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Commissioners defer Estuary decision
By Jonathan Starkey
Staff Reporter
Sussex County’s Planning and Zoning commissioners deferred a decision on the controversial Estuary project on Sept. 14, saying that they needed more time to discuss the subdivision application.
But denying the cluster plan to subdivide 737 acres into 1,052 lots near the Assawoman Wildlife refuge might be difficult, according to recent decisions and an attorney for the developer.
Officials in the county’s planning and zoning office said Friday that the commissioners will discuss the plan at their Sept. 28 meeting.
“The reason stated was it was deferred for further consideration,” said Rodney Smith, the county P&Z commissioner who represents the Bethany Beach area on the five-man commission. He and his fellow commissioners have shied away from specific questions about the application and a possible decision. “Something of a large scale probably demands extra time,” Smith said.
Jim Fuqua, an attorney for the developer, made his thoughts clear about the application process Tuesday while presenting an appeal for another subdivision in front of council.
In a lengthy, heated discussion with County Councilman George Cole (R-District 4), he told council that county officials cannot deny the plan if it meets the legal standard, which the Estuary does under the county’s cluster ordinance.
“Can they say ‘no’ or ‘yes’? Of course. That’s their job,” Fuqua said, answering Cole’s question of whether the Planning and Zoning commission has a right to deny applications based on “solid testimony” but not law. “(But) no, they can’t deny something if you meet all the requirements of the law.”
William Manning, an attorney working with Reynolds Pond LLC, used the same argument for the Isaacs Glenn project, a 1,630-unit, 836-acre plan near Milton, which the P&Z commission and council denied before it received approval on July 18 after an appeal to council.
Manning cited a Delaware Superior Court ruling in the East Lake Partners v. City of Dover Planning Commission case of 1974. In its opinion in the case, 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.”
Council recognized that fact in issuing its approval of Isaacs Glenn.
“You can’t interject your own thoughts,” Council President Lynn Rogers said a day after the Isaacs Glenn decision. “You just have to look at the law… I couldn’t say no just because I didn’t like it.”
Smith and other P&Z commissioners – including commission Chairman Bob Wheatley — cited county policy and declined comment while a decision on The Estuary is pending. The Estuary, a cluster plan, does, however, meet county code and will be difficult to deny after recent precedent set in the Isaacs Glenn appeal.
Palisades Land LLC presented the plan to subdivide 737 acres into 1,052 lots near the Assawoman Wildlife Refuge off of Camp Barnes and Double Bridges Roads at an Aug. 24 public hearing.
Some 33 people declared their opposition to the project at that meeting, as many had done already through letters, citing problems with traffic on already-congested back roads and wildlife impacts. Others cited concerns with the safety of children at Camp Barnes and asked if affordable housing was a part of the plan, which it is not. After the two-plus-hour hearing, commissioners deferred the decision.
Palisades Land LLC’s cluster plan utilizes a county ordinance that allows for smaller lots to create more open space. The average lot in the proposed plan will be about 8,000 to 10,000 square feet, one representative said at the original public hearing before the P&Z commission. That plan includes 1,052 single-family homes, a recreation facility, a sales center that will ultimately be converted into some type of community building and a boat storage area for non-motorized watercrafts.
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