Fenwick sets Feb. 3 workshop on freeboard, building height

Fenwick Island officials will hold a workshop on Tuesday, Feb. 3, at 2 p.m. at town hall, to get input from the public on the proposed Chapter 88 flood-damage reduction ordinance that council members have been wrestling with for months.

The core of the ordinance has already been adopted, with a 6-0 vote at the council’s Jan. 22 meeting, but divisions over the issue of “freeboard” — requiring or incentivizing property owners to build the lowest level of their homes above a certain height — have repeatedly pushed back adoption of the ordinance to a point perilously close to the March 15 deadline for the town to retain its eligibility for the National Flood Insurance Program.

Council members expressed reluctance to approve the ordinance last Friday, citing a desire to get the entire subject resolved — including the controversial element of freeboarding, whose most ardent supporters initially planned to vote against adopting the ordinance as written.

“I do believe in global warming and sea-level rise. I think, 100 years from now, you’ll see a polar bear only in a controlled environment,” prefaced Councilman Todd Smallwood. “I do believe in freeboard,” he continued, saying he felt that 2 feet of freeboarding should be mandatory in the town, which saw significant flooding from the bay side during Hurricane Sandy. “I will vote no, because it doesn’t go far enough.”

Smallwood said that, supporting the 2 feet of mandatory freeboard, he didn’t think it was fair not to then allow any new construction in the town to have an additional 2 feet of building height, above the existing 32-foot height limit in the town.

Further, he said, “If we allow an additional 2 feet in height, we need to indicate where that is measured from.” The Town currently bases building height measurements from the height of the road fronting the property, while some other towns have based their measurements on base flood elevation or allowed a choice between the two.

“I don’t want to pass this now and look at it again in a few months,” Smallwood said. “If we don’t do it, we will do a disservice to people building in the future, jamming them into the 32-foot height.”

Building height has been and remains a controversial issue in the town and other Delaware beach towns, as properties have been built taller over the years, causing concerns about such things as blocked views, reduced air circulation and light penetration for neighbors with smaller homes.

So, while the core of the flood-prevention ordinance was to meet FEMA requirements by adopting new flood hazard maps, designating a floodplain administrator, defining administrative procedures and creating criteria for developing in the flood-hazard area of the town, the issue of freeboarding has made the process of adopting it a slow one.

Freeboard details remain controversial, even among supporters

Councilman Bill Westling Jr., in introducing the second reading of the ordinance last Friday, explained that it included the 2-foot mandatory freeboard — approved by the council on first reading — as well as a version of the model flood-prevention ordinance from FEMA that has been approved by State officials.

In regard to the latter, he noted that, in the past, all references to base-flood elevation were related to the first floor of a structure. With the new ordinance, the reference is instead to the lowest level of ductwork.

On the issue of freeboarding, Weistling said he was in favor of it but that he preferred, for now, to adopt the ordinance without it.

“People oppose the height restriction, and some want a modest height but want more information about freeboarding and the criteria to be used if it is mandatory,” he acknowledged. “I don’t like to keep saying this, but January is not a good time to do this, with the amount of interest expressed,” he added of the controversy.

Councilman Gardner Bunting said he believed the council should adopt the ordinance with 2 feet of mandatory freeboard.

He noted that it would not be alone in such a step, as South Bethany had adopted a 2-foot voluntary freeboard, with a provision for up to 2 additional feet of height for the structure if freeboarding is used; Ocean View had adopted a mandatory 2-foot freeboard; Millville had adopted a mandatory 1-foot freeboard; Dewey Beach had adopted a 1-foot freeboard with additional requirements; Lewes had adopted a mandatory 18-inch freeboard; and Sussex County had adopted a voluntary 2-foot freeboard with an allowance for up to 2 feet of additional height.

Councilman Euene Langan said he felt it was the council’s responsibility to pass the ordinance, “given what’s going on with sea-level rise.” Langan earlier in the meeting had asked engineer Kyle Gulbronson of URS what the latest data about sea-level rise indicated, after Gulbronson reported on the nearly completed Town sea-level vulnerability study. Gulbronson had confirmed that the threat wasn’t improving.

“He just told you it’s not changing. Sea level is rising, whether you believe in the science or not,” Langan emphasized. “It’s our shared responsibility to help our residents protect their homes.”

Mayor Audrey Serio said she agreed with Smallwood’s position in support of mandatory freeboarding.

“Anyone who went through Sandy and doesn’t believe we need 24 inches of freeboard is crazy,” Serio said. “We had water 30 inches high coming through houses. We have to let people be able to do this, so that when a storm comes through they are high enough.”

Serio emphasized that the problem faced by the council was related to the date by which the ordinance had to be adopted. “I don’t think anybody sitting up here,” she said of the council table, “really disagrees with that chapter, or really disagrees with freeboard. Everybody knows it’s a necessary thing.”

She said she felt the council had “gotten themselves into a corner,” with pressure to adopt the ordinance in time to avoid losing NFIP protection, but “I also know two people up here seriously don’t want to pass it without having the height issue addressed. … This is not something that can lag on forever,” she added. “We’re in agreement, so I hate to see anything voted down.”

Councilwoman Diane Tingle was that second voice of opposition to adopting the ordinance as drafted, agreeing with Smallwood that a 2-foot freeboard should be mandatory in the town but also that she could not vote for approval without having the building height-related issues resolved.

Deadline leads to debate on proper process for adoption

Weistling said he felt the currently proposed ordinance wouldn’t pass on its second reading for that reason, which would force the Town to start the adoption process over again with a first reading, which could push the adoption back past the mandatory adoption date of March 15. He suggested a stop-gap measure of amending the ordinance to eliminate the freeboarding concept and adopt the basic elements required by FEMA.

