Sussex County Planning & Zoning Commission v. Smokey Hollow, LLC

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

SUSSEX COUNTY PLANNING & § ZONING COMMISSION, § § No. 440, 2025 Defendant Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § C.A. No. S24A-09-001 SMOKEY HOLLOW, LLC, § § Plaintiff Below, § Appellee. §

Submitted: May 20, 2026 Decided: August 6, 2026

Before SEITZ, Chief Justice; TRAYNOR, and LEGROW, Justices.

Upon appeal from the Superior Court. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

David N. Rutt, Esquire, MOORE & RUTT, P.A., Georgetown, Delaware, for Defendant Below, Appellant Sussex County Planning & Zoning Commission.

Richard A. Forsten, Esquire, (argued), Jennifer M. Becnel-Guzzo, Esquire, and Mackenzie M. Sindelar, Esquire, SAUL EWING LLP, Wilmington, Delaware, for Plaintiff Below, Appellee Smokey Hollow LLC. SEITZ, Chief Justice:

The Sussex County Planning & Zoning Commission approved Smokey

Hollow, LLC’s application to build an 82-lot residential subdivision. The approval

came with strings attached – 19 conditions. Smokey Hollow agreed to all but two

conditions – eliminating one lot and requiring a 25-foot fixed buffer from non-tidal

wetlands. The Commission refused to reconsider the two conditions.

Smokey Hollow sought certiorari review by the Superior Court. The court

struck the two conditions as unreasonable. On appeal, the Commission argues that

the court erred by applying a faulty reasonableness analysis. After careful review,

we reverse and remand the lot elimination condition but affirm the Superior Court

on the buffer condition.

I.

A.

Under the Delaware Constitution:

The General Assembly may enact laws under which municipalities and the County of Sussex and the County of Kent and the County of New Castle may adopt zoning ordinances, laws, or rules limiting and restricting to specified districts and regulating therein buildings and structures according to their construction and the nature and extent of their use, as well as the use to be made of land in such districts for other than agricultural purposes; and the exercise of such authority shall be deemed to be within the police power of this State.1

1 Del. Const. art. II, § 25.

2 In Sussex County’s case, the General Assembly delegated authority to Sussex

County Council to regulate land use and development.2 The General Assembly also

established the County Planning and Zoning Commission of Sussex County

(“Commission”).3 It created the Commission to address land use development in a

way that promotes “the health, safety, prosperity and general welfare,” “secur[es]

coordinated plans for land use, transportation, public facilities and utilities and

public works expenditures,” and “prevent[s] the unnecessary duplication of facilities

or utilities.”4 The Commission advises County Council on zoning changes and

conditional use requests, but approves or denies subdivision applications.5

The Sussex County Zoning Code (“Zoning Code”) provides that all

unincorporated Sussex County land and certain incorporated municipalities without

zoning provisions are part of zoning districts defined by Sussex County’s Zoning

Map.6 If a developer plans a project on a parcel and the proposed development

cannot be undertaken as of right – meaning it is not permitted under the existing

2 9 Del. C. § 6902. 3 Id. § 6802. 4 Id. 5 Sussex Cnty. C. §§ 115-173, 115-216, 99-6, 99-9. 6 Id. §§ 115-2, 115-5, 115-7.

3 zoning classification – the landowner must apply to rezone the property.7 If the

parcel’s current zoning allows the proposed development but the property must be

subdivided, the property owner follows the Sussex County subdivision

approval process.8

Stated generally, under the Sussex County major subdivision approval

process, after the developer completes the State of Delaware Planning Office for

Preliminary Land Use Service (“PLUS”) review process, the developer meets with

the Sussex County Planning and Zoning Office (“Zoning Office”) to review the

proposed project and submits a preliminary plan.9 If the subdivision has 50 or more

dwelling units and is in a Coastal Area, the developer must also provide an

environmental assessment.10 After Zoning Office review, the Commission holds a

public hearing on the preliminary plan.11 The Commission must “either tentatively

