County considers hard line on permits

Sussex County Council members will soon consider a pair of ordinances targeting scofflaw builders, following a presentation at the March 21 council meeting.

Newcomer Hal Godwin (administrative assistant), in his first appearance before council, pointed to the number of builders who either weren’t aware, or didn’t care, that they needed county building permits to commence construction.

Just since January 2006, Godwin said the Building Code department had identified 60 homes under construction without building permits.

Most of these (50) were within Milford city limits, where the situation is somewhat complicated. Unlike many towns, Milford handles its own building inspections – and the city straddles the Sussex/Kent border, with North Milford falling under a different set of rules.

In Kent County, builders don’t always need a county building permit, if they’re working within town limits — if they’re working in Milford, for instance (Kent side of the border).

In Sussex County, they need a county building permit no matter where they’re working — town or county. (And the towns typically require their own building permits, as well.)

Godwin said some builders had not only commenced, but completed, construction — some had even sold the homes — before coming in to obtain their county building permits.

According to Godwin, the average building permit fee in Sussex County came in at about $900. At present, the county levies an additional $100 late fee when builders start work without settling up first. Godwin recommended doubling the permit fee instead.

He said he didn’t view the measure as an income generator, but rather as a way to correct behavior.

Council Member Dale Dukes expressed a preference for an expedited path between town and county building-permit filings.

Council Member Finley Jones, who represents Milford, said he took a lot of heat on the topic because of the different rules around town, but Council President Lynn Rogers directed Godwin to go ahead and draft the ordinance.

In related business, Godwin recommended increasing the fee for building code appeals.

At present, the county charges builders $100 to appeal a Building Code department ruling, but on the other side of the ledger sheet, pays $100 to Board of Adjustment (BoA) members for each meeting they attend. According to Godwin, there’d been eight appeals in the past 12 months, bringing in $800. BoA members had received $2,900 to attend those hearings, leaving the county $2,100 in the red.

As County Administrator Bob Stickels pointed out, there were attorney’s fees and advertising costs to consider as well.

Godwin recommended a fee increase to $600, or $300 for builders who could agree to wait for a night of multiple hearings – a discount for a doubleheader, in other words.

In every case over the past 12 months, the BoA has convened to hear just one single appeal. Stickels said builders were often unwilling to wait until another case came up.

Council Member Vance Phillips asked about the outcome of these hearings, and Building Code’s Andy Wright said the builders did win on appeal, 90 percent of the time.

“So, the majority of the appeals, they were right to begin with?” Phillips asked.

Wright said most of the appeals had to do with stairs, and Dukes suggested this was sort of a gray area in the law. For instance, the contractor builds a set of concrete risers, but once everything settles, one of the risers exceeds the roughly 8-inch height restriction, he offered.

Stickels is strong for adjusting fees to support the associated service, and supported the increase. But Phillips suggested the county take money from one of the more lucrative building-related fee structures — building permits, for instance — and use some of that money to make up for what he called a relatively minor financial shortfall in appeals.

“The rest of the story is — we raise fees where we’re losing money, but when’s the last time we lowered fees where we were building a huge surplus?” Phillips asked.

In other business, council once again considered Phillips’ proposed Cluster Density Trade program, but eventually deferred action.

The Cluster Density Trade offers bonus density in exchange for cash, which would be used to purchase and preserve open space. Council would decide which developers would be approved for how many units on a case-by-case basis, and would have to approve all such decisions with a four-fifths majority.

The program would apply to agricultural-residential (AR-1) zoning districts, in specific areas.

AR-1 permits up to two residential units per acre, by right. The Cluster Density Trade would provide bonus density up to a maximum limit of four residential units per acre.

Council could accept $20,000 in exchange for each additional unit, on AR-1 lands in the Environmentally Sensitive Developing Area (ESDA). The ESDA encompasses the swath of coastal Sussex from Dewey Beach to Fenwick Island, to the western banks of the Rehoboth, Indian River and Little Assawoman bays.

Or, developers could request additional units on AR-1 lands designated as Town Centers or Growth Areas, for $15,000 apiece.

Cluster Density Trade very vaguely resembles a nascent, Gov. Ruth Ann Minner-supported Transfer of Development Rights (TDR) program that’s been floating around as a Livable Delaware priority for some years now.

According to Office of State Planning Coordination’s Connie Holland, TDR legislation has been drafted, and is being reviewed by the state’s attorneys, en route Legislative Hall.

Phillips has characterized the TDR program as unduly complex, and therefore less likely to succeed. But the state has requested that Sussex County give Dover a chance to review the Cluster Density Trade, to make sure it doesn’t conflict with the TDR program.

The consensus on March 21 was to wait until the state had that opportunity to review, and revisit the issue at the April 4 council meeting.