South Bethany rejects moratorium for FAR modification


South Bethany Town Council members on Oct. 8, in a 2-3 split vote, refused to institute a moratorium on building permits for which the floor-area ratio (FAR) excludes an enclosed area at or below 6 inches above ground level. The moratorium was designed to give the council time to approve a proposed amendment to the existing FAR ordinance that town officials said one designer had interpreted to exclude some enclosed areas near ground level, thus making the structure exceed FAR limits as were intended when the ordinance was originally drafted in 2004.

Councilman Bob Cestone, who helped draft the 2004 ordinance, said the intention had been to exclude ground-level decks, boardwalks and driveways underneath homes on pilings from the FAR calculation, but to include any areas that were enclosed, such as storage areas.

When the issue was challenged by the designer before the town’s Board of Adjustments, over the exclusion of an enclosed area from the FAR calculation, the BoA found in favor of the designer, and against the town, saying the interpretation of the ordinance had been legitimate, even if not what the council had intended.

“This is an attempt to correct that,” Cestone explained of the proposed amendment to the ordinance, which requires three readings and a vote for passage in order to be put in place. “In the meantime,” he said, “we don’t want anyone to misinterpret that in those three months.”

The moratorium would have lasted until the council adopted the new ordinance amendment or until no later than April 8, 2011.

Councilman Robert Youngs objected to the notion of a moratorium, noting that changes to ordinances require three readings “because it allows time to get input. My belief is that this [resolution] is presumptuous and arrogant, because it assumes the ordinance is going to pass and puts changes in place immediately while we go through the process – it’s just perfunctory. I don’t like it.”

“That’s why there’s a termination date on this,” Cestone countered.

Mayor Jay Headman asked whether the town was enforcing the FAR ordinance as Cestone said had been intended, rather than as interpreted by the designer in question. That was confirmed.

“So this is a change in wording, but not a change in intent or application of this ordinance?”

“We’re not changing the intent,” Cestone agreed. “There was a misinterpretation of the wording. They went to the BoA, and they agreed with him. The one house is allowed to keep the additional space, even though it runs them over the FAR. The council decided it would not be worth the taxpayers’ money to appeal this to court,” he added.

Councilman Tim Saxton asked Cestone about the legal advice the town had received on that issue, which Cestone said had been not to pursue an appeal, which the town would likely lose on the basis of a unanimous BoA decision.

“If the attorney said we would lose,” Saxton inquired, “have we been misinterpreting this wrong all those years? Are we putting in the moratorium based on what someone’s intent was? Are we being given legal advice that the BoA was reading it right and we’ve been reading it wrong all these years?”

“Why did no one else interpret this the same way, only this one designer,” Cestone countered.

Cestone said the designer’s appeal had focused on one of three definitions in the code, and not ones where the ordinance discusses enclosed spaces. He said, “I know for a fact what the intent was, because I was on council at that point, and I was the one who put that in there. And I guess worded it wrong.”

Headman argued for consistency. “For the last six years, in order to regulate the size of homes and to be fair to everyone, that is how it was interpreted,” he said. “This moratorium is not changing how the town has done business for the last six years, as far as the permitting process. In this particular case, the board decided they would grant it in favor of the home owner.”

With those concerns laid out, Cestone and Headman voted in favor of the moratorium, with Saxton, Sue Callaway and Youngs opposed. (Councilmen George Junkin and John Fields were absent from the meeting.) The resolution failed and the moratorium will not be implemented.

Immediately following on the vote, Cestone introduced the ordinance amendment designed to clarify the question of interpretation of the ordinance, with a first reading. The ordinance also makes some housekeeping amendments to town code.

Cestone noted that the included definitions say FAR calculation doesn’t include crawlspaces; air space on a second floor; ground-level boardwalks and decks; unenclosed spaces among pilings, including lattice and boards with spaces between. Permitted “non-livable” space under the ordinances, which is also not included in the FAR calculation, includes porches, decks, widow’s walks, open stairs and storage – but only if the area itself is unenclosed.

Also on Oct. 8:

• Saxton reported on the Budget & Finance Committee’s cost estimate for the proposed park project, as requested by the town’s Richard Hall Memorial Park Committee. Noting that he was “not satisfied” yet with the numbers, Saxton said the estimated installation cost for the park was $136,000, with an annual maintenance expense of $11,400, based on the plan presented to them by the park committee. He said the budget committee had only determined the costs involved in the plan, with those numbers being initial estimates and with questions still remaining. He said he hoped to have a final cost estimate by the middle of this week.

The maintenance costs, he said, were broken down into labor and materials ($3,250 – most of which he said was the cost of mulch) and $8,150 for depreciation of equipment, calculated over a 15-year period. “We did it in the spirit of the new budget process, to make sure it was paid for going forward. … We wanted to make sure these are fully-loaded costs.”

Headman said the council would consider at their Oct. 28 workshop the recommendations from the park committee as to how to get feedback from the public on the park issue. They plan to vote on that at the Nov. 12 town council meeting.

“We’re not going to vote on [the park] before we get input from the community,” Headman assured citizens.

• The council introduced new SBPD officer Patrick Wiley, who joined the force in July, to replace Joshua Rowley, who has joined Delaware State Police Troop 7. Wiley is a former military police officer and two-year veteran of the Delaware State University police.

• The council heard from auditor Tom Sombar of Sombar & Co, who reported the town’s net assets had increased by $58,000 in the 2010 fiscal year. He noted that a decline in grants – particularly the loss of all Municipal Street Aid funding last year – had impacted the town, while it had garnered an additional $230,000 in real estate tax revenue. He noted that most of the town’s expenses were lower, while there was an increase in police costs due to equipment costs and an increase in lifeguard costs, due to salaries. With $958,000 in undesignated general reserves, Sombar said the town’s five to six months of expenses in reserves was “excellent.” He said transfer tax revenue was up, while rental tax was down, though by a lesser amount. The town, he said came out $80,000 ahead of its budget.

“I don’t think anybody here tonight could have anticipated the downturn with the transfer taxes and the MSA money,” Sombar said. “In spite of that, the town has certainly landed on their feet. … The expenses being below budget shows a lot of attention to detail and … responsible spending.”