Architectural committee, commissioners at odds

With the Aug. 9 expiration of the commercial construction moratorium in Bethany Beach looming on the horizon, the rush is on to get a clean final draft of the proposed guidelines that will channel the future architecture of the town’s downtown commercial district.

But one major issue remains: the division between the Architectural Guideline Development Committee (AGDC) and the town’s Planning Commission over a proposed 8-foot setback for structural elements above 24 feet in height.

The initial draft of the document, created by consulting architect Jeff Schoellkopf, included the 8-foot upper-story setback as a requirement. Schoellkopf said the measure would help lessen the impact of a sheer face on structures that could reach 35 feet from base flood elevation at their roof peaks, in a district without any other setback requirements. But he noted at the time that the town would have to decide whether it wanted to use such a measure as part of its overall plan.

Drafts including the setback as Schoellkopf had drafted it — as a requirement — were presented to the town’s Planning Commission, which approved of the notion and reaffirmed that support with a unanimous vote prior to a July 21 public workshop on the guidelines.

Meanwhile, the AGDC members had debated whether a little more leeway on the issue might not be a good thing. AGDC member and developer Jack Burbage, in particular, urged his fellow committee members to instead consider making the setback “strongly encouraged.” He said the setback would penalize commercial property owners and developers by removing something they currently have — the ability to build a third story up to the property line — and reducing the buildable square footage of commercial lots.

Burbage reiterated that position at an Aug. 2 AGDC meeting, saying, “If you want people to redevelop, you can’t take things away from what they already have. You have to allow them to put back what they have.”

He said the town would be looking at 25 years or more for the redevelopment of some of the town’s current taller commercial structures if such a requirement were put in place. And that hesitancy to redevelop would make it difficult to transform the look of the downtown (C-1) commercial district as the town has sought to do, he said.

In contrast, Burbage said, making it optional, or “encouraged,” would allow the developers to decide whether they felt the setback would suit their property and make use of it if they did, knowing it was recommended and desired by the town.

And for those who decided against it, “You won’t have a sheer wall going up, because of other things we put in the guidelines,” he said, referring to a 40-foot maximum width for architectural elements and also noting that the wide expanse of Garfield Parkway, at 130 feet, would eliminate any potential “tunnel effect” from taller structures that were built with no setbacks.

Other AGDC members agreed that the setback should be “strongly encouraged” instead of required.

Town Manager Cliff Graviet compared the guidelines to changes recently enacted in the R-1 residential district, saying that with a new height allowance for pitched roofs, the town hadn’t considered any “taking” comparable to an additional upper-story setback requirement on the table for the commercial district.

Town Council, AGDC and Planning Commission member Lew Killmer said he’d rethought his position from the July 21 commissioners’ meeting and once again supported the setback be encouraged, versus a requirement. His stated reasoning: the requirement would create a non-conformity where none currently exists, namely existing commercial structures that are built above 24 feet but use no setback.

“We shouldn’t do that without a good reason,” he said.

Planning Commissioner Steve Trodden questioned whether there was really a problem with that circumstance, since commercial property owners wouldn’t be required to conform to the new code until they made significant exterior renovations or redeveloped their properties.

But Building Inspector John Eckrich sided with Killmer on the issue, saying creating non-conforming structures was a significant problem.

Killmer said he also felt the possibility of three-story commercial-only structures was lessened by the accessibility factor – patrons would be less likely to climb stairs to a third-story display area and property owners would be reluctant to build expensive elevators. He and fellow council members/AGDC Chairwoman Carol Olmstead cited the current ability to build three-story structures in the district – with few such structures being built or proposed.

Moreover, Graviet said, there was concern that by requiring the setback, that should property owners throughout the district opt for three-story development, the buildings would all look somewhat the same, with the same 8-foot setback at that same 24-foot height. Indeed, the cookie-cutter look is one thing the town has been trying to discourage with recent changes in code.

And Burbage noted that with variations in floodplain level and related allowances running from the beach to the highway, the 8-foot setback would be at slightly different levels for each neighboring structures — potentially resulting in an odd stair-stepped effect if it was required.

Trodden said that beyond the simple idea of the 8-foot setback, he was concerned about the related impact of another change in the guidelines — the allowance for a flat roof at 31 feet, which was formerly limited by measuring from grade level and would, under the new guidelines, be measured from base flood elevation. Current regulations allow measurement from base flood elevation, but only with a 5:12 or higher pitched roof.

After the meeting, Eckrich noted that the new measuring standard could mean roof peaks at up to 40 feet from the surrounding grade, but no higher. Flat roofs could be up to 36 feet above the surrounding grade, he said. (Residential construction maxes out at 35 feet above grade, currently.)

Trodden argued that the additional height from grade meant that the vertical impact of the storefronts would be greater, necessitating the 8-foot setback on the third story.

Burbage took issue with that, saying, “The Planning Commission seems to think, ‘We’re going to give them something, so they have to give us something back.’”

Trodden faulted that characterization, saying the process was always one of give and take between what the town and business community wanted and emphasizing that the commissioners had always dealt with and supported the concept of a required setback, though the AGDC had changed its stance in various drafts.

Commissioner Steve Wode expressed milder views on the issue, noting that he felt third-story commercial use wasn’t really viable, due to the access issues and saying that residential use wasn’t much more attractive, since town code would require property owners to provide parking for residents.

In the end, Trodden expressed a strong stance in favor of the setback as a requirement, saying he was representing not only himself in that but also commission Chairwoman and AGDC member Kathleen Mink, who was unable to attend Wednesday’s meeting. Trodden attempted to cast an opposing vote on keeping the setback drafted as an “encouraged” feature, but was told that a precedent for proxy vote on a town committee had not been established and would not be in this case. (Council Member Harold Steele noted that state law prohibits proxy vote on a council level.)

With that issue clarified, the AGDC members voted 6-0 in favor of keeping the setback as a non-mandatory, “encouraged” element, with the notation to council members when it is presented to them that the Planning Commission position favored the setback as a requirement.

The council members will decide the matter for themselves, at a special council meeting set for 2 p.m. on Monday, Aug. 7. The meeting and vote will follow a formal public hearing on the entire guideline document and related zoning code changes, set for 1 p.m. that afternoon.