7 See id. Ch. 115. 8 See id. Ch. 99. A major subdivision is any subdivision of six or more lots. Id. § 99-5. A minor subdivision is “[a]ny subdivision creating five or fewer lots and not adversely affecting the development of the remainder of the parcel or adjoining property and not in conflict with any provisions or portion of the County Comprehensive Plan, Official Map, Zoning Ordinance, or this chapter.” Id. 9 See 29 Del. C. Ch. 92; Sussex Cnty. C. §§ 99-7, 99-8. 10 Sussex Cnty. C. § 115-194.3. 11 Id. § 99-9. Recently enacted Senate Bill 23 allows some code-compliant or “by-right” residential subdivisions to bypass public hearings. S.B. 23, 153d Gen. Assem. § 9209(b)(4) (2026).

4 approve or disapprove or conditionally approve the plat subject to specific changes

or modifications.”12

If the applicant disagrees with the Commission’s decision, it may appeal to

County Council within 30 days after the Commission’s official action.13 The

applicant can also “request in writing that the Commission reconsider a condition

imposed by the Commission but there shall be no appeal from the decision of the

Commission on such request.”14

B.

Smokey Hollow owns a 66-acre parcel in unincorporated Sussex County

where it wanted to build an 82-lot residential subdivision. The property is zoned

GR, or General Residential, meaning that the developer can build a residential

subdivision as of right and did not need to rezone the property. It is also located in

a Coastal Area. As explained above, because Smokey Hollow sought to subdivide

the parcel into over 50 lots, the Zoning Code required major subdivision approval

from the Commission.

Smokey Hollow completed PLUS review, conferred with the Zoning Office

on technical requirements, filed a subdivision application with the Office, and

12 Sussex Cnty. C. § 99-9(A). 13 Id. § 99-39(A). 14 Id. § 99-39(H).

5 submitted a preliminary plan. At the public hearing, homeowners in the contiguous

Fox Haven residential subdivision raised a number of concerns, including that lot 64

posed flooding and runoff risks to their neighborhood.15 They also spoke about how

the proposed development could displace wildlife, destroy trees, increase summer

traffic, encroach on private property, and change the area’s natural character.16

The Commission unanimously approved the preliminary plan subject to 19

conditions.17 Smokey Hollow accepted all but two – Condition A, which eliminated

lot 64, and Condition O, which required a 25-foot fixed (as opposed to an average)

minimum buffer from non-tidal wetlands.18 Regarding Condition A, the

Commission explained that lot 64 was an isolated lot, access was dependent on

crossing wetlands, and the lot and surrounding area were subject to frequent

flooding.19 The Commission did not explain why it imposed Condition O. It stated

that “there shall be a buffer that is at least 25 feet wide from all non-tidal wetlands.”20

15 See App. to Appellant’s Opening Br. at A117-18 [hereinafter A__]. 16 Id. 17 A137-40. 18 A131-35. Smokey Hollow claims that imposing the 25-foot fixed buffer from non-tidal wetlands results in the loss of 8 lots (10% of the project). But maintaining the average 30-foot buffer would not eliminate any additional lots. See App. to Appellee’s Answering Br. at B063-68 [hereinafter B__]; see also Answering Br. at 10 n.19. 19 A123. 20 A127.

6 Smokey Hollow asked the Commission to reconsider the two conditions.21 It

argued that the Commission could not eliminate a lot that complied with the

subdivision regulations.22 It also pointed out that a newly adopted ordinance

exempted pending applications from the buffer requirement.23 As a compromise,

Smokey Hollow proposed several ways to address the Commission’s concerns.24

The Commission stuck by its determination that lot 64 encroached on

wetlands and that developing it could increase flooding in the area.25 As it stated

during the public hearing addressing the request to amend the conditions, lot 64 “was

surrounded by the wetlands;” subject to flooding; and a lot owner would have to

“cross[] the wetlands to get to the lot.”26 It also held firm on the fixed buffer

requirement. The Commission explained that it imposed “these conditions based on

public testimony and site conditions” and that it “didn’t just take that lot away from

[Smokey Hollow]” but required the conditions “to uphold the code.”27

21 B063-68. 22 See A132-33. 23 A132. 24 Smokey Hollow proposed a 100-foot forested or landscaped buffer for lot 64 and an average (not a fixed) 30-foot buffer from all non-tidal wetlands around certain lots. A131-35. 25 A153-54; B081. 26 A153. 27 A154.

