and developers on private roads and drainage. Baker said the ordinance was similar to the existing Ordinance 38, which sets requirements for developers to meet when they construct roadways.

The differences between the proposed agreement and Ordinance 38 come largely in that the agreement is designed to come into play when the county will not own and operate the roads once they are completed.

Baker said the agreement would serve as a “definitive legal binding” between the developer and the county, even more so than now. In the draft agreement a time limit is provided for completion of the roadways. The county will also include homeowners associations in the review process at major points in time for approval, before project turned over. The developers will be required to amend the agreement should they sell the development, as well as to have insurance to guarantee their work.

The agreement also describes specific procedures for project closeout, including requiring substantial completion and acceptance by the homeowners association of the new roadways.

Councilman Lynn Rogers (D-3rd) said he understood and agreed with what the agreement was trying to do. “The homeowner gets left holding the bag in a lot of cases,” he acknowledged. But Rogers said he needed more time to review the agreement and its legal implications, and that he was already getting some questions about it.

Baker noted that the agreement was basically a rewrite of the existing Ordinance 38, and was just intended to allow the county to gain “some kind of control over the developer and/or his contractor to ensure that he will do what he says he will do and is required to do. This puts it in black and white,” he said.

While Council President Dale Dukes (D-1st) said he was hearing complaints about the difficulty of obtaining insurance to guarantee such work, Baker said the county’s insurance consultant had been among those putting together the draft.

On Rogers’ suggestion, the council agreed to table the ordinance until they had time for further review.

Also on Aug. 21:

• Council unanimously adopted a resolution forming a Sussex County Citizens Corps, which would work with other municipal Citizens Corps, such as the one in Ocean View, to support emergency preparedness work through community outreach, training and volunteer service, and to encourage other municipalities to form their own such groups.

• The council members also unanimously approved grants to Bethany Beach and Bridgeville under their local law enforcement grant program. Bethany Beach applied for $25,000 to purchase a new Dodge Durango to replace a police vehicle with 100,000 miles on it. Bridgeville applied for the $25,000 grant to purchase a Dodge Charger, computer equipment and a radar gun. Council grants were also awarded Tuesday to Bridgeville’s Apple Scrapple Festival, for $500; to the Bridgeville Charity Open Golf Tournament for $250; to the International Association of Approved Basketball Officials, for $250 total; and to the Seaford Recreational Football Program for $500.

• Finally, the council split on but approved requested increases to fees assessed by the Sussex County Sheriff’s Office. The fees will increase from $300 to $500 for sheriff sales, and a set-up fee for lands sales will be set at $75. The increased fees are estimated to add $100,000 per year in revenue for the office, which has seen net operating losses of $168,000, $133,000 and an estimated $6,000 for 2005, 2006 and 2007, respectively.

Steven Smyk, chief deputy sheriff, cited increased workloads as a major factor in the increasing costs for the sheriff. He said the office was trying to streamline operations so they can cut costs but noted they can’t control the costs of postage, fuel and other needs. He said most of the increased fees would be born by attorneys, and real estate and mortgage companies, and emphasized that the new fees fall in line with those in Kent and New Castle counties.

County Administrator Dave Baker said some of the problem was related to revenues being down because of the market, as well as expenses going up because of the cost of living and some increases in staff. He said former Sheriff Robert Reed had been understaffed and brought people on when he took over the office.

Cole supported the proposed fee increases, emphasizing that the fees would paid by people needing services from the sheriff.

Philips opposed them, saying, “I don’t think the sheriff has taken close look at his expenses. The additional staff may not be necessary.”

Rogers support the change, adding that, “The previous office holder tried to change what the office was doing. We’re back to doing business now.”

Councilman Finley Jones (D-2nd) voted for the increases, noting that the office was operating at a loss, while Dukes also voted in favor, opting to give new Sheriff Eric Swanson time to get the department to be self-sustaining.

The council’s next meeting will be on Tuesday, Sept. 11, at 6:30 p.m. Meetings that would normally be held on Aug. 28 and Sept. 4 were canceled due to the Labor Day holiday and a traditional end-of-summer break.