The fight over Delaware's new by-right housing law has reached the small beach town of Lewes, and builders are already talking about going to court.
The Lewes City Council is considering a temporary ban on new housing developments with more than five homes, Spotlight Delaware reported. The city's planning commission said the moratorium is its response to Senate Bill 23.
If it passes, the moratorium would last until Lewes adopts a new comprehensive plan or until Dec. 31, 2027, whichever comes first. The council could vote at its Nov. 9 meeting. The city is collecting resident feedback for its next plan, which is due in October 2027.
What SB 23 does
Passed in June to speed up homebuilding and encourage lower-cost housing, SB 23 bars public hearings for building plans that don't need a zoning change, known as "by-right" developments, according to Spotlight Delaware.
Supporters say it's a logical way to shorten approvals and lower building costs, because local governments can't deny by-right projects anyway. But the law has sparked outrage across fast-growing Sussex County from preservationists who say it removes a needed layer of transparency.
The city's case
At the city's Oct. 7 public hearing, Planning Commission Vice Chair Kevin Keane tied the proposed moratorium directly to SB 23. He argued the city's comprehensive plan doesn't have enough legal standards to make sure developers build the way residents want, and that public hearings filled that gap.
A moratorium, he said, would give Lewes time to adopt concrete rules with resident input as part of the new comprehensive plan. "We just haven't had an opportunity to allow for that public input yet," Keane said.
Builders push back
Home Builders Association of Delaware President Jon Horner said his group would sue the city if the moratorium passes.
At the hearing, Horner argued that towns need a valid reason to adopt a moratorium, and that there aren't any large tracts of land left in Lewes that could host a big housing development. He also said the law changes only the process for by-right projects, not the outcome.
"If I come in right now with a major subdivision that is code-compliant, you have to approve it. All Senate Bill 23 does is say you can't have a public hearing when you do that," Horner said.
Not everyone reads the law that way. Joe Pika, a Lewes resident and president of the Sussex Preservation Coalition, said SB 23 does change outcomes. Spotlight Delaware reports some lawyers interpret the law as barring local governments from putting conditions on projects, such as requiring a fence. The bill's prime sponsor, Sen. Russ Huxtable, D-Lewes, said he disagrees with that interpretation.
Residents weigh in
Pika supports the moratorium. "I think every jurisdiction needs to have a delay to figure out how do we measure up against this new process that has been mandated by the state?" he said.
Resident Jim Colbert said he doesn't mind new development but worries about farmland and green space, and that "there needs to be more long term planning." Lee Dunham said she's all for the moratorium, calling development "out of hand," and said she favors affordable housing but that's not what's being built. Local artist Abraxas Hudson said he sees both sides. "Every new home is an opportunity to sell art," he said.
Could it spread?
Spotlight Delaware reports similar moratoriums could be adopted more widely if Lewes' holds up legally. Millsboro Town Council discussed a moratorium earlier this month. Sussex County has paused reviews of by-right developments, though not through a formal moratorium.
The Sussex County Council will discuss updates to how it's carrying out SB 23 at its meeting Tuesday, Oct. 27, at 10 a.m. at the Sussex County Administrative Office Building, 2 The Circle, Georgetown.
Why it matters for contractors
Sussex County is growing fast, and this could squeeze the housing pipeline. If adopted in November, a Lewes moratorium could stop new projects with more than five homes for as long as about 14 months, by our count. If it holds up in court, other towns like Millsboro could follow, and the county has already paused its by-right reviews.
Builders and subcontractors working coastal Delaware should follow the Nov. 9 Lewes vote, the Oct. 27 Sussex County Council discussion, and any lawsuit from the Home Builders Association. The outcome will help decide whether SB 23 actually speeds up approvals, or whether towns find ways to slow them back down.