Bethany Beach Board of Adjustment members were divided last week on the issue of what constitutes a “detached garage” and whether the related town code regarding accessory structures is ambiguous.
The BoA on Wednesday, Dec. 12, heard the appeal of property owners Carl and Beverly Tull, which argued that the Town’s building inspector, Susan Frederick, had erred in determining that a proposed garage on the property was a detached garage, rather than an attached garage.
Under town code, a detached garage must meet the same requirements as any accessory structure, such as a shed. That includes a 15-foot height limit. But the garage planned for the Tull’s property at 314 Second Street is a two-story structure that measures 22.5 feet tall, complete with an interior walk-up staircase. Accessory structures are also required to be placed in the rear yard of a property, rather than alongside the primary dwelling.
As proposed, a covered breezeway leads from the home’s porch to the garage, which is placed to the side of the home. A breezeway is defined as a covered route that connects two buildings. But the question of whether a breezeway constitutes an “attachment” to the home is the cornerstone of the issue heard by the board on Dec. 12.
According to Frederick, town code defines an accessory structure as a detached building not for habitation on the same lot as a primary dwelling. She said she had found the proposed garage to be detached because it has a separate structure and walls that are not integral to the home. She acknowledged that the breezeway links the two.
“But it is an independent structure and does not create a hall by integrating the two,” Frederick noted. She further expressed concern that the garage might be converted into a separate dwelling, with the walk-up staircase and second-story area. Frederick said she believed that potential was significant since the plan indicated HVAC would be installed in the garage, but the Tulls later stated that HVAC was not part of the plan.
Frederick said that, according to code, an accessory structure cannot have habitable space, since that would create a second dwelling unit that the Tull property is not large enough to allow. Instead, she said, the detached accessory structure is required to be located within the rear yard and has a maximum height of 15 feet.
“This lot is too small to support multiple dwellings,” she emphasized. “By default, it can only be an accessory to this main dwelling.”
Board Member Len Kidwell asked Frederick whether an attached garage can legally include livable space. She confirmed that it can.
Frederick said she had reviewed town code regarding accessory structures before deciding on whether or not to approve the Tulls’ plan for the property, but she said there is no standalone definition of the word “detached” in the code. As a result, she said, she looked at the dictionary definitions for “detached.”
“Standing by itself: separate, unconnected; especially: not sharing any wall with another building (a detached house),” she quoted from the first entry for the word in the Merriam-Webster Dictionary.
“And there are no construction guidelines, as far as a detached structure?” Board Member Vahan Moushegian asked. Frederick said there are none in the building codes.
“To what degree can a garage be separated from the principal dwelling and still be attached?” he inquired.
“It would have to be integral or part of the house and share walls,” Frederick replied.
Moushegian offered the example of enclosing the breezeway with walls. Would it then constitute an attached garage? Frederick said it would be, regardless of how close the two structures were to each other. Moushegian asked about the breezeway connecting through the porch, rather than the interior of the house, and whether connecting to the interior of the house would make it attached.
“They would have to share walls, making them one common structure,” Frederick reiterated.
Asked about the elements of a foundation that would make the garage “attached,” Frederick noted that there are many ways to build something, but she said the foundations “would have to have a connection somehow. It could be done several ways.”
“In this case, we have a walkway going from the porch, not the interior of the house. It has all the components of a separate structure, as I see it, and does not have that interior access from the interior of house to interior of garage,” Moushegian said.
Frederick again said that, because the garage is not an integral part of the house, “because it is only connected by a breezeway,” it was not attached. “I have two buildings, and therefore it must be an accessory building, because there can’t be two buildings on this lot,” she concluded.
Moushegian asked about what might make the garage potentially habitable.
“It wouldn’t have to have two rooms,” Frederick explained. “It would be anything more than using it for storage or parking vehicles. They stated that this had storage, but there’s no guarantee this remains that way.”
