SPC BACKGROUNDER: 

THE PROPOSED COOL SPRING DEVELOPMENT AND THE

2018 SUSSEX COUNTY FUTURE LAND USE MAP (FLUM)

 

Sussex County's website says that the County Council's adoption of the current Comprehensive Land Use Plan in December 2018, represented:

• "…the culmination of more than two years’ worth of work, with scores of public meetings, workshops, and outreach that attracted hundreds of comments, suggestions, and ideas from residents, business owners, government officials and others on how Sussex County should move forward as a growing community in the decades ahead." (https://sussexcountyde.gov/2018-Comp-Plan)

State law requires counties to have such a plan, which must include a Future Land Use map. 

• Sussex County's current Plan and Map took effect when the Governor certified them, in March 2019--just a little less than 5 years ago.

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The Future Land Use Map (or FLUM) is an integral part of the Plan.  It represents a long-range plan to guide development all the way to 2045. 

• Importantly, this Map has the force of law. (Delaware Code Title 9, Chapter 69, Section 6951(b)) 

• Like other laws, it can be amended or revised, but whoever wants to change the Map bears the burden of justifying why it should be changed.

The Sussex County FLUM divides County land into 7 types of growth areas, where development is supported, and 2 types of rural areas, where it is not. (Find the map at https://sussexcountyde.gov/sites/default/files/PDFs/FutureLandUse_Final_01162019_HighRes.pdf)

The proposed Cool Springs development is not located in any of the 7 types of growth areas.

• It now falls in one of the two types of rural areas, a "Low Density" area.

• The primary uses that are envisioned in Low Density areas are agricultural activities and single-family homes on individual lots---NOT large commercial developments or multi-family residential buildings.

• A Low Density area does not allow for the type of zoning Cool Spring would need.

• That means that the Cool Springs proposal cannot proceed unless the FLUM, which is the law, is amended to change the current Low Density designation to one of the growth areas—the adjacent Coastal Area

The County Council has the power to amend the FLUM.  It has done so 8 times since the map took effect in 2019. 

• BUT the average acreage involved in those cases was just a little over 17 acres.   

• Cool Spring has 637 acres--nearly 40 times as large as the average acreage of the 8 other amendments.

• Apart from a couple of amendments that corrected classification errors in the 2018 Map, the Council has only approved two amendments that took land out of the Low Density category and put it into a growth category, which is what the Cool Spring developer wants.  Those two amendments involved a total of 3.5 acres.

• Cool Spring would be more than 180 times as large as those two combined. If the County Council approves this amendment, the action would be truly unprecedented.

• The County Council has never amended the FLUM to accommodate a development anywhere close to the magnitude of Cool Spring—and for good reason.

Amending the FLUM to accommodate a development like Cool Spring would be inconsistent with the Plan’s objective of focusing growth in designated growth areas and leaving Low Density areas rural.

• To amend the map by changing a Low Density area to a Growth Area just 5 years into the Plan—an action that would create the fourth largest city in the County—would, sadly, make a mockery of the years of work, scores of public meetings and workshops, and all of the citizen involvement that went into the Plan and the Map.

Amending the FLUM to accommodate Cool Spring would also be inconsistent with the objectives of the County’s Zoning and Subdivision regulations, which are intended to promote the health, safety, and welfare of County residents, including the “lessening of congestion on streets and roads.”

• SPC has laid out the many ways in which Cool Spring would endanger—not enhance—the Health, Safety, and Welfare of County residents.

• Amending the FLUM in such flagrant disregard for past practice would undermine the map’s purpose moving forward. No one living anywhere in Sussex County would have confidence in its authority. 

It could also prove very costly to Sussex County if it were to amend the FLUM in the face of state objections. Accommodating Cool Spring would be inconsistent with the State's objective to be responsible stewards of public finances by making the most efficient use of state resources.   

• Cool Spring would be in an area the State classifies as "Investment Level 4," a designation fully aligned with the County’s FLUM adopted in 2018.

• In light of the county’s plan, the State has not and does not plan to make the type of infrastructure investments that would be needed to handle significant growth, because the State expects the area to remain largely agricultural into the foreseeable future.  

• The State Department of Agriculture said it opposes Cool Spring because it "conflicts with the preferred land uses [in Investment Level 4 areas], making it more difficult for agriculture and forestry to succeed, and increases the cost to the public for services and facilities." (Letter, January 22, 2024, Office of State Planning Coordination re. 2023-12-05; Cool Spring Crossing https://stateplanning.delaware.gov/plus/comments/2023-12-05-response.pdf)

• The Office of State Planning Coordination (OSPC) has opposed the Cool Spring project no fewer than 4 times: April 2021; December 2021; January 2023; December 2023. 

• In mid-February 2024, the OSPC called for conversations with County officials to discuss the basis for its opposition to Cool Spring and to try to reach a resolution of their differences.

If they are unable to resolve the matter within 45 days from the date of OSPC's official letter of objection--which expires March 31--then the OSPC is required to make a report to the Cabinet Committee on State Planning Issues, describing the areas of agreement and disagreement. 

• That Committee consists of several of the Governor's Cabinet officials who are in charge of relevant departments, including DNREC, DelDOT, Agriculture, Safety and Homeland Security, and the State Housing Authority.

• The Cabinet Committee can hold a public hearing if it wants and is supposed to submit a report to the Governor within 45 days of its receipt of OSPC's report--approximately the middle of May.

• The Governor then has 20 days to either certify the amendment or return the matter to the County with proposed revisions. This process is set forth in Delaware Code Title 29, Chapter 91, section 9103. (https://delcode.delaware.gov/title29/c091/sc01/#9103)

BUT, the County has the authority under Delaware Code to reject any or all of the Governor's proposed changes if it does not like them--it can then proceed with its own public hearing and public comment period, and then make its own decision.

Nevertheless, the State still has leverage:

• Under state law it can legally withhold state financial assistance for infrastructure improvements to support land use or development actions that it thinks are inconsistent with state development policies.

• But whether state officials would actually do that is unclear at best.   

Any amendment of the Sussex County FLUM--including one to accommodate the Cool Spring development--is the County's call, not the State's.