7 C.

Smokey Hollow filed a petition for a writ of certiorari in the Superior Court

seeking to strike the two conditions. It claimed that Conditions A and O were

unreasonable and contrary to the County Code. The court granted certiorari, found

that the Commission made errors of law, and declared the two

conditions unreasonable.28

First, the court held that, consistent with Supreme Court precedent, the

Commission must approve a subdivision plan that complies with the County Code,

subject only to reasonable conditions that “minimize any adverse impact on nearby

landowners and residents.”29 The court concluded that the Commission imposed

Condition A in response to neighborhood opposition rather than to minimize adverse

impacts on the Fox Haven neighborhood. It also found that Condition A conflicted

with Council’s legislative determination that a 30-foot subdivision perimeter setback

was sufficient.

As to Condition O, the court held that the Zoning Code’s cluster development

standards did not apply to Smokey Hollow’s property. It also found that the prior

28 Smokey Hollow, LLC v. Sussex Cnty. Plan. & Zoning Comm’n, 2025 WL 2816524, at *5, *7 (Del. Super. Oct. 1, 2025). 29 Id. at *2.

8 version of the Code regulated setbacks from wetlands, not wetland buffers.30 And,

according to the court, County Council’s later-adopted Ordinance 2852, which

requires an average (not fixed) 30-foot non-tidal wetlands buffer, expressly

exempted pending applications. Finally, the court held that Condition O imposed a

buffer that exceeded the Zoning Code and therefore was an unreasonable condition.

The court struck both conditions.

D.

On appeal, the Commission contends that the Superior Court failed to

recognize the Commission’s authority to impose reasonable conditions on a

subdivision application, even if the application complies with the County Code. It

also argues that the court did not consider fully what makes a condition “reasonable.”

This Court reviews an administrative agency’s decision to determine whether

the agency exceeded its discretion.31 When considering the Commission’s decision

30 Id. at *6. When Smokey Hollow submitted its the application, the Sussex County Code provided that “[a] minimum of 25 feet of permanent setback must be maintained around the outer boundaries of all wetlands . . . No buildings or paving shall be placed within these setbacks.” Subsection of former Sussex Cnty. C. § 115-25F(3)(a)(4); see also Sussex Cnty. Ord. No. 2852 § 9. A building setback is “[t]he minimum distance that a building must be set back from a street or lot line as required by a building setback line so designated on a plat of a subdivision.” Sussex Cnty. C. § 99-5. A resource buffer for wetlands, on the other hand, is “a managed area between residential land uses and resources that is not subdividable once established” which protects the environment against land-use impacts. Id. It was not until Ordinance 2852 was adopted, which became effective November 17, 2022, that the County Code required an average 30-foot buffer from non- tidal wetlands under certain circumstances. Sussex Cnty. Ord. No. 2852 §§ 9, 13. 31 Tony Ashburn & Son, Inc. v. Kent Cnty. Reg’l Plan. Comm’n, 962 A.2d 235, 238-39 (Del. 2008).

9 on subdivision plan approval, we review whether the decision is supported by

substantial evidence and is free from legal error.32 Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.”33 Questions of law are reviewed de novo.34

II.

A.

In Tony Ashburn & Son, Inc. v. Kent County Regional Planning Commission,

we addressed a local government’s authority to deny subdivision plan approval even

though the plan met the technical requirements of a county code. In Ashburn, a

developer’s subdivision application complied with the Kent County Code, but the

county planning commission denied approval based on concerns raised by state

agencies.35 Ashburn appealed to the Kent County Levy Court, which upheld the

denial.36 On certiorari review, the Superior Court affirmed, concluding that the

commission had discretion “to ensure that land development proceeds in a manner

consistent with the Kent County Comprehensive Plan, the County Zoning Code, and

32 Id. at 239. 33 Id. (quoting Opportunity Ctr., Inc. v. Jamison, 940 A.2d 946, 2007 WL 3262211, at *3 (Del. May 24, 2007) (TABLE) (citations omitted)). 34 Id. 35 Id. at 237-38. 36 Id. at 238.

