Can government officials approve or deny proposed development plans based on general concerns or must they make such judgments based solely on code compliance? That question is now facing the five-member Sussex County Council.
Lawyers for investors in the Isaacs Glen project north of Milton spoke to council Tuesday, appealing the Planning and Zoning Commission’s March 1 decision to deny approval of the cluster plan to build 1,630 homes on the 836-acre Isaacs farm.
In that special March 1 meeting, commissioners denied the cluster plans 4-1, citing concerns with traffic, a lack of infrastructure and the residential community’s overall affect on an area earmarked by the state for farmland preservation.
Commissioners didn’t, however, question the plan’s compliance with county zoning code.
“We don’t believe the commissioners applied your code to this plan,” the developer’s attorney William Manning told council on Tuesday, adding that they “attempted to apply their policy judgment. If it meets requirements, they must approve the plan. When you are restricting a land owner’s right to do something with his property, you have to do so in a way so that that land owner can walk into your law library and find out what he can do and can’t do with his property.”
In his clients’ defense, Manning cited a Delaware Superior Court ruling in the East Lake Partners v. City of Dover Planning Commission case of 1974. In its opinion, the court wrote that “when people purchase land zoned for a specific use, they are entitled to rely on the fact that they can implement that use provided the project complies with all of the specific criteria found in the ordinance.”
The plan to develop 1,630 lots on 836 acres meets the county’s AR-1 zoning district code, allowing two lots per acre, and 49 percent of the project’s acreage would be left as open space with the proposal, Manning said Tuesday.
Some 361 acres of the land — 42 percent of the open space — would be developed recreationally into playing fields, pools and 9 miles of trails, he added. And, Manning said, 122 of the current 152 acres of forest land on the development plot would be left untouched. According to the Wilmington attorney, the county would be hard-pressed to find a friendlier, more responsible plan. Yet it was turned down, and its legality wasn’t questioned, Manning said.
Planning and Zoning Commissioner I.G. Burton moved that the commission deny the application at the March 1 meeting for several of the aforementioned reasons and more.
Burton stated that the proposal is not in accordance with the county’s 2002 land-use plan and doesn’t meet the “purpose” of the AR-1 zoning district. Burton continued, saying the development is not in an area where services will meet the needs of its residents and said that it would adversely impact nearby farmland preservation areas. Then he addressed state-level concerns.
“The Department of Agriculture opposes the project because it is contrary to Livable Delaware,” Burton said, speaking about Gov. Ruth Ann Minner’s growth plan. He said that the DNREC is against the Isaacs Glen proposal because of its possible negative impact on Eastern Sussex’s waterways. And, Burton said, the Office of State Planning Control says it is “out of character” with its surroundings.
On all counts, Manning had the same response. “You can’t apply criteria (to a plan denial) that haven’t been legislatively enacted,” he said.
As far as the state’s concerns, Manning added, “The state is against this proposal. But that doesn’t change Sussex County law.”
Council did not make a decision on Tuesday and didn’t say when one would be announced.