Lack of definitions brings up issues of possible ambiguity
Attorney Rob Witsil, representing the Tulls, said they were simply “arguing that Mrs. Frederick made an error in determining the garage is detached. We believe it is sufficiently attached to exempt it from the definition of accessory structure. We believe as the designers, it is what it is, and it is a garage, and it is sufficiently attached to meet the definition of attached,” he asserted, noting that there is also no definition of “attached” in the town code.
Witsil referenced Delaware case law, which board members had noted in previous cases favors property owners in cases when apparent ambiguity exists in building and zoning code.
“If there is any ambiguity in the code so she couldn’t figure it out or you couldn’t figure it out, the laws in Delaware … require that if there is any ambiguity — meaning something can be determined in more than one way — that ambiguity must be decided in favor of the property owner, for their use and enjoyment of the property,” he said.
“The code does not define detached or attached,” he emphasized. “If you find Mrs. Frederick is having to use her discretion in determining the code, you have to decide in favor” of the Tulls, he said.
Witsil emphasized that the proposed garage has no HVAC, is not insulated, is not intended for human habitation and is intended for storage, though it has electricity. It has does have outside shower, and Carl Tull said he hoped to have a sink inside.
“It has no plumbing, no culinary facilities, no area for beds for some sort of surreptitious habitation,” Witsil asserted, saying the Tulls would be willing to execute deed restrictions prohibiting habitation of the second-floor area of the structure.
Moreover, Witsil said, the garage “cannot be located behind structure due to unique shape of the cul-de-sac lot,” which is pie-shaped and backs up to the canal, and the location of the rear setback.
Witsil focused on the issue of the definitions involved in the case.
“The definition of garage doesn’t say what a detached garage is. It says what it’s not: an accessory building when not attached to the principal building,” he said. “There are 50 references to ‘attached,’ in the code but no definition of ‘attached.’”
Witsil said he had consulted Funk & Wagnall’s “Standard Dictionary of the English Language,” which defined “attach” as “to make fast to something, to fasten or affix.” He emphasized that there was no reference to being integral or to a principal structure.
He also referenced two other Bethany Beach properties he argued have similar garages that were apparently approved by or at least ignored by a prior building inspector.
“The code requires that accessory buildings be in the rear yard,” he emphasized, offering photographs of a structure on Oakwood Street. “This is an almost identical-type structure approved in 2007, except it has an overhead walkway… This does have some habitable space in it. The Tulls have no method of making this area habitable.”
Another home, in Turtle Walk, he said, “has an attached garage with a walkway not quite as elaborate or detailed as the Tulls propose. Both the Oakwood and Turtle Walk garages are in excess of 20 feet in height but were approved as garages,” Witsil noted.
Asked about the Town’s records of the two properties, Frederick said she had no references in the files to the garage at the Oakwood property. The Turtle Walk property, she said, had a reference to the fact that the space above the garage would not be habitable.
Carl Tull told board members that, while the breezeway is attached to the porch in the current design, it could be attached to the home’s mudroom instead, by moving it back 10 to 15 feet. He said that, except for the walk-up stairs to the second floor, the garage is the same type as that already in place on Oakwood. The stairs, he said, were chosen over a pull-down attic-type stair, because he and his wife are retiring and moving to Bethany permanently.
“We currently have a pull-down stairway, but I’m not sure I could do that at 73 or 86,” he said, adding that it just seemed easier to have a set of walk-up stairs, also to eliminate some of the difficulty in retrieving things from the upstairs area. “We have no intent of using any part of the garage as a habitable area.” He noted that they have owned the home since 1999 and have never even rented it. “We intend to live there full-time and use it in its entirety, without any renter.”
Tull said he would consider an area habitable if it had heat or some kind of climate control, as well as water, sewer and “a lot more electricity than just light bulbs. You’d want something for cooking, none of which we have in here.”
Asked what he and his wife would do if the board decided that the garage was detached and couldn’t be taller than 15 feet, Tull said he expected they would have to redesign the home to add storage for items such as Christmas decorations.
But Witsil said the impact of such a finding would be even larger, since a detached structure would have to be built in the rear yard. “There would not be able to be a garage at all, because the layout of the lot would prohibit any detached structure from being in the rear yard. There is no rear yard behind the house.”
