Counties looking to cement overlay power


The Sussex County Council is considering asking for state legislation that would clarify the county’s ability to establish overlay zones.

Recommendations for that legislation were presented to council members at their Tuesday, Oct. 2, meeting, at which County Solicitor James D. Griffin explained that the proposed legislation was the result of a recent lawsuit in neighboring Kent County, wherein that county’s authority to create anything other than zoning districts was challenged.

“We’re doing this for a reason,” Griffin said. “There was a case about one year ago in Kent County, where a group called Farmers for Fairness attacked the act of the Kent County Levy Court that established an overlay area between Route 9 and the bay.

“The state gives the counties the authority to divide the county into districts,” Griffin explained. “But there is no mention of overlay zones or overlay districts. Overlay districts came into being here with the RPC (residential planned community) overlay, but the state legislature never amended the law to expand the ability of counties to create districts, plus overlay districts.”

Griffin said the state’s Court of the Chancery had ruled against the provision of the overlay zone in the Kent County case, leading officials in all three of the state’s counties to pursue corrective legislation through a proposed amendment to state law in respect to the authority of the counties.

The legislation, as currently being considered, was written by an attorney who was on the losing side of the Kent County case, Griffin noted, and had been drafted to clear up the ambiguity found by the court in that case.

“This would address the reason why the court ruled against Kent County,” Griffin said, noting that the issue had arisen in the state legislature during the last days of their June 2007 session but that no legislation had been formally introduced at that time.

The new legislation would have to be passed by the state’s General Assembly and signed into law, but it would affect all three counties if it went into effect.

The legislation up for the county council’s consideration this week specifies that the county government may divide Sussex County into districts and that it may, through overlays, regulate uses and construction in those districts. It also allows the county to provide for a manner of enforcement of those overlays.

The council was requested on Tuesday to decide whether it was behind the proposed legislation, with a Delaware Association of Counties meeting set for next week at which point officials from all three counties could start seeking legislative sponsors for the measure.

Griffin noted that the measure would require no formal action from the council, though a consensus opinion was desired. Councilman Vance Phillips (R-5th) asked for a week to review the document provided to him, and the item was to be put on the council’s agenda for Oct. 9.

Council President Dale Dukes (D-1st) said he knew that New Castle County officials were ready to support the version of the draft legislation that had been provided to their Sussex County counterparts.

Revised buffer ordinances moves forward

The council on Tuesday also formally introduced a revised ordinance requiring forested buffers for all major subdivisions in the county. The revisions call for 30-foot forested buffers on all boundaries of subdivisions with four or more units, though not along roads entering such communities, along connector roads and along the width of stormwater outfalls.

Under the ordinance, a 100-foot-long buffer would require a minimum of 20 trees of an indigenous variety, with 80 percent being deciduous and 20 percent evergreen. That can include existing trees if they filter views, but a 4-inch base of grass or wood chips is required. The buffers would have to be installed within 18 months of the date sitework is authorized.

Developers would be responsible for maintaining the buffers and replacing any dead trees for a period of two years, at which point homeowners associations could take over that responsibility.

The buffers would have to be depicted on preliminary and final plot plans, with the state’s Soil and Water Conservation District required to sign off on all final plans. The county could also use the definition of a buffer included in the ordinance when imposing a buffer as a condition for granting changes of use or changes of zone.

The ordinance will next move to the Planning and Zoning Commission, where it will receive a public hearing. From there, it will get another public hearing before the county council acts upon it.

Grants, honors awarded

Also on Oct. 2:

• Council members received an invitation from U.S. Sen. Tom Carper (D-Del.) to attend an Oct. 9 meeting with National Park Service officials regarding Carper’s request that Delaware be included in a special resource study by the agency. Carper has been pushing the National Park Service to establish Delaware’s first national park. The state is the only one in the U.S. without a national park.

• County Administrator David Baker announced that county officials will be closed on Monday, Oct. 8, in observance of Columbus Day.

• Council approved the issuance of up to $1.203 million in general obligations bonds for the completion of the Oak Orchard Sanitary Sewer District, to pay for construction and equipping the latest expansion of the district.

The county will receive revenues from the district to repay the debt, at a term of 40 years maximum and no more than 4.5 percent interest.

The rates for the sewer district were included in the county’s 2008 fiscal year budget, with a $224.48 annual service charge, a $2.28-per-front-footage assessment for transfer, a $2.18-per-front-footage assessment for distribution and a $3,000.88 connection fee. The district went online in March of 2006.

• Council approved grant requests of $300 for the Delaware Storm 16U softball team; $5,250 for the Dry Dock non-profit additional rehabilitation center, for a golf event; $100 to the Woodbridge Raider football team, for jerseys and banquet expenses; and $500 to Milford Pop Warner football, for equipment and expenses.

• The Council recognized County Employee of the Quarter Susan Wise, who was praised for filling in with changes in her department, as well as helping with special events in the county — such as NASCAR hospitality — and the annual Caroling on the Circle. Wise was nominated for going “above and beyond” her duties and was presented with a clock engraved with her name and the award citation..