During a review of pending legislation from the 2007 General Assembly session, Sussex County Council members on Tuesday continued their unanimous opposition to House Bill 111, which county officials said they’d been opposing “strongly and effectively” to date.
HB 111 would take back part of the county’s portion of real estate transfer tax and set off alarm bells last year not only for the county but for Sussex County municipalities that feared the change might endanger the portion of transfer taxes that each town collects.
Under such opposition, HB 111 — in either of two draft forms — never made it to the floor of the House, though it was considered in House committees on at least one occasion.
County officials said they were “vehemently opposed to any encumbrance on any right” the county has to receive a full share of the transfer tax. They cited “obvious fallacies” in the bill that had been tackled during their opposition and said some amendments had been offered to legislators should the momentum for HB 111 move forward.
While supporting the county’s continued opposition to HB 111, Councilman George Cole (R-4th) noted that the move by legislators was apparently a reaction to the council’s decisions on development issues and suggested the council needs to clearly show state officials it is addressing concerns about infrastructure without having the state take funding from the county for infrastructure needs.
“We need to show them we have ways to help finance the roads,” Cole said. “If money went into a fund, we could show them how much money could be collected for roads and show them they don’t need to do this.”
Cole cited the argument as part of his position opposing special development tax districts, as the council had discussed and favored asking for enabling legislation for earlier in the meeting. Instead, Cole has recommended the county consider impact fees.
“That would relieve some of pressure from them taking the transfer taxes,” he said. “It’s been a godsend over the years,” he said of the tax revenues.
“All of Sussex County is considered to be a special development district by some,” Cole continued. “And until we address the ag districts and allowing developments to be built anywhere, which they say is promoting sprawl, there’s going to be a backlash from state legislature.
“They’re getting a lot of complaints about what we do here,” he concluded. “Unless we address it in the current [comprehensive plan] update, this bill could be come law. We need to be careful.”
Councilman Vance Phillips (R-5th) disagreed about the issue of agricultural districts. “We do have an ag district with permanent preservation of some properties,” he said.
Outgoing Council President Dale Dukes (D-1st) agreed. “We’ve done a good job in containing density in a Level 4 area. We have not exceeded what’s been permitted since 1974,” he noted, adding that if limitations were imposed on development, “Farmers and people living on the land are going to ask for compensation.”
“If the state doesn’t want them to develop it, who’s going to give them adequate compensation?” Councilman Lynn Rogers (D-3rd) added.
While apparently sympathetic to the concerns that generated the bill, Cole joined his fellow council members in opposing HB 111 and its potential to take away transfer tax revenues from the county.
Stances on wastewater, tax ditch, school bills decided
The council also unanimously opposes HB 30, which was passed in the House last year but remains to be acted upon in the state Senate. The bill would prohibit the spraying of wastewater on lands owned by the state, which both state and county facilities are currently in the practice of doing.
HB 30 exempts the state from the prohibition, making the county chiefly affected by the proposed legislation. County officials said they particularly were interested in making sure they can continue to spray the treated wastewater on state-owned lands that are agricultural in nature – an amendment they tried to have added to HB 30 in 2007 but were unsuccessful in doing so.
Council members expressed support for HB 189, also known as the “tax ditch bill,” which would terminate tax ditch construction easements. County officials noted some controversy over the width of such easements – some of which are up to 250 feet wide. The bill is designed to address concerns about the impacts on properties where the easements for large pieces of land to be set aside to conserve the ditches.
Jones again noted some opposition to the bill but said the state’s Farm Bureau was on board with HB 189. Council members, citing that support, unanimously agreed to support it in the General Assembly.
Council members on Tuesday expressed opposition to HB 233, the “school district impact fee bill,” which extends a provision used in New Castle County and its municipalities to the statewide level.
The provision requires developers to get a letter from the school district associated with a new development stating the school district has the capacity for new students who would come from that community or could make provisions for such students. Age-restricted communities and low-income housing are exempted from the rule.
“I don’t think school districts should be in the zoning business,” Dukes said in stating his opposition. “They should be in the education business.”