10 the Delaware Code” even when an application complied with the code.37 The court

also held that the commission could deny a conforming application because the plan

“is not automatically entitled to approval . . . .”38

This Court reversed. The Majority held that the commission exceeded its

statutory authority by denying a subdivision application that met the county code’s

requirements.39 As the Majority concluded, the state statute did not permit the

commission to deny a conforming application.40 It explained, however, that the

commission could approve an application subject to reasonable conditions:

[T]he Commission may condition its approval of [a] subdivision application based on non-Code factors, such as agency recommendations, school capacity issues, and concerns regarding the health, safety and welfare of the community. The Commission may consider these issues and has discretion in formulating conditions on approval designed to harmonize and coordinate regional planning. But, the Commission’s power to impose conditions cannot be administratively enlarged to a power to deny a conforming application outright.41

37 Id. (footnote omitted). 38 Id. 39 Id. at 239-42. 40 Id. at 240-41. 41 Id. at 242.

11 In Ashburn, we relied on a Superior Court decision DiFrancesco v. Mayor and

Town Council of Elsmere.42 There, the developer proposed a minor subdivision that

would divide a parcel into two lots.43 The Mayor and Council of Elsmere denied the

application because the “proposal did not preserve the general welfare” of the town’s

residents.44 The petitioner sought certiorari review in the Superior Court.45

The Superior Court held that the Mayor and Council acted contrary to law.46

The court relied on an earlier case in which a planning commission denied a site plan

for a permitted use.47 The court explained that the planning commission could not

deny a compliant plan whenever “it is fairly debatable that the project would

adversely impact the public health, safety, welfare, comfort and convenience of the

neighborhood.”48 The court also stated that the “[c]ommission may not reject a site

plan for a permitted use on the grounds that the project will adversely [a]ffect the

42 2007 WL 1874761, at *3 (Del. Super. June 28, 2007), aff’d sub nom., Mayor & Town Council of Town of Elsmere v. DiFrancesco, 947 A.2d 1122 (Del. 2008)). 43 Id. at *1. 44 Id. 45 Id. 46 Id. at *2-3. 47 Id. (citing E. Lake Partners v. City of Dover Plan. Comm’n, 655 A.2d 821 (Del. Super. 1994)). 48 Id. at *3 (quoting E. Lake Partners, 655 A.2d at 826).

12 general neighborhood.”49 Instead, the commission could approve the plan “subject

to reasonable conditions . . . to minimize any adverse impact on nearby landowners

and residents.”50

Together, Ashburn and DiFrancesco illustrate that a local government cannot

deny a subdivision plan that complies with the county code. It may, however,

approve a plan that meets the technical requirements subject to reasonable

conditions. The question is, what are “reasonable” conditions?

B.

The Commission urges us to adopt a more “cogent and comprehensive” test

to determine whether a condition is reasonable.51 It proposes that “a reasonable

condition is one that meets some if not all of” nine factors.52 Those factors include

whether the condition: a) relies on non-code factors, such as agency comments,

school capacity issues, and concerns regarding the health, safety, and welfare of the

community; b) falls within the Planning Commission’s discretion to harmonize and

coordinate regional planning; c) is site specific; d) is rationally related to addressing,

in the public interest, the potential land use impact of the proposed use or

49 Id. (quoting E. Lake Partners, 655 A.2d at 826). 50 Id. 51 Opening Br. at 27. 52 Id. at 26.

13 development; e) directly relates to the use granted; f) relates to ordinance standards;

g) is supported by record evidence; h) is designed to reduce negative impacts to an

acceptable level; and i) bears a reasonable relationship to the problem it seeks

to alleviate.53

Smokey Hollow, on the other hand, asks us to adopt a nuisance-based test to

measure reasonableness because nuisance “was the original justification (and

purpose) behind zoning codes more generally.”54 It contends that local governments

apply land use regulations to define reasonable property uses and prevent potential

nuisances. Smokey Hollow explains that whether a nuisance is “reasonable”

depends on an objective standard: “that some ‘invasion’ of another’s interest in the

use and enjoyment of his land has occurred does not necessarily mean that the

invasion is unreasonable.”55 Because a plan that satisfies all Code requirements “is

presumed to be reasonable,” Smokey Hollow argues that “further restrictions are not

necessary” unless a property’s proposed development creates a nuisance.56

53 Id. at 26-27. 54 Answering Br. at 23. 55 Id. at 23-24 (quoting Walker v. Williams, 2016 WL 3569260, at *6 (Del. Ch. June 23, 2016)). 56 Id. at 25.

