“The qualified voters of the Town of Bethany Beach shall have the power to require reconsideration by the Town Council of any adopted ordinance and to approve or reject it at an election as provided herein…”
So says Chapter 24.1 of the Bethany Beach town code, titled “Referendum Power.” And discontented citizens are currently working to invoke that power over the town’s April adoption of an ordinance increasing its residential building height allowance to permit steeper-pitched roofs in the R-1 district. They want the ordinance repealed.
The petition drive, led by resident Dan Costello — who also heads a new historical preservation group in Sussex County — has been relatively successful and is nearing its target of about 721 signatures (15 percent of qualified voters), with just over 100 left to collect as of Wednesday.
But there are two complications on the horizon: (1) Costello doesn’t think he’ll accumulate the needed number of signatures before the deadline to advertise a referendum vote on the same date as the town’s already-scheduled council elections — Sept. 9; and (2) town officials are skeptical of whether the petition drive has been accurate in depicting the issue in question for those who sign it.
Call for voluntary referendum
In the first case, Costello called on council members at their July 21 meeting to go ahead and put the referendum on the ballot on their own initiative, to ensure a Sept. 9 referendum vote with a maximum turnout.
Otherwise, he told them, the town code would need to call for a referendum vote 60 to 90 days after the petition is deemed sufficient by the town, necessitating a second polling day — likely sometime in October or November, if his estimates of signature collection rate are accurate. That, he feels, would mean fewer votes on the issue and less of a public voice, as well as more trouble and expense.
“I don’t think we can do it, given the time constraints that the Charter provides the council. There’s no particular time limit on the council to verify that all the signatures are good,” Costello emphasized Wednesday.
Though the process is taking a while, Costello said he expects to obtain sufficient signatures to trigger a referendum. “With the season being what it is, it’s hard to find owners at home,” he allowed. But, “We’re chugging long. We’ll have it done at some point. Our plan is to get well in excess of the 720 so that if there are signatures found to be invalid, we’ll have plenty of extra ones.”
Seeing a referendum on the issue as inevitable, Costello asked council members to consider voluntarily placing a referendum question on the Sept. 9 ballot. However, there’s a fly in the ointment there also.
A section of Chapter 24 of the town code permits the town council to call for a non-binding referendum — not a binding one.
“The results of any ‘non-binding’ referendum election conducted under this § 24.4.5 shall have no legal effect whatsoever and shall not bind or obligate the Town Council to take any action or refrain from taking any action on the subject referred, but shall merely be informational in nature regarding the opinion of those qualified voters who expressed a preference at such non-binding referendum election,” the code reads.
That means that, while council members could accede to Costello’s request to put the question on the Sept. 9 ballot, the effect of that move will not be the same as if the petition drive were completed in time for a special election on that date.
“The petition will result in a binding referendum vote, which is what we’d prefer,” Costello said. “But if the council in its wisdom wanted to do a non-binding referendum, they certainly could. If the vote there was against the ordinance and they decided not to repeal it, then the binding referendum would kick in. And if we lost the non-binding referendum, then the assumption would be that we would probably lose the binding one.”
On that basis, council members are likely looking at a referendum of some sort in the coming months. The question remains whether it will be voluntary and non-binding or mandatory and binding, as well as how public opinion on the issue will fall out.
Petition’s accuracy questioned
The second challenge facing Costello’s petition drive is the matter of how accurately he, his petition and those gathering signatures have framed the issue for those being asked to sign the petition.
One such petition circulator appeared on the doorstep of Bethany Beach resident John Eckrich last week, asking him to sign. After listening to an explanation of the issue from the woman, Eckrich informed her that what she was saying about the matter was inaccurate.
He should know — John Eckrich is also Bethany Beach’s building inspector, charged with verifying and enforcing the town’s building code, including height limits. And he was among those advising committee and council members who recommended and then adopted the change to the R-1 district code.
It’s unlikely anyone in the town is more familiar with what the change really means than Eckrich is, and he is skeptical of just how accurate the petition drive is on the subject.
“The bottom line is that it’s not a 4-foot difference,” Eckrich emphasized this week. “She was saying that the old rule was 31 feet and the new rule was 35 feet. But the 31 feet was measured from base flood elevation, which could be 3, 4 or 5 feet about the ground. So you could have a 35- or 36-foot structure already.”
When 35 feet isn’t 35 feet
While Planning Commission and council members generally favored the intent and eventual form of the ordinance, the height issue was complex and contentious for both bodies. Motivated by their own discomfort with the notion of taller homes, as such, Planning Commission and council members even made late changes to the original proposal, making the allowance measured only from surrounding grade.
The previous 31-foot cap was measured in one of two ways: (1) from the height of the fronting street; or (2) from Federal Emergency Management Agency (FEMA)-dictated base flood level, which allowed for as much as 5 feet of additional height to help raise living areas out of the town’s high floodplain and thus reduce the impact of flooding.
