Commentary: Group calls for responsible Sussex land-use changes

By Jeff Stone

The Sussex County Council is currently reviewing and considering changes to the 1988 Sussex County/Delaware Department of Transportation Memorandum of Understanding (MOU) on land use coordination. This document is one of the most important growth management tools to come before the council in many years. It aims to improve planning for and the management and mitigation of the increased traffic that accompanies new development. It must also provide for a better balance between the interests of developers and the citizens of Sussex County.

For over a year, the Sussex Alliance for Responsible Growth (SARG) has analyzed both the existing MOU and two subsequent draft replacements. SARG’s critical finding is that for the past 32 years, the existing MOU and county development policies have failed to ensure that the infrastructure necessary to support development is in place concurrent with the traffic impact of new development.

SARG commends the county for its efforts thus far to revise this document, but it is our opinion that the latest county revision needs further modification to improve the clarity and effectiveness of the MOU now and in the future. Our complete analysis is too lengthy for publication here but below is a quick summary of SARG’s recommendations:

Accountability: Throughout this draft, there are many generic references to Sussex County making decisions, but it is never clarified who makes those decisions: the planning director, Planning & Zoning, County Council? The responsible party needs to be identified throughout the document.

Level of service standards: Section 8a must include a requirement that all roads be maintained at a minimum level of service of D (approaching unstable flow) in growth areas and C (stable flow, at or near free flow) in all other areas, as designated in the comprehensive plan.

Undue burden on landowner/developer (Section 8a, Bullets 1 and 2): The draft MOU says that if the Level of Service is currently E (unstable flow, operating at capacity) or F (forced or breakdown flow), a developer will be permitted to build as long as they maintain a failing level of service.  Sussex County cannot consider an “undue burden” on a property owner looking to develop a property to be a higher priority than the undue burden on the public interest. The County, in consultation with DelDOT, must develop a set of objective standards, criteria and a clear public process for determining what constitutes an undue burden and apply it, objectively and transparently

Other relevant factors (Section 8a, Bullets 1 and 2): The term “other relevant factors” is totally subjective and open-ended, without any objective standards, criteria or process for determining what constitutes those factors, and is not necessary.

Level of service below D (approaching unstable flow) (Section 8b): This statement would seem to indicate that any project proposed on a road with a failing level of service does nothing more than maintain a failing level of service.

Finding of sufficient reason to approve reduced level of service (Section 8c, Bullet 2): It allows Sussex County to approve any application at any level of service as long as someone from Sussex County puts the reasons in writing. Who in Sussex County — the council, the Planning Commission, the planning director, the county administrator — gets to make this determination? The criteria and process used for making this momentous a determination must be clearly defined and transparent and objectively applied in all cases.

Rezoning (without site plans or conditions of approval) (Page 8, Line 252): Simplicity is the best approach. In the case where a rezoning is proposed without a specified use, the county should require a traffic impact study based on the maximum build out of the most impactful use.

Embrace the Memorandum of Understanding but, in the long term, the county must consider adopting an ordinance rather than a MOU. If Sussex County is serious about reducing traffic congestion, resetting its relationship with DelDOT and reforming its development process, levels of service must be formalized beyond the MOU. It requires more than just an “understanding.” It must be an ordinance that grants the Planning Commission and County Council the authority necessary to fully enforce the land use codes.

You can review the complete and latest county draft and SARG’s recommendations through the following links. For the MOU, visit https://sussexcountyde.gov/sites/default/files/PDFs/Sussex%20County%20-%20DelDOT%20MOU%20-%20July%202020%20Revision%20-%20Final.pdf. For SARG’s complete analysis, visit https://sites.google.com/view/sarg2020/home.

We encourage you to share your feedback with your county councilman or other Sussex County staff today. Urge them to incorporate the SARG recommendations into the new MOU.

Jeff Stone of Milton is a member of the Sussex Alliance for Responsible Growth, a nonpartisan alliance to inform, educate and engage the citizens of Sussex County as to the importance of the development, adoption and implementation of a comprehensive plan that fosters smart growth, ensures a balance between a sustainable quality of life and economic development, and encourages responsible and transparent governance.