Bethany planners take issue with process


The Bethany Beach Planning Commission started its Aug. 19 meeting with one fewer commissioner than most would have expected.

Chairwoman Kathleen Mink made the surprise announcement that Dave Evans — appointed to the commission about six months prior — had resigned his post. Mink read portions of a letter from Evans, thanking Mayor Jack Walsh and Mink for recommending him for the commission, but did not explain his reasons for resigning.

Most recently, Evans had joined Commissioner Steve Trodden in staunchly supporting an 8-foot setback requirement for structure above 24 feet on commercial buildings in the town’s C-1 district — a requirement softened to “highly suggested” by the committee that developed the guidelines and, in the end, by the town council.

Evans confirmed in the full text of his letter — forwarded to the Coastal Point for publication — that the related dispute between the commissioners and other town officials over the role of the Planning Commission had been behind his resignation — the second such protest resignation in less than a year, with that of Chairman Phil Boesch in late 2005.

“I have submitted my resignation from the Bethany Beach Planning Commission, in order to express my personal opinion about two recent building code changes and the forthcoming election,” Evans wrote in the letter.

“The recent zoning initiative covering the commercial code and the previous initiative on R-1 residential zoning code allowances (35-foot roof-height initiative) have me concerned,” Evans stated. “I don’t believe these initiatives were developed with the proper processes and they are not in the best interests for Bethany residents.”

Evans went on to note concerns about the processes that were similar to those expressed by Commissioner Steve Trodden at the public hearing on the commercial architecture guidelines and later in the Aug. 19 Planning Commission meeting, under the agenda heading of “lessons learned” from the process.

“The recent changes in the commercial zoning code were developed under a new and questionable process,” Evans wrote. “Rather than placing the initiative with the Planning Commission, a separate committee was formed by the Town Council and chaired by the vice-mayor to develop the new code.

“The committee contained members of the business community, Town Council, the town manager, an outside architect and the Planning Commission chair. The Planning Commission had the right of review, could suggest changes, but was not in control of the planning process,” he emphasized.

Non-conformity on non-conformity

Trodden reiterated on Aug. 19 his previous statement that the town council had planning commissioners to serve as experts on planning issues and should have relied upon them to oversee the process of developing such guidelines, rather than handing them directly to a separate committee.

But he also focused on a decision-making factor cited by Town Council Member and Planning Commissioner Lew Killmer, who changed his mind about the 8-foot setback requirement between a July 21 planning commission meeting on the subject and an Aug. 2 meeting of the guidelines committee.

Killmer listed five different concerns about the requirement at the Aug. 2 meeting, including the impact of making most of the existing commercial properties non-conforming if the 8-foot setback were instituted as a new requirement. (Non-conforming structures are limited to 50 percent expansion, once only, while non-conformity exists.)

He said the impact of non-conforming status on a commercial property was stronger than that on a residential property and would too negatively impact both property owners and the town’s commercial district. With that concern and the others, he had changed his vote from the one of five unanimous commission votes on July 21 in favor of the requirement to one of six votes on the guidelines committee favoring it instead as a strong recommendation.

Council members heard those same arguments Aug. 7, before voting in accord with the guidelines committee, to have the 8-foot setback “highly recommended” but not required. Killmer did cite the issue of non-conformity in his vote, while Council Member Harry Steele said he also took issue with creating unnecessary non-conformity and cited it as part of his reasoning for his vote.

In the aftermath of that decision, Trodden focused on the non-conformity issue, asking commissioners at the Aug. 19 meeting to decide whether they would allow the creation of non-conformity to determine their votes on issues.

Vice-Mayor Carol Olmstead, in attendance at the meeting, emphasized that only Killmer and Steele had even referenced the issue of non-conformity. After extensive and heated debate involving the commissioners, Olmstead, and Council Members Tony McClenny and Jerry Dorfman, the commissioners unanimously agreed that, while non-conformity would be considered in future planning decisions, the commission would weigh it carefully against any possible public good created by proposed regulations and not consider it as a sole factor.

Commissioners deal with internal discord

The committee formation and non-conformity issues aside, Trodden had other issues with the process that led to the commercial guidelines. Each of three happenstances, he said, led him to feel he had been “sandbagged” when speaking for the Planning Commission at an Aug. 7 guideline committee meeting and the later public hearing.

First, he noted an incongruity between the statement by Olmstead that guidelines committee members had voted unanimously in favor of the 8-foot setback as a recommendation only and what he had understood to be the case prior to representing the commission.

Trodden said he had believed that Killmer and Mink — both also serving on the guidelines committee — had voted against the recommendation, instead favoring the requirement as later cemented by the 5-0 Planning Commission vote.