Designer Tim Tice, who said he has been designing custom homes in coastal Delaware for eight years, said he had had no idea when designing the home that the structure in question would not be defined as a garage. He said the walkway is attached to the house and garage, noting that the walkway counts toward lot coverage calculations. He confirmed there is no HVAC, plumbing or other facilities that would facilitate habitation on the second floor.
Asked if the structure could be located on the rear portion of the lot, Tice said, “Not in my opinion, not the way I interpret it.”
Frederick, though, noted that that problem was of Tice’s making.
“They’ve designed it so there’s no way to put a garage behind the house,” she said.
Kidwell said he believed that Tice could design a home with storage in the house and a 15-foot-tall garage.
That line of thinking might be a consideration in a normal BoA case, since the impact of a board’s decision on the property owner can be one factor in how they decide the case. However, BoA attorney Rebecca Trifillis noted that potential hardship on the owner is not a factor for this kind of appeal. “You’re simply determining if it is detached or attached.”
Ambiguity of code referenced in Ocean View lawsuit
Moushegian acknowledged the legal precedent favoring property owners when code is found to be ambiguous.
“It’s true that when things are ambiguous, it must be decided in favor of the land owner,” he said. “But people can differ as far as how code is interpreted. It has to be a reasonable interpretation. … If we interpret it your way, anybody can build a principal dwelling and then build a walkway and attach it to any kind of structure or dwelling, and then we have an attached building. … And that’s certainly not what was intended by the town.”
“It may not be what was intended,” Witsil allowed, recommending strongly that the Town revisit that section of code. “It needs a very precise definition of detached and attached.”
But that isn’t what the board was there to decide on Dec. 12, Witsil asserted.
“The laws … require that if there is an ambiguity, you need to decide in favor of the applicant this time. Then you can go back and address it in the code. I don’t think it would stand up on appeal,” he told the board of the finding that the garage is detached.
“It has to be a reasonable interpretation,” Moushegian reiterated. “It can’t be an interpretation that would lead to an absurd result or would result in gutting the code … just by building a walkway.”
But Witsil argued that if the code is not clearly written, a legal appeal would likely look at the practice of the parties, which would include the two properties with similar garages.
“I’m leery of adopting a course of action where somebody else had done it and, because they did it and appeared to get away with it, we can do it as well, especially if our code says to the contrary,” Moushegian said.
“Your code doesn’t define detached, doesn’t define attached,” Witsil countered. “‘An ordinance must be clear, precise and definite in its terms; and ordinance that is imprecise to the point that its meaning cannot be determined is invalid,’” Witsil quoted from recent case law involving an Ocean View zoning case. “It says you should not be required to guess to make a determination.
“It is a garage and is attached,” he argued. “But it isn’t attached to Mrs. Frederick’s satisfaction. You can’t rely on Mrs. Frederick’s interpretation. She may not be here next week. Someone else made a decision on these other two structures,” he pointed out. Referencing the Ocean View case and a similar one in Dewey Beach, he said the finding must be decided in favor of the property owner until the code is corrected.
Town makes case for Merriam-Webster
Attorney Greg Morris, representing the Town of Bethany Beach, argued on Dec. 12 that the board was only being asked to make a determination as to whether Frederick had followed the definition of “detached,” “not whether someone else did it. Her interpretation is valid and following the law of the Town of Bethany Beach.”
Morris said the case law presented by Witsil actually helps the Town’s case.
“He said there is no definition in the code for ‘detached.’ But not every word in the code is defined. Sometimes you have to follow the common definition. ‘The code must be read under familiar principals that can be interpreted under common and ordinary meaning,’” he quoted from one ruling.
Morris again referenced the Merriam-Webster definition of “detached,” which reads: “Standing by itself: separate, unconnected; especially: not sharing any wall with another building .”
“If you find that she followed the definition of detached, this is over and done,” he told board members. “Some words have a common meaning that anyone can follow.”
Moushegian asked Morris whether the building inspector “has the inherent discretion to determine whether it is attached or detached based on the connection of the two buildings,” noting that Frederick had said that, if the breezeway was enclosed, it would be attached. “Does she have the discretion to conclude that an open walkway means it is detached from the house? If there is that discretion, is there not that ambiguity?”
