Debate continues over Fenwick FAR survey, vote

Fenwick Island officials were still dealing with criticism this week of June 23’s 3-2 vote to adopt floor-area-ration (FAR) restrictions on properties in the town. At a July 8 workshop-without-agenda, the very first citizen question was as to exactly why the council had needed to vote on June 23, with two members absent.

“When a majority of council wants to vote, we vote,” explained Mayor Peter Frederick at the WWA. “No one member of council can delay a vote.”

That one member might have been Vicki Carmean, who had proposed the council table the controversial vote until Council Members Audrey Serio and Martha Keller were present. But Carmean’s motion came up well short, on a 4-1 vote of the council members present, and with Frederick saying he believed Serio and Keller would split their votes and therefore not affect the end result.

Frederick had said at the council’s June WWA that he didn’t expect the issue to come to a vote that month, after concerns were expressed that it would be passed without further scrutiny or change. But he was proven wrong on that count and himself voted with the majority to both hold the vote and adopt the ordinance.

Grudgingly, Carmean also defended the process on July 8. “It was a legitimate vote,” she said, obviously displeased with the outcome. “There’s a 60-day appeal process. But I don’t think that’s going to do anything. The process was followed.”

Indeed, the council held one more than the required single public hearing on FAR, though the community remained — and still remains — nearly evenly split on the issue, according to various tallies.

But Carmean did take issue with the survey the town had taken prior to the vote, calling it poorly designed, as well as a waste of time and money, and faulting Council Member Harry Haon for violating what she said was an understanding between the two of them as to how the returned survey results would be handled.

Tally confusion persists

Indeed, confusion over the results of that survey has persisted since they were revealed to the public prior to the June 23 vote.

Just prior to the vote, Carmean had disputed the count that was printed in a letter signed with her name and Haon’s and written by Haon, which showed significant pro-FAR sentiment. She said she had accepted the tally he had given as official, when it was in fact not the official tally. But she had also never actually signed the letter, she emphasized.

With time for further analysis, Haon presented a new, detailed breakdown of the survey results, noting — with Carmean’s fervent agreement — that no mention had been made in the letter sent out with the survey as to how votes would be counted or who would be allowed to vote for each property, or how many times.

That led to multiple property owners voting for some properties, while a sole property owner voted on behalf of others. Some owning more than one property voted just once, while others voted for each property they owned.

Further, some of those who previously submitted letters expressing their stance didn’t vote in the survey — Haon said at least some of those people assumed their letters were going to be counted with the other survey results.

Haon emphasized that a traditional “referendum” vote — not allowed per town charter — would have permitted only a single vote per owner. Under that system, 161 properties were tallied as supporting FAR, 137 against. If multiple votes per property were allowed, permitting multiple owners of a single property to all be heard, the surveys received showed 239 in favor of FAR, and 216 opposed.

The detailed tally sheet also shows owners of more than one property voting, with an additional tally of nine supporters and 19 in opposition under a referendum system, as well as eight letters of support and one in opposition. All told, the “referendum”-style tally, Haon said, showed 168 in favor and 157 opposed.

When counted by owner, rather than property, owners of multiple properties (who voted more than once) added 12 supporting votes and 29 opposing votes, while letters again added eight and one. So, when counted by owner, the final liberal tally, Haon said, was 259 to 246, still in favor of FAR.

Though the margin in each tally formula was in favor of the measure, Haon said he felt the results were basically a tie, no matter how they were counted.

Carmean, who with Chris Clark voted in opposition to adopting FAR on June 23, focused on the inclusion of the eight letters whose writers hadn’t responded to the survey — a margin of seven that made up most of the difference. But Haon said he felt that just as some would say the exclusion of multiple votes per property or property owner was unfair, so some would say the exclusion of the letters was unfair. He declared the whole thing a wash.

All above-board?

For her part, Carmean agreed that the survey was a wash, if not for the same reasons. Carmean said the survey hadn’t changed any minds on the council, that members had made up their minds prior to receiving the survey results and hadn’t changed them once they did get the results.

“It didn’t change one bit the council vote,” she said, clearly bothered by that fact.

But she took Haon to task for having received a preliminary tally from Building Official Patricia Schuchman, who had fed the information into her computer as the surveys came in, attaching the votes to property tax information by way of certifying eligibility.

Carmean said she and Haon had agreed that no one — not even themselves — was to access the survey information until all surveys were in. The other council members had agreed to let them handle the tally, she said. And Clark confirmed that he’d been told by Schuchman, when he had inquired, that he couldn’t see the results prior to the final tally.

Carmean said those extraordinary measures were taken to ensure there was no appearance of impropriety with the count and that there was no influence of the incomplete survey on the council vote.

“But Mr. Haon was afraid something wouldn’t go right,” she said. So he had gotten a subtotal before all the surveys were in, then added that preliminary number to the existing letters, Carmean asserted, before including that combined tally in the letter to the other council members.

Haon said his totals were ones calculated by Schuchman, but said how she’d arrived at the totals was indeed confusing. Thus, the expanded, detailed tally he provided on July 8, showing a slight, generally single-digit, edge to FAR in every variation on the calculation.

“In my judgment, it was a tie,” he stated again. No matter how the numbers were massaged, he said, “It doesn’t change the reality that roughly half said they were against and half said they were for.”

Survey influence uncertain

For Council Member Theo Brans, however, that slight edge was enough. He again declared his support for FAR, saying a majority on the survey had voted for it, and that was good enough for him.

“The bottom line is that the majority voted in favor of FAR in the referendum,” Brans said, to a quick correction from Carmean that the survey had not been a referendum.

And Clark also emphasized that the survey was not a referendum, saying that it had been up to each council person to review the survey results — simple counts or added commentary — and decide how they wanted to use it. That would, indeed, include whether they decided to let the survey influence their vote.

In Clark’s case, it may have, since he cited the division that FAR had created in the town in his reasoning for voting against it on June 23.

A desire to reunite the town as it moves into a year with three new council persons — Haon, Frederick and Carmean all opted not to run for reelection — and a determination to develop an overall comprehensive plan that includes FAR as one component was what led to his negative vote, he said.

Legal options open, but doubted

For his part, Frederick was determined to put the vote behind the council. And he refuted criticism of the process the council followed, including the vote with two of seven council members absent.

“We have followed a process that was clear, transparent, above-board and fair,” he opined. “If you are upset with use, you can appeal the process through the Delaware court system. I have made it very clear that we have followed a legal process.”

Carmean agreed, saying she held out little hope a court would find fault with the process, though citizens were welcome to contest it in the courts. (They will, of course, have the opportunity to vote their feelings, in the election of replacements for the three outgoing council members on Aug. 5.)

She