Bethany Beach could vote on zoning proposals Friday

Bethany Beach Town Council members were set this week to discuss and potentially vote on a series of proposed zoning amendments that have been met with opposition from some property owners in the town. The council has on its May 17 agenda all but one of the amendments, opting to not yet put up for a vote what might be the most controversial element of the package — the proposed rezoning of two residential-zoned parcels to commercial zoning in a nod to their existing and proposed uses.

Bethany Beach citizens had gathered by the dozens at town hall on May 3, eager to hear from Town Councilman and Planning Commission Chairman Lew Killmer about a series of proposed zoning amendments and to offer their own comments. In the second of two public hearings scheduled on the amendments, Killmer discussed the reasoning behind them and responded to questions from citizens.

Town officials have taken some care in how they have described the proposed changes, acknowledging that most of them arose as the result of the Town having been approached by property owners regarding the commercial zoning code and the Bethany Arms Motel property on Hollywood Street between the boardwalk and Atlantic Avenue but asserting that they were not designed specifically to clear the way for a proposed hotel project on that property from developer Jack Burbage.

“The staff determined the code needed a review,” explained Mayor Tony McClenny on May 3. From there, he said, the issues were sent on to the town’s Planning Commission, which voted unanimously in March to ask the town council to make the six changes. Killmer — who heads the commission and serves as its liaison with the council, but who is not a voting member — brought forth their detailed recommendations.

Prior to a council vote on such changes, the Town is required to hold two public hearings, which it did on March 15 and May 3, leading up to an expected vote at their May 17 council meeting. A separate meeting organized by the Bethany Beach Landowners Association in mid-April also addressed the topic.

Recognizing that at least some of the proposed changes have already proven controversial with some citizens, Killmer on May 3 ordered the six proposals from least to most controversial, getting some of the less controversial ideas out of the way before what was expected to be extended comment and questions from those in attendance.

First, he discussed adding definitions to the town code that explain the terms “livable floor area,” “livable floor area square footage” and “accessory building.” Killmer said livable floor area is referenced in existing town code but is not defined at present, though it should be.

Livable floor area, by the proposed definition, includes the area of a dwelling use for living, specifically excluding areas such as stairwells, hallways, columns, closets, pantries and toilet rooms, showers. It also excludes an attached garage or other accessory structure, unless that structure meets the town code requirements for residential use. Livable floor area square footage is simply the calculation of the space those livable areas occupy in a structure.

Killmer then discussed the proposed updated definition in town code for an accessory building. With a potential court case involving the issue still pending, the Town has been keen to end any perceived ambiguity in the existing definition that would allow an essentially separate garage structure to be considered attached to the primary structure.

The new, tighter, definition, Killmer said, would specify that an accessory building — such as a garage — is detached from the primary structure and not for habitation, a standalone structure. It would be deemed attached and not an accessory structure if it has four exterior walls and is connected to the primary structure by elements such as a deck, buried foundation or shared wall.

In the case before the Board of Adjustments that led to the proposed revision of the definition, the otherwise detached garage was attached to the primary residence only by an open breezeway with a roof. The town building inspector had rejected the two-story structure as an illegal non-conforming detached garage, whereas the property owner argued it was an attached garage and thereby not subject to some of the limitations on detached garages, including a reduced height limit.

BoA members split 2-2 on the issue during their hearing, which left standing a decision in favor of the building inspector’s existing ruling, unless a successful court appeal should find in favor of the property owner.

Proposed size change could mean more density

Delving into some of the more controversial elements of the proposed legislation, Killmer went on to discuss the proposed increase in minimum livable floor area (LFA) for commercial lodging inside town limits.

Currently, that minimum LFA is 150 square feet. The proposed change would increase that minimum to 200 square feet of LFA, which Killmer said meets current industry standards and better meets the definition of a motel or hotel.

He noted that a standard hotel room now measures around 300 to 400 square feet in total, including such things as bathrooms and closets, with 200 square feet of LFA being the norm. A standard suite might measure 800 to 950 square feet, offering more non-LFA elements in many cases and usually more LFA, as well.

