Bethany adopts zoning amendments, minus proposed rezoning of two lots

While recent weeks have been filled with feedback and commentary from Bethany Beach citizens regarding proposed zoning amendments, council members at their May 17 council meeting adopted all but one of the amendments unanimously, and with little additional comment from those present at the meeting.

The council last Friday held votes on six of the seven recently proposed zoning amendments, some of which addressed room size and density for commercial lodging. What was likely the most controversial of the seven amendments — a change in zoning from residential to commercial for two lots — was not up for a vote last week, and the Town has not announced when, or even if, it will be.

Developer Jack Burbage, however, did address the proposed rezoning as he kicked off discussion of the topic at the May 17 meeting during a public-input segment. It is Burbage’s proposal to redevelop the Bethany Arms Motel property as a roughly 100-room hotel that initiated the Town’s discussion of most of the zoning amendments and the subsequent discussion of whether they should be adopted.

“Bethany is going to change, whether I do it or somebody else does it,” Burbage told the council and others present at the meeting. “I want to be part of that.”

Burbage pointed to a number of past projects that he said people had objected to but that are liked now, including the redevelopment of the Blue Surf Motel and the redesign of the bandstand.

“I hope to provide reassurance to all the residents that have doubts,” he continued, “so they can see the positive change that took place before and will again.”

Burbage spoke of preserving the “rich tradition of Bethany” and hoping that people could “work together today as we have in the past.”

“I want to preserve those traditions,” he added, referencing the town’s history of offering commercial lodging. “Something is going to happen to that property. Somebody is going to do something with it. I would like to be that person. I’m asking you to consider rezoning the lots on the south side of Hollywood,” he told the council.

Those two lots — 96 and 98 Hollywood Street — have been the location of commercial lodging units (apartments leased short-term) for decades and were once designated as part of a medium-density multi-family residential sub-zone that has since been discarded.

The potential rezoning of the lots from residential to C-1 commercial — a zone in which commercial lodging is a permitted use — has seen opposition from some citizens and was dropped from the group as the rest of the zoning ordinances reached the council vote stage.

Council members address background of zoning votes

As discussion began for each of the six ordinances that were up for a vote last Friday, several council members offered their take on the controversy.

Councilman Joseph Healy thanked Councilman Lew Killmer, who heads the town’s planning commission, and the other commissioners for their work on the code changes. He said the ordinances were a way of “managing change, as opposed to having change just happen. Adapting, managing change, relates to our philosophy of the Quiet Resort. This is a process that has been followed over the last half-century. Nothing has changed,” he emphasized.

Councilman Jerry Dorfman first took issue with emails he said he had received on the subject of the zoning ordinances from two members of the board of directors of the Bethany Beach Landowners Association (BBLA), describing them as telling him “what a great guy I am and how much I’ve worked on behalf of Bethany Beach citizens, but both told me that if I wouldn’t vote the way they wanted me to, I wouldn’t get re-elected.”

Resident Tracy Mulligan later addressed the issue of the emails, saying that any such comments had not represented an official position of the BBLA board and that the board would have to discuss in the future how its members should address council members on such issues.

“I expect the town council will make a decision that is appropriate,” Mulligan concluded.

Dorfman went on to say that, having served seven years as a councilman and 10 years participating actively in the town’s government, “I take my responsibility to the citizens very seriously. This is an update to ordinances that, in some instances, make no common sense and are not consistent with the rest of the code, which is fairly modern and understandable. We are not lowering the standards,” he asserted.

“This would make it more practical for the current or future owner to construct a contemporary hotel on the C-1 portion of the property if they choose,” Dorfman acknowledged. “Hotels have been an important element of what Bethany Beach has been since it was founded,” he emphasized, referencing the construction of “what would be considered a mega-hotel on the beach before 1910” by a minister of the Disciples of Christ, which helped found the town.

The Seaside Inn, Dorfman said, “grew and grew in size until it was destroyed in the 1962 storm; but before it was destroyed, it was joined by many other hotels, not the least of which was the old Sussex Hotel in the early 1900s, which stood on the site of where the Bethany Arms is today.”

Dorfman referenced the Town’s comprehensive plan, which has also been a reference point for opponents of the zoning changes, and its reflection of hotels in the town’s past and as part of its “forever lost but not forgotten heritage.” He said the comprehensive plan calls on the Town to preserve its resources, “And hotels are an important part of the fabric of what made Bethany Beach what it is today.”

