Sussex County Council denies rezoning application for large-scale retail center

GEORGETOWN — Request denied – again.

For the second time in just over two years, Sussex County Council on Tuesday denied a rezoning application that would potentially pave the way for the largest retail shopping center in Sussex County history.

By a 3-2 vote, council rejected the application filed by TD Rehoboth LLC of Maryland to rezone a 114-acre farmland parcel along Del. 1 north of Lewes from AR-1 (agricultural/residential) to CR-1 (commercial/residential).

Sussex County’s planning and zoning commission had previously recommended approval.

Developers had earmarked that property at Del. 1 and Cave Neck Road for the proposed Overbrook Town Center – an 850,000-square-foot retail development.

“Rezoning of this 114-acre tract of land is inconsistent with the surrounding zoning,” stated county councilman Irwin “I.G.” Burton, R-Lewes, in opposing the application. “Nothing along Rt. 1 or anywhere else in eastern Sussex County is comparable in size and scale. The only other commercially-zoned property typically ranges in size from one acre to 12 acres.”

Mr. Burton noted that the original zoning map for Sussex County only contemplated commercial zoning with a depth of 600 feet along Coastal Highway (Del. 1) in an area that was thought to be designated for commercial growth. This application proposes a new area of CR-1 land with 2,800 feet in commercial depth, Mr. Burton said.

“The size and its scale exceed anything else that exists along Rt. 1 since zoning was established and is inappropriate for this location,” Mr. Burton said. “Moreover, the application is inconsistent with the economic development strategies to maintain land-use zoning and conservation policies.”

Councilmen George Cole, R-Ocean View, and Michael Vincent, R-Seaford, also opposed the application. Rob Arlett, R-Frankford, and Samuel Wilson Jr., R-Georgetown, favored approval of the application.

“The size and the scale, obviously, there is nothing to compare with this anywhere in Sussex County,” said Mr. Cole. “I believe there is no similar commercial activity in this area that would be of this size. We’ve got the Great Marsh to the rear of this property, in very close proximity, and you’ve also got agricultural preservation lands in the immediate area. The Level 4 designation discourages large-scale commercial development. I believe an application like this would be better suited in a more concentrated highway commercial area.”

Mr. Arlett, who cast the lone supportive vote in 2016, said evidence in the record supports his affirmative vote.

“Based on substantial evidence in the record the applicant’s parcel is located adjacent to and with access to Delaware Rt. 1,” said Mr. Arlett, adding it is “appropriate for CR-1 zoning and large-scale use as compared to other locations on major arterial roads in eastern Sussex County.”

“This is consistent with what the county did in the early 1970s when it created large areas of commercial zoning in areas that were still farmland at the time,” said Mr. Arlett. “They had visionaries back then of what the future was going to be, and I think that it is prudent that this council do the same as we are growing. We cannot keep saying ‘no.’ We have to be visionaries as our predecessors were. Otherwise we will be constantly reacting, which is why people are very negative about a lot of things today.”

Mr. Wilson based his favorable vote in part on Mr. Arlett’s reasons and his personal firm stance on property rights. He asked those in the audience in council chambers if they believe someone has the right to sell their property.

“Do you want us up here to tell you what to do with it?” Mr. Wilson said.

As council president, Mr. Vincent cast the tie-breaking vote, noting the proposal calls for an increase in commercial depth from 600 feet to 2,800 feet.

“To go from 600 to 2,800 is a big, big step. It is now a Level 4 area and that concerns me,” said Mr. Vincent. “I do think there is a need for commercial property … but 2,800 feet deep, 114 acres is a large piece of land. And once you change that to CR-1 it is changed forever. You can’t take it back. You can’t undo it.”

County council on April 10 deferred action following five-plus hours of testimony at a court-ordered re-hearing. Council had 30 days to act on the application from that date.

In April of 2016, county council voted 4-1 to deny TD Rehoboth LLC’s rezoning request. Several months later, in June 2016, developers challenged council’s decision in the Court of Chancery, contending three members of council who opposed made statements that were not supported by the public record.

Last August, the court ordered a new public hearing. Vice Chancellor Joseph Slights ruled “so long as the record of the vote is adequate to allow for meaningful review, and the vote itself is not the product of arbitrary or capricious decision-making, the results of the vote, whatever they are, will stand.”

At the re-hearing, James Fuqua, the attorney for the applicants, said the developer’s amended site plan includes a subdivision proposal, with 50 acres for a 312,000-square-foot shopping center and 64 acres for 135 single-family units.

“Although the applicant represented at the hearing said that they would be modifying its plan to include residential dwellings along with commercial uses it did not amend its application to decrease the size of the parcel it is seeking to rezone,” said Mr. Burton in his lengthy address before council’s vote. “Therefore, the council must make its decision knowing that the most intense use permitted in the CR-1 zone could occupy the entire 114-acre parcel.”

In the council’s 2016 vote, Mr. Wilson, Mr. Cole, Mr. Vincent and then councilwoman Joan Deaver opposed the application while Mr. Arlett voted in favor.

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