“I don’t believe she has any discretion at all,” Morris said. “She has to follow the town code, and the town code says it is detached. The common meaning [of attached] is that it shares common walls. She didn’t use any discretion,” he asserted. “She made a decision, yes, but that was not discretion.”
Kidwell queried board attorney Trifillis, asking if the existence of the other potentially non-conforming garages would hurt the argument that Frederick’s finding in this case was correct, should the board deny the Tulls’ appeal.
Morris replied, saying, “I believe the building inspector wrongly approved these properties. Attached means ‘sharing common walls.’”
“Then why doesn’t the code say that?” Witsil countered. “It includes a foundation, footings, tied-in overhead beams, trusses, shingles — that’s attached. There’s more than one definition going around in this room, and I’ve already told you what the law requires. This appeal needs to be granted and your town needs to move on.”
Dictionary to become part of town code?
Board Chairman Bob Parsons acknowledged the issue, saying he suspected Witsil was correct that the Town needs to take a look at its ordinances and definitions.
“You said it’s not right that you have to go back to the dictionary — that, in effect, it ought to be right there in the code,” Parsons said to Witsil. “In the case you gave us,” he added of the Norino v. Ocean View case, “it says the ordinance must be read under the familiar principal that words are to be given their common or ordinary meaning. And what do we use for that? We would have to attach a dictionary to that section of the code and define every single word in it, or go the way that Mrs. Frederick did.”
But Witsil disagreed that the code speaks for itself. “When it comes to the critical issue of whether a garage is attached or not, you need to say, ‘attached by four walls’ or something. There’s no question that this is attached,” he asserted again. “If Mrs. Frederick’s interpretation is that it has to be attached by four walls and HVAC-controlled space, it needs to say that in the code, and it doesn’t.”
Moushegian reiterated that the courts were saying in those decisions that they should use the common, ordinary definition of attached.
“The common, ordinary definition of attached is ‘meets, affixed,’” Witsil retorted. “It might be minimal attachment, but it is attached. There’s not a person in this room who could look at those two buildings and say they’re not attached.”
“We’re talking about degrees of connectivity, which I’m troubled by,” Moushegian continued. “You’re saying that any type of connection to another building on the property would be considered attached. I don’t think that’s what the Town intended.”
“We don’t know what the Town intended,” Witsil replied. “It shouldn’t be Mrs. Frederick’s decision to come up with a definition of ‘integral.’”
Asked for his definition of “attached,” Witsil said, “I would define it as ‘connected.’ If I was to rewrite the code, I would define it as HVAC-controlled. The easy way to handle this is to say we agree and grant the appeal,” he told the board, urging them to find for the Tulls and avoid the time and money the Town and his clients would spend fighting the issue in court.
“On the other hand, we may not want to prohibit something like this, because it is an attractive building,” Kidwell put in. “I’m concerned about the ambiguity in the definitions of what ‘attached’ is,” he added. “I think that makes it a very difficult job for our building inspector. I agree the Town should address this so it doesn’t become such a challenge to the building inspector.”
Moreover, Kidwell said he believes the Tulls’ proposed garage is attached to the house. “It is attached through the roof, the decking. I’m not even thinking about the next one at this moment,” he said of potential changes to the code. “I’m thinking about this case. But this fits my definition of attached.”
Parsons said, “The ambiguity seems to persist, absent any town council action. Meanwhile, we have the examples … of what had been the practice in the past. One of the things we have to do is be consistent with how we rule. We want our building department to be consistent with the laws as written and with practice.
“I think it’s unfair to an applicant such as Mr. Tull to say to Mr. Tice, ‘I want you to design a house’ and ... he doesn’t know about this requirement for a common wall. My opinion of the definition for an attached garage isn’t relevant. My opinion is that such a requirement should be obvious.” Parsons referenced a past board case in which a garage became habitable space. “It had not only habitable space but an apartment,” he noted.
But asked about his finding in this case, Parsons said he believed the structure was an attached garage.
