Council approves density ordinances

Moves made in Georgetown this week disregarded the recommendation of a Sussex County land-use consultant being paid $225,000 to help shape development policy. Sussex County Council on Tuesday voted 3-1 to approve an ordinance that will allow developers to pay the county to build more homes than normally allowed in county growth zones, including an area around Sussex County’s Inland Bays that is also marked as environmentally sensitive.

Later the same day, county consultants proposed a program similar to what councilmen had approved that morning but specifically excluded the environmentally sensitive land as a zone where higher density would be directed.

Both plans are meant trade higher density in certain county areas for open-space preservation in others. The ordinance approved Tuesday, however, essentially negates one of the consultants’ primary efforts — to protect environmentally sensitive land through the comprehensive land-use plan update.

The consultants, who have been working on the plan for months and presented a first draft Tuesday, refused to comment on the county “density for dollars” ordinance but called the environmentally sensitive development area a “contradiction in terms.”

County Councilmen Lynn Rogers (D-2nd) and George Cole (R-4th) argued Tuesday morning that council should wait on a decision on the density bonus ordinance until after the meeting with the consultants set for Tuesday night, a recommendation earlier echoed by state officials. A motion to defer the decision was defeated 3-2. Vance Phillips (R-5th), champion of the density bonus ordinance, largely dismissed claims that he was “rushing” the ordinance through the pipeline.

“Why wait?” asked Phillips, who was joined by fellow Councilmen Dale Dukes (R-1st) and Finley Jones (R-2nd) in voting for the ordinance. “Why would anybody want to put off higher restrictions and greater standards for a proposal that may never even see the light of day?”

Phillips characterization of the ordinance’s impact stands in stark contrast to what many opponents — primarily on the eastern side of the county, where the environmentally sensitive district is most prevalent — have cited as concerns about increased density and the placement of preserved open space resulting from the ordinance.

Dukes, Phillips and Jones did not express regret over disregarding the consultants’ recommendation.

“They can recommend whatever they want, “said Dukes. “We vote on it.”

The new density bonus plan only applies to townhome and condominium conditional-use applications in agricultural/residential zones. The increase in density comes with increased buffer and open space requirements within developments and creates a revenue stream for open space preservation.

The ordinance allows developers to build up to four multi-family units per acre by paying $15,000 or $20,000 for each unit in excess of two units per acre, the existing base density in the AR-1 zone. Councilmen have frequently awarded higher density in that zone, including in the environmentally sensitive area.

Opponents of the ordinance have complained that the county does not yet have a firm definition for open space — a key component of the ordinance that revolves around that definition — and that its supporters have not considered traffic impacts of higher density in an already-congested county.

Many also worry about the impacts in the environmental zone, already one of the most densely developed areas of the county. Rogers, who said he supported the ordinance but wanted to wait until after the meeting with county consultants, did not offer a vote Tuesday.

An amendment mandating that county officials preserve land in the same watershed where they offer the density bonus was approved unanimously, however.

Consultants from Urban Research and Development Corporation, a Pennsylvania company, proposed a transfer of development rights program Tuesday similar to one presented but not yet voted on at the state level. Through the program, developers would pay landowners to preserve their land, a move that would allow them to build more homes elsewhere than normally allowed.

The plans are identical in that they allow developers to exceed density requirements in areas slated for growth by paying to preserve other land in the county. They differ in their approaches to protect environmentally sensitive land.

While Phillips’ plan calls for increased buffer and open-space requirements, many believe protection efforts do not go far enough. Including the environmental overlay in the density bonus ordinance introduced by Phillips in May has been a contentious issue throughout the approval process. Phillips has consistently argued that the plan closes a loophole that allows developers to ask for 12 units per acre in agricultural/residential areas throughout the county, essentially reducing the development prospects there.

Longtime county Planning and Zoning Director Lawrence Lank said he does not remember any such application that was approved for development in the environmental zone. Phillips has also noted that council continually gives away density for free in the sensitive area and across the county.

Cole — who, despite being the ordinance’s most vocal opponent, has voted to increase density in the environmental overlay five out of the last seven times it was asked for, according to Phillips — noted Tuesday that council can disapprove any conditional-use application, including those asking for additional density, though it has rarely done so. The density bonus plan further exploits the environmentally sensitive zone, already one of the most developed areas in the county, he added.

The overlay zone was birthed in 2003 to, according to the ordinance enacting it, “protect and enhance the water quality” in the polluted Inland Bays, where development is the largest polluter next to agriculture. Since 2003, though, the overlay has been transformed into the county’s largest contiguous growth zone, where clear-cutting is allowed and higher density is directed.

Thousands of homes already sit around the inland bays, with more than 4,000 currently slated for development there. County officials approved plans last fall for The Estuary, a 1,052-home community adjacent to the Assawoman Wildlife Refuge on the Little Assawoman Bay, which calls for 75 acres of forest to be cut down. State planning officials wrote in a review that they plan simply did not “make sense.”

“That should be something special,” Cole said of the environmental overlay. “It’s not special. I’d like to see something unique about it. Right now, there’s nothing unique.”

One of the consultants’ primary efforts to protect the area around the Inland Bays through the comprehensive plan update — excluding it from any density transfer program – already seems to have been undermined. In that area, they are also proposing to exclude tidal wetlands from density calculations, essentially lowering density in the environmental overlay.

While that was met with some support Tuesday, environmentalists in the area will surely oppose the recent moves in Georgetown. A Center for the Inland Bays subcommittee formed to study the county land-use plan and development’s effects on the environment in the area asked county officials to create further restrictions on development around the bays.

Carol Bason, who has a background in public policy and who led that presentation, said later that the environmental overlay is “not really a protected area.”

Dukes argued Tuesday that council has protected the bays by replacing more than 14,000 individual septic systems with cleaner central sewer, a move lauded by state officials as environmental friendly.

Citing clear-cutting and saying that offering sewer is no excuse for environmental insensitivity, Secretary John Hughes of the Delaware Department of Natural Resources and Environmental Control called the overlay a failed policy. Connie Holland, director of state planning, called the area an “oxymoron.”

Phillips has offered another view about development in the environmentally sensitive area. The two-term councilman, who is widely recognized as pro-development, said the overlay was birthed, in part, to facilitate such development where it was inevitable, an opinion supported by consensus in Georgetown but not wording in the document.

“The practical realization is that is where the people want to live,” Phillips said. “Government’s job isn’t to circumvent the will of the people.”