14 C.

We decline to apply nuisance-based restrictions or adopt a multi-factor test to

assess the reasonableness of subdivision conditions. The reasonableness of a

subdivision approval condition depends on the specific facts of each subdivision

application.57 The Superior Court should not be burdened with another multi-factor

test, especially on deferential certiorari review. Instead, we follow the course already

charted by the Zoning Code and Ashburn. Under the Zoning Code, the Commission

may “conditionally approve the plat subject to specific changes or modifications.”58

Under Ashburn, those approval conditions can include “non-Code factors, such as

agency recommendations, school capacity issues, and concerns regarding the health,

safety and welfare of the community.”59 The Commission “has discretion in

formulating conditions on approval designed to harmonize and coordinate regional

planning.”60

57 See 3 EDWARD H. ZEIGLER, JR., RATHKOPF’S THE LAW OF ZONING AND PLANNING § 60:10 (4th ed.) (“The reasonableness of site-specific conditions can only be determined in the context of the specific fact situation involved in the particular case in question.”). 58 Sussex Cnty. C. § 99-9(A). 59 Ashburn, 962 A.2d at 242. 60 Id. It is not enough for an applicant to argue that an approval condition exceeds the technical requirements of the Zoning Code. If that were so, a public hearing would not be needed, and the Commission would simply approve the preliminary plan. As this Court has recognized, “[t]he Commission does not exist ‘merely to rubberstamp every application that [meets the technical requirements and] comes before it.’” Id. at 239 (quoting JNK, LLC v. Kent Cnty. Reg’l Plan.

15 Nonetheless, a developer who follows the technical requirements of the

subdivision code should be able to rely on that compliance when seeking

governmental approvals.61 When the Commission subjects plan approval to

conditions, the conditions “must be rationally related to addressing, in the public

interest, some potential land use impact of the particular use or development in

question.”62 In other words, the condition cannot be based primarily on generalized

community opposition to the project.63 The Commission must also state its reasons

Comm’n, 2007 WL 1653508, at *4 (Del. Super. May 9, 2007)). Rather, the Commission has the discretion to impose reasonable conditions on code-compliant applications. 61 Id. at 241 (“If the Commission is empowered to deny proposals that meet all applicable statutory and Code criteria, purchasers of land would be left unable to predict whether they can develop their land in accordance with the pertinent zoning ordinances, or whether instead the County may prevent development based upon non-Code related ad hoc determinations.”). 62 3 EDWARD H. ZEIGLER, JR., RATHKOPF’S THE LAW OF ZONING AND PLANNING § 60:10 (4th ed.). 63 Gibson v. Sussex Cnty. Council, 877 A.2d 54, 57, 79 (Del. Ch. 2005) (explaining that when making a land use approval decision, “the Council is not free to bend to the prevailing breeze, but must rationally and fairly apply its zoning code and regulations,” and further that “[t]he singling out of particular owners for idiosyncratic treatment, just because the prevailing neighborhood wind is unfavorable, is not acceptable when the property owner has met all the criteria that the local government has established for the requested conditional use”). See Stephen C. Glenn, Inc. v. Sussex Cnty. Council, 532 A.2d 80, 82 (Del. Ch. 1987) (“Many other courts have held that the zoning authority may impose special conditions or restrictions as a prerequisite to the grant of a conditional use permit, even if the special condition being imposed is not specifically permitted in the enabling legislation, if the special conditions are reasonable, in that they bear a reasonable relation to the public health, safety and welfare and they directly relate to the granted use.”); JNK, LLC, 2007 WL 1653508, at *3 (the General Assembly created the commission as an administrative agency for the purpose of promoting the health, safety, prosperity and general welfare, as well as for the purpose of securing coordinated plans for land use) (citing 9 Del. C. § 4802).

