Board of adjustment: Sussex responds to coalition’s concerns

GEORGETOWN — In a seven-page letter, Sussex County has responded to the Delaware Coalition for Open Government’s questions, concerns and claims related to the Sussex County Board of Adjustment.

Responses presented by Sussex County Administrator Todd Lawson at county council’s Sept. 18 meeting were in response to the DCOG letter submitted by email in mid-August. The county’s responses were to be in the mail Sept. 18.

The Sussex County Board of Adjustment is a five-member panel that functions as a quasi-judicial body, hearing individual cases and requests for variances or special use exceptions to the county code. Members are appointed for three-year terms.

Mr. Lawson explained the county, in collaboration with staff that included County Attorney J. Everett Moore Jr., and County Attorney Jamie Sharp, responded to the coalition’s four main topics:

• Accessibility to the BOA’s key documents in a usable format;

• Lack of public input to the BOA’s operation during a meeting;

• There is no administrative mechanism for opponents of cases brought to the BOA to challenge board decisions.; and
• The BOA is not properly administering oaths and affirmations in obtaining testimony in cases.

“You will see in my response that I do not agree with every point the coalition raises. Some of those points are simply not based or supported by law,” said Mr. Lawson. “On the other hand, if it were possible, the county will consider the feedback and adjust our operations to make the necessary improvements.”

The Delaware Coalition for Open Government claims no oral versions of agendas or minutes are available online for the blind or sight impaired, public hearings are not transcribed and Findings of Fact are not posted online.

“I start out by saying the county and the board operates and remains compliant under all laws, state and county including FOIA (Freedom of Information Act),” said Mr. Lawson. “The Findings of Fact are not posted online, but they are available should someone request them by contacting the planning and zoning office.”

Mr. Lawson said the land-use application docket is available online and has a wealth of information about the applications pending before the board of decided by the board.

“However, given the coalition’s feedback the county will explore the option of posting the approved Findings of Fact on the docket in the near future,” said Mr. Lawson. “We are working with our IT department to make those findings available online as soon as we possibly can.”

Regarding the coalition’s complaint about lack of public input, particularly the opportunity to make public comment about pertinent points about the board’s operation as part of its regular meeting:

“That is correct. They are not permitted,” said Mr. Lawson. “By design the board’s Rules of Procedures provide no place for general public comments on board procedures. That is not the appropriate. Instead, board’s rules provide public participation during each public hearing.

“In general, the coalition appears to seek the ability to directly comment to the board of adjustment during its meetings regarding the board’s operations, in the hope the board would amend its operations,” Mr. Lawson said. “The coalition’s pursuit is misguided. The BOA is quasi-judicial board appointed by this county council. The board’s authority is derived from the power delegated to it by this council.”

The county council, Mr. Lawson said, has a right to pass legislation to effectuate such changes in board procedure, and the proper forum to raise such comments, concerns, questions or suggestions is with the county council and county staff, not the board of adjustment.

The coalition claims there is no administrative mechanism for opponents of cases brought before the BOA to challenge board decisions.
“The county in our response simply states this is not true,” said Mr. Lawson. “We believe the coalition misunderstands the re-hearing procedures for the board. Requests for re-hearing are available and they are spelled out in rule, Rule 18. The relief is not limited to applicants. It is available to opponents as well.”

County councilman George Cole strongly recommended informing all parties through disclosure of the re-argument process that there is a 10-day appeal period.

Councilman Rob Arlett, R-Frankford, agreed. “I think it is important,” he said.

On the fourth main topic, Mr. Lawson said the coalition in its letter believes the oath must be administered by the attorney and as a result when the oath has not been administered properly the board’s decisions may not be valid.

“Again, this is not true. Sussex County code provides that the chairman may — and I put that (may) in strong terms — administer the oath. There is no requirement that the oaths be solely administered by the chairman,” said Mr. Lawson.

Mr. Cole, focusing on county council’s authority, addressed the public input issue.

“Could we make a rule … and say public comment is permitted? Does state law prevent us from doing it?” said Mr. Cole.

“I don’t think it would be wise,” Mr. Sharp said. “And the reason for that is, much like at the commission level … everything is specific case and I think if you start allowing general public comment you may be having individuals attempting to — and not saying they would — could come up to testify, which may be one that is still pending before the board. Then you have kind of a poisoning-of-law situation where the board has heard things it shouldn’t have heard.”

Milton resident Keith Steck was a co-author of the coalition’s letter.

“What we wanted to do was let county council, the board of adjustment and others know that there are people watching. They are watching how government runs,” said Mr. Steck. “I will say I disagree with some of their (county’s) decisions. We researched this ourselves very thoroughly, cross-checked state law, county regulations and the board’s procedures. There are some issues I disagree with in their determination. We’ll figure out if it is worth pursuing.”

Mr. Steck applauded the fact that the county will make Findings of Fact accessible online, “publicly accessible like the minutes and other documents that need to be.”

Mr. Lawson said he appreciated the coalition’s effort to raise their concerns.

“I appreciate the fact that Todd Lawson took time to consult with attorneys to get clarification,” said Mr. Steck. “I think he is sincere when he said he wants government to run better and he wants people to feel like government is open. In this day and age, I think that is really important that people understand the government is not always trying to hide something.”

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