Rogers cited testimony from a consultant for developers who had told the council that the area’s school population could be expected to decrease in coming years, thanks to an increasingly older population.
But Cole, despite his own opposition, warned his fellow council members that similar legislative initiatives are likely to continue coming. “These kinds of things are on their way. You should be on the lookout for them,” he said.
As if to confirm that prediction, council members next considered HB 239, the “minimum public facilities infrastructure bill,” which would mandate such requirements under the auspices of the Office of State Planning Coordination.
“It takes away from home rule and puts everything in the hands of the state,” Dukes said, declaring his ongoing opposition to any such moves. “Not under my watch,” he said.
Cole and Rogers found fault with the document’s density and thickness, as they had earlier in the meeting with draft enabling legislation for special development districts for the county.
“It’s too thick,” said Cole. “It needs an attorney to explain it. There must be an easier way,” he added.
Cole also took the opportunity to tweak his fellow council members over their earlier acceptance of the SDD enabling legislation in its hefty packet.
“This curtails development, which is why you don’t like it,” he said with humor. “This one might make the developer step up to the plate. It makes you look like you’re in the developer’s pocket.”
County officials noted, though, that some of the elements of HB 239 are already being done by the county.
Council opposed to ‘dangerous’ TDR bill
Council members were uniformly opposed to HB 244, which would institute a statewide policy for transfer of development rights, which is an idea the county is considering on its own under the ongoing update of its comprehensive plan.
Despite their considering jumping on the TDR bandwagon, HB 244 has been opposed by the council for a number of reasons. County officials said the draft legislation would cause conflict between the county and municipalities in areas already pre-designated as towns’ areas to go into – an issue the OSPC hasn’t yet answered to officials’ satisfaction. They also cited the format of TDR in the bill as cumbersome.
“This is a case of government trying to micromanage the marketplace,” Cole said. “It sounds good. It feels good. But does it work?”
Cole pointed to his recent reading of the publication “Growth and No Growth,” saying more and more communities are rejecting TDR “and other pie-in-the-sky” programs. He said other programs can save ag lands and open space, but he pointed to potential flaws in the draft of HB 244.
“Where do you transfer the density?” he asked, pointing to development and resulting gridlock at the beach. “Do you transfer it within the watershed?
“It’s not practical,” he added. “You’re putting that burden on me, and you’re protecting a piece of land in Gumboro? This ‘smart growth’ stuff is not working.”
“The development districts are too large and encompass too much environmentally sensitive land,” Cole noted, however, of flaws in the existing county development process. “I don’t trust us to come up with a program that will be in the best interests of the entire county.” He said he opposed HB 244 and any other TDR legislation.
Still, Phillips and other council members favored whatever the county might come up with over HB 244. “If we do our own program, at least we could put parameters on it,” Phillips said.
HB 244 allows development rights to be transferred from anywhere in the state to anywhere in the state. But planning consultants for the county said it could make as small a trading area as desired in its own TDR legislation.
“We’ve heard loud and clear that people don’t want any transfer into the environmentally sensitive area,” officials said.
And the county may be forced to develop its own TDR program if it doesn’t want to deal with the impact of the wider state-designed one. Under HB 244, any county that does not have a TDR program could be subject to the statewide transfer allowances of the bill. Those with their own TDR programs would be exempted.
Dukes also noted a mandatory increase of two more units per acre of density, which he said was sure to bring opposition from municipalities.
“In this form, that’s a dangerous bill,” Rogers added. “Even people who want TDRs say it’s not in their favor. There are not enough receiving areas at the beaches for them to put them there.”
However, Rogers said, “We need to have all tools in our toolbox to help ag land owners when they’re getting pressure to develop, and TDR can do that – but that’s a dangerous bill,” he added of HB 244 and its provisions.
Council members on Jan. 8 deferred any consideration of an expected zoning overlay bill, which county officials said they had in draft form even though it is not scheduled to be introduced in the General Assembly until next week. They plan to look at the draft at their Jan. 15 meeting instead.