Sussex Alliance for Growth make recommendations on MOU

The Sussex County Council is currently reviewing and considering changes to the 1988 Sussex County/DelDOT Memorandum of Understanding on land-use coordination. This document is one of the 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 Growth has analyzed both the existing MOU and the 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 to date 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 never clarifying who makes those decisions. 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 LOS of D in Growth Areas and Level of Service C in all other areas as designated in the comprehensive plan.

• Undue Burden on Landowner/Developer: Section 8a Bullets 1 & 2. The draft MOU says that 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. 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 & 2. The term “Other relevant factors” is totally subjective and open-ended, without any objective standards, criteria or process for determining what constitutes other relevant factors, and is not necessary.

• Level of Service Below D: Section 8b. This statement would seem to indicate that any project proposed on a road with a failing level of service do 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.

• Rezonings (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 TIS based on the maximum build out of the most impactful use.

Embrace the MOU, but in the long term the county must consider adopting an ordinance rather than an MOU. If Sussex County is serious about reducing traffic congestion, resetting its relationship with DelDOT and reforming its development process, LOS must be formalized beyond a 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 latest county draft and the SARG recommendations through these links. For the MOU, https://sussexcountyde.gov/sites/default/files/PDFs/Sussex%20County%20- %20DelDOT%20MOU%20-%20July%202020%20Revision%20-%20Final.pdf and for SARG’s complete analysis https://sites.google.com/view/sussex2030traffic/deldot- mou/rev-772020.

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