Addressing issues raised in a Board of Adjustments hearing last month, Bethany Beach Planning Commission members on Jan. 9 worked to develop an improved definition of an “accessory structure,” aiming to make it entirely clear in the town code what constitutes an attached garage and what does not.
The BoA on Dec. 12, 2012, had held an appeal hearing requested by a property owner who argued that the Town’s building inspector, Susan Frederick, had erred when she concluded that their planned garage was detached from the main house on their property on Second Street. A detached garage has more strictures on where it can be placed, and it cannot have a second story or otherwise be constructed in a manner that might make it habitable space.
But in this case, the very definitions of “attached” and “detached” were at issue. Was a garage connected to a home’s deck by an open breezeway really attached? The property owners said it was, and was thus permitted to have a second story and be placed to the side of the home, rather than behind it. Frederick said she believed an attached garage would have to share some portion of roof or wall with the home and not just be connected with a roofed breezeway.
Board members had split 2-2 on the issue of whether Frederick had made the right call, with one member absent due to medical issues. That left the property owner without an approval of their position, sustaining Frederick’s decision by default and leading to the potential for court action to further review the case once the written BoA decision was filed.
Council members had already made themselves clear about what their interpretation of the code was, asking the town solicitor to represent them at the BoA hearing, arguing that the garage was detached and could not have a second story or be placed to the side of the home.
With the split decision of the board not giving a clear ruling in their favor, they then asked commissioners to look into changing the town code to make it utterly clear that the structure in question, or any like it, would be considered a detached garage and limited as such.
Councilman Lew Killmer, who serves as the commission’s chairman, said on Jan. 9 that he had attended the Dec. 12 hearing. “And I was disturbed about what they regard as an accessory structure. I personally felt that if you asked a young child … is this attached or not attached to that structure…?” he began, expressing frustration with the notion that there was any real ambiguity in the existing code.
But acknowledging that the issue had certainly been raised, Killmer said he had worked to come up with a new definition of “accessory structure,” in consultation with the town’s code enforcement officer and Frederick.
He recommended adding to the existing definition, which reads “a detached building not for habitation, accessory to and on the same lot as the principle structure,” the further definition of “a building or other structure that does not have a wall and/or roof in common with the principal building.” That would hold, he said, even if the accessory building was connected to the home with a fence, breezeway, foundation, rope, etc.
Frederick emphasized on Jan. 9 that she considered the garage in question to be an independent structure.
“It has four exterior walls. It doesn’t share a wall in common,” she said, noting that a breezeway was defined as “a roof connecting two buildings” and that town code simply doesn’t allow for two buildings on a single lot unless one of them is an accessory structure.
“If the breezeway was enclosed and connected from the interior of the home to the garage,” she said, the garage “would be attached. You’re really looking at a conditioned space from one space to the other.”
“Here, they’re actually creating a second unit. They say they are just using it for storage, but someone could come along later,” she said, and use that garage for living space, and the Town would have little or no ability to force that use to stop.
As evidence of just that problem, Frederick noted a similar garage that had been constructed elsewhere in town, prior to her time as building inspector, where the second story was in use as a craft room.
“And they could sell it, and the next person could say it’s a kid’s room or whatever,” she explained.
Another case, she said, happened on Central Boulevard, where the property owner had gone to the BoA for a variance after having attached the garage to the home only on the ground floor. It shared a wall with the house, she said, but the property owners had built two rooms above the garage that did not share space or walls with the house’s second floor. Those rooms had each included bathrooms and kitchenettes, she said, and were both accessed only from outside stairs.
Frederick said she had required the owner to connect the garage to the home on the second story, so that they also shared a roof.
“I don’t care if they lock that door later,” she said, emphasizing that she feels an attached garage needs both a wall and a roof in common with the principal structure. In the case of the Second Street home’s design, she said, “The roof does go from one building to another, but it’s an outside walkway.”
While there is still a potential court appeal of that case pending, commissioners on Jan. 9 took the first step in ensuring that property owners in the future will not be able to argue over the nature of the words “detached” and “attached” as they pertain to a garage.
The new language in the code will need to be approved by the town council before it takes affect.