Existing town code also references a minimum overall size for a commercial lodging unit of 800 square feet when it includes a kitchen but, incongruously, 1,000 square feet when it does not include a kitchen. Town officials have said that the code was likely designed to meet what existed in the Bethany Arms at the time, where some units had been renovated to include kitchens and others had not.

“How many people have a bedroom that’s 20 by 50 feet?” Killmer asked rhetorically. “It doesn’t make sense — requiring less space for a bedroom with a kitchen than a bedroom alone.”

Some of those in attendance at the hearing took issue with Killmer’s question, though, arguing that references to a 1,000-square-foot bedroom were irrelevant when the 1,000-square-foot minimum is, in effect, a control on how much density a commercial lodging project can have, rather than a minimum size for a single room.

“The old code said five units per 5,000 square feet,” Killmer acknowledged. “We are upping the permitted density for commercial lodging.”

“Why?” he was asked.

“Because it conforms more to what the industry standards would be,” he replied, in a response that he would repeat several times that afternoon.

“This is our little town,” one critic said. “Why do you personally want to increase the density?”

Killmer said the proposed change was a recommendation of the Planning Commission and pointed out that he is not a voting member of that body.

He was then asked why the commission hadn’t, in essence, split the difference between the existing density and the industry standard, requiring a minimum of 500 or 600 square feet for a room, rather than dropping down to 300 or 400 square feet with 200 square feet of LFA.

“This is what was recommended,” he replied, reiterating, “We haven’t been asked for anything [specific]. That’s why we’re here. We’ve been asked to look at the zoning because someone proposed the possibility of putting a hotel there, so we looked at what the industry standards were.”

Referencing the Bethany Beach Landowners Association (BBLA) meeting on the issue, critics reported that it had been said that the density was being reduced “because a major hotel wouldn’t come in unless there were at least 100 rooms. Why should we kowtow to major hotel?” they asked, referencing the potential for two cars per room to need parking, where there is currently no parking required for commercial lodging and the proposed hotel is expected to include one space per room.

“You’re going from five units to more than 16 units? And just because someone recommended it? Why?”

“Why not?” Killmer replied.

“A lot of people are opposed to it,” they emphasized. “This is our little town. Just because they have that in Rehoboth Beach … why should we have it here?”

Height limit an area of conflict in sections of town code

Moving on to the proposal to amend the Town’s Table of Dimensional Requirements (TDR) regarding buildings containing apartments or commercial lodging units, Killmer noted that the Town currently has three different residential structure types and four different commercial structure types. The proposed change, he said, would simplify things down to a single commercial structure category instead of those four.

Reviewing the elements of items in the TDR, Killmer noted there was no conflict between the existing code and proposed code regarding minimum lot area, minimum street frontage, maximum lot coverage, front and rear setbacks or provision of parking. Commercial properties have no side setback requirements except where they adjoin residential districts, so he found no conflict there, either.

“The conflict is only in the maximum height,” Killmer said.

According to Killmer, the TDR references a 31-foot height limit in the C-1 commercial district, but a footnote references the Town’s non-residential design guidelines, which allow for a property with a non-habitable sloping roof to reach up to 35 feet tall — a maximum of three stories and 31 feet to the top plate or eave, plus up to another 4 feet of roof slope to its peak.

Killmer noted that the difference between the height limit in the residential code and that in the non-residential guidelines had been a nod to the simultaneously adopted requirement that structures in the C-1 district have commercial uses on at least the first floor, with residential use permitted on upper stories, and to the fact that commercial structures typically have higher ceilings, ranging from 10 to 12 feet high, instead of 8 feet.

“In this case, we’re trying to eliminate the conflict between the code and the design guidelines,” Killmer emphasized.

He was then asked if the proposed changes were intended to permit a hotel or improve revenue streams for the town. If so, they asked, had a risk assessment been done? Was there a record of a similar community making such density changes? Were there lessons to be learned from another community that “had gone down a similar path?”

Killmer pointed out that, other than a loose vision of the proposed hotel project that Burbage presented to the Town, they really have no knowledge about what Burbage wants to do.

