By Benjamin Rothstein

DOVER – After a 4-3 vote, Kent County Levy Court removed specific parts of its Adequate Public Facilities Ordinance, getting rid of county site requirements for roads, schools and water during an April 23 meeting.

The logic behind this is because Levy Court does not have control over any of these elements.

The Delaware Department of Transportation has authority over roads, the state has authority over schools, and Levy Court does not operate any of its water systems.

Commissioner Jody Sweeney began discussions by asking if each removal could be voted on separately but was informed by the county attorney that that was not possible. Schools and water were easy pills for Levy Court to swallow, but roads were another story.

The ordinance specified that for any project whose road hit 50 peak-hour trips, or 50 cars traveling in and out of the area for a consecutive 60-minute period between 4 and 6 p.m., the county requires that a traffic impact study be taken. Sometimes, DelDOT may have determined that a study was unneeded, but the ordinance required that so long as that threshold is met, a study had to happen.

The requirements were put in place in the early 2000s to control unchecked growth in the county. There was growing concern during the meeting that removing the requirement could make that kind of growth happen again.

Some commissioners took issue with DelDOT’s total control of the situation, and the removal of what little leverage with roads Levy Court had with the ordinance.

Commissioner Angel was worried that, without a Levy Court opinion on traffic matters, DelDOT could potentially waive the costs of a traffic study and use taxpayer dollars instead. However, this was already at the discretion of DelDOT regardless of the outcome of ordinance change.

“I kind of feel like we’re throwing the bathwater with the baby out the door,” said Commissioner Allan Angel. “The developer has to pay costs for whatever they have to do for DelDOT to get their project done, whether it be commercial or subdivisions. That’s the cost of doing business. However, if the state wants to waiver it, that’s on them, (not) Levy Court.”

Levy Court held a public hearing on the change during the meeting, providing lengthy testimonies from both sides of the issue.

“I think you have to also take into consideration the changes that happened in Kent County’s planning,” said real estate developer and property manager Andy Strine. “We used to have the village concept, which was allowed in sort of more rural areas where you put in onsite septic and onsite wells. Now, you need sewer and water to get any kind of reasonable density. So, it’s a different world than it was back then.”

Mr. Strine approached commissioners to face the issue when a daycare project he has been working on was subject to a Levy Court traffic impact study that DelDOT had determined to be unnecessary.

“The perception in Delaware as it relates to the permitting process is, and this is Delaware as a whole, is that Delaware is simply too slow and too expensive,” said Mike Riemann, president of the Homeowners Association of Delaware and vice president at Becker Morgan Group design group. “I’ve had clients that are regional developers of mine say they’re done with Delaware. They’re not coming back here.”

However, there was public comment advocating for keeping the ordinance as is.

“After 17 years of successful implementation of this adequate public facilities program, a daycare center is the reason you’re killing it.” said Michael Petit de Mange, former Kent County administrator who had a hand in the original implementation of the ordinance.

Mr. Petit de Mange argued that there were ways in the code to waive a traffic impact study on both sides and that the two bodies, Levy Court and DelDOT, could have gotten together to work it out.

Ultimately, Commissioners Jeff Hall, Paul Hertz, Joanne Masten and Robert Scott voted for the removal of parts of the ordinance while Commissioners Angel, Jody Sweeney and Terry Pepper voted against.