16 for imposing the condition and how it relates to “the health, safety, prosperity and

general welfare” of the public.64

D.

We turn to the two conditions in this appeal. The Superior Court held that the

Commission erred as a matter of law when it required Smokey Hollow to eliminate

lot 64 because it based its reasoning on generalized objections from nearby property

owners. Specifically, the court relied exclusively on complaints by neighbors about

the lot’s proximity to adjoining properties.65 The court failed to consider, however,

the Commission’s primary stated reason for Condition A – environmental concerns

unique to the lot. In its decision imposing the conditions, the Commission stated:

Lot 64 shown on the preliminary subdivision plan is an isolated lot that would be set apart from the remaining subdivision, and it would require crossing over forested wetlands for access. There was testimony in the record that the development of this lot would have the most impact on not only the environment, but also the neighboring residential properties. Testimony from the neighboring property owners indicates that the area where this lot -- this isolated lot would be located frequently floods. For all these reasons, the area where Lot 64 is

64 9 Del. C. § 6802; see also Tate v. Miles, 503 A.2d 187, 190 (Del. 1986) (holding that Council must state its reasons if its zoning decisions are to withstand judicial review). 65 The court found that “six Fox Haven lot owners objected to only one of the lots proposed -- Lot 64 -- because, they claimed, even though it complied with the Code requirements, they felt it would still be too close to their own lots.” Smokey Hollow, 2025 WL 2816524, at *5. It also stated that “with County Council having made the determination through its legislative process that a 30 foot buffer between a lot and the subdivision boundary is all that is required, Respondent is not free to ignore that determination and require an even greater setback or to eliminate Lot 64 entirely, just because nearby homeowners object to that lot.” Id. The court concluded that “[t]o hold otherwise would allow Respondent to impose requirements on Petitioner simply because ‘the prevailing neighborhood wind is unfavorable.’” Id. (quoting Gibson¸877 A.2d at 79).

17 proposed shall remain undeveloped as part of the common area of the subdivision.66

When the Commission denied reconsideration of the conditions, it once again

relied on the isolated nature of the lot and environmental concerns.67 It stated that

“the conditions [Smokey Hollow is] asking us to change our mind on were made for

good reasons” because the lot “was surrounded by the wetlands,” was prone to

flooding, and required “crossing the wetlands to get to the lot.”68 Imposing

conditions based on wetlands and flooding concerns is “rationally related to

addressing, in the public interest, some potential land use impact of the particular

use or development in question” and implicates the public’s health, safety,

and welfare.69

A question remains, however, whether the Commission’s wetlands and

flooding concerns specific to lot 64 were supported by substantial evidence. As part

of the Smokey Hollow subdivision review, the County Code requires an

environmental assessment, which includes addressing wetlands and drainage

issues.70 The Zoning Office reviews those submissions. As far as we can tell from

66 A123. 67 See A153-54. 68 A153. 69 3 EDWARD H. ZEIGLER, JR., RATHKOPF’S THE LAW OF ZONING AND PLANNING § 60:10 (4th ed.). 70 Before the Commission considers a major subdivision application, the developer must submit a site plan or property survey to the Zoning Office. See Sussex Cnty., Delaware, Major

18 the record on appeal, the Zoning Office did not flag as problematic any

environmental and drainage issues specific to lot 64.71

We do not mean to minimize the neighbors’ first-hand observations about

environmental and flooding concerns for lot 64. That is the purpose of the public

hearing – to receive input from affected communities. But before the Commission

can condition subdivision approval on eliminating lot 64, it must do more than rely

Subdivision Application (April 2024) (describing the subdivision and zoning requirements for a compliant site plan or property survey). Because the Smokey Hollow property was in a Coastal Area, the developer had to submit an environmental assessment, public facility evaluation report, and a sketch plan to the Zoning Office. These submissions address, at a minimum:

(a) Proposed drainage design and the effect on stormwater quality and quantity leaving the site, including methods for reducing the amount of phosphorous and nitrogen in the stormwater runoff and the control of any other pollutants such as petroleum hydrocarbons or metals . . .

