Sussex P&Z recommends approval of buffer ordinance

With several changes and clarifications, the Sussex County Planning and Zoning Commission has recommended approval of an amended wetlands buffer ordinance.

A public hearing on the ordinance is included on Sussex County Council's Tuesday, Jan. 11 agenda.

During its last meeting of 2021 on Dec. 16, the commission voted 5-0 in favor of the ordinance. Assistant county attorney Vince Robertson read into the record a list of changes that were proffered during public hearings by the public and county officials.

“This ordinance clearly defines what is allowed and not allowed in buffers,” Robertson said.

He said the 2018 comprehensive plan called for code improvements and updates, including the wetlands buffer ordinance. A draft ordinance was written based on recommendations of a council-appointed working group which met for more than a year. The group presented its recommendations to council in 2019.

Incentives are included in the ordinance to provide flexibility, with the intent to preserve and protect existing resources such as forests and waterways, Robertson said. Among those incentives is buffer-width averaging.

One of the key modifications is the removal of a section allowing selective cutting within buffers. Other changes or clarifications include:

• Isolated wetlands are not considered non-tidal wetlands

• Walking trails within buffers must be noted on preliminary and final site plans, which must also include the method and materials used to construct the trail

• Agricultural drainage ditches are not subject to the ordinance

• The removal of invasive species within a buffer is permitted under the guidance of a certified expert.

Buffer widths increased

Buffer widths have been increased, and areas not previously protected have been added.

Changes include an increase from 50 feet to 100 feet for tidal water and wetlands buffers, and 30 feet for nontidal wetlands. The county currently does not require buffers along nontidal wetlands.

Under the proposal, a buffer is divided in half – Zone A, the area closest to the resource with the most protection, and Zone B. A list is provided for what activities and construction are permitted in each zone.

For example, sewage disposal plants, landfills, and waste storage and amenities such as pools and clubhouses would not be permitted in either zone.

Buffer averaging would be permitted, allowing a developer or landowner to reduce buffer width in one area if an increase in buffer width is provided in another area. Averaging would be permitted only in Zone B.

The proposed ordinance includes:

• Property lot lines would no longer be permitted as part of a buffer

• Tidal waters and tidal wetlands: 100 feet

• Perennial nontidal rivers and streams: 50 feet

• Nontidal wetlands: 30 feet

• Intermittent streams: 30 feet

• Tax ditches: no buffers required.

• Resource buffer management plans in community covenants

• Incentives to allow developers more flexibility in design

• Preservation of established native forests and non-forested meadows to eliminate clear-cutting.

Bason: More work is needed

Chris Bason, a working group member who is director of the Delaware Center for the Inland Bays, says the ordinance still needs additional changes. He said while the ordinance contains some much-needed upgrades, it also takes a number of steps backward.

“The first is in regard to protecting trees. Forests provide the best protection against pollution and are essential for wildlife habitat. But the ordinance allows forests to be cut down up to the time that an application for development is submitted. Trees do not need to be planted back in the buffer when the site is developed, and the buffer can be maintained as grass,” he said.

Bason said a variety of allowances are permitted to reduce widths of buffers.

He said if an existing forest in a buffer is maintained, the width of a buffer can be cut in half. “This eliminates gains in the width provided for buffers of tidal wetlands and waters, and reduces minimum buffer widths on larger streams from 50 feet required now to 25 feet,” he said.

In addition, he said, buffers may be reduced or eliminated around a new development's property boundary, which buffers existing residents, not waterways, from new construction. Also, buffers can be reduced or eliminated in exchange for protecting or restoring similar areas far from the development itself.

Bason said all of the shortcomings can be resolved. His recommendations include that if a buffer is not forested at the time the development application is submitted, it must be replanted to a forest before construction is complete. “This provides an economic incentive for developers to keep the trees, and it is what other nearby jurisdictions have required for a long time,” he said.

“Buffer widths must be maintained at their newly increased widths, plain and simple, and options to reduce buffer widths dropped,” Bason said.

To read a copy of the ordinance, go to tinyurl.com/2p9fdrfv.