Sussex County wins fight over buffers
Sussex County has won the fight over waterway buffers in a Delaware Supreme Court decision released Dec. 29.
"The county is pleased with the appeal and feels it reaffirms the county and municipality ability to handle land-use issues," said Sussex County Administrator David Baker.
The Delaware Supreme Court heard the case a month ago when the Department of Natural Resources and Environmental Control argued that 100-foot buffers are necessary for pollution control between development and inland waterways - not the county's 50-foot requirements - and DNREC has the power to enforce larger buffers in its effort to eliminate pollution. DNREC appealed to the Supreme Court after a Superior Court decision three years ago ruled buffers are a zoning issue and supported Sussex County's jurisdiction over zoning matters.
In reaching its decision, Delaware Supreme Court cited the state Constitution, Delaware code, the Quality of Life Act and the Delaware Land Protection Act.
The state Constitution delegates power to the counties regarding zoning issues and Delaware code specifically gives Sussex County the power over zoning issues in unincorporated areas. The subsequent acts further solidify county power over zoning decisions, the Supreme Court ruled.
"Thus, the General Assembly has made clear that the authority to adopt a comprehensive land-use plan in Sussex County is vested solely with the government of Sussex County. The comprehensive plan, once adopted, has the force of law. As part of the comprehensive land-use plan process, the statute requires DNREC and other state agencies to bring zoning issues to the county government," the ruling states.
In 2008, DNREC created a Pollution Control Strategy designed to protect the Inland Bays watershed from nutrient runoff and other contaminants. The PCS set 100-foot buffers for properties that abut primary waterways. A group of developers filed a lawsuit against DNREC and its PCS resulting in Superior Court Judge T. Henley Graves invalidating two sections of the PCS.
The Delaware Supreme Court affirmed Graves's decision to strike the two sections of the PCS regarding buffer widths along waterways.
"DNREC lacks the statutory authority to engage in zoning practices, DNREC exceeded its powers to enacting the PCS regulations," the ruling states.
DNREC Secretary Collin O'Mara said he was disappointed with the decision but remains committed to protecting the state's waterways.
"The Sussex County Inland Bays have suffered from decades of runoff pollution that has greatly diminished our fish and shellfish populations and ravaged beneficial aquatic plant life. Today more than 85 percent of Delaware's water pollution comes from runoff sources. The most cost-effective way to clean up the bays is to ensure future developments are separated from our waterways and bays by enough vegetation to filter out pollutants from fertilizer and other sources before they reach the water," he said. "The Supreme Court's decision today takes this solution off the table. While we are disappointed by the decision - which may require DNREC to find other, more costly means of ensuring these waters remain safe for fish, wildlife and the many Delawareans who use the bays every day - we remain committed to fulfilling our statutory responsibility for the 'conservation and protection of the water resources of the state.'"
O'Mara did not say whether DNREC would pursue an appeal with the U.S. Supreme Court or whether the buffer specifications in the PCS would be removed as required by the Delaware Supreme Court.
