South Bethany Town Council amends FAR ordinance

South Bethany Town Council members voted 6-0 last Friday to close what some had described as a “loophole” in the town’s floor-to-area ratio (FAR) ordinance, in the wake of both a Board of Adjustments decision and a court ruling that went against the town’s interpretation of the code.

On Dec. 10, Councilman Bob Cestone – who was one of the council members who originally drafted the FAR ordinance – emphasized, “We’re not changing the intent. We’re just clarifying the definition.”

Cestone said the return of FAR to the town’s legislative plate “started due to a misinterpretation of the section of code that refers to FAR, that limits the size of houses.”

Councilwoman Sue Callaway noted that the town had also adopted limits on the number of kitchens and bathrooms in a home. She asked about the intent of the two limitations.

“The intent,” of the restrictions on kitchens and bathrooms, Cestone said, “was to indirectly control number of people in a house, to make it less attractive to large numbers of people.

“FAR,” he said, “was intended to limit the bulk of the house,” which had resulted from the trend toward “McMansions.”

The argument over the interpretation of the code comes in how the FAR is calculated. That number is limited to 71 percent of the lot size, so eliminating or adding certain elements of a home from the calculation can make a significant difference in whether it is within the limits.

“We wanted to make it clear that people, if they had pilings under their house, they could pave it and that didn’t count,” explained Cestone.

So the original ordinance permitted structures less than 6 inches above ground level, such as paved driveways or ground-level decks, or open stairways, without counting them in the FAR total.

But at least one home owner who built a home in recent years interpreted the exclusion to also include storage areas at ground level. That, Cestone said, was not the original intent of the ordinance.

But when the Town tried to enforce the limit in that case, it was appealed to the Board of Adjustments, who found in favor of the home owner, saying that the home owner’s interpretation was reasonable. The town appealed that ruling to the courts and also lost that case.

“You’re saying that was the intent of the code when it was written; but the way it was written, there was a loophole, where it was not specific,” clarified Councilman George Junkin. “They took it to the Board of Adjustments, who said that, if the law is ambiguous, they have to side with the home owner.”

The case raised the issue of whether the town really wants to exclude non-livable space, such as unheated storage areas, from FAR calculations. The home owner in the case asserts that it should.

“I won’t sponsor or support an ordinance that will increase the bulk of a house,” Cestone said adamantly. “There were people who challenged it then. It went to a binding referendum, and the majority of people in town favored keeping the ordinance as approved, as implemented.”

“What Bob tried to do is make the words consistent with what the intent was,” Junkin noted of the amendment up for a vote on Dec. 10. “If the people of South Bethany want to make it so storage doesn’t count, they’d need a new ordinance.”

“If she wants to change the law, then an ordinance should be presented to change the law,” Cestone added. “This is not to change the law. That’s not my intent.”

Discussion of the details of the wording they would use in changing the ordinance nearly stalled its adoption this week. But with concerns expressed that more home owners might take advantage of the loophole now that it was publicly known to exist, council members sorted through their concerns and agreed to a slightly modified wording. (Cestone said one home owner had already tried to use the loophole but had been denied a permit to do so and had not pursued the matter.)

The ordinance, which passed on a unanimous vote with Councilman Tim Saxton absent, also included some housekeeping changes, such as the new name of the building code that is the basis for the town’s building code, and clarification that property owners must get needed permits from Sussex County, the State of Delaware, FEMA and any other state or federal agency that requires them before the town will approve a building permit.

Gross fills vacant seat

The council managed a 6-0 vote on Friday, with one member absent, because it had already appointed its newest member, resident Jim Gross.

Gross came prepared for business on Dec. 10, offering a list of concerns and possible minor changes to the FAR ordinance amendment during a public hearing at the start of the meeting.

The council, Mayor Jay Headman noted, followed established procedures in the town charter, which states that a majority vote of the remaining council is needed to approve a replacement to an empty council seat – which was created last month by the resignation of Rob Youngs.

The replacement council member then serves until the next election, at which time any remaining time on the council seat is up for election under normal procedures.

Gross has owned property in South Bethany since 1964. He is an architectural engineer who formerly worked at the National Institutes of Standards and Technology. He has served on the town’s Planning and Zoning Commission since 2007, having spent two years as its chairman.

Noting also that Gross has three children, nine grandchildren and one great-grandson, Councilman John Fields said, “He’s obviously devoted to South Bethany. He’s bright, and I think we should have him on the council.”

The appointment was approved on a unanimous 5-0 vote.

Also on Dec. 10:

• Headman reported that negotiations on local towns’ franchise agreements with Mediacom were now in the hands of a lawyer hired by several of the municipalities.

• The council voted 5-0, with Junkin abstaining, to appoint Junkin as council secretary.

• Headman and Town Manager Mel Cusick reported that trash haulers were asking the State of Delaware to push back a yard-waste ban due to be implemented Jan. 1 to allow more time to collect Christmas trees. The town, they said, would be meeting with haulers to see what options it has as a municipality for disposal of yard waste. Cusick warned residents not to put yard waste out with their trash after Jan. 1, because it will not be picked up.

• Callaway reported that the Beautification Committee had met for three hours recently, focusing on a long-term plan for the Route 1 median and walkway areas, with input from Rick Gentile of Bethany Beach Gardens.

“The committee is very committed and wants to work on creating a long-term plan that will lead to ‘a wow factor’ when you drive into South Bethany, something unique and distinctive,” she said, noting that the group would be finalizing the plan through early January.

• Fields said that, of the 1,297 park survey packets mailed to property owners on Nov. 18, 927 had been returned by 3:30 p.m. on Dec. 10, with more time left for those postmarked by 4:30 p.m. that day to arrive. That’s a 71.55 percent return rate, which will likely go up once the mailed packets have all arrived. The surveys were to be tallied by Election Board members on Dec. 16, starting at 9 a.m. at the town hall.