He went on to reflect that many of the town’s residents “had their first experience of Bethany Beach while staying in a hotel. It is part of the town’s culture and history. … I will vote today how the town’s founding fathers would have wanted me to vote today and do what I think is best for Bethany Beach.”

Vice-Mayor Jack Gordon pointed out that at the public hearings held on the zoning amendments, citizens had asked that council members openly state their rationale for how they would vote.

“The owners of the Bethany Arms properties in question are determined to sell them,” Gordon said. “They will be sold — if not now, then in the future.”

“That property has been used for lodging since at least late 1950s,” he continued. “I believe maintaining hotel/motel lodging in Bethany Beach is in the best interest of all of the citizens of the town. Other uses are not desirable. There is no requirement to provide off-street parking. The setback requirements for other C-1 uses are not as desirable as those for lodging.”

Gordon said Burbage’s presentation of his hotel concept over the winter had resulted in the council taking a look at its zoning ordinances related to property.

“I believe some of town’s current ordinances are unreasonable, ill-conceived and not practical compared to current requirements for providing hotel services today,” Gordon continued. “Some of the ordinances are contrary to other ordinances in effect at this time.

“This has been given substantial considered thought over a period of months. We have considered the testimony at public hearings and all the correspondence,” Gordon added. “It is my belief that my votes will represent what is best for the entire town.”

Livable floor area definitions, larger minimum size adopted

The council went on to consider each of the six proposed ordinances one by one, beginning with the ordinances adding the definitions of livable-floor-area (LFA) and LFA square footage to the town code and an ordinance increasing the minimum LFA square footage for commercial lodging rooms from 150 square feet to 200 square feet.

The ordinances define LFA as “the interior of a dwelling unit, which may be occupied for living purposes by humans, excluding basements, open decks and attics. Livable floor area does not include an attached garage or any accessory structure and shall conform to the Bethany Beach Building Code for residential occupancy.”

Livable floor area square footage is defined as “all floor area space in a room, not including but not limited to stairwells, hallways, columns, closets, toilet rooms, showers and bathrooms,” which are excluded from the calculation.

Public comment on the minimum LFA ordinance generated some more generalized commentary on the entire original slate of seven ordinances, including the rezoning, and Mayor Tony McClenny repeatedly reminded speakers to limit themselves to commenting on the single ordinance up for a vote by the council at that moment, as is the council’s usual requirement.

Then, on two separate, 7-0, unanimous votes, the council approved the increase in LFA and the addition of the LFA-related definitions.

“It carries unanimously,” McClenny commented on the vote to increase the minimum LFA square footage. “We are in favor of requiring larger rooms.”

Minimum size of lodging rooms reduced to industry standard

Discussion and commentary was more extensive on the ordinance changing Footnote E of the Town’s Table of Dimensional Requirements, which offers a set of such requirements in a single condensed form, rather than the individual requirements as spread out throughout the town code.

Killmer noted that Footnote E reflected the Town’s current minimum size for a commercial lodging unit (including both LFA and the related closets, bathrooms, etc.), which is either 850 square feet or 1,000 square feet, depending on whether the unit has a kitchen inside it.

As council members have noted, the 850- and 1,000-square-foot figures are generally perceived as nonsensical, since the smaller figure relates to units with kitchens and the larger one to units with no kitchens. But, they reflect the makeup of units at the Bethany Arms at the time at which that portion of the code was adopted.

The new proposal was to change the minimum size of a commercial lodging unit to 300 square feet, which Killmer had reported was pretty much of an industry standard in the modern era.

Comments on the issue last week trended toward moderation, with suggestions that cleaning up the old code was a good idea and one citizen commenting that “I have no idea if 300 or 450 is better, but it’s certainly better than 800 or 1,000.”

Another citizen urged the council to “look at the practical considerations of the change,” saying that, by his calculations, a minimum room size of 300 square feet would allow up to 160 rooms to be built on the Bethany Arms property.

“I realize there are other constraints, that that’s not the only controlling criteria,” he added, but expressing concern that, with Burbage having suggested 115 parking spaces would be built to accommodate 100 rooms, a smaller minimum room size might require more parking.

“What happens if we use 400?” he posited of the minimum room size. “That would be about 121 units. That’s more in tune with the reality.”

