A closer look: The dispute over land use in Sussex County

By Andrew Sharp

The houses seem to be filled before the bulldozer dust settles.

Ryan Homes at Pelican Point, between Angola and Millsboro, is just one of many subdivisions sprouting from farm fields in the beach area. Although it's full of new homes, it's got an empty look — the trees are all fresh-planted saplings and yard landscaping hasn't had time to fill out. Manhole covers jut up out of a street that still needs another layer of pavement. On a recent day masons were still laying the stone pillars at the entrance to one large portion of the development.

It's so new that aerial photos of the area on Google show a construction site where homes with Christmas decorations now sit. Across Route 23, what appears to be a small woodlot in the photos is now bulldozed dirt, well on its way to becoming another subdivision.

The developers bet on the demand for housing in the area, and they were right.

A growing chorus of Sussex County residents, some newcomers themselves, want something to be done about explosive growth and development. But what should that something be?

In part one, we looked at how zoning works and how county officials sometimes are criticized for approving development projects. These officials say they are bound to follow the law and respect property rights. Their critics say they’re favoring business and development interests more than they’d have to.

In this article, we’ll look at why officials say they make the decisions they do, and why some residents are arguing that changes are needed.

How the rezoning process tends to go

The basics are that county council weighs in when people ask for exceptions to the zoning or uses that are not guaranteed by right, James Fuqua, a local attorney specializing in land use, said. Council can deny projects based on a number of factors, including environmental issues, traffic considerations, and whether the projects fit in with their surroundings.

Many projects, once they’ve gotten to the stage of ending up before the Planning and Zoning Commission, end up getting approved. Subdivisions automatically go before the Commission even if they meet zoning standards, which, Fuqua noted, can result in accusations that commissioners are rubber-stamping everything. But land zoned agricultural/residential is allowed by law to be developed for a subdivision.

“Our job … is to weigh these applications against the ordinance,” Commission President Bob Wheatley said. “And if an application conforms to the ordinance in a manner that the Commission believes is sufficient, then it will likely approve the application.”

He said at public hearings, people who are opposed to development projects have a tendency to stray from topics that Planning and Zoning Commission can consider. They want to talk about how terrible the developer is, and how they had a bad homebuying experience, or vent grievances about state government. Wheatley isn’t questioning their testimony, but he said it’s not relevant to the hearing. The Commission has to stick to the question of whether the application conforms to county code.  

By the time projects actually get to the Commission for consideration, lawyers have often weeded out the ones that won’t fly.

“I pick and choose,” Fuqua said. If he knows a project won’t get approved, he tells the client up front.

The Council does sometimes deny projects, as it notably did in October for a hotel and restaurant near Fenwick Island, which had faced opposition.

But Council also often approves projects, and members argue they risk legal action if they turn down a development without sufficient cause.

“What folks end up arguing about is whether or not (a project) conforms to the ordinance in a sufficient manner or in the right way,” Wheatley said. But, he said, “We can’t say no just because we don’t like something. I can assure you in my time on the commission, there have been many things I certainly didn’t like but that conformed to the ordinance, and on that basis, felt compelled to have a positive response.”

And while Council can exercise its judgment on some projects, Wheatley said, when applications conform to the ordinance in every other way it’s dangerous for council to turn them down, because applicants have been known to sue.

“I certainly don’t want to cost taxpayers money on legal fees,” Council member Doug Hudson said. “We have great attorneys that we can turn to to get advice from … and make good decisions.”

But there’s a growing chorus, especially on the eastern side of the county, calling for Council to do more.

And politics can move the needle on what the Council thinks is acceptable or not.

“Our elected officials, they’re political creatures,” Fuqua said, referencing the way constituents sometimes organize vocal opposition.

Sussex Council members also have, among their constituents, plenty of people who make a living from the construction industry.

A home under construction in the beach area. 

Discontent on both sides

Political pressures are a concern to some local developers, who see it as unfair for council members to bow to political whims when the developers have invested in a project thinking they’re following the rules.  

On the other side, some question what they see as the county’s pro-business and pro-development bias in green-lighting projects it would not have to approve, and in maintaining the zoning laws as they are.

Jeff Seemans, a Milton resident, is one of those. He spent years working in New Castle County’s department of planning and then in real estate development, and now pays close attention to development trends in Sussex County.

“What I see as the main issue down here is, you have a very, very, very entrenched relationship between the real estate and/or real estate development industries and lawndowners, with either the planning commissioners or Sussex County Council,” he said.

This is an interesting perspective to take, given that Seemans himself is a retired developer who spent years working on the extensive Village of Bayberry in the Middletown area. But he, like others with a bone to pick with Council, is not opposing development but calling for what he sees as better planning.  

With development, “I don’t see it as an either/or” scenario, said Rich Borrasso of the Sussex Alliance for Responsible Growth. He thinks the county can continue to grow, but do it better.

Sussex County is a great place to live because of low taxes and because it’s a growing, vibrant area, he said. However, he, too, took the line that developers and large landowners who are happy with the way things are done exert a tremendous influence on the Planning and Zoning Commission.

The Planning and Zoning Commission, critics sometimes point out, is often made up of people in the real estate industry who have a personal interest in development.

Hudson, who before he was on council served on the Commission, rejected the idea that the commissioners are unduly tainted by business interests.

“Nobody is going to side with someone because of money or favoritism at all. That’s just not going to happen,” he said.

Wheatley said he understands the concern, but noted that the state code establishing zoning calls for a Planning and Zoning Commission made up of people with knowledge about land use.

The two-step process of applications going through the Planning and Zoning Commission and then the Council works well, he said.

“I think it’s a great system. I think that is a recipe for good decisions."

Site work underway near Angola. 

What to do about land use

Most of those I spoke to agreed on one point, even if they were on opposite sides of the argument: If people want real change in how Sussex County approves development, the county code itself will have to change.

The way the county is growing, Barrasso said, the code will have to be revisited to meet the comprehensive plan’s goals of maintaining quality of life.

If the goals in the plan aren’t followed through with changes to the code, Seemans said, “there’s very little hope that you’re going to have controlled development. It’s just pretty language.”

“The county is working under some antiquated codes across the board, but most definitely in the area of land use,” Barrasso said. County council pointing to the law as restricting their decisions is a scapegoat answer, he said, because the law is their responsibility.

Dealing with development involves walking a fine line between the rights of a landowner and the rights of a government to deny your plan, Seemans said. So the only way to restrict development is through restrictions in the subdivision code.

That, Hudson said, is harder than people think. “They think that you just go in and change the code and make it more difficult to build,” he said. But the Council has to sort out whether the changes pass legal muster.

Seemans acknowledged some of the difficulties in the process.

“If you try to take away landowners’ rights, you’re going to be into a constitutional issue,” he said. So the county can’t just make a law that farmland has to stay that way. “That will go to court in a heartbeat.”

People can say, “‘You know what, we want to stop this,’” Fuqua said. “So rather than having two units per acre (for a subdivision), we’re gonna say 2 acres per unit. That’s the solution to the whole problem, right?” (And, he asked, what would farmers have to say about that?)

In the end, constituents who are for or against the way the county is handling development do have a way to weigh in.

“If you want ordinances to change, then you have to elect people who are willing to do that for you. It’s just that simple,” Wheatley said.