Why Should Delaware Care?
A new law recently took away public hearings for by-right developments as part of a larger push for more affordable housing. Understanding why requires an in-depth look into the role of public hearings, and what “by-right” actually means.
Earlier this summer, the Sussex County Council spent an hour collectively lamenting a new law that bars local governments from holding certain public hearings.
Last week, Lewes planning officials called for a moratorium on all residential development in response to that new law.
And one primary challenger to a politically vulnerable Milton-area legislator is using the lawmaker’s past support for the new law as a top campaign issue.
In all, the backlash across southern Delaware to Senate Bill 23 is reverberating through politics. But much of the rhetoric doesn’t capture all of the nuances of the preexisting law, or how the new changes it.
The newly signed Senate Bill 23 — or the Housing for Every Delawarean Act, as it is officially known — has many provisions that aim to promote more affordable housing in the state.
The most controversial section prohibits public hearings for “by right” development projects, which are those that comply with local land use rules at the site. The prohibition is designed to speed up the development process and bring building costs down.
Joe Pika, president of the Sussex Preservation Coalition, a local conservation advocacy group, said there may be as many as 25 current applications for developments — representing thousands of new homes — that could now move forward without a formal public hearing.
While residents can still comment on projects at informal public meetings, critics argue that only at formal hearings can the public’s voice be effectively heard.
Spotlight Delaware spoke with two county planning officials, as well as supporters and opponents of the law, to explain what “by-right” actually means, what role public hearings have played in those developments, and how less-formal public meetings could be different.
What does ‘by-right’ mean?
All developers go through a government approval process that decides whether they can build their proposed project — regardless if it’s a housing subdivision, strip mall or factory.
The first question to answer in that process is whether their plan follows the zoning code, which are the local laws outlining what can be built where.
The zoning code divides municipalities into districts. Those districts and what’s allowed in them can be modified at any time, but are typically edited once a decade when a government updates its comprehensive plan.
In each zoning district, there are “permitted uses,” which are the types of developments that are allowed without additional permissions.
A by-right development is any project that is a permitted use and follows all local laws. Local authorities cannot legally deny a plan that is already allowed by-right.
Officials can require developers of by-right projects to follow certain conditions, such as planting trees around the border of the property but those conditions have to be “reasonable.”
And sometimes developers and local governments disagree on what “reasonable” means.
Although governments cannot deny proposed developments that follow local laws, all developers still need to go through the process of attaining certain permits before they can build.
What role do public hearings have?
Before Senate Bill 23 passed, many local governments, including Sussex County, held public hearings for some types of by-right developments.
Public hearings are formal meetings that often have strict standards for how to record and compile what is said. Neighbors are typically individually notified when a project planned near them has a public hearing.
Public hearings for by-right developments have typically been held by appointed boards, like the Planning & Zoning Commission in Sussex County, rather than elected officials.
Those boards held a vote at the end of the public hearing, but they were not legally allowed to vote “no” unless they determined that the plan failed to follow local zoning laws. But that rarely occurred.
Sarah Keifer, director of planning services for Kent County, noted that it could be confusing for residents when they learn that a public body must vote to approve a by-right project. In the past, she said some people who have attended public hearings for by-right developments assumed that the board could vote “no,” and were then upset when they didn’t.
“When you invite people to a hearing, I don’t think it’s unreasonable that they think something can be denied,” Keifer said.
Are by-right public hearings too combative?
The prime sponsor of Senate Bill 23, Sen. Russ Huxtable (D-Lewes), said that public hearings can become “combative” when residents show up en masse to oppose a development that a board can’t legally deny.
At times, those formal hearings can delay a project and make it more expensive to build, he said, which is why he decided to prohibit them in his affordable housing bill.
Mike Riemann, former president of the Delaware Homebuilders Association, agreed. He said delays and lack of predictability make building housing more difficult and expensive.
Huxtable said a more casual gathering, such as a public meeting or a workshop, could allow residents to give feedback on a project in a collaborative manner, without delaying it.
“The current process has got us to where we are,” Huxtable said, referring to the affordable housing shortage in the state. “Why not explore new ways of collaboration to get the outcomes we all deserve?”
But David Culver, land use general manager for New Castle County, said he thinks formal public hearings are a “necessary part of the process,” because they ensure neighbors know about the project and can get involved.
He said while some commenters can be “negative” at hearings, others simply want to learn more about the project or give suggestions that ultimately make it better.
Culver emphasized that the county should gather as much feedback as possible for major developments because often, once something is built, it will stay that way for decades.
“The more input you can get on these types of things, the better product you get,” he said.
Public meetings could have a similar effect, as long as they are well-documented, Culver said. But, it is important to notify nearby residents that they are happening, and there is not currently a process to do that with informal meetings.
Keifer said Kent County officials added public hearings for by-right housing developments in 2003 because some residents were angry that homes were being built near them without any warning.
She said the county executive at the time hoped the rule change would “help ease that anger by inviting them in.” But she said that didn’t work.
“It just changed the point at which people were unhappy,” Keifer said.
Keifer said public hearings can be useful when a neighboring resident gives county officials ideas about specific conditions to add to a project.
Pika, the president of the Sussex Preservation Coalition, said he is not sure the new law will allow government officials to consider public comments made at informal public meetings.
Huxtable said lawyers are still debating whether that is true.
Pika said it is “impossible” for local governments to make laws that cover the many potential problems with a project. Therefore, public comments are essential, he said.
“There has to be room left for making situational decisions,” Pika said.
Keifer said residents most often complain about issues that the county can’t address in its conditions, like the additional traffic a development will add to roads.
“A lot of people who come to these hearings simply don’t want the subdivision there. And even if I’m sympathetic, the law does not care about that,” Keifer said.
What’s next?
Huxtable said he is currently consulting with attorneys to figure out whether Senate Bill 23 needs technical corrections or amendments.
He said any changes would be made during the next legislative session, which starts in January.
Keifer and Culver said they are working on creating a new review process for by-right developments that complies with the law.
Sussex County officials denied a request for an interview. The county previously canceled several public hearings for housing developments in response to the law.
