Appeals by Residents

Cape Gazette: Residents appeal Coral Lakes approval

Nick Roth - August 2, 2022

https://www.capegazette.com/article/residents-appeal-coral-lakes-approval/243721?amgee-source=dh

News Journal: Sussex's planned Coral Lakes housing development adds another chapter: 2 new appeals filed

Shannon Marvel McNaught - Delaware News Journal

8/9/2022

https://www.delawareonline.com/story/news/2022/08/09/sussex-county-coral-lakes-housing-development-plans-hit-snag-2-new-appeals-filed/65388750007/

Denial. Appeal. Approval. And now, two more appeals.

That’s how plans for Coral Lakes, a proposed 300-home development outside Lewes, have gone so far.

The Sussex County Planning and Zoning Commission denied Schell Brothers’ application for Coral Lakes in March. Schell Brothers appealed to the County Council, which sent the decision back to the commission in May. In June, the commission voted to approve the application.

Both the commissioners' decisions were the result of unconventional processes.

Two appeals against the approval of the Coral Lakes plan were filed July 22 by Terrance Bartley (individually) and a group of five residents of Chapel Green, represented by attorney Luke Mette of Wilmington's Armstrong Teasdale firm. Chapel Green abuts the Coral Lakes property.

The Chapel Green group, now calling themselves the Sussex Preservation Group, and Bartley filed their appeals unaware of each other, according to Bartley.

Both allege the Planning and Zoning Commission provided no reasoning for their decision.

The commission’s decision was “not the result of an orderly and logical review of the evidence and the applicable provisions of the Subdivision Ordinance,” both allege.

These two reasonings are similar to that Schell Brothers used in its prior appeal. It also noted the application should have been automatically approved due to expiration of the 45-day period in which to act, as per Delaware law.

Back and forth

In March, Commissioner Kim Hoey Stevenson made the motion to approve the Coral Lakes plan and Commissioner Holly Wingate seconded it. In a move Schell Brothers' attorney called "unprecedented," they both then voted against it. Only Chair Bob Wheatley voted in the plan's favor; none of the commissioners explained their reasoning.

In June, county attorney Vince Robertson gave a lengthy monologue on the law related to subdivisions, then he read the motion to approve the Coral Lakes plan. The commission voted 3-1-1 to approve the application, with Commissioner Keller Hopkins voting against it. His reasoning was that he has "issues with the wetland area."

Hoey Stevenson abstained from voting.

"I'm ... not voting because I was told that what our counsel said is that we can't deny it," she said.

Development is Sussex hot-button issue

The saga is part of a bigger picture in Sussex County, which has issued about 30,000 building permits over the past two fiscal years. Coral Lakes exemplifies some residents' concerns with the rate of development.

Bartley, a Robinsonville Road resident of 20 years, said he filed an appeal primarily because he’s fed up with traffic.

A lack of infrastructure is one of Sussex residents’ most-referenced reasons for opposing development, but Schell Brothers points out they are required to upgrade the road along Coral Lakes' frontage and give money to the Department of Transportation for area-wide road improvements.

Many of the other concerns surrounding development in Sussex County are environmental. Schell proposes to fill or disturb about 25 acres of nontidal wetlands and destroy 95 acres of mature forest in order to build Coral Lakes. Neighbors are concerned about wildlife and possible flooding due to the wetland-filling.

One of the Chapel Green appellants, Jill Hicks, said they became involved because “the woods, the wetlands, the soil are not conducive for a cluster subdivision.”

In its April appeal of the March denial, Schell Brothers alleged the commission erred in denying a plan that meets all legal requirements for subdivisions under the county and state codes. The commission "has no discretion" to deny the Coral Lakes plan, according to the appeal.

Landowners' rights come into play, too.

Multiple players in the Coral Lakes case have mentioned a past Delaware Supreme Court decision that holds landowners are entitled to rely on the zoning of their land for specific uses.

"To hold otherwise would subject a purchaser of land zoned for a specific use to the future whim or caprice of the Commission by clothing it with the ability to impose ad hoc requirements on the use of land not specified anywhere in the ordinances," a judge wrote. "The result would be the imposition of uncertainty on all landowners respecting whether they can safely rely on the permitted uses conferred on their land under the zoning ordinances."

The new appeals

Sussex Preservation Group alleges, first, the commission failed to comply with the council's remand instructions.

There was again no written response, according to the appeal, and nor an orderly and logical review of the evidence.

They pointed out Robertson did all of the talking prior to the vote and read the motion to approve the Coral Lakes application, not the commissioners. “Having previously voted against the application, (the commission) changed its mind for one reason, and one reason only — because their attorney told the Commissioners how to vote,” the appeal states.

Bartley’s appeal alleges the notice for the January public hearing was insufficient because it did not include all the information required by state law.

He also asserts two mistakes were made at the June meeting, when Robertson asked Planning and Zoning Director Jamie Whitehouse to confirm “for the record” that the Coral Lakes plan complied with the county code, and he did.

First, adding that information to the record in June, despite the county council finding the record closed in January, meant another public hearing should have been held, Bartley’s appeal states. Second, because that information was imparted after the record closed, legally, the commissioners could not properly interpret and apply the county code, he wrote.

There were other instances of improper interpretation and application of the county code by the commission, according to Bartley. He believes Schell Brothers wrongly defined wetlands and oversimplified the formula for determining the property’s permitted housing density, resulting in the plan allowing for more homes than permitted.

The appellants are now required to file a transcript of the record within 30 days of the date the appeals were filed. After that, the Sussex County Council has 60 days to act.

Council members must again decide whether the commission's Coral Lakes decision — the second one, in June — “was the result of an orderly and logical review of the evidence and involved the proper interpretation and application” of the county code.

If they find it was not, they can send the application back to the commission for another vote and, if necessary, another public hearing. They can also simply reverse the commission’s decision.

Anyone aggrieved by their decision may then appeal to Superior Court.