Alternatively, Serio suggested the council table the second reading of the ordinance altogether and take it back up at the council’s February meeting, thus avoiding having to start over with another first reading.

“We can meet and meet and meet until we come up with the measuring point,” she suggested, noting that that measurement is defined in the Town’s zoning code, rather than a federal or state document.

Weistling said that doing so would mean a first reading of the zoning change would have to be held at that same February council meeting. “If we adopt freeboarding, that automatically gets us into issues involving height.”

“I don’t want to see us getting into the situation we were in several years ago,” Smallwood said of having a series of presentations made “and getting nothing done.”

Serio said she wanted to address both the core ordinance and freeboarding at the same time — a later time than Jan. 22. “People will have more understanding as to why these things have to be done,” she explained.

Council members and Town staff debated the potential timeline for adopting a revised ordinance, with a variety of permutations, all of which were constrained by the March 15 deadline and requirements for time to pass between meetings and for advertising them.

Langan suggested they remove the freeboarding provision from the ordinance and adopt it, “so we’re not up against the wall at the last minute. We can take care of the other issue at the next meeting.”

But Weistling said he had been told by the town solicitor that removing freeboarding would require a new first reading, because it would substantially change the ordinance, but that his understanding had been that if the council changed an ordinance in a way that made it less restrictive than previously proposed, it could be voted upon without a new first reading.

Town Manager Merritt Burke told the council that, if they agreed that it was not a substantive change and was less restrictive, it could be a second reading.

The council then agreed to drop the freeboarding provision from the ordinance on its second reading and to deal with the issue separately, “with the understanding that we will set up a meeting as soon as the vote is taken and start work” on the freeboarding and related height issues,” Serio emphasized.

The revised ordinance, adopting the core ordinance and new FEMA maps, was approved by a 6-0 vote, with Langing voicing a reluctant “yes.”

The council immediately set a public workshop to discuss Chapter 160, as pertains to building height and freeboard, for Tuesday, Feb. 3, at 2 p.m. at town hall.

Misleading information, public awareness discussed

Resident Lynn Andrews told the council last Friday that she hoped to see more public participation in the process. “When you’re doing anything about changing height in this town, you have to have more public participation. The residents have to be notified you’re even thinking about it.”

Serio replied that the issue wasn’t a change in height so much as a change in the way the height of a home is measured.

“This is going to change the height of the buildings — not all of them, but the ones who will be affected will be really, really upset,” Andrews said. “You have to educate the public about what freeboarding means, what it means for the height. It is gospel in this town that our buildings stay small.”

“The word I’ve been hearing from everyone is that anything that happens to the height is going to immediately devalue the properties in the town,” Smallwood said.

“Not everybody agrees,” Serio replied.

Resident Phil Craig said the change to incorporate freeboarding is a necessary one.

“This is no longer a little fishing village or retirement community. Nobody would want to give back the value added to their homes,” he said of the appreciation of property values over recent decades. “I don’t understand why you don’t want to give the next generation the safety and freedom from water incursion into the basement.”

Craig said information published in the newsletter of the Fenwick Island Society of Homeowners (FISH) had been incorrect in that it said some other local towns hadn’t yet taken action on the FEMA ordinance requirements.

“Why do we have to be last at every one of these things? Why do we have to follow someone else’s proactive approach? This should have been done a long time ago. You have known about this for years. The house on the ocean has a ridge 10 feet higher than the guy on the bay,” who he said had more danger posed to his property. “The issue really boils down to fairness. It’s not about people wanting a taller house. On the ocean side, you never have water incursion.”

Weistling said the issue in the 1970s had been damage to ocean-side homes from breaches in the dunes, but that the threat was now to the bay side.

“The whole key to the thing is safety,” Serio added. “We have to think about the people coming here, not us. My job sitting right here is to make sure any decision we make we’re making for the safety of those within the town, not because the roofs are going to be higher or lower.

“They’re that way now. You look at three houses on the same street built in different years. They’re different heights, as they should be. You should be able to build the way you want, but the houses should be able to be built safely.”

Weistling also expressed his dismay at the FISH newsletter, which he said had also suggested that the Town hadn’t done a good enough job of getting the word out about the meetings on the issue, even though they were set at prior council meetings, with FISH officers in attendance.

Resident Vicki Carmean replied that it was hard for people to keep abreast of the issue during the winter and that there had been a need for more time before adopting the ordinance for people to get information and clarification.

“We didn’t set those dates. It was sent to us with the date it had to be back in,” Serio emphasized. “We’ve had more workshops in the last few months than any time in the last few years,” she added, noting that experts on the issues, as well as State and County officials and Gulbronson, had all participated. “I don’t know what else we can do. If they had given us until Sept. 15, that would be different.”

Building Inspector Patricia Schuchman noted that the Town had been invited two years ago to look at the preliminary FEMA maps but that inaccuracies had been found in the maps, leading to the Town only having the finalized maps to work from for about a year. Burke said the maps had been posted for the public to review but noted that Schuchman had been out for several months, which delayed things, as she was the lead person for the issue.

“We didn’t intentionally make it go slow,” Serio added.

One resident at the Jan. 22 meeting acknowledged that he hadn’t heard of freeboarding until November and hadn’t realized then the impact it would have, including on the height limit. He said he thought people knew about the FEMA maps but didn’t understand it would involve freeboarding and impacts on building height, but that he hoped the process dealing with those issues would go slow and that citizens would be kept informed.