County fields subdivision appeal

Sussex County Council spent much of the Feb. 8 council meeting engaged with a subdivision appeal that had been denied at County Planning and Zoning (P&Z).
Attorney John Sergovic asked council to reconsider the Meadows at Creek Run, originally proposes as 57 lots on 53 acres east of Milton (reduced to 49).

The county P&Z held public hearing on the application last August, deferred and later denied it.

Sergovic filed for an appeal before P&Z, which was scheduled last November.

He said he’d been unable to attend, but associate Stephen Ellis and project planner Gary Cupples had been there.

According to Sergovic, Ellis reported he hadn’t received an opportunity to present “additional relevant information,” as promised in county code.

“Before that hearing, a booklet was submitted and a detailed traffic study was presented, as well as a map that shows there was really no adjacency of agricultural preservation lands,” Sergovic said.

The P&Z denied the appeal, and Sergovic said the commission hadn’t recognized the new information.

He exercised his right to appeal before county council, as per code, if “the applicant still fells that such action is unreasonable.”

“There was no evidence presented contrary to what (the project planner) presented in appropriate response to the (subdivision ordinance) factors,” Sergovic asserted. “There was some opposition, but it was generic opposition.”

Sergovic referenced a conversation with Ellis, who he said conveyed the impression that P&Z commissioners had already made up their mind, and would not be swayed.

Therefore, he requested that council not remand the application to the P&Z. Rather, he asked the council members to consider a pair of legal precedents.

As Sergovic asserted, subdivision was allowable by right. P&Z could impose conditions, but the code didn’t give them the power to legislate land use.

That’s council’s job.

County Attorney James Griffin referred to a section of the subdivision ordinance reading, “encourage the conservation and preservation of farmland.”

“But that’s what the commission wanted — a statement of a rationale,” Sergovic countered. “The commission was doing the legislative function of saying, ‘I want a rezoning,’ but that’s not their function.

“The function of the commission, as the courts have indicated, is to implement the zoning — the authorized use — legislated by council,” he said.

Council Member Vance Phillips referred to a section in the subdivision ordinance that supports consideration of 17 different factors before approval, including (1) integration into existing terrain and surrounding lands and (13) preservation and conservation of farmland.

“I’ve always seen this ordinance as permission given to P&Z to go out and knock something down,” Phillips said.

“There’s no question that the P&Z can tweak a project,” Sergovic said. However, he stood by his argument that they couldn’t take on new zoning functions.

Later in the appeal, there was some argument as to whether Sergovic could introduce new evidence at the appeal.

Griffin had criticized the appeal ordinance as vague at a previous meeting, and recognized this as another area that needed work.

He asked for time to review the legal precedents Sergovic had alluded to, and council deferred action.

Six neighbors spoke in opposition to the project, and Council Member George Cole lamented the fact that they hadn’t been around during land use hearings.

Reached for comment the next day, Cole criticized the county’s record on protecting agricultural areas and wetlands.

“If the P&Z used that ordinance (the 17 factors) consistently and often, as opposed to rarely and occasionally, the thing would carry some weight,” he said.

He suggested the county was becoming one big development district — agricultural-residential (AR) lands included.

One of the neighbors at the appeal had suggested “farmettes,” and Cole took that up. “There ought to be a farmette category,” he said.

In certain rural areas, even the two units to the acre permitted in the AR district might be too much, according to Cole.