MOU Rev. 1/23/2020

SARG assessment - March 5, 2020

SARG assessment is the revised MOU document that was approved by the County Planning and Zoning Commission and forwarded to the County Council is significantly different from the decades old document and has many positive changes worthy of Council Support. However, there is a fatal flaw that must be addressed.

But first, the following are what we believe are the merits of the County/DelDOT revised MOU;

1. The MOU has been broadened beyond just rezoning to include subdivisions and virtually all other types of development

2. Sussex County clearly acknowledges and accepts that it is responsible for land use decisions.

3. The new draft recognizes that the County has the right to approve, modify, or disapprove proposed developments based on traffic generation and

impact on road Levels of Service (LOS). This is a major departure from the approach used in the past.

4. Sussex County and DelDOT will, where possible, maintain a Level of Service of D on roads and intersections affected by a land use application.

5. The revised draft gives the County the right to participate in DelDOT/Developer discussion impacting Sussex County roads

6. When DelDOT determines that the traffic impact will be major, the developer will be required to conduct an in-depth Traffic Impact Study (TIS)

(at the developer's expense) to DelDOT standards. In addition, Sussex County, at its own initiative, may require a developer to conduct at TIS.

7. Acknowledges that DelDOT and/or Sussex County may, if the traffic impact of a development is major, require building permits to be issued on a

phased schedule in order to maintain a LOS of D or better.

Now to the "fatal flaw".

To best understand the flaw, we think SARG Letter to the Editor at the Cape Gazette best explains out position.

Council Must Remove Developer Free Pass in MOU

Sussex County is reviewing a draft of a revised Memorandum of Understanding (MOU) with Delaware Department of Transportation (DelDOT) regarding coordination in the review process for determining and managing the impact of traffic on future land use decisions. This document would replace a thirty-nine-year-old MOU that until last year was basically unknown to Sussex residents and haphazardly utilized, if at all, by DelDOT and the County for development reviews.

The need is very evident every time you are on a road, especially in eastern and central Sussex County. The pace of growth is overwhelming and the traffic congestion beyond frustrating. It is not an exaggeration to say that both DelDOT and Sussex County have jointly failed to recognize, prevent or mitigate the staggering traffic problems the last 20 years of over development have caused.

The citizens of Sussex County made it crystal clear during the development of the Comprehensive Plan and in numerous public hearings on proposed developments that they expect the County government to meet its responsibilities, exercise its authority and fully develop its capabilities to best leverage the MOU as an instrument to help protect, preserve and enhance public welfare and safety.

The draft revised MOU document is significantly different from the decades old document and has many positive changes. However, there is an item that is, in our opinion, a deal breaker.

The draft MOU really doesn't set a minimum level of service that must be met by all development projects. Instead, it proposes a LOS of D but has a "Never Mind" provision that allows DelDOT or the County to green light a project even if it does not meet the standards set forth in the document and will cause increased congestion and degradation of levels of service. Here it is.

"9. Sussex County and DelDOT shall endeavor, where possible, to maintain a Level of Service of D on roads and intersections affected by a land use application. However, Sussex County and DelDOT recognize that: (a) a Level of Service of D is not always attainable; (b) that this threshold may create an undue burden on a property owner looking to develop a property given the prior development that has occurred in an area contributing to the existing Level of Service; or (c) other relevant factors (such as the size of the property, type or importance of the development) may mitigate against maintaining a Level of Service D. If the existing Level of Service is below D prior to the impact of the proposed land use, the existing Level of Service must at least be maintained.

A quick explanation of Level of Service is in order. Here are the condensed operative LOS definitions from the Highway Capacity Manual and America Association of State Highway and Transportation Officials (AASHTO) Green Book:

D: approaching unstable flow

E: unstable flow, operating at capacity

F: forced or breakdown flow

So, the County and DelDOT have agreed that Sussex Roads will have a minimum level of service of D, defined as "approaching unstable flow", not a high bar to start, except when they decide they should not. Here is what that 135-word Section 9 really means to residents.

If the road you live on is now a LOS A, B or C, a developer will be automatically allowed to reduce it to D. And the next developer on the same or nearby road, if the needed improvements cause an "undue burden" (Undue burden is undefined), may be allowed to reduce it to E. So, the public at large bails out the property owner/developer! If the LOS is currently E or F, a developer will be permitted to build as long as they maintain a failing level of service. How is this in the public interest? The property owner/developer gets everything they want and in return the public gets significantly reduced levels of service. Government cannot condone failure! Should Government overlook a rodent infestation in a restaurant or a poorly designed structure because fixing it would cause an undue burden on the owner?

The County and DelDOT 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, safety, and welfare of the people of Sussex County.

This provision must be replaced by a requirement that all roads be maintained at a minimum LOS of D. The County can and must exercise its authority to condition approval on the applicant's ability to make traffic improvements to maintain a Level of Service of D. In the event that this condition cannot be met the applicant must be required to reduce the scale of the proposed project to meet the LOS D until the needed improvements are made.

Getting this new MOU right is critical to the future livability and economic viability of Sussex County. We all recognize that uncoordinated, poorly regulated development, causing frustrating and dangerous traffic congestion, is harmful to the County's residents and the environment. It also is economically damaging, unsustainable and degrades the value of residents' investment in their residence and community. This new and improved MOU is the opportunity to reverse these trends and assure that future development enhances the quality of life, environment and economy in Sussex County.

What Can You Do ?

1. Although the record is closed on this matter, you can still let the Councilman know that you are concerned based on the proposed Revised Sussex County/ DelDOT MOU which would allow County officials knowingly to approve land applications where there is almost a guarantee of failing levels of service on roads throughout the County.

Email to:

• mvincent@sussexcountyde.gov - Michael Vincent

• swilson@sussexcountyde.gov - Sam Wilson

• igburton@sussexcountyde.gov - IG Burton

• Doug.hudson@sussexcountyde.gov - Doug Hudson

• jlrieley@sussexcountyde.gov - John Rieley

2. Please follow SARG's lead and write Letters to newspapers. (Letters must be signed and include a telephone number.)

Media Contacts are found at https://sites.google.com/view/sussex2030/important-contacts

3. Share this with family, friends and your community!

Your efforts are appreciated to ensure the new and improved MOU works for everyone!