Millsboro is one of many towns and cities in Delaware contending with the effects of a new state law designed to jumpstart the creation of more affordable housing in the state.
SB 23 passed the state legislature narrowly earlier this summer and was signed into law in July. It sets a target of 20% affordable housing for municipalities with populations of more than 2,000 residents. But other provisions in the new law have some local governments frustrated and scrambling to adapt.
How to adapt to the law’s new requirements sparked a lengthy discussion at Millsboro’s town council meeting last week.
One new requirement that is vexing to many local governments is a provision that forbids cities and towns from adding conditions onto subdivisions that can be built by right under local laws. That prevents local governments from requiring additional concessions from developers about things like street width, sidewalks, and emergency vehicle access, and forces cities and towns to hew exactly to their local code. That requirement has driven some municipalities to consider, or even pass, moratoriums on new development.
Also concerning to local officials, especially in Sussex County, is a prohibition on public hearings for subdivisions which can be built by right. While local officials can receive written comments, they can no longer hold public hearings on proposed projects.
Millsboro’s solicitor, Mary Schrider-Fox says that provision conflicts with Millsboro’s local laws.
“It’s that public hearing requirement where it says you can't have one. Well, your process requires one,” she explained to council members. It's a bit nuanced, but an application can come in. It's just you can't process it and comply with your code and state law at the same time right now.”
Schrider-Fox noted that, right now, there are no projects proposed that would cause Millsboro problems, but that could change.
“Based on just what's come through the pipeline most recently, nothing seems to would have fit that definition yet, but you have to assume that something will,” she said.
Still, Millsboro seems to be in a better position than many municipalities, said Town Manager Jamie Burk. That is because the town recently updated its comprehensive plan.
“We're in a good spot because we just renewed our comp plan,” Burk told council members. “If we hadn't made that cutoff, we would have been subject to change our comp plan right away, so we have a good five years to make some changes.”
But Burk also criticized state officials for what he characterized as a slow rollout of guidance for cities and towns on how to comply with the new law.
Members of the town council seemed frustrated with the new law as well. Councilman Ron Mason suggested that the primary solution should be a political one.
“It should be the foundation of this election that this is a grab by the state to take rights away from the citizens to have a voice,” he said.
Schrider-Fox said that pushing legislators to repeal the law was a possibility, but council members need to plan for the current situation.
“Campaigning for a repeal of the law or change to the law is certainly something that can be done,” she said. “But in the meantime, we have to figure out how to legally move forward with what you're stuck with for now.”
Council Vice-President Marty Presley was skeptical that the streamlined pathway for developers would actually yield the results state lawmakers want.
“We know what the developer is going to do,” he said. “They're going to conform their plans to us as a by right proposition and then they're not going to build the so-called affordable housing.”
A proposal to institute a moratorium on new subdivision development was briefly suggested, as it has been in previous months, but no action was taken.
