To build or not to build? NCC debates southern county future

MIDDLETOWN – As the Middletown, Odessa and Townsend area continues its decade-long course of explosive growth, county officials are left wondering if unabated growth is the best path forward.

Much of the building underway south of the C&D Canal is in New Castle County’s planned growth corridor, largely the area between Del. 896 and U.S. 13. In the past few years, however, county land- use officials have expressed concerns about the amount of proposed development in areas known as the East Wing, roughly east of U.S. 13 and north of Pole Bridge Road, and the West Wing, roughly west of Del. 896 and north of Bunker Hill Road.

With explosive growth south of the canal, such as The Estates of St. Anne’s in Middletown, county officials are now debating how to control septic growth. I Photo by Eric Crossan

These areas lack county sanitary sewer service but are within planned service areas. Without a timeline for service, however, major subdivision proposals have been floated for communities that would rely upon septic tanks in these areas. Arguing that the increased use of septic would lead to sprawl and further risk pollution of state waterways, the New Castle County Department of Land Use successfully lobbied for a one-year moratorium on major land development plans that utilize septic systems to study the problem and suggest a solution.

With that moratorium set to expire on Feb. 29, land-use officials are proposing that the prohibition be extended permanently. That plan has drawn a fierce debate from farmers, whose land value would be affected by lessening development rights, and environmentalists, who say the benefit to the watershed is most important.

With New Castle County Council scheduled to consider the ordinance at its Dec. 10 meeting, it appears the debate may not be over as a proposal to extend the moratorium rather than enact it permanently is gaining support.

Why the concern now?

Upon being appointed general manager of the county’s department of land use more than three years ago, Richard Hall set out to rein in the use of septic systems in major subdivision development, a category characterized by five lots or more.

“After taking this job here, I came in and saw a development team talking to staff in a preliminary way and they were talking about having a 100-unit septic subdivision on a farm in this part of the county, and I was very surprised to even see that was possible,” he said. “Then we started seeing interest in similar ways.”

The issue arose after a 2013 ordinance stripped deterrent measures from the Universal Development Code, including minimum lot size requirements for septic systems.

For a while, the change didn’t lead to a proliferation of septic-dependent projects, but in recent years Hall said his department is seeing that change. Ten years ago, fewer than 90 units of septic were proposed to his department, but in the last three years it has received requests for more than 900 units. In reviewing land currently capable of development, the county could see up to 6,827 units on septic in areas where sewer was intended to provide service, he reported.

“U.S. Route 301 going through that part of the county might have something to do with it, also it could be the Appoquinimink School District,” he said. “It’s also that folks on septic systems don’t pay a septic bill or an impact fee; they pay for the initial system.”

Now, Hall’s department is looking to deter such usage in the suburban (S) and suburban reserve (SR) zones, which encompass much of the undeveloped land south of the canal. The S zone is intended for residential development of medium- to high-density along with green space, while SR is essentially the precursor zone for such development. 

“We need to grow smart and try to direct as much growth as possible into growth areas with infrastructure while trying to incentivize preservation in areas that are not targeted for growth,” he said.

Council not convinced

Several council members, including councilmen David Carter and Bill Bell who represent the area and Council President Karen Hartley-Nagle, have bemoaned the lack of outreach to farmers, who will be disproportionately affected by the plan. They also questioned the need for a permanent moratorium when other regulations to the Universal Development Code may be as effective.

The New Castle County Council debates the merits of a permanent moratorium for major subdivisions on septic systems, during a Dec. 3 Land Use Committee meeting. | Photo by Jacob Owens

Concerned that property values will decline without the major subdivision ability, many large landowners are also reportedly approaching municipalities like Middletown, Townsend and Smyrna about the ability to annex into their limits. That would change their zoning requirements and potentially allow for faster sewer service extension for development.

“What I think constituents are most upset about is not sewer or septic, but the erosion of their rights,” Hartley-Nagle said. “I think they feel that their rights will be better protected through possibly annexation.”