Property owners had that second option added to avoid penalizing them for being too close to sea level. And with the adoption of the new ordinance amendment in April, they had a third option.
Notably, with the late change to permit only measuring from surrounding grade, the 35-foot height allowance is a clear no-go for some property owners. Using it would actually mean a loss in overall living-area/ceiling height for those whose homes were previously measured from base flood level where that measure is more than 4 feet. They still have the original 31-foot option when measured from that spot.
But the whole of the new option and old ones adds up to one basic point, according to Eckrich: the tallest structures in the town won’t be getting any taller under the new allowance.
Some homes might have a little taller peak than they have now but will get that allowance only as the result of the higher roof pitch the town sought to help reduce the sense of bulk from newer, larger homes. Other homes might even be shorter at the eaves, if their owners favor pitched roofs over ceiling height.
Either way, there will be less justification of the one circumstance that has been a repeated example of why the ordinance change was needed — the “chopping off” of steeply pitched roofs at their peaks, netting a flat roof, as a way to simply meet the height cap.
Committee members and commissioners routinely pointed out the window of their meeting rooms during discussions of the allowance to cite examples of that architectural maneuver, complaining about the resulting aesthetics.
Costello on Wednesday said he was aware of the flood elevation issue but not completely familiar with how the two measuring systems would impact homes before or after the new height allowance. How familiar other circulators of the petition are with the issue, or what they’ve said about it to potential signatories, is unclear.
When 12 percent isn’t 12 percent
Reflecting other areas in which town officials have had a bone to pick with Costello’s petition drive, a letter composed by Costello — targeted at potential petition circulators — describes the height allowance as a 12 percent increase — based on the mathematical difference between 31 and 35 feet.
But it does not mention anything about the fact that those 4 feet of additional allowance can contain only uninhabited roof space, nor that it requires 60 percent of the roofline to be under a 7:12 or greater pitch, thus reducing the visual and spatial impact of the increased height.
However, Costello emphasized that the disputed 12 percent figure is not in the petition itself. The petition, he said, only contains a copy of the ordinance in question and a call to repeal it — the minimum mandated by the town charter for such a petition.
But even with the full text of the ordinance attached for signers to review, the question remains of how many of them accurately understand its meaning and whether any misinformation on the subject compromised the signatories in any legally significant way.
The disputed information is inherently more in how those circulating the petition are describing the issue. (Eckrich said he had stopped any additional explanation at his doorstep with an expert explanation of his own and couldn’t testify to whether any additional information provided would have been accurate.) But Costello said he personally believes the effort has been accurate.
“I know what I’m doing,” Costello said. “I know what Margaret (Young)’s doing. And there are 10 other people who are actively circulating the petition. … When I go door-to-door, one in five I talk to need an explanation. Four of the five have sense of what’s going on and are not pleased with it. And there’s a small fraction of those who are aware who are just not interested in signing.”
Despite the concerns about the petition, Eckrich was quick to note that neither he nor the town as an entity are opposed to the petition, in principle.
“We want to give him a chance to use the process, but there’s some concern about whether it’s being done properly,” said Eckrich on July 22.
Toward that end, town officials have made several efforts.
First, Town Manager Cliff Graviet included a section in the most recent town newsletter that endeavors to better explain the height-cap change. The newsletter feature comes complete with an architectural drawing to illustrate the matter.
“We have already mentioned that under existing guidelines, depending on base flood elevation, many homes are built in excess of 31 feet, many to a height of 36 feet,” the newsletter explanation reads, in part. “The Town Council had no interest in creating structures that would be taller than what is already being built in the R 1 zoning area and therefore capped the maximum height of any structure using the new height exception to 35 feet.”
“This is not a change that will lead to unbridled development or unchecked height in new construction,” the newsletter continues. “This is a change that will allow for some architectural diversity and simple curb appeal in an area where much of recent construction looks remarkably alike.”
Further, the newsletter verbiage details the three conditions applied to the height allowance:
• 60 percent of any building mass that reaches a height of 35 feet must be a roof with a 7/12 pitch.
• The increase in roof height may not be used to create any additional floored habitable space.
• Any structure that is built in excess of 31 feet under this guideline will be measured from existing grade and cannot exceed 35 feet in height regardless of base flood elevation.
In a second wave of clarification on the issue, Town Council Member Harold Steele has personally made a point since hearing of the petition drive to emphasize what he feels are the inaccuracies of the information being provided and what he feels is Costello’s larger objection.
“We are not allowing larger and larger houses to be built,” Steele said in response to Costello’s letter, citing existing setback requirements and the lot coverage cap of 40 percent. “The terms McMansions and mini-motels are terms meant to scare people into believing that this council is condoning overdevelopment in Bethany Beach.”
