Tail of conditional use exceptions should not wag dog 

The Sussex County Council is expected to make its decision on CU2176 in the next several weeks. The council’s decision on this conditional-use application will likely have broad and county-wide impact beyond the immediate area where the property is located if the council accepts the interpretation of zoning law proffered by the applicant.

The following issues are presented by this application and should concern everyone living or thinking of living in Sussex County, including Sussex County Council. 

A filling station/convenience store is not expressly listed as a permitted or conditional use in an AR-1 district. This legislative decision by the council to omit this use makes good sense, and is fully consistent with the stated purpose for AR-1 zoning which, among other things, is for the protection of watersheds, farming and single-family residential development. The regulations promulgated by the council further provide that permitted uses not specifically listed for the district are prohibited untess the contrary is clear from the context of the listed uses or other pertinent regulation.

The applicant, therefore, bears the burden to demonstrate that the proposed conditional use is clearly supported by either the context of the listed uses in an AR-1 district or by other pertinent regulation. We believe that the applicant has failed to meet this burden and cannot do so under the facts presented by this application. 

It is also important to note here that the Filling Station/Convenience Store category of land use, added by Ordinance No. 2550, does appear in the zoning regulations as a permitted or conditional use in several other zoning districts: The use appears in the regulations concerning an Urban Business District, a Neighborhood Business District, a Business Community District, a Business Research District, a General Commercial District, a Commercial Residential District, a Medium Commercial District, a Heavy Commercial District, a Planned Commercial District, and a Limited Industrial District. The legislative decision to intentionally include this use category in these zoning districts, but not in the AR-1 zoning district, is important to the decision in this matter. Where a term is used in other sections of the regulations, its use should not be implied where it has been omitted. 

Moreover, the applicant’s reliance on the general conditional-use provision, apparently intended to apply to all zoning districts, is misplaced for the same reason. This provision lists a drive-in theater, borrow pits, livestock auction, cemetery/crematorium, marina/yacht club, swimming/tennis club, manufactured home park, and a park or campground as candidates for a conditiona1-use permit. Conspicuously absent from this list, however, is the filling station/convenience store category of land use. 

CU2176 is also not supported by the recently adopted comprehensive plan, notwithstanding the applicant’s tautological statements on record that it is. Even a cursory review of CU2176 shows that it is contrary to the guidance provided by the plan under the coastal area, low density areas, investment level 3, and groundwater sections. The guidance provided under the Groundwater Section is especially relevant here as it acknowledges that the council intends to review the existing regulations due to a concern that current water-quality protections may be lacking. The close proximity of the area’s water source to the environmentally hazardous activity contemplated by CU2176 demonstrates that the council is right to be concerned that improvements may be needed where, as in this case, applicants seem free to ignore the seriousness of this issue. 

Finally, we agree with the applicant in one respect. This application is indeed about land use. We disagree, however, that CU2176 complies with the zoning code and that concerns expressed by local residents should be ignored. Conditional-use applications require consideration of what is in the best interest of the public and whether they are essential and desirable for the general convenience and welfare. It is beyond cavil that approval of CU2176 would be contrary to AR-1 zoning. 

Dianne L. Besso
Angola