Sussex-DelDOT agreement dates back to 1988

More than 30 years ago, Delaware Department of Transportation and Sussex County agreed to coordinate land development, outlining specific measures for rezoning and site-plan coordination.

But during recent public hearings, some residents said the memorandum of understanding has never been implemented, a statement county officials dispute.

Sussex Alliance for Responsible Growth, a grassroots citizens' group, says the agreement has not been followed. “To our knowledge, over the past 30 years, neither party has fully invoked its provisions,” said alliance spokesman Jeff Stone. “Why it has been kept secret is a mystery, but the results of this failure are experienced every day by thousands of residents.”

For rezoning applications – not subdivisions – the memorandum gives county officials the power to delay all or part of a development's construction until highway improvements are made by DelDOT or developers.

It also offers the county the right to withhold building permits to ensure developers are completing required road improvements.

Rich Borrasso, another alliance member, said one can only wonder what development would look like today if county officials had followed the agreement to the letter over the past three decades. He said residents hope a new agreement, now in the works, will expand to include all land-use applications.

The April 19, 1988 agreement recently came to light as Sussex County Council and DelDOT officials began a process to improve coordination and communication.

From a county perspective

“With all documents of this nature, there comes a time to revisit and update them,” said County Administrator Todd Lawson. “It only deals with rezonings, and the county does much more than rezonings. All land use impacts traffic.”

Assistant county attorney Vince Robertson said he understands the perception that the county is not following the memorandum. “But it's not been ignored. The more accurate statement is that it needs updating,” he said.

For example, he said, county staff requires a service-level evaluation to help determine traffic impact, which is not specifically mentioned in the memorandum.

He said the memorandum needs to include subdivisions and other land-use applications. It also needs to provide a process so county officials are better informed, he said.

“We are working to get Sussex County a seat at the table with DelDOT and developers prior to public hearings. The county could then better impose conditions that jive with what DelDOT is requiring. We are not trying to tell DelDOT what to do, but we are seeking more information,” Robertson said.

Robertson said it's hard for county officials to deny an application based on traffic. He said DelDOT provides a list of road improvements and the cost to developers to mitigate the impact of the development on traffic.

One of the recommendations in the memorandum would phase-in development as roads are built. “We've tried to do phasing, but it's an issue because we don't know the final improvements worked out by DelDOT and the developer before some level of approval by the county,” he said. “We need more information to impose phases.”

Robertson said a draft county-written memorandum has been submitted to DelDOT officials for review. “We need to improve coordination with DelDOT in general,” he said.

Robertson said planning and zoning commissioners will be kept up to date on the progress of the updated memorandum.

Lawson said he expects the draft memorandum to be completed within the next couple months. Then it will be presented to county council for feedback, he said, before a vote is taken. Memorandums are not subject to public hearings.

Sussex County Planning and Zoning Chairman Bob Wheatley, who has served on the commission since 1995, said the way the current memorandum is written allows for a lot of discretion. “It's not that we aren't following it. It's that the requirements are not what a lot of people would like to see. Some of the language is vague,” he said. “The issue is that it makes a lot of suggestions.”

Wheatley said the memorandum has not been hidden away. “It's been the subject of a great deal of discussion over the past couple of years,” he said.

In the memorandum

Under the agreement, the county can impose phasing or a developer can agree to phased-in plans to coordinate with highway capacity and safety improvements in order to maintain a service level D. DelDOT uses a level of service from A, free traffic flow, to F, breakdown in flow with constant traffic jams, to rank intersections and roads based on traffic flow and performance using factors such as density, vehicle speed and congestion.

In the memorandum, the accepted minimum level of service for roads and intersections is D.

According to the agreement, “When DelDOT determines, on the basis of a traffic impact study, that a rezoning could cause the threshold level of service to be exceeded, the county will not rezone the property unless the developer takes appropriate measures to maintain operations at the threshold level or unless Sussex County finds that the benefits to the general public outweigh the detriment caused by the decline in level of service.”

Other conditions in the agreement:

• Sussex County Planning and Zoning Department will request a preliminary traffic analysis from DelDOT for each rezoning request to determine whether the resulting traffic impact will be negligible, minor or major. DelDOT will respond within 20 working days.

• Sussex County will not consider a rezoning application until DelDOT responds with the information within 20 days or when 20 days have passed without a response.