(f) The preservation and protection from loss of any tidal or nontidal wetlands on the site . . . .

Sussex Cnty. C. § 115-194.3(B)(2). 71 See A033-41. As part of the major subdivision application process, state agencies may offer comments regarding plans before they are reviewed by the Zoning Office. These comments are only advisory. See 29 Del. C. Ch. 92. Here, the Department of Natural Resources and Environmental Control raised concerns regarding wetlands and drainage. DNREC requested that the project “not disturb wetland areas” because “[w]etlands are a critical part of our natural environment. They reduce the impacts of flooding, absorb pollutants, and improve water quality. Wetlands provide habitat for animals and plants and many contain a wide diversity of life, supporting plants and animals that are found nowhere else.” A037. Smokey Hollow stated that the project was “designed to avoid or minimize all impacts to wetlands to the maximum extent possible. A small de-minimis impact for the internal subdivision road and a driveway to access uplands is anticipated. Otherwise all wetlands will be part of open space areas and they will remain undisturbed.” Id. DNREC also requested that “[a]ll existing drainage ditches on the property . . . be evaluated for function and cleaned, if needed, prior to the construction of the project.” Smokey Hollow responded that a portion of the Bear Hole Tax Ditch that crosses the site will be cleaned if needed. Id.

19 on anecdotal statements from neighbors. We remand to the Commission to

investigate or charge others to investigate the environmental and drainage concerns

and receive input from the developer. The Commission can then condition approval

on the developer satisfactorily addressing any environmental and drainage concerns,

or if they cannot be addressed satisfactorily, it can condition approval on eliminating

lot 64. In either case, the Commission must state its reasons for doing so.

For Condition O, the wetlands buffer, we agree with the Superior Court that,

at the time Smokey Hollow submitted its subdivision application, the County Code

did not require a buffer between a residential lot and a non-tidal wetland. After

Smokey Hollow submitted its application, County Council enacted an ordinance

requiring a 30-foot average (not fixed) buffer between residential lots and non-tidal

wetlands.72 Even so, it expressly exempted pending applications.73

The Commission did not explain why Smokey Hollow’s preliminary plan

needed to implement a fixed (not an average) 25-foot buffer. At the April 10, 2024

meeting when the Commission considered Smokey Hollow’s preliminary plan, the

Commission’s counsel simply read the proposed condition into the record.74 The

72 Sussex Cnty. Ord. No. 2852 § 9; Sussex Cnty. C. § 115-193. 73 Sussex Cnty. Ord. No. 2852 § 13 (“This Ordinance . . . shall not apply to any completed applications on file with the Sussex County Office of Planning & Zoning.”). 74 A127-28.

20 Commission then approved the plan subject to the stated condition without

explaining why the fixed buffer condition was necessary.75

The Commission again failed to explain the need for the condition when it

considered Smokey Hollow’s request to amend the conditions. Although the

Commission acknowledged Smokey Hollow’s objections by stating, “[w]e need to

discuss this one” because “[t]hat’s a lot,” the Commission focused exclusively on

Condition A – the lot issue.76 The Commission noted that “[t]here was a lot of

discussion about Lot 64 and [that] the area . . . was surrounded by the wetlands,” but

once again never explained why the separate 25-foot fixed buffer was necessary.77

We therefore uphold the Superior Court’s decision striking Condition O.

III.

The Superior Court’s judgment is affirmed in part, reversed in part, and

remanded for the Commission to proceed in accordance with this opinion.

Jurisdiction is not retained.

75 A129-30. 76 A152-54. 77 A153-54. In its opening brief, the Commission attempted to supply the missing reasons. That explanation was not offered below and cannot be raised for the first time on appeal. See Stephen C. Glenn, Inc., 532 A.2d at 83 (holding that “the [c]ouncil may also impose a special condition which is not set forth in the ordinance if the special condition is reasonably necessary for the public health, safety and welfare” provided the record shows that, before acting, the council had sufficient facts to justify imposing the condition and relied on those facts in making its decision).