Why Should Delaware Care?
A new state law has left Delaware’s fastest growing county to adapt its housing development process. Sussex County canceled public hearings for two cluster subdivision applications last week, the first of what could be many changes to come with how developments get approved in the county.
Sussex County canceled public hearings for two proposed housing developments in response to a new state law that county leaders said raises “serious, fundamental concerns” about the future of local control.
County officials also said last week they would “pause” public hearings for major subdivision applications, or projects including more than five lots, until they can develop a new approval process in line with the controversial state law.
The cancellations come after Gov. Matt Meyer signed Senate Bill 23, also known as “The Housing for Every Delawarean Act,” into law last week. In an effort to improve housing availability in Delaware, SB 23 requires most localities to ease restrictions on building more dense housing, like apartments and townhomes.
The new state law aims to speed up the development process by removing public hearings for some proposals, a provision that critics say reduces transparency but developers say will shorten the homebuilding timeline.
The bill also sparked controversy among local leaders who said it is part of an ongoing erosion of local control.
“This year’s General Assembly session has brought about serious, fundamental concerns about the nature of government and local authority here in Delaware,” Council President Douglas B. Hudson said in a press release announcing the public hearing cancellations.
Because of the changes codified by SB 23, public hearings for “by-right” housing developments are now prohibited. A “by-right” development is one that falls in line with local land use rules.
Sussex County officials said the two proposals set to be considered last week appear to fall under the “by-right” public hearing prohibition.
Those two projects, a 64-home development near Millsboro and 70 homes near Harbeson, will move forward, Sussex County Councilman Steve McCarron said. Though it is unclear what exactly comes next.
“We have a process, and we can no longer follow that process,” McCarron said.
What about future development approvals?
Beyond last week’s cancellations, the future of Sussex County’s 15 other pending major subdivision applications remains unclear.
A county spokesperson said he could not comment on whether any of those applications would also move forward by-right, “pending further legal research.”
Meanwhile, Joe Pika, president of the Sussex Preservation Coalition, a local advocacy group that lobbies for smart growth practices in the fast-growing southern county, said he is concerned there may be as many as 25 applications, representing thousands of new units, that could move forward without a public hearing.
“We do not believe that it’s reasonable to make this law effective immediately,” Pika said. “Counties and towns throughout the state really don’t understand what’s now expected of them as a result of the changes of SB 23. Everyone needs guidance and clarification of what is still allowed, and what’s not.”
While many of the provisions in the new law are well-intended, Pika said it will not deliver affordable housing. The changes, he said, are having the unintended effect of speeding up the construction of unaffordable housing in Sussex County.
Some argue that building any type of housing can help lower costs, but Delaware State Housing Authority Director Matt Heckles previously told Spotlight Delaware that what the state really needs are smaller houses, like townhomes and duplexes.
Pika said one of the coalition’s largest concerns is the removal of public hearings.
“Making real estate decisions in the shadows is an invitation to public corruption,” he said.
But SB 23 does not remove all forms of public participation in the development process. The law allows for public meetings, which function differently than a hearing.
The law says residents can only submit written comments for these public meetings, and the discussion can only focus on whether a proposed subdivision meets objective standards outlined in land use and zoning codes.
Jon Horner, president of the Home Builders Association of Delaware, previously told Spotlight Delaware people often use the public hearing process to stop or delay housing projects.
Get Involved
Sussex County Council will meet at 10 a.m. on Tuesday, July 28, inside the Sussex County Administrative Office Building, located at 2 The Circle in Georgetown. For more details, including information about virtual attendance, click here.
McCarron said he disagrees with the law because it does not promote income-restricted housing. But he did acknowledge that public hearings for by-right applications can be confusing for residents, because the Planning & Zoning Commission almost never has the legal right to vote down the project after the hearing.
But he said at public hearings, residents can request certain conditions that improve the project, like planting trees that act as a barrier around the border of a new development. He is not sure if public meetings will allow the same discussions.
The county’s statement said the council will “discuss the matter and any future ordinances at a future meeting.”
The agenda for the council’s July 28 meeting includes a line item about discussing the implementation of SB 23.