Carter, who said that he considers a moratorium a “nuclear option for land use,” vowed to help his affected property owners avoid the county’s restrictions.

“Unfortunately, if this passes, as much as I hate to say it, I will be working and supporting [Middletown Mayor] Ken Branner and [Townsend Mayor] Tom McDonald when they move with the annexations,” he said, of the process to legally leave the county and join a municipality if contiguous to the borders.

Bell called the proposal “premature,” and questioned whether land-use officials have done enough research and analysis in the last year to justify a permanent moratorium. He proposed extending the current temporary moratorium for another year and allowing for additional analysis, public input and the completion of the Southern New Castle County Master Plan. 

Seeking to manage the so-called MOT area’s explosive growth, County Executive Matt Meyer’s administration partnered with the Wilmington Area Planning Council (WILMAPCO) to create a new Southern New Castle County Master Plan, a draft of which was released last month.

The SNCCMP is a subsection of the county’s overall Comprehensive Plan, which acts as a decade-long growth guide for the county. Since the Comprehensive Plan wasn’t due to be updated until 2022, however, the Meyer administration started the SNCCMP effort in 2018.

Because the SNCCMP isn’t just a guidepost though, council members have said they want a final report in hand before considering a permanent moratorium. Hall reported that the SNCCMP is scheduled to be completed in the spring.

Although no vote was taken at the committee meeting, a majority of the council signaled support of tabling
the issue for another year.

“I acknowledge that this is not the only thing you can do,” Hall told the council. “To some extent we’re kicking the can down the road because we’ll be right back at this place again.”

Community gets involved

While Hall and the land-use department have actively tried to pitch their plan as a tool to control growth, they also make the argument that it’s about protecting the environment. 

Hall noted that septic systems have a roughly 20-year lifespan, with that time shortened if not properly maintained. 

“It’s fair to say that septics pollute a lot more [than sewer],” he told the council Dec. 3, claiming it’s as much as 22% more than sanitary sewer. “With much of the soils below the canal probably permeable, they allow infiltration into groundwater of non-source-point nitrogen, one of the main pollutants in this part of the world.”

Carter questioned that claim, however, noting that the Delaware Department of Natural Resources and Environmental Control said it “maintains on-site is working to protect human health and the environment even at the half-acre rate.” Bell added that while there are more than 4,000 homes using septic systems, but the vast majority are less than 20 years old and have been properly maintained. 

Stewart Ramsey, president of the New Castle County Farm Bureau, said that “the farms being hurt by this [ordinance] are being penalized for not developing first.”

Ramsey noted that farmers often need large loans for their operations, and the most common collateral put up is the value of one’s land.

“Assets may not pay bills, but they sure underwrite loans,” he said. 

Ramsey noted that farmers don’t have 401(k) accounts for their retirement, but on average farmers carry 83% of their wealth in their land. By devaluing their ability to develop it, the ordinance would “rob them” of their future, he said.

“If you listen to the dialogue in this room, this isn’t a septic ordinance, it’s a slow-down growth measure, so let’s call it what it is and use the tools out there,” he advised.

Bill Powers, second vice president of the Delaware Farm Bureau, added that many Delaware farmers have been buying farmland in Maryland’s Eastern Shore after he claimed Hall’s program, when he served as Maryland Department of Planning Secretary under former Gov. Martin O’Malley, devalued land there. 

With farmers already struggling with the Trump administration’s trade war and other regulatory pressures being applied to operations, Powers emphasized that restricting development rights on farmland will cause many farmers to seek annexation.

Pam Scott of the Committee of 100, a non-partisan nonprofit that works to promote responsible economic policy, said that while her group supported smart growth principles, they believe the ordinance is premature, especially considering the incomplete SNCCMP.

Emily Knearl, director of advocacy for the Delaware Nature Society, an environmental advocacy nonprofit, said her group was in support of the ordinance as written. 

“Delaware’s waters are in trouble,” she said, citing troubling statistics about natural water quality in the state. “The bottom line is septic is not good for water and sewer is.” 

By Jacob Owens

jowens@delawarebusinesstimes.com