Today I attended the hearing before the Sussex County Council dealing with an ordinance to expand the forest buffers along our creeks and inland bays. This is a complex issue, and much work by an advisory committee, county staff and council members has been invested in bringing this ordinance forward. All involved are owed our thanks, but the work is not done yet.
In the course of the hearing, many different viewpoints were presented and, hopefully, will impact this critical piece of legislation to improve the current draft bill. One of the issues with any legislation like this is the impact that the ordinance will have on owners seeking to develop or sell their land for development. In discussion with local elected officials around this and other issues that touch on the rights of land owners, there has been and remains great sensitivity to their needs.
Clearly, no one would suggest that owners of property don’t have rights about how to use or develop their land, but what is often ignored is that they are not the only owners with rights. Those of us who own homes here that will remain after the land is developed have rights, too. Too often, that is forgotten in these discussions.
Attributed to many different people is a working definition of where one’s rights end and someone else’s begin. That definition sometimes attributed to John Stuart Mill, the author of “On Liberty,” is “Your freedom to swing your arm ends where my nose begins.” The point Mill wanted to convey is, yes, we have rights, but our ability to exercise those rights, whether it is throwing a punch or selling our land, is not absolute and must be limited by its impact on others’ rights. If protecting the rights of developers weakens the ordinance in a way that leads to more fishkills and toxic algae blooms, it certainly is a punch to the rest of the community’s nose.
In the debate about buffers, several times in the hearing some people argued the County had no place in determining how land is used. Clearly, this is not true; the existence of a zoning code, a comprehensive plan and buffer ordinances, among other things, exist to ensure the rights of all owners are respected, not just those seeking to profit from their land. A code, plan or ordinance that fails to do that is in no one’s interest in the long run. Even those who seek to sell for development need a healthy environment or the value of their land will be hurt, just as those who have already bought homes here will suffer.
Chris Bason from the Center for the Inland Bays, as did several other speakers, addressed a number of weaknesses in the current draft. These concerns, if not addressed, potentially could negate the intent of the new ordinance to improve water quality in our streams and bays. I urge the council to recognize many people’s rights are at stake, not just the owners/developers. The exceptions provided in Section G of this bill intended to create incentives and flexibility will potentially not only not improve the current situation but could, taken to extremes, worsen it, permitting developments to go forward with less than the current buffers, which are even now clearly not sufficient. We cannot permit that to happen.
The other weakness in the new ordinance is the reliance on home-owner associations to provide enforcement of the new requirements after they assume control from the developer. It is unreasonable to expect HOA’s to do this. Their primary duty is to their community. To expect an HOA board, or a management company engaged by it, to protect the rights of the broader community over its owners is not realistic.
For the new ordinance to accomplish what is needed to secure the health of our waterways for now and the future requires elimination of provisions that may reduce the size of forest buffers on our waterways. Offering options to build larger forest buffers at another site, rather than at the location being considered for development, and other options that might be used to reduce or eliminate waterfront buffers cannot be tolerated.
The legislation must also have provisions for enforcement and penalties for those who violate its requirements that are enforced by a body with both the independence and power to do that — something that is currently lacking in this ordinance.
Please write to your councilpersons to share your concern that this critical bill serves all owners and that the concerns raised by the Center for the Inland Bays and others are addressed.