When the Town of Bethany Beach acquired parcels of land from the Bethany Beach Christian Church (Disciples of Christ) and the Neff family nearly a decade ago, discussion of the future of the combined property focused on use as a park. Exactly what that term — park — would mean for the 5.8 acres of land was debated at the time, and with a public meeting on looming development plans for the parcel set for this Saturday, Sept. 22, at 1 p.m. at town hall, the debate on the issue is again in full swing.
The Town is now seeking public input on what could be the final design for the park located at the northwest corner of Routes 1 and 26. That comes after the council earlier this summer approved the removal of a substantial number of trees from the property, as part of preparations for further development of the park.
The trees were labeled as “junk trees” and “hazardous,” which has itself become the subject of debate, as those who objected to their removal questioned whether the twisted and stunted trees were, in fact, hazardous and undesirable or might have more appropriately been described as “having character” or being “naturalized.” The impact on wildlife on the parcel has also been an area of concern for some.
While the town council had discussed the plan to remove the trees at workshops this spring and summer and had listed approval of a contract for tree removal on the property on the published agenda for their June 15 council meeting, when the removal process got under way the following week, it took some by surprise, and some voiced their objections to town hall and town council members, and in letters to the editor of the Coastal Point.
“Discussion, consideration and possible vote on contract submitted by L.H. Excavating for the amount of $28,000 for the removal of trees on the Church/Neff property per recommendations by the Town’s arborist” was the final item on the June 15 council agenda. And earlier councils had already given Town Manager Cliff Graviet the go-ahead to make small improvements to the property over time, using town employees, rather than hiring outside contractors. He had in prior years supervised the gradual transformation of the property with the clearing of brush from around the trees.
Graviet had also discussed the recommendation to remove the trees with council members earlier this year, noting that steps needed to address boggy areas on the property could be expected to kill many of the trees anyway, were they left in place. Instead, he proposed to remove many of them, in favor of “specimen” trees to be planted replace them at a later date.
Pond a contested feature of potential park plan
Another aspect of the tentative plan for developing the park included a possible pond, which appeared on at least one loose concept design Graviet showed to council members at their workshops this spring. At their April council workshop, council members had even asked Graviet to obtain bids for the creation of a one-acre pond to be located on the bog area at the northeast corner of the property.
But Graviet reported to council members at their July workshop that the topography of the parcel, with a 6-foot fall from its highest point to its lowest-lying areas, had suggested that, rather than that larger pond at the northeast corner, a smaller ornamental pond located more centrally on the lot would be a better fit.
In addition to its ornamental nature, Graviet said the smaller pond could possibly be used as a diversion area for stormwater, though he admitted that would have to be investigated as to whether it is even possible.
He also said the Town could potentially take the material removed to create the pond and combine it with the shavings from the removed trees and use it as the fill material for the grading operation. That, he said, would substantially reduce the cost of the project, since removal of the material from the site was an expensive portion of any estimates for the project’s cost.
Once the parcel is graded, it would be seeded with grass seed and then the pond could be constructed — if the council decides to build it, Graviet said in July, noting that he would have more details to provide on the plan prior to any council decision.
The pond concept, along with the tree, removal, has become another area of concern for some Bethany citizens, with some citing concerns about its safety, whether it will draw geese or mosquitoes or other potential pests, and whether it would actually worsen the drainage problems the town experiences after heavy rains.
History of wetlands designation colors issue
Both the tree removal and the pond concept have brought back an issue the Town considered to have been resolved years ago: whether the boggy area on the property is, in fact, a natural wetland, and something to be protected, rather than dealt with.
At the time the Town purchased the property, nearly half of the Neff portion was designated as 404, or federally-protected, wetlands, though prior owner Joan Neff told the council in 2005 that she had never been notified that any portion of her property was designated as wetlands.
With a court case pending before the U.S. Supreme Court that was expected to essentially decide whether that classification was correct, town officials had at least one reason in 2005 to wait to decide what would be done with the property. Until that case was decided, there was no way to really know how much land the Town had to work with in developing any sort of use there.
