By Glenn Rolfe

GEORGETOWN — Terrapin Island, a proposed subdivision near Lewes opposed through appeal, is in the hands of Sussex County Council.

Several hours of testimony before retired Superior Court Judge Charles Toliver IV during council’s meeting Tuesday focused on an appellant challenge of the county Planning & Zoning Commission’s July 8 approval of plans for the 42-lot subdivision on 32-plus acres, off Camp Arrowhead Road.

All five council members were present for the appeal Tuesday, and they are scheduled to address and possibly act it at their next meeting Oct. 26.

Under Section 99-39 of Sussex County Code, any approval or disapproval of the preliminary plat (or map) by the Planning & Zoning Commission may be appealed to County Council within 30 days of the action of the commission. The appeal was filed Aug. 6, meeting the 30-day window.

Michelle Forzley and Keith Steck spoke on behalf of the 165 appellants, many from two communities bordering the Terrapin Island property — Bayfront and West Bay Park.

Attorney Richard Forsten represented the Terrapin Island developers.

According to Ms. Forzley and Mr. Steck, the appeal challenging the planning commission’s approval is based on an incomplete record, inaccurate/inconsistent information, errors in the minutes, failure to adhere to county ordinances and not giving full consideration to issues raised.

“There were a number of problems and errors in the record, … multiple instances of misrepresentation,” said Mr. Steck, adding that those documents “create some real confusion and raise some serious questions.”

Mr. Forsten responded, “I just don’t see anything in this appeal that goes to the issue. Does this subdivision plan qualify for preliminary plan approval or not? The vast majority of what was said here today is entirely unrelated. … So much of what was said (in the minutes) just doesn’t matter. It is irrelevant to the question that is before you today, which is, (is) this plan entitled to preliminary plan approval?”

In particular, the appellants contend:

• There is a misapplication of the county comprehensive land-use plan.
• There are multiple instances of misrepresentation by the applicant that the Army Corps of Engineers would grant a permit, including for Camp Arrowhead Road to be expanded.
• There is no Bayfront easement shown on the plat, as required by Delaware Code.

“Without easement being shown on the plat, a decision by the Planning & Zoning Commission can effectively negate the easement, which is ultimately what they did,” said Ms. Forzley.

Mr. Forsten also addressed the easement issue.

“We are told that there was some easement that is not shown on the plat, and therefore, the plan has to be invalidated. There was a claim that the Bayfront (homeowners association) had an easement. They are not here today,” Mr. Forsten said. “As far as we can tell, it is not on this property.”

Ms. Forzley also cited the failure of the commission to address reasons for disregard of the Preliminary Land Use Service report.

In addition, Ms. Forzley and Mr. Forsten did not agree on conservation easements and where the proposed 50-foot wetland buffers would be.

“We have a 50-foot buffer from tidal wetlands, as delineated by (the Delaware Department of Natural Resources and Environmental Control). That is the official line. That is what we based it on,” said Mr. Forsten. “So if opponents have a complaint, they need to raise their complaint, not with you, not with the planning commission, but with DNREC. All we can do is base our information off DNREC’s official maps. In terms of wetlands, we’ve done everything right.”

Based on her analysis of maps in the record, Ms. Forzley contended that, starting landward from the average high-water line — which is set by the National Oceanic and Atmospheric Administration — proposed buffers would actually mandate additional land be part of the proposed development, thus creating a reduction in the number of homes.

“When we properly apply the rules for the 50-feet tidal wetlands buffer and the nontidal wetlands setback, we can eliminate most of these houses,” said Ms. Forzley. “My point is that these lots become impermissible because they are less than 7,500 square feet. This is the hot-button issue. All of the rest of this is secondary to this because once this 50-foot buffer issue is resolved correctly, this plan would never have been approved. I think that was well-known.”

County Council members have about a week to digest the testimony from Tuesday’s hearing.

“The only conclusion you can come to is that this property is not suitable for construction, which is what the PLUS report said,” said Ms. Forzley. “In my view, the Planning & Zoning Commission turned a blind eye to this noncompliant property. In short, there really is no fix for this project. We ask that this approval is reversed, and that would mean that the entire application is denied and put to an end. We didn’t ask that you send this back for rehearing. We believe if the Planning & Zoning Commission didn’t do the proper job the first time, they are not going to do it the second time.”

She concluded, “There is much to do to make the commission a body that serves its public purpose and ensures that its members honor their oath.”

That drew a response from Assistant County Attorney Vince Robertson, who represents the commission.

“There was a statement just made that somehow those commissioners do not take seriously their oath of office for the jobs that they do. I couldn’t disagree more in that regard. And frankly, it somewhat frustrates me and angers me that was even said,” he said. “The commissioners’ job is to follow the law, to follow the code. I know they take that job very seriously.”

Former Judge Toliver’s role at Tuesday’s hearing was to oversee the appeal proceedings, not to make any rulings. The county’s public information officer, Chip Guy, said that since the county doesn’t have judges on staff, it needed someone with experience to moderate the meeting.

Going forward, according to county code, “any party aggrieved by the decision of the county council may appeal to the appropriate court” but only after all remedies made available in the code have been exhausted. Any such appeal would be heard in Superior Court.