Sussex officials: County following 1988 DelDOT pact

Sussex County staff is seeking input from the planning and zoning commission on a memorandum of understanding dating back to 1988 on rezoning applications between Sussex County and the Delaware Department of Transportation.

During its Aug. 8 meeting, assistant county attorney Vince Robertson and Sussex County Director of Planning and Zoning Director Janelle Cornwell told the commission the county is following the memorandum, despite public comment to the contrary.

Even so, Robertson said, the more than 30-year-old agreement should to be updated. A new draft has been sent to DelDOT officials for review. He said the current memorandum deals only with rezoning applications, while staff recommends it should also apply to subdivisions and conditional-use applications.

Robertson said county staff and officials are not involved in road-improvement negotiations between a developer and DelDOT. He said the memorandum should require more sharing of information. He said the county doesn't dictate what road improvements are needed, but the county should be aware of the negotiations and be alerted of any changes to approved projects relating to road work.

Cornwell said county and DelDOT officials are working to improve coordination and collaboration. “It's already started, because I have more meetings to attend,” she said.

Robertson said some members of the public have questioned whether the county is following the memorandum. “There is a mischaracterization that we are ignoring it completely or not following it, or we have buried it away and nobody is paying attention to it. I want to assure you, that's not the case,” he said. “We are following it.”

He said most of what occurs relating to the memorandum involves county staff during the pre-planning and final-approval processes.

Commission Chairman Bob Wheatley said he requested the memorandum be placed on the agenda to make sure all commissioners received an update. “If you are asked about it, you need to have some general knowledge,” he said.

Service-level evaluation

Cornwell said one of the main elements of the memorandum is a traffic analysis – or service-level evaluation – done by DelDOT of a proposed rezoning. “Before we can accept an application, we get traffic info from DelDOT to determine if it will have major or minor impact to traffic, which includes daily trips,” she said.

She said an applicant fills out the evaluation form in the planning and zoning office, and county staff submits the form to DelDOT staff. It's returned back to the county within 20 days, as outlined in the memorandum, she said. Cornwell said staff and officials will then know whether a developer will be required to obtain a traffic-impact study, fee in lieu of a study or a traffic operational analysis.

“The memorandum says we are not to act on anything until we have that, and we don't. It's the first five paragraphs of the memorandum that we cover right from the jump,” Robertson said.

Level of service

Robertson said another key element of the memorandum involves maintaining existing levels of service on roadways impacted by a development. Under the memorandum, roads and intersections must be maintained at no less than level D. DelDOT uses data such as traffic counts and delays at traffic signals to rank roads and intersections from A, which is free flow, to C, D, E or F, which is considered failing. D is listed as approaching unstable traffic flow where speed slightly decreases as traffic volume increases, and motorists' freedom to maneuver is much more limited than in levels A, B and C. Under national standards, levels C and D are both acceptable for road planning.

He said it's a misconception that DelDOT can recommend denial of an application. “DelDOT indicates what improvements are to be made to maintain the threshold of the existing level of service. DelDOT never says no, but the road improvements might make it upside down economically,” he said. “Folks would like DelDOT to have veto power over land-use decisions or site plans, but that's not how it works,” Wheatley said.

Phasing and permits

Under the memorandum, the county and DelDOT have the authority to approve phasing of a project to match timing of road improvements. “It's one of the tools we have. We can regulate the number of building permits being issued,” Wheatley said.

Cornwell said county staff has withheld building permits when developers did not adhere to the time frame of road improvements.

Commissioner Kim Hoey Stevenson asked whether the commission should pay more attention to placing phasing information and permit restrictions in conditions on applications. “Do applicants know that? Should it be spelled out better?” she asked.

Robertson said that information should be included in conditions.

Another section of the memorandum deals with site-plan review. Robertson said preliminary site plans go to DelDOT staff for review and final approval. “There is no final site-plan approval by the county without DelDOT approval,” he said.

Robertson said county officials do not have authority to require road improvements. The attorney said once the draft of the updated memorandum has been reviewed by DelDOT staff, it will come back to the planning and zoning commission for comment. “It's not our intent to make it more complicated,” he said.