Sussex-DelDOT memorandum in council's hands

Sussex County Council is set to decide the fate of a new land-use memorandum of understanding between the county and Delaware Department of Transportation. During council's Jan. 28 public hearing, several citizens requested the memorandum be rewritten in more understandable language more logically organized.

Assistant county attorney Vince Robertson and Delaware Department of Transportation assistant director of development coordination Marc Cote explained the proposal, which has been endorsed by the Sussex County Planning and Zoning Commission.

Robertson said the memorandum is not a code change but an agreement for processes and procedures. The last agreement was signed in 1988, and the updated memorandum follows the same framework as the previous one, he said.

But, it includes updates to reflect changing conditions over the past three decades, including clarified definitions, master planning, clearer definitions of a traffic-impact study, traffic operational analysis and area-wide study, phasing, intersection level-of-service requirements and more emphasis on the traffic-impact study review letter provided by DelDOT officials.

Robertson said the most significant change is that the proposed agreement includes subdivisions, residential-planned communities, rezonings and residential conditional-use applications. The previous agreement covered only rezonings.

Robertson said the proposed memorandum would provide county officials with transportation information earlier in the land-use application process. Robertson said he wanted to make it clear that Sussex County officials still control all land-use decisions.

Councilman John Rieley of Millsboro asked if the memorandum was a legal document. “It's adopted by resolution as an agreement,” Robertson said. “It's considered part of the record.”

Public: Consider a rewrite

Speakers at the hearing said council should rewrite the memorandum to better organize it.

Traffic engineer Betty Tustin, speaking on behalf of a group of traffic engineers, developers and property owners, suggested county officials not follow the same framework as the 1988 agreement. “Put the past aside and start new,” she said. “Send it back to planning and zoning to rewrite it and get more public comment. It needs to be written so all can understand it.”

Under the proposed memorandum, developers or property owners with smaller projects with minimal impact on area roads would be required to provide funds for an area-wide traffic study. She said developers should also have the option to provide a traffic-impact study. “In some cases, it's more beneficial for developers to do a traffic-impact study to determine an equitable share of funding,” she said.

Long Neck developer Robert Tunnell presented council with a draft he said was better organized, including a specific list of all coordination items between DelDOT and Sussex County.

“The county must execute 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,” said Rich Borrasso, Sussex Alliance for Responsible Growth spokesman.

The group has also presented county officials with a marked-up version of the memorandum.

He said the organization promotes the hiring of a staff traffic engineer or a traffic consultant. “In the past, the county has admitted it lacks the knowledge and expertise to best understand, review and scrutinize the traffic analysis or the improvements recommended by DelDOT,” he said.

“The issue is not that the county doesn’t have the capability; it doesn't have the will or the desire to acquire and develop this capability,” he said.

Regarding level of service, Borrasso said Sussex officials could reduce traffic impact by limiting the number of units in a project.

Laurel businessman Bobby Horsey said it's important that the memorandum does not impact property rights or the county's economic engine of building. “It's a good tool, but do not use it to stop growth,” he said.

Following the hearing, council deferred a vote to a future meeting.

DelDOT requirements

Under the proposed memorandum, DelDOT officials would pay for and provide a preliminary traffic analysis for residential land-use applications to determine the traffic impact of a development if impact would be diminutive, negligible, minor or major. That finding would trigger three possible actions – a traffic-impact study for major impacts and a traffic-operational analysis or a fee charged to developers for an area-wide study for negligible or minor impacts.

DelDOT staff would have up to 20 working days to complete the analysis. County officials could not consider an application until an analysis is provided.

No public hearing would be conducted until Sussex County officials receive at least one of the following: an approved traffic-impact study from DelDOT; an approved traffic-operational analysis from DelDOT; a fee in lieu of road improvements approved by DelDOT; or the application has been determined to have a diminutive impact.

Level of service

Robertson said for applications, a level of service D – approaching unstable traffic flow and delays – at intersections should be maintained whenever possible. Road improvements would be tied to maintaining service D.

When DelDOT determines, on the basis of its analysis, that a land-use decision would change the level of service on adjacent or nearby roads, the county could not approve an application unless the developer provided road improvements to maintain at least a level of service D. However, county officials would have an option to approve an application by providing reasons in writing why a developer would not be responsible for all or part of proposed road work.

National level-of-service standards are ranked from A, free-flowing traffic, to F, gridlock and breakdown of a transportation system. D is considered borderline. E is considered operating at capacity.

Cote said the scope of a traffic-impact study would reveal the current level of service and what improvements would be required based on current land use and committed developments in the area as provided by county planning and zoning staff.

Phasing option

Another key component of the proposed memorandum would be possible phasing of land development applications by DelDOT to maintain a level of service D. Sussex County officials would then have the option to incorporate phasing during their deliberations on an application.

Phasing of a project could include a delay of all or part of a development until specific highway improvements are made by DelDOT or developers.

“In the past, we've not seen those numbers at all,” Robertson said.

However, Councilman Irwin “I.G.” Burton asked whether county officials would have the phasing recommendation prior to a public hearing.

Cote said factors such as project size, road conditions, planning and engineering could delay that information.

However, Robertson said, phasing would have to be part of the final site-plan review by the planning and zoning commission. “It would be locked in and if there are changes, there would have to be an amended site plan,” he said.

Cote said phasing as described in the memorandum would generally pertain to larger developments.

Other proposed provisions:

• Sussex County officials – including the county administrator, planning and zoning director, and attorneys – would be permitted to participate in negotiations between developers and DelDOT officials on roadway improvements. County officials could provide input, but DelDOT officials would make the final determination on all agreements and road improvements by a developer.

• Agreements and any subsequent changes to agreements with developers would immediately be forwarded to Sussex County planning and zoning staff to be part of the public record.