County discusses botanic gardens, height restrictions

The Sussex County Council voted 4 to 1 on Tuesday to approve the conditional use of 36.99 acres of land in an AR-1 agricultural-residential district for use as botanic gardens and a related visitor center, conservatory, theater, nature center and parking, with councilman Sam Wilson opposed.

Last month, the Sussex County Planning & Zoning Commission voted unanimously to recommend the application be approved by county council.

The application for the Delaware Botanic Gardens at Pepper Creek was first heard before the Sussex County Planning & Zoning Commission in July, with a public hearing. At that time, the County had not received any comments opposing the application.

The commission recommended that the application be approved but that it be done with certain stipulations, including requiring a landscaped berm and heavy vegetation around the property, the hours of public access being Monday through Sunday from 8 a.m. to dusk, with the exception of 11 p.m. closing times for special events, and that the construction of the gardens meet the requirements of state and county agencies.

Councilman Vance Phillips said there had been serious concerns about all the physical structures of the botanic gardens.

“I’ve come to the conclusion, looking at the memorandum of understanding, that those physical structures are necessary to meet the educational component of the mission statement.”

Wilson said that he is not opposed to the gardens but does believe the land should not be leased to the Delaware Botanic Gardens group by the Sussex County Land Trust.

“The Land Trust just gave it away. This is not really, in my opinion, following what the Land Trust is supposed to do. It is known as ‘open space.’ When you go putting structures, it’s not open land. To me, the Land Trust is someone I cannot really trust when I give them something,” he said. “We gave it to them in good faith that that’s what they would do with it, they would keep it as open space.”

Wilson added that he is concerned that the leasing of the land sends a bad message to county residents.

“We bought this piece of property as open space for one reason, as a sewer district for Dagsboro,” he said. “Taxpayers, in good faith, bought that piece of property for that reason.”

Councilman George Cole said that Dagsboro uses spray irrigation for its sewer district and does not believe the land in question would receive Delaware Department of Natural Resources and Environmental Control (DNREC) approval.

“It’s close proximity to the end of the river and the slope of the land, this is probably not a suitable area to use spray irrigation,” he said.

Councilwoman Joan Deaver said she was in favor of approving the application.

“It’s a rare opportunity, the only one I’ve seen since I’ve been in office where people put together their volunteer hours, their expertise and their own money where they’re going to improve our county,” she said.

“It will be an important part of the attractions and entertainment that we’re able to provide. I think it would be a benefit to the local and transient visitors to the area,” added Cole. “I think it’ll bring people to the area and help the economy.”

The Sussex County Council voted 4 to 1 to approve the conditional use, with Wilson opposed.

The council also discussed height regulations in the county’s code, following an article published by an area newspaper that suggested that developers of a Sussex County property were able to get approval for a 60-foot height limit due to a legal interpretation of the county’s code.

Cole requested the item be discussed at the meeting to see what the council could do regarding the code.

Currently the code reads, “Public and semi-public or public service buildings, hospitals, institutions or schools, when permitted in a district, may be erected to a height not exceeding 60 feet.”

Assistant County Attorney Vince Robertson said that the county would also need to look at its current definition of public, which is defined as “Open to common use whether or not public ownership is involved.”

“That’s a fairly broad description,” said Robertson.

He added that if someone did want to argue that their building is public or semi-public, and build to the maximum 60-foot height, they would have to readjust setbacks on the property.

“If you do go to 60 feet you have to step back the side and rear yard for every foot you’re over the 42 foot base limit,” Robertson explained. “If you wanted to build a 52 foot tall building, and the side yard setback was 10 feet, you’d have to be 20 feet off the side yard.”

Cole called the code a “loophole” for developers, and said he was concerned it could have a major impact on the county.

He added that he did not recall being informed of the code, or its impacts.

“I don’t think it really ever came up,” he said. “I don’t ever remember being notified of it.”

“There was a memo issued in 2007 that dealt with this issue to the county administrator or county council because it was on an agenda for consideration by council,” responded Robinson. “I don’t know how before that it was interpreted. This has been circulated with you and all the staff.”

Cole said he believed the county was “kept in the dark” and felt the county should stop accepting applications that request a 60-foot building height.

“There’s something about Sussex County makes it different than coastal Jersey or coastal Maryland. It’s because of the four-story height limit has been religiously adhered to until now. I just think now is the time to nip it, and I’d like to see something on the agenda to address it.”

“It’s not that anything has slipped through. That limit is in the code,” responded Robertson. “That is the purpose of coming here this morning, to tell you what is in your code, so if there needs to be a legislative change it can be done. The height limit, the same reason it wouldn’t come before council is the same reason setbacks don’t come before council. Those are things that are dealt with administratively at Planning and Zoning.”

Phillips suggested that instead the council draft an ordinance change and advertise it, per procedure.

“But meanwhile we continue to allow the 60 feet?” asked Deaver.

“No, that’s where I draw the line,” said Cole.

“I know the law doesn’t matter to you Mr. Cole, but this is the process, if we start trying to go around that process we’ll find ourselves in court,” responded Phillips.

Cole said that he was not suggesting a process other than whatever the law states.

“I’m suggesting that the attorney come up with… if it’s a moratorium, to put in place. We should stop it and have that debate… I’m just saying we should prevent any opportunity for somebody to change or amend something… This has changed the game.”

Phillips said that he believed a moratorium would require an advertised public hearing prior to any action taken by the council.

“To do otherwise would land us in court. It’s happened before when you had a knee-jerk reaction to an application. We had a moratorium without process and we lost in court. So we just need to take our time and follow process.”

“Your votes have cost the county a lot more than my votes,” responded Cole.

The council agreed to have the item on next week’s agenda, and have Robertson present what the council can do to change the code.

“I don’t mind having a debate, inviting everybody in,” said Cole.

The next County Council meeting will be held on Tuesday, Oct. 15 at 10 a.m. at One The Circle in Georgetown.