Sussex considers cluster density trade

Sussex County Council members returned to “cluster density trade” talks on Feb. 14, and offered the public a chance to weigh in at the St. Valentine’s Day council meeting.
Actually, it was St. Valentine’s Night, and even the council members periodically commented about getting home to their sweethearts — but the meeting still drew decent attendance (about a dozen people in the audience).

Council would eventually defer action, though, awaiting an opinion from county Planning and Zoning (P&Z) Commission Attorney Vince Robertson and a formal recommendation from the P&Z.

Commission members asked Robertson to check the cluster density trade’s legality at the public hearing before the P&Z (Jan. 26), concerned that problems might arise if the trade appeared too alike “contract zoning.” The courts have tended to rule against contracts between government and private citizens, where there’s consideration involved (here, extra density in exchange for cash that could go toward open-space preservation).

The P&Z left the record open until Feb. 24, for additional written comments, and council planned to leave their record open another week or two, after they get their recommendation from the P&Z.

Cluster density trade offers developers the option to build extra houses on Agricultural-Residential (AR-1) lands in designated Town Centers and Developing Areas, if they’re willing to pay for that privilege.

Developers can already build two residential units per acre in AR-1 lands, by right. But the cluster density trade would let them boost that to four per acre, maximum. For each bonus housing unit, they would have to pay $15,000, or $20,000 if building in the Environmentally Sensitive Developing Area (ESDA).

That money would go toward open-lands conservation. The Sussex County Land Trust (SCLT) would handle feasibility studies and prioritization, and come back before council with recommendations. Council would have to approve land purchases by a 4/5 vote.

The $20,000 category may have disappeared in another recent amendment to the Cluster Development Ordinance, which knocked clustering out of the ESDA because people could already essentially cluster in those areas, via residential planned community (RPC) development.

Whether or not council members plan to affix a price tag to higher-density RPCs in those areas remains to be seen.

Discussion on Feb. 14 rather centered on a new twist from the Office of State Planning Coordination (OSPC).

According to P&Z Director Lawrence Lank, the OSPC had originally offered support for the cluster density trade, but was now questioning whether it might conflict with “enabling legislation” the county (and towns) might soon consider, connected with a state-initiated transfer-of-development-rights (TDR) program.

The OSPC expected to find a sponsor at the General Assembly sometime in March, and suggested it might be in the county’s interest to wait and review the draft TDR legislation.

TDR creates “sending” and “receiving” areas — for purchasing development rights on a sending parcel, developers would receive additional density on the receiving parcel. A “TDR bank” (with a board and county representation) would acquire and resell this bonus density.

But Council Member Vance Phillips (who first introduced the cluster density trade) expressed skepticism about the state program.

“The state’s been trying to draft a TDR for 10 years, but they keep running into a brick wall,” he said. According to Phillips, the TDR program is just too complicated.

Greenwood resident Dan Kramer said he preferred TDRs. “The developer’s going to pay for it anyhow,” he said. “With the TDR, the farmer gets (the money) instead.”

Opinions were similarly mixed elsewhere.

Lank noted Delaware Nature Conservancy support for the cluster density trade, at least in principle. However the Nature Conservancy also requested that council and the SCLT develop “a simple, transparent and predictable merit system” for settling on land purchases. (And Selbyville resident David Jeager, a long-time member of the Conservancy, questioned the lack of environmentalists on the SCLT board.)

Sussex County Farm Bureau President Burton Messick supported cluster density trade, especially given the TDR program’s uncertain fate. “There’s still no guarantee this TDR bill will ever get voted on, or approved,” he said.

But Citizens for a Better Sussex (CBS) President Joan Deaver opposed the cluster density trade. “This plan doesn’t help us obtain the infrastructure we need now, much less what we will need with the additional density,” she said.

SCLT President and CEO Wendy Baker outlined successes to date. The county has contributed $4 million to the SCLT, but the land trust has managed to leverage $3 million on its own, she pointed out.

Lewes resident Dennis Forney, an SCLT board member but speaking as a private citizen, once again voiced support for cluster density trade. Forney said he’d been out quail hunting in recent weeks, and couldn’t help notice how good the county was looking — east, west and center.

“There’s prosperity here,” he observed, and suggested the county should leverage some of that prosperity into open lands preservation. “Don’t wait for the TDR,” Forney advised. “This (cluster density trade) is clean, it’s simple and we can put it into effect right away.”

Again, the record is still open, and council will revisit the matter sometime in March.