City Implements Subdivision Sunset Provision


by Terry Rogers

In 2007, the City of Milford approved a site plan for Simpson Crossing, a 231-unit development with 30,000 square feet of commercial space along with community center facilities. Unfortunately, the developer fell on hard times when the housing market fell in 2008 and the 186-acre parcel was listed for sale. In 2015, Milford School District proposed buying the property in order to build a 1,400-student high school but that option was scrapped when the district failed to pass a referendum.

Recently, the property was purchased at auction for $3 million and construction has begun on roads for the original development which was approved over 12 years ago by the City. Based on City Code, the developer did not have to return to the City for approval of the site plan as, at the time it was purchased, there was no “sunset provision” in the town’s code.

“In order to address this issue, City Council amended the Subdivision ordinance this past fall adding an expiration for subdivisions,” Rob Pierce, City Planner, explained. “Developers have five years from final subdivision approval to begin construction. The City cannot retroactively impose the expiration so any subdivision that was approved at the time of the code amendment have five years from that date to begin construction or the plan approval expires.”

This addition to the Subdivision Code requires that a building permit be issued and construction commenced with the intention of completing the development within five years in order to meet the requirements of the code. There also can be no cessation of activity longer than 12 months.

The Simpson Crossing property must follow the original site plan filed in 2007 even though it was approved before the changes to the code. Development standards change over time and it is possible that the standards included in the original Simpson Crossing development may no longer meet requirements for developments. Sussex County has a Sunset Provision and documentation indicates that the Simpson Crossing plan expired in 2012.

“Should the five years lapse without the owner pursuing re-approval, the plan shall be considered expired,” the new code reads. “Expired subdivision plans shall be deleted from the City and County property records by deleting individual subdivision lots from the official tax map and by eliminating the undeveloped parcels from the assessment records.”

The code is clear that any extension of the five-year approval must be implemented prior to the expiration of the five-year period. In other words, the Simpson Crossing developer would have needed to file for an extension before May 2012 in order for the site plan to remain valid. As it stands now, the plan is valid until 2023, five years from the date the code was implemented.

According to City officials, this provision helps the City confirm that developments that have been dormant for several years, usually due to financial constraints, continue to meet current standards. It also prevents a new developer from changing a site plan significantly so that it no longer matches information recorded with the City and County.