Complexities of DelDOT memorandum surface

Ironing out the final details of the memorandum of understanding for land-use applications between Sussex County and the Delaware Department of Transportation has been a prolonged process. It gets more complex as discussions continue.

It doesn't appear it will be finalized anytime soon. The public record has been closed and the fate of the memorandum rests in the hands of Sussex County Council. The county planning and zoning commission has recommended approval.

At the July 28 county council meeting, two council members helped spearhead a prolonged discussion about what the memorandum would accomplish.

Councilman Irwin “I.G.” Burton of Lewes, who served on the planning and zoning commission for 11 years before getting elected to council, said officials need traffic and road improvement data early in the land-use application process. He said he's hopeful the memorandum will address that issue.

“We can't make good land-use decisions without DelDOT information, especially in hot areas under pressure with traffic and development,” he said. “It's not OK for DelDOT to supply this information after decisions are made.”

Under the current process, some data, including traffic-impact study results, may not be available at the time of public hearings. The studies, which are funded by developers and approved by DelDOT officials, include key information highlighted by current and projected traffic counts on roads.

Assistant county attorney Vince Robinson said the new memorandum would require that traffic impact studies be completed before public hearings can take place.

DelDOT representative Todd Sammons said Sussex officials can amend the land-use process to require more up-front analysis, including traffic-impact studies, which are required by New Castle County and Kent County officials prior to public hearings. “It's a much more rigorous and timely process,” Sammons said. “I think the way we do analysis and mitigation now is a good process. This memorandum is a great leap forward for the people of Sussex County. But we can work to find out what further analysis you want. We'll do whatever works for you.”

Rezoning applications

Burton said rezoning applications without specific site plans are especially problematic because DelDOT determines whether a traffic-impact study is required during the site-plan review process by the planning and zoning commission after a vote has already been taken. “This is not fair to us and not fair to the public,” he said.

Burton said all rezoning applications should be based on the most intensive use within a zoning district. “DelDOT knows what our zoning code allows. They should tell us this is what would happen based on their best information,” Burton said. “I think DelDOT responses have been boilerplate, telling us to approve it and they will work with the developer. That has to stop.”

Sammons said a traffic analysis is not completed if no use for the parcel is submitted with a rezoning application, which is allowable in Sussex County. He said New Castle County officials require that a project be submitted with a rezoning application.

“It would be a change to provide an analysis with the worst-case scenario, because that's beyond what the MOU would do,” Sammons said.

Robertson said another feature of the updated memorandum is that either DelDOT or Sussex County officials can require a traffic-impact study for any application.

The big picture

Councilman John Rieley of Millsboro said county officials tend to look at projects individually and not at the total picture of other ongoing or scheduled development in an area. “Does the MOU address that?” he asked.

Sammons said DelDOT planners look at all committed development and use growth factors when conducting traffic analysis. He said developers' road improvements are based on build out of subdivisions in an area.

Rieley said he hears complaints from constituents on delays in obtaining permits, especially entrance permits from DelDOT. “Does this memorandum give any guidance how long DelDOT has to provide a permit?” he asked.

Robertson said while there are time limits included in the memorandum, there is not an entrance-permit limit included in the memorandum.

SARG recommendations

The record had been left open for the public to comment on the most recent draft of the memorandum. Sussex County Planning and Zoning Director Jamie Whitehouse said more than 20 residents provided written comments.

One speaker, Rich Borrasso of Sussex Alliance for Responsible Growth, addressed council in person during the July 28 public hearing.

His group has provided several suggestions, including:

• Level of service maintained at D in growth areas and C in all other areas.

• When a rezoning is proposed without a specified use, the county should require a traffic-impact study based on the maximum build out of a permitted use.

• The county should consider adopting an ordinance rather than an MOU to grant the planning and zoning commission and county council authority to fully enforce land-use codes.

Borrasso said the main challenge is for county officials to adopt level-of-service standards. “If not, the next 30 years will resemble the last 30 years,” he said. “This MOU is a repair or fix; it's not the solution. Sussex County must have level-of-service standards that are enforceable.”

The proposed memorandum

While DelDOT has final say on road improvements, Sussex County officials rule on all land-use applications.

DelDOT officials would pay for and provide a preliminary traffic analysis for residential land-use applications to determine whether the traffic impact of a development 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 paid by a developer and approved by DelDOT; or the application has been determined to have a diminutive impact.

Level of service

A minimum 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 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.

Phasing option

Another key component 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.

Although getting that information before a public hearing could be delayed, phasing would have to be part of the final site-plan review by the planning and zoning commission.

Other memorandum details

• The memorandum includes rezoning, conditional-use, residential-planned community and subdivision applications. The previous agreement covered only rezonings.

• 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.

• Terms and definitions have been updated from the original 1988 memorandum.