“We allowed a 35-foot, 7:12 roof pitch in the R-1 district because the R-2 district can have the 7:12 pitch with a 31-foot-high roof,” Steele explained, referencing the wider lots in the R-2 district and the comparative limits of the narrower R-1 lots. “We gave the option to the homeowner of 35 feet if they would build a 7:12 roof pitch so that it would be more aesthetically pleasing when viewing the house.”
“To say that this is a 12 percent increase is misleading. That statement would be correct if it were to apply to the whole house. It only applies to 60 percent of the roof. And it does not have any living quarters in that space,” Steele emphasized.
Steele further cited the town’s move to increase the minimum size for a building lot in the R-2 district from 5,000 to 7,000 square feet. “We are not allowing 12 units per acre in the commercial district, as the County is doing,” Steele went on to say, suggesting Costello would have a better fight over density with Sussex County officials.
But Costello said that 12 percent figure isn’t a big part of his sales pitch for people to sign the petition. “The way Councilman Steele objected to the 12 percent increase phrase — I don’t think the 12 percent is setting any hearts on fire. They just think things are too big as it is.”
“If you’re asking me whether the 7:12 pitch more important than overall height of houses, my answer is no, it’s not,” Costello emphasized. “When I go door-to-door, talking to people, they don’t necessarily buy into argument that a 7:12 pitch is going to improve aesthetics. They just see it as the roofline is going to be higher than it was before.”
Costello said he believes the council was wrong in interpreting complaints about some new homes as being objections to cookie-cutter designs or big-box shapes. “The emphasis on aesthetics is misplaced,” he said. “What people really didn’t like was the height and the bulk of the new houses.”
And he said the 7:12 pitch — aimed at decreasing the perception of bulk — doesn’t tackle the real issue. “I don’t think the bulk is a perception issue. I think the bulk is an issue. They are bigger and bulkier. That’s a fact.”
Costello said the height allowance ended up dealing with complaints in a way that was actually detrimental to the real issue. “I take the town completely at its word that they’re enforcing everything that needs to be enforced,” he said of homes built under the previous standards. “What has happened is that property owners want to go higher than they can now and the town is moving to accommodate that. They say the argument is about aesthetics, but it’s not.”
One person who might disagree is Council Member Tony McClenny. The McClenny family was in the midst of rebuilding their house in the Sea Villas community when the ordinance was drafted. McClenny liked the additional aesthetic options provided by the new height allowance and redesigned the structure to the new standard.
But that change put him in some hot water with Eckrich’s office. “He made a calculated assumption that it was going to go through. And based on everything at that meeting, it looked like was going to through,” Eckrich recalled.
But the last-minute reconsideration of and changes to the ordinance pushed its passage back a month or two. (McClenny recused himself in all council votes on the allowance.) That put the McClenny home out of compliance with the existing code. They were cited and stopped construction, pending the eventual passage of the ordinance, Eckrich said.
“We’ve issued them a letter stating they’re now in compliance,” Eckrich noted this week.
Is the council listening?
Beyond the 12 percent calculation, the bulk of Costello’s letter focuses on his assertion that the town council is supporting overdevelopment with “monster houses,” “mini-motels” and “McMansions,” and that council members are not listening to citizens.
“People are asking why the council is permitting larger and larger houses to be built on the town’s smallest properties. ‘Why do they have to be so big?’ they say. … It’s no wonder the council is having big problems with the perception that they don’t want to listen to what the people have to say,” the letter reads, in part.
Steele took issue with that as well, saying, “This Council has demonstrated its commitment to public discourse and public involvement by holding two years’ worth of meetings on this issue. We have and are going to have more public hearings on other issues as they develop.” Indeed, Steele invited constituents who still have questions on the issue to come to a council meeting or call him at home.
During that two-year process that Steele alluded to, some objections were indeed voiced to the height allowance, but there was no clear perception that a majority of public opinion opposed the measure.
The citizens, architects, developers and town officials who served on the Zoning Ad-hoc Committee, and most of those who attended meetings on the subject, generally favored the measure, with the revisions that were eventually made.
Costello, former Mayor Joseph McHugh and current Mayor Jack Walsh were notable exceptions in voicing their opposition to allowing any additional height.
McHugh said he felt aesthetically pleasing homes could be and had been built under the 31-foot standard. Walsh voted against the ordinance’s passage, citing the townwide survey that showed opposition to larger homes. And Costello is now aiming to prove to the rest of the council that public opinion is on his side.
The public will likely get the chance for that vote at some point in the future. But whether the current petition holds up to the scrutiny of town officials and their legal representatives remains to be seen.
If it does not, they may then appeal that decision to the state’s Superior Court, which could sustain the decision that the petition was unsuccessful or force a new council vote if it finds the petition was successful. If such a council vote were to be in favor of the existing ordinance, the referendum on repeal of the ordinance would be held within 60 to 90 days.