The question dealt with in that court case was the U.S. Army Corps of Engineers’ ability to designate as protected under the Clean Water Act (CWA) wetlands that aren’t immediately adjacent to permanent or navigable waters of the United States as defined by the Corps. And while the area’s canals, rivers and ocean are generally considered “waters of the United States,” the question in the case of the former Christian Church and Neff properties was much the same as in the two cases combined under the Supreme Court decision.
In that decision, the majority opinion read, in part: “…only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between the two, are ‘adjacent’ to such waters and covered by the Act.”
Further, the majority opinion stated: “Establishing coverage of the Rapanos and Carabell sites requires finding that the adjacent channel contains a relatively permanent ‘wate[r] of the United States,’ and that each wetland has a continuous surface connection to that water, making it difficult to determine where the water ends and the wetland begins.”
The decision indicated that the “wetlands” area on the Town of Bethany Beach property would need to have a continuous surface connection to other “waters of the United States” to be protected from development, and according to Neff and Graviet, that simply wasn’t the case.
Graviet, after a May 2005 public hearing on uses for the property, said there were only sporadic spots of surface water and some significant areas that were muddy or damp most of the time. He said some of the wetlands determination had relied upon the presence of wetland plants and that much of the water on the property was the result of pipes buried under it and the impermeable road surface surrounding it — making for what he has since described as a “manmade” bog.
With the court case decided in a way that appeared to indicate the Corps would eventually remove the 404 wetlands designation from the property, the Town proceeded to discuss its eventual use.
Degree of development debated as grant award considered
In 2003, after purchasing the properties, the Town had applied for a state grant the purpose of which was to encourage preservation of open space and green areas. The grant was hoped by town officials to help reduce the net cost of purchasing the property. In late 2004, they were awarded that grant, but it came with strings: restrictions on the types of uses the property could have.
The restrictions would likely have prevented the town from building elements such as a community pavilion on the property. It certainly would have prevented construction of a parking facility or a new town hall, should the Town decide it needed to replace the existing one, and it might also have limited the ability to develop sports courts or other recreational facilities there, as well.
With some citizens and some former town officials advocating the construction of a community center, and others expressing concerns about being tied to very limited uses on a parcel the Town owned, the council in early 2005 voted on accepting the grant and, with a tie vote, failed to give that approval. The grant was, in essence, rejected.
Discussions of the parcel’s use continued into 2006, with some supporting the idea of constructing sports courts, a community center, exercise equipment and more, while others favored retaining green, open space. By the conclusion of discussions that year, the bulk of the council favored naturalized, open-space uses for the property, such as walking trails, and a potential new home for the children’s playground that sat, as now, on space on Garfield Parkway leased to the Town by the Christian Church.
With that decided, the council at that time also championed a charter amendment that required any future changes in the designated use for the property to get a supermajority council vote, limiting the ability of future town councils to scrap the open-space concept in favor of major construction or even selling the property for development.
That didn’t sit well with everyone. Neff told the council at the time that she was concerned their decision-making was a little high-handed.
“I sold the property to the town, not the town council,” she admonished council members. “To the people. They should have a voice in how you use it because they own it. … Let the town have more of a voice,” she reiterated. “These are the people who paid for it — as little as they paid. It’s for the people. They should decide what they want there.”
In the end, the council did put in place the supermajority requirement, but they left undefined exactly what sort of open-space, green concept the park would actually have. And though the Corps did eventually formally drop the 404 wetlands designation for those boggy sections of the parcel, the Town has never again formally raised the issue of what the future park might look like — until now.
With the parameters of a green, open-space use, the comparatively clean slate of a parcel only partially wooded and planted with bright green turf, and its location in one of the most high-profile spots in the entire town, Bethany citizens will get a chance this weekend to offer town officials their input on what these 5.8 acres will become for the foreseeable future.
No date for a possible council vote has been set. No plan to seek a formal design for the park has been announced. But this Saturday’s meeting is likely the first step in a process that will shape a major part of the town’s gateway in the years to come.