Kent County Levy Court sends wetlands waiver for Nobles Pond back for review

Kent County Levy Court has instructed the Regional Planning Commission to reconsider a wetlands restriction for the proposed Noble’s Pond expansion as well as engineering site work the commission believes is needed for an area known to have a lot of water in the ground.

Levy Court voted 5-2 to send the wetlands issue back to the planning commission in a Tuesday night vote. In a separate vote, commissioners also voted 5-2 to direct the planning commission to re-hold public hearings on engineering site work it had stipulated was required to mitigate potential flooding issues posed by the proposed expansion.

Eddie Evans Farms LLC first sought approval to proceed with phases three and four of Nobles Pond back on Dec. 21, 2010. The developer wants to add a 428-lot residential subdivision on Kenton Road, southwest of Cheswold, with several waivers. The initial plan for Nobles Pond, an age-restricted community, called for 1,021 homes to be built in five phases.

So far, 44 homes have been built at Nobles Pond in phases one and two, said Sarah E. Keifer, director of the Kent County Department of Planning Services. 

The planning commission issued conditional approval of the preliminary plan on June 2, 2011 but it denied the developer’s request for waivers regarding wetlands, “lines and grades” surveys and “as built” surveys. Eddie Evans Farms appealed the denials for waivers on July 8.

With regard to the wetlands and the engineering work, the developer felt the proper course of action was to ask Levy Court to refer those matters back to the Kent County Regional Planning Commission, said attorney John E. Tracey of Young Conaway Stargatt & Taylor LLP in Wilmington.

There are two areas the Regional Planning Commission believes are isolated wetlands in the proposed expansion of Noble’s Pond, but the developer considers them “converted cropland,” Tracey said. Furthermore, he did not see how the county could claim these were wetlands.

“As stated in county code, wetlands are ‘those areas of land which fall within the definition of wetlands currently used by the U.S. Army Corps of Engineers, or those adopted by the State of Delaware in accordance with the Army Corps of Engineers,’” Tracey’s memo to Levy Court states in part. In August, the Corps accepted these lands as “prior converted cropland.”

Weber Gallagher attorney Mary Sherlock, who represents the county, maintained that the areas in question environmentally and scientifically met the three criteria for wetlands. She agreed that the proper procedure would be to refer the matter of wetlands back to the commission.

Levy Court President P. Brooks Banta and commissioners Bradley S. Eaby Glen M. Howell, Terry L. Pepper, George “Jody” Sweeney voted to send the wetlands matter back to the commission. But Vice President Allan F. Angel and Commissioner Erick L. Buckson voted no.

Buckson said he agreed with the Corps’ conclusion that the wetlands in question were converted cropland.

Angel said he was concerned the Levy Court could be held responsible should homes be flooded out, he said.

The 5-2 vote to direct the planning commission to re-hold public hearings on requiring engineering surveys broke down differently. Angel voted no based on Sherlock’s opinion that the commission had placed reasonable mandates upon the developer. Sweeney also voted no, citing his confidence in the commission’s initial findings.

Banta expressed concern about the $1,500 it would cost per lot to add lines and grades, thereby putting affordable housing out of reach for some.

“Everyone should be heard,” he said. “To be fair, it’s clear we don’t have all the facts.”