County council adopts Cluster Density Trade

At the April 4 council meeting, Sussex County Council voted 4-1 (Council Member George Cole opposed) to approve a bonus-density-for-cash program, which would serve as a funding mechanism for open-space preservation,

Just where, and how much, bonus density the county can offer is carefully circumscribed, but even as the Cluster Density Trade approached final adoption, council members broached the possibility that some program revenues might be earmarked for other uses — public safety or infrastructure improvements.

In the end, County Attorney James Griffin advised them that they’d need to re-advertise, and head back to the public hearing process if they intended to make such a substantial change. Council dropped the matter for the time being, but indicated the possibility of future amendments in support of public safety and infrastructure.

Backing up, the Cluster Density Trade treats with cluster subdivisions, on lands zoned Agricultural-Residential (AR-1), “within a Town Center, a Developing Area or an Environmentally Sensitive Developing Area” (from the ordinance).

Property owners can build two residential units per acre in AR-1 lands. They could be approved for up to four units per acre under the new program, if they agree to pay between $15,000 and $20,000 per additional unit into a fund for open-space preservation.

Cluster subdivisions do not come before county council for review — it would be within the discretion of the county Planning and Zoning (P&Z) Commission to approve or deny this increased density.

Developers would still need to meet all the criteria set forth in the Cluster Subdivision Ordinance (30 percent open space, minimum 7,500-square-foot lots, various elements of design superiority), so the P&Z would have some ability to pick and choose.

Council members have no say regarding approval or denial of bonus density awards. However, they do have the final ruling on how the money will be spent. Any expenditures toward open-space preservation would need supermajority (four-fifths) approval.

Supermajority or not, Cole objected to the Cluster Density Trade, on various fronts.

“It’s too much money — corrupts the process,” he said. “Why would the county deny somebody? Because they’re not going to get the money (if they do).”

He also objected to the lack of any references to intergovernmental cooperation, noting the inevitable impact on nearby incorporated areas. (The growth zones are typically near existing towns.)

“Exceeding density in one area, and then we get open space somewhere else — to my mind, it doesn’t compute,” Cole said. Wherever the Cluster Density Trade increased density, he emphasized the importance of preserving open space within that same watershed.

“It strikes me as ironic that we’re applying this to the environmentally sensitive district (Environmentally Sensitive Developing Area),” he said. “Anything goes in our environmentally sensitive district.

“It’s all about money,” Cole reiterated. “I don’t think this council has a very good definition for open space, and it doesn’t have a good reputation of trying to encourage and support developers who provide good open space. I think this is another smokescreen, to get more money in to the county, and I concur with a lot of people out there — I think that small government is good, and we shouldn’t be doing these kinds of money grabs.”

He said he considers the Cluster Density Trade “government intrusion into the marketplace.”

“I don’t like it and I don’t think we need it,” he said. “I think the marketplace is doing fine.” And with that, he voted no.

It was Council Member Vance Phillips who first broached the idea of the program, when the county was revisiting its Cluster Subdivision Ordinance (which he also introduced). He and county staff have made several changes to the Cluster Density Trade (some in response to P&Z’s comments, some in response to council’s comments) since introduction, and he defended the final version.

“This ordinance is about the money,” Phillips agreed. “This ordinance will change the direction of this county, as most governing bodies have done in the past, by redirecting the money from the pockets of developers … and putting at least a portion of that money back into the public domain, into the preservation of open space.”

His perspective proved the majority opinion, although Council Member Finley Jones did agree with Cole that the county’s definition of open space could use another review.

Council Member Dale Dukes introduced the idea of using Cluster Density Trade revenues to support more than just open-space preservation.

He said he had a problem with reserving what might turn out to be a considerable amount of money, all for a single earmark.

“As written now, the ordinance says it goes into open space,” Dukes said. “I would like to see the ordinance include that this money be set aside into an escrow account, which couldn’t be used for budgeting purposes, but only use it with a supermajority (approval), if we were doing open space, land preservation, public safety and infrastructure.”

(By land preservation, Dukes referred to long-term lease or purchase of development rights, not the land itself, as per Delaware’s Agricultural Lands Preservation Program.)

“Doesn’t the (real estate) transfer tax take care of public safety and infrastructure?” Cole countered. “Do we need another money grab to fund more of this stuff?”

“I don’t think we’re getting enough, Mr. Cole,” Dukes replied.

But Cole said the county was pulling in excess of $30 million in transfer tax revenues, and asked Dukes how much more he thought was needed.

Dukes said most of the opposition he’d been hearing to the Cluster Density Trade stemmed from concerns that the county was too focused on open space, when there were more pressing problems — congested roadways, in particular.

“I don’t think we should get into doing roads, because we don’t have the revenue for that,” he said. “But if do get some of these revenues, maybe sit down with the state and do some partnering with them.

As Dukes offered to Cole, “You and I will never live long enough to see much improvement to the roads in Sussex County.”

“I think there’s some error to what you’re saying,” Cole answered. “People are concerned about the lack of infrastructure and all this development, but we’re just saying the words. We’re not really coming up with any program. You’re conceptually throwing out a lot of stuff here today, which, yes, may have some merit, but the transfer tax covers these areas and we don’t seem to have much of a problem.

“We fund sewer, we fund other things, but unless you’re talking about a partnership with highways — that’s something we as a council could talk about,” Cole admitted. “But just to escrow a lot of money — money is corrupting to governments, whether you’re in Washington, D.C., or you’re a town government or county government. When you get in too much money, you’re getting out of whack.”

Griffin interjected at this point, bringing the focus back to the ordinance as written – in support of open-space preservation, passive and active recreation.

Dukes admitted it wasn’t the time for a long debate about the county’s role in highways, and any partnership would have to be worked out with the state anyway. However, he suggested it was time to start considering such a partnership. “I used to think (the road system) was all the state’s responsibility,” he said. “I still think it’s the state’s responsibility, because they get all the gas taxes, and the excise taxes and other revenues.

“But being real — it’s not going to happen.”

Jones agreed. “Our state agencies are falling far short in Sussex County,” he said. “They haven’t done anything in the last 30 years except patch up and put out fires.”