Bethany adopts commercial guidelines

Bethany Beach Town Council members used refined wording at an Aug. 7 special meeting to resolve for themselves a split between the town’s planning commission and a committee appointed to develop guidelines for architecture in the commercial district. They voted 6-0 to adopt the draft guidelines with the proposed 8-foot setback for structural elements above 24 feet noted as “highly encouraged.”

The split over the setback continued to divide the two bodies this week, with commissioners expressing their disapproval of the process by which the guidelines were developed and an adamant stance that the 8-foot setback should be required rather than simply “encouraged,” as it was in original wording.

In the end, Council members added the word “highly” as a nod to those who wanted more “teeth” in the setback suggestion.

Procedural issues examined

Commissioner Steve Trodden, speaking for a majority of the commissioners at a public hearing prior to the vote, took issue with the appointment of the Architectural Guideline Development Committee for the C-1 and C-2 Districts (AGDC) to develop the guidelines.

He complained that the commissioners had been removed from their role as planners as related to the guidelines and had instead been offered only the chance to give input and make a final recommendation on the draft.

Trodden said the traditional role of the Planning Commission included developing and making recommendations to the town council on planning and zoning issues, using the expertise for which they were appointed or obtained in their service on that body.

He further said the commission was designed to take input from all interested parties on such issues and balance those varied interests in formulating a plan to recommend to the town. That, he said, allowed the council members to “start with a neutral slate.”

“It leaves the council free to do its job,” Trodden said.

Trodden argued that by sitting on the AGDC as voting members, Vice-Mayor Carol Olmstead (AGDC chairwoman) and Council Member/Planning Commissioner Lew Killmer had both developed and publicly expressed opinions on the proposed guidelines as they were drafted and thus were no longer neutral in making their council votes on whether to adopt them.

He said they could not change their votes after having expressed those views and suggested they fix the perceived error by recusing themselves from the council vote. (That call was not heeded by either council member, nor was it raised again.)

The planning commissioner further cited the involvement of developer Jack Burbage and business owner Dick Heidenberger as AGDC members, saying the inclusion of “interested parties” in the drafting of measures that directly affect them was a reason to recuse someone from voting in normal circumstances, not a reason to recommend them for an important voting position.

Trodden said he understood that both men had stakes in the process and had input to give, but again he emphasized the neutral nature of the Planning Commission and its ability to make recommendations that balanced such interests without being swayed by self-interest. He was careful in both cases to state he was not impugning anyone’s character but said he objected on a procedural basis.

Volume versus square-footage

Beyond those procedural issues, Trodden said he had concerns about some elements of the proposed guidelines — particularly their impact on perceived height of buildings in the district.

First, he addressed the proposed upper-story setback, again calling on council members to make it mandatory.

Aided by fellow Commissioner Dave Evans, Trodden passed around a page showing his calculations of building volume under the town’s current building restrictions and under the proposed ones. His calculations showed little decrease, and in some cases an increase, in total volume with the proposed 8-foot setback and new height limits.

Burbage had originally objected to the setback as a requirement because it reduced usable upper-story floor area for valuable commercial use. He had said such a reduction would hamper efforts to encourage property owners to update to the new architectural guidelines, as well as potentially drive away commercial use from the downtown district. He said it would be perceived as a reduction in the status quo.

Trodden’s argument in response was depicted in those volume calculations. But Burbage, speaking later in the hearing, noted that commercial use was calculated by square footage, not volume. While taller ceilings might make for better commercial space, it was not a usable measurement for rental of space or for display of most merchandise, he said. And requiring the 8-foot setback on the uppermost story would reduce square footage, he emphasized.

Cookie-cutter conformity

Trodden dismissed previously stated arguments from AGDC members that the 8-foot setback, if required, would produce “uniform monotony” with all third-story structure in the downtown commercial district set back at that 8-foot line. He called the idea “a non-starter.”

He said monotony would be produced without the requirement, with all structures built to the new roof-height limit of 35 feet above base flood elevation and to the property lines since no setbacks exist in the downtown commercial district.

However, Olmstead emphasized the intent of the committee to allow for maximum flexibility within their recommendations, to permit builders and architects to be as creative as they could be in designing the buildings that will become part of the downtown district.

Trodden also dismissed concerns about creating non-conformity for existing buildings that don’t have the 8-foot setback above 24 feet. He reiterated his opinion that since the document states the new requirements only apply to new construction or substantial exterior renovations that owners of existing buildings wouldn’t have to worry until they decided to make such changes.

But Killmer and Building Inspector John Eckrich had already noted their own concerns about the unforeseen impacts of creating non-conformity. And Killmer said there were real impacts on the owners of those properties in terms of their ability to make interior renovations as well.

Council Member Harry Steele noted his own previously stated opposition to creating new non-conformities with ordinance changes.

Steele further said that his experience was that many downtown commercial property owners had chosen over the years to build back from the property line for aesthetics’ sake and could be trusted, as a group, to continue to make such choices for their best interests and that of the town.

A look into the future

While Trodden’s arguments focused on the impact of the increased height limit some 30 to 50 years in the future, and its perception by pedestrians on the street, Council Member Jerry Dorfman said his concerns were also about the town’s long-term future.

“We may have the only ocean east of Route 26,” he said, referencing a lack of metered parking in neighboring South Bethany and Fenwick Island, but with development on Route 26 and 17, “we will not have the only commercial district, as such.”

Dorfman cited increasing competition for downtown Bethany businesses such as restaurants, which face rapid growth in the number of competitors built on the busy inland corridor and the open parking lots they can offer to customers instead of a shortage of metered spaces.

He said the mix of beach and shops is what brings families to the town, suggesting the town needed to be mindful of accommodating business if that mix was to be retained.

Council Member Tony McClenny said he was of two minds on the setback issue. He expressed confidence that architectural elements would help break up any potential motony but also recognized as a former business owner that “for a business to be viable, it needs all the square footage it can get.”

McClenny proposed a compromise that might allow the proposed Design Review Committee to approve a deserving design without the 8-foot setback but require it as a basic part of the new ordinance.

However, Olmstead again noted the previous AGDC discussions of the issue and the costs that could be involved in developing multiple designs for a property — with and without the setback, to defacto be decided between by the DRC.

It was apparently enough to persuade McClenny to accept the draft essentially as submitted to the council. The single change made on Aug. 7, suggested by Killmer, upgraded the language regarding the setback from “encouraged” to “highly encouraged.”

(Some of those present at the hearing murmured and shrugged at the change, indicating they felt it made little difference and did not resolve the desire of some for more “teeth” regarding the setback element.)

But council members were unanimous in their support of the draft document, approving it on a unanimous vote (Council Member Wayne Fuller absent). Steele additionally suggested attention would be needed soon on the issue of residential parking for any mixed-use projects planned as a result of the change.

The vote brought to a close the need for the 180-day commercial construction moratorium that was set to expire Aug. 9. Already plans are in the works for redevelopment of the landmark Blue Surf Motel and former Bayberry Package Store, with additional commercial redevelopment projects anticipated in the month and years to come.