He said he agreed with McClenny that rooms in such a project would undoubtedly exceed the minimum 200 square feet of LFA, but that he was concerned that the 300 square feet overall room size minimum would apply to all of the town’s commercial zones and “might encourage a developer. I think the existing parking requirement is a critical control,” he added. “It might significantly decrease the number of units.”

Killmer noted that there was certainly the possibility that a number of the rooms in Burbage’s proposed hotel would be larger than 300 square feet, particularly if suites are included, as has been suggested. He said 300 square feet was just the starting point.

“They can’t go below that, but when you throw in the requirements for livable floor area, all the items in the code that are not included would by definition make the room bigger, since you still have to have 200 square feet of livable space.”

“It can’t be less than 300, and 200 of that would have to be livable space,” Killmer concluded. “The ordinance specifies what doesn’t count.”

The council then voted 7-0 to approve the change.

Council adopts refined definition of accessory building

Taking a break from issues impacting potential commercial lodging development, the council then addressed an ordinance to refine the definition of an accessory building under town code.

Killmer noted that the idea behind the change was to “eliminate other possible interpretations,” as had become an issue for the Town when a property owner appealed the building inspector’s determination of what is and is not an attached garage and Board of Adjustments members had split on whether the existing definition left room for other interpretations.

“Some members felt it was up for interpretation,” Killmer said. “I believe the one we have now prevents that from happening.”

With lesser requirements on attached garages than on detached ones — the latter defined by the Town as an accessory structure, as opposed to being part of the dwelling — the question of whether a garage is attached when connected to a home only with an open, roofed breezeway was the core of that hearing this past winter. The BoA split on the clarity of the existing ordinance left the decision by the building inspector in place, but a legal appeal is possible.

Under the new definition, an accessory building is “a detached building, not for habitation, accessory to and on the same lot with a principal building. A building or other structure that does not have a wall and a roof in common with the principal building but is connected to the principal building by way of but not limited to a deck, walkway (covered or open), a buried foundation, knee wall, trellis, railings or any form of fencing shall be considered an accessory building/structure.”

Council members again voted unanimously, 7-0, to approve the change.

Updates to code, Table of Dimensional requirements adopted

Returning to issues that might impact a potential hotel project, as well as other potential projects, Killmer introduced a revision intended to eliminate a conflict between the Town’s Non-Residential Design Guidelines and other elements of town code. With the code being law and the design guidelines having the force of law and being a part of the code, the conflict needed to be resolved, he said. Council members voted 7-0 to resolve conflict so that both documents are consistent.

The council then went on to discuss a series of six small changes to the Table of Dimensional Requirement, most of which fell under the heading of housekeeping. Among them, a change to a single category of commercial-residential, eliminating three separate sub-categories of residential use (apartments, hotels, etc.) and restating that residential use in the C-1 commercial district is limited to the second and third floors of a structure, with commercial use mandated on the first floor.

The second change adds to the table a reference to parking requirements for commercial lodging, which was present in the text of the town code but not in the TDR. Another change corrects typos and updates the last date of adoption of the design guidelines as referenced in a TDR footnote.

A fourth change eliminates a reference to residential use in the C-2 zoning district, where residential uses are not permitted. The reference had previously been removed from the code but not from the TDR.

The final two changes to the TDR were intended to clarify what was mandated under the design guidelines in terms of maximum height, in which a 35-foot maximum height allows for up to 4 feet of peaked roof and no flat roofs may be constructed at a height of more than 31 feet.

The first of those two changes removes a reference to that 31-foot height and leaves only a reference to a footnote that elucidates the policy allowing up to 35 feet in a peaked roof and no more than 31 feet in height at the roof sill. The second change replaces a sole reference to the 31-foot maximum height in the C-2 commercial district with a reference to that same footnote.

The council voted 7-0 to approve each of the six changes to the TDR, with McClenny noting before the final vote, “The Planning Commission has a lot of perseverance. This does make it a lot easier to follow.”

When, or if, the final of the original seven proposed ordinances — the rezoning of the two lots on Hollywood Street as commercial — will be up for a council vote was unknown this week. It was also unknown whether the Town might opt to follow the suggestion of some citizens that the issue of rezoning be taken to a referendum so that citizens could decide it themselves, or at least voice their opinions at the polls.

Burbage told the Coastal Point last week that he might be able to move ahead with his hotel project with slightly fewer than the 100 rooms he had proposed, but whether he could or would do so without the residential-zoned lot he planned to buy with the Bethany Arms being rezoned as commercial was also unknown this week.