In fact, Killmer and Mink had voiced caution on the issue at various points, but neither had voted against the setback as a recommendation when committee members had voted. Killmer had held himself silent and neutral, and Mink had favored it at one point.

That had weakened Trodden’s arguments for the requirement, he said.

Secondly, Trodden cited the issue of creating non-conformity, which had not been raised before the Planning Commission and therefore left him unprepared to debate the issue and further weakened his position — and the Planning Commission’s official position.

Lastly, Trodden said he had been blindsided by Killmer’s decision to switch his stance on the issue late in the process. Working off the 5-0 Planning Commission vote to favor the 8-foot setback as a requirement, Trodden said he hadn’t expected to be further undermined by Killmer’s change of heart and eventual opposition to such a requirement.

With that in mind, Trodden asked the commissioners to agree that, in the future: (1) official Planning Commission positions would be those of the most recent official vote of the commissioners, and (2) that any commissioner who changed their mind on an issue and planned to publicly state their new position in opposition to their recorded vote would notify the other commissioners at least 24 hours in advance.

Trodden emphasized that he was not suggesting commissioners shouldn’t be allowed to change their minds or disagree, but rather that the other commissioners should be able to hear the facts or thinking that had come to them in the intervening time and thus be able to prepare to justify the official Planning Commission position.

Again after much debate and rehashing of the personal issues that had arisen in this case, the commissioners agreed to Trodden’s request.

A need for understanding

As for the core issue that troubled most of the commissioners, Mink said, “It is widely known how members of the Planning Commission feel they were under pressure and were removed from the work.” She noted some hurt feelings resulting from that but aimed to avoid rehashing the entire problem.

Mink suggested that the commissioners draft a “letter of understanding” with the town council as to the Planning Commission’s source of work, so that the commissioners in the future would not be presented with fully-developed legislation upon which they could have little input, guidance or final say as a body, or be removed entirely from planning decisions, as was belatedly done with permitted uses of the former Christian Church and Neff properties, which the council took back for its own decision.

That would target the creation of ad-hoc committees such as the Architectural Guideline Development Committee, which were formed to deal with planning and zoning issues but under the auspices of the Town Council instead of the Planning Commission.

Mink said the commissioners felt as if such issues should always be initially dealt with from inside the Planning Commission, even if they arose at the recommendation of council members, the town manager or other citizens.

The commissioners were agreed on drafting the letter, and the entire scuffle over procedures left them all eager to leave behind them the personal disagreements, hard feelings and philosophical issues that were raised.

Killmer — often heartily praised for apparently tireless work for the town — appeared deflated by the entire discussion, saying that he would likely avoid “wearing so many hats” on such issues in the future.

McClenny — having been presented the prior evening with a certificate for municipal government courses taken at the University of Delaware’s Institute of Public Administration — recommended some of those courses be required for all future council members, commissioners and others interested in town government. McClenny said he felt they could have served to prevent some of the problems that had arisen between the volunteer civil servants.

“I’m upset with the animosity between members,” he added, making sure to frame his view as a suggestion, not criticism, and further citing the tone of speech that has more frequently been heard in recent months between members and between citizens and town officials.

Also at the Aug. 19 Planning Commission meeting:

• Commissioners considered a new draft of portions of Chapter 245 of the town zoning code, as a part of their ongoing effort to update the code. Killmer said he had worked sections of other municipalities’ codes into his suggested draft language, seeking to plug some of the existing holes and address the issues raised by the recent debate.

• The commission agreed to form a new ad-hoc committee to deal with signage ordinances, as a result of the new commercial guidelines. Commissioner Steve Wode agreed to head the new Signage Ad-hoc Committee (SAC), with recommendations in hand from consulting architect Jeff Schoellkopf to look at signage ordinances in Nantucket and Annapolis.

• Commissioners noted the comments of some property owners in the Sea Villas community, in the wake of a letter sent from the commission to them regarding the planned switch to an R-1B zoning district that took into account the unique covenants and easements in the community. “I didn’t know that,” Mink reported as a common comment as a result of the letter, saying it had clarified the issues and intentions involved.

Mink noted the lack of comments at the public hearing held the prior evening, before the council adopted the new zoning, citing only a request from some property owners to protect them by not issuing building permits where lot coverage limits would keep neighbors from building open or cantilevered decks as permitted in the community’s easements.

“They want 40 percent, plus the encroaching deck,” Trodden said. “They can’t have that.” Commissioners agreed that asking the town to enforce community covenants was a dangerous precedent and that civil law already allowed the homeowners’ association to deal with those issues.