“It is attached because it’s connected. The foundation and roofs are connected. The porch that faces east … has a roofline that is connected to the house and goes over to the garage, and it’s connected there. There’s no space. If A is connected to B and B is connected to C, then I would conclude every time that A is connected to C, much as the links of a chain.
“And A is a house and C is a garage?” Trifillis inquired.
“It certainly looks like a garage. It has doors like a garage. It says, ‘garage.’ It must be a garage,” Parsons concluded.
Separate but not equal
Referencing Parsons’ chain analogy, Board Member Thomas Mahler said he was looking at the issue very narrowly. “I think part of the decision here has been aptly clarified by the town attorney,” he said. “We’re here to decide on the meaning of attached, and now we’ve brought another word in: ‘connected.’” Noting the definition Frederick had used of “detached” and the existence of a separate foundation and four exterior walls and not being integral to the primary structure,” he said he agreed with her that it was detached.
Moushegian said he felt the ordinance must be read in a way that words are given their common and ordinary meaning. “The building inspector has tried to apply the common and ordinary meaning and has done so by going to the dictionary and finding the definition. My concern is that, if we interpret this provision as being ambiguous, again requiring the Town to rewrite the code to define attached — I’m not sure that is what is really called for.
“I think when you say ‘detached’ or ‘attached’ building, that has a common usage in most people’s minds. Detached is separate. We have a connection, but is that enough to make it a whole? It could have an elaborate connection or not an elaborate connection. Does that make the statute itself ambiguous?”
“When we have a garage with storage space above that is separate but connected with a walkway, that does not satisfy what we would comprehend as being an attached structure,” he continued. “I’m not sure it’s reasonable to interpret, as the appellant has, that this connection walkway is sufficient to overcome what we would otherwise describe as a detached building. I would describe the interpretation by the building inspector as the reasonable interpretation. Any other definition is contrary to what would be defined by ordinary terms.”
“I think we just made their point,” put in Kidwell. “Two people who have one interpretation and two others who have another interpretation,” he said of the board’s positions.
Trifillis told the board that she was fairly sure that the board’s decision to reject the Tulls’ appeal would itself be appealed in the courts and, in the end, the courts would likely reverse the building inspector’s ruling. “You have the case of two precedents, and the board is split, and the main problem being ambiguity. That points in the direction that perhaps the code is ambiguous. But that’s for you to decide,” she emphasized.
“I realize there is a difference of opinion, and code definitions can be interpreted differently, but that doesn’t inherently make them ambiguous,” replied Moushegian. “The building inspector has defined them as commonly defined. I feel we are on strong ground.”
Morris agreed, saying he felt the Town had a strong case that Frederick’s ruling was valid and would be upheld.
“I disagree with the alleged interpretations of the previous building inspector,” Morris said, rejecting the impact of precedent in the existing garages. “He may have totally missed the boat on this. Just because he was wrong doesn’t mean she can’t get them right. Because if she didn’t enforce the code and use the common or ordinary meaning, she wouldn’t be following the law. We don’t know that he even looked at this issue.”
Witsil said he felt his case was also in the dictionary.
“If there are two definitions of detached or attached, then it’s ambiguous,” he said. “‘Attached’ means ‘fixed’ or ‘connected.’ To go beyond that and say it has to be attached by four walls means you’re susceptible to two definitions. Once you find there is ambiguity, it’s your job,” he said, to rule in favor of the Tulls.
Frederick reiterated that the code reference was not to the word “attached,” but rather to “detached.” The definition of “detached,” she emphasized, referred to a detached accessory structure. She said references to “attached” garages indicated that they were part of the primary structure and could share the same height limits. “What you’re finding when it is attached is that this is all one structure,” she argued.
With the board member still divided, they voted 2-2 on the appeal, with one member absent. Without a majority voting in favor of the appeal, it was denied. Parsons recommended the town council look at clarifying that section of code.
Witsil indicated he and the Tulls planned to appeal the decision to the courts. A written finding would be issued within 60 days of the hearing, and the Tulls have 30 days after that to file their appeal with the courts.