“When and if plans are submitted,” he said, “that is the appropriate time for some of those issues. This is something that might not even happen,” he emphasized. “Since there’s no plan, we have no way to contemplate any review.”

At that point in the conversation, Killmer took a beat to remind citizens of the town’s history.

“The town of Bethany Beach has historically had a hotel in it at some point in history. They’ve come and gone. They’ve been knocked down and destroyed, fire, etc.

“This is last hotel left in the town,” he emphasized. “Mr. Burbage is looking at the current use, and that may be why he’s looking at buying this property and continuing its use as a hotel property. It’s obvious that the things we’re talking about today do have an impact on a future hotel, because that is the premise of why we started looking at this,” he concluded.

Killmer was asked if, under the revised code, the proposed hotel would be higher than the existing Blue Surf condominium and retail project next door, which sits at the maximum height allowed.

“It wouldn’t be higher,” he said. “Nothing can be built higher than that.”

Asked about the potential impact of allowances for decorative cupolas, Killmer noted that cupolas up to 4 feet by 4 feet were allowed by the design guidelines, to encourage architectural diversity, and that the Blue Surf indeed has some. But he pointed out that the decorative caps for some of those cupolas had, in the end, needed to be left off to conform with the height limit.

Killmer also revisited the history of the design guidelines, which were developed by a committee that included council members, citizens, consultants and town staff.

“They have the force of law,” he pointed out. “The goals included the construction of attractive buildings with a respect for local tradition; to maintain commercial uses and basic services downtown and on Route 26. The Blue Surf was built and designed using the design guidelines.”

Rezoning proposal remains controversial, not on agenda this week

Finally, Killmer addressed the proposed rezoning of lots known as 96 and 98 Hollywood Street from R-1 residential to C-1 commercial.

The existing main building for the Bethany Arms is zoned for commercial use, he noted. The parcels comprising 96 and 98 Hollywood Street are zoned residential but have been in use as multi-family short-term residential dwellings since the 1950s, consisting of multi-bedroom apartments, under separate ownership, that are often rented on a weekly basis during the summer.

Looking back at that history, Town Manager Cliff Graviet noted that the town’s original zoning code, created in 1954, included three different zones: D, residential; E, commercial; and F, industrial (which was the Town’s water tower). The D district was subdivided into D single-family residential and D-1 multifamily designations. Among the parcels designated as D-1 were a portion of the modern Bethany Arms property and a parcel on the south side of Hollywood Street.

Then, in 1957, Graviet explained, the Powell family — who owned the parcels that now make up the Bethany Arms — requested to put two buildings, each with four multi-family units (apartments) on the oceanfront south side of Hollywood Street on property zoned D single-family. They asked for and received a variance from the town council, which was the procedure at the time. That variance is permanently attached to the property, even if it is sold to a new owner.

In 1960, Graviet said, the Powells came back to the Town and requested the zoning be changed for a parcel on the south side of Hollywood Street (currently a part of the Bethany Arms), from D single-family to D-1 multi-family. That request was approved by the town council and then went to a referendum, in which voters approved the rezoning.

In 1968, the town’s new comprehensive plan listed that parcel and a second one under the zoning designation of medium-density residential.

Then, a subsequent changing in the zoning system, in 1978, created the current residential zones of R-1 (lots with 50-foot frontage, generally located on the east side of Route 1) and R-1 (generally larger lots, on the west side of Route 1). In that new zoning, the southern parcel — 96 Hollywood Street — was kept zoned as residential, despite the approved and ongoing multi-family use, but there was no reference made to those prior multi-family and medium-density designations within the residential category.

“Why wasn’t this brought under commercial back in 1990?” Killmer was asked by a property owner who said she had purchased commercially-zoned property that had a residential use and that its zoning had subsequently been changed to conform to its use. “Why wasn’t the Bethany Arms included in the 1970s?” she asked.

Killmer said he couldn’t answer that question. “I wasn’t here,” he explained.

“You had the opportunity then,” she stated.

Separate from the Powells’ various parcels in the two-block area around the beach block of Hollywood Street is another parcel, located on the southeast corner of the Hollywood Street/Atlantic Avenue intersection and designated 98 Hollywood Street, which is owned by a separate set of owners. On that parcel is another apartment building, containing four more apartments, with a total of about a dozen bedrooms between them.

While there is no official sale in progress for either the Bethany Arms parcels or 98 Hollywood Street, Burbage told council members during his proposal that he had worked out an option to purchase the Powell-owned property, pending the outcome of exploring the potential for a hotel there. He currently has a contract to buy the Powells’ property.

Burbage confirmed to the Coastal Point this week that he has also approached the owners of 98 Hollywood Street about potentially purchasing that property, hoping to incorporate it in the project, too. But he said he has not reached a deal with them and was actually still awaiting a response from them as to what they would deem an acceptable offer or if they are even interested in selling.

Despite that fact, both parcels have been considered for rezoning, following along with their longtime uses. The council’s agenda for their May 17 meeting, however, did not include the rezoning aspect of the proposed zoning amendments.

As it stands, the Bethany Arms includes 58 units, between the 50-unit motel and apartments, and 96 Hollywood Street contains another four apartments (about a dozen bedrooms), taking the total number of current units involved in the proposal to 62, and the number of bedrooms to well above that. Were the 100-room hotel project to move forward on the Powell-owned parcels, the smaller hotel rooms would replace the 58 larger units they own.

Changing zoning, procedures detail history of properties, uses

Graviet on May 3 pointed out that, according to the the 1985 zoning map of the town, there was 9.1 acres of C-1 commercial property at that time. While commercial lodging uses in the residential zone had existed in that area of Bethany Beach for decades, by 1990 all of the C-1-zoned property north of Garfield parkway had been converted to R-1 Residential zoning, reducing the amount of C-1-zoned property by 2.8 acres, to about 6 acres in all. That shift, Graviet said, should be noted.

“The idea that the father of the modern-day zoning code created the perfect zoning and it shouldn’t be changed… It already has,” he emphasized.

Under current zoning, Graviet said, the C-1 district includes hotels, motels and rooming houses, apartments and bed-and-breakfast lodging, as well as shops, restaurants and other retail uses. The R-1 district includes dwellings with up to four units, garages, accessory buildings and limited types of home-based businesses.

“R-1 is the most restrictive,” he noted. “The least restrictive is commercial.”

Addressing another point raised by critics of the proposed amendments, who have suggested the council put the matters up for a referendum, Graviet pointed out that the apartments owned and operated as part of the Bethany Arms had been approved for that use under a referendum, which was the way zoning changes were made prior to 1960.

He emphasized that that procedure has since changed, putting the development of zoning changes under the auspices of the Planning Commission and the determination of whether those zoning changes are adopted up to a simple council majority vote, once two public hearings are held.

Asked whether the town code would permit a referendum to be conducted to decide on a zoning change, Graviet said that, since a zoning change is an ordinance change, a referendum could apply.

Questions regarding the variances granted on the properties in the past were also asked on May 3, such as what the standards for granting a variance back then would have been like, especially compared to a more restrictive modern variance requirement.

“I can only imagine that, back in 1954, with very few people living here, it wasn’t as restrictive,” Killmer acknowledged.

He explained that the Planning Commission’s position in recommending rezoning had been that this was an opportunity to rezone property that had historically been used in a commercial manner as far back as records go and that is currently used in a commercial manner.

“The mandate of the zoning code is to eliminate as much non-conformity as we can,” he emphasized. “This is a very controversial issue,” he acknowledged. “Some people feel it should be left as is, as R-1. Others feel changing it to commercial would be the appropriate thing to do.”

Boardwalk access, impacts on views subject of questions

A number of details were also discussed during the May 3 hearing.

Asked about whether the Bethany Arms would be connected to the boardwalk, as the Blue Surf is, Killmer said the town’s building inspector said it would be. He acknowledged there was a resulting potential to further limit the northeast-facing ocean view of neighboring homes to the south. It was pointed out that the potential reduction of existing ocean views is a problem that property owners face whenever a new structure is put up to their east.

Killmer was also asked about how much control the Town would have over a project developed on the rezoned parcels if they were to be rezoned as C-1. Could they, for instance, require site plan approval, “so the town council gets what they want and not another use?”

Killmer said he believed that designating limits on future use would be a consideration in the process, such as limiting it to commercial lodging only.

Absent such a limitation, the potential legal uses for the property on the north side of Hollywood Street, which is already zoned C-1, could include such uses as a strip mall or a mini-golf course.

Killmer said it couldn’t become a parking lot, which is not a permitted use in the C-1 district. A gas station might be legally permitted as a use, but Killmer was skeptical that it could ever happen.

“That would be the most expensive gas station ever,” he commented to laughter. “Besides, I don’t think DNREC would let them do that.”

For the existing R-1 zoned property on the south side of Hollywood Street, redevelopment would be limited to single-family homes, with as many as four separate homes permitted on the property at 96 Hollywood Street. Graviet said that would involve four separate sets of setbacks, as well as increasing height toward the beach side, due to flood elevation.

Or the owners could choose to keep the existing apartments. Killmer noted that while a non-conformity in any case such as this would likely be grandfathered in, that grandfathering of a non-conformity is a different matter than the variance that was granted for the apartments.

“In the event something happens to a grandfathered use, it cannot be rebuilt as non-conforming,” he explained. “In the case of the apartments,” he said, “it could be rebuilt because it had a variance.”

Town officials were also asked whether a hotel project developed on the property would be a single building that would run across Hollywood Street.

“There will be two buildings. You [the town] own that street,” Killmer said.

Speed of ordinance changes questioned

A number of critics at the May 3 hearing questioned the speed with which the Town has moved ahead with considering the Planning Commission’s recommendations for the zoning ordinance changes.

“If you don’t know what the plans are, I don’t know why the Town is so anxious,” one critic said. “It’s been residential forever, with a non-conforming use. Now we have the opportunity to put it back to the residential that it was meant to be.”

“It’s not putting it back,” Killmer argued. “It is residentially zoned. It was never used as residential.”

“But why do you want to change it to commercial?” she continued. “We’re here because there’s a hotel that wants to be put up. Why rezone it to commercial before you know it’s really going to have it?”

Killmer said the reasons were those he’d already offered, relating to conformity and the historical use.

“Is it because it won’t be purchased for a hotel if you don’t go ahead and change it?” she asked.

“It’s been used commercially for more than 50 years,” McClenny stepped in to comment.

“There’s a commercial use there now,” added Councilman Jerry Dorfman. “We’re trying to put it back where the use has been for the last 50 years.”

“We have also done the same type of rezoning on the north end of the boardwalk,” McClenny continued. “We rezoned a block and a half on the south end of town to recognize its uniqueness. We would be changing the zoning to recognize what the use has been.”

“We’re making a huge, huge decision on the future of Bethany Beach,” she replied. “Nothing has ever gone forward this fast. You’re creating more commercial south of Hollywood Street.”

Killmer was also asked about comments from the Jan. 19 Planning Commission meeting, during which he reportedly said that the commission “wanted the project done in a manner that would minimize negative impacts.”

“I appreciate that concern,” she said. “But what negative impacts were you referring to?”

“There are people in this room and who have communicated with the council who are not in favor of having a property rezoned, or having hotel in that area,” Killmer replied. “Any changes to that will be looked at by individuals who don’t wish to have it there … as a negative. There’s nothing that would be put there would satisfy them, no matter how well it was done. But it’s the Planning Commission’s and the Design Review Committee’s job to make sure it meets our definition of what makes Bethany Beach Bethany Beach.”

While comments on the proposed ordinance changes continued to pour in after the May 3 hearing, council members put on the agenda for their May 17 council meeting discussion and potential votes on all but one of the changes. Not appearing on the May 17 agenda is the proposal to rezone 96 and 98 Hollywood Street from R-1 to C-1. The council meeting is set for 2 p.m. on Friday.

Whether or when the potential rezoning might get a vote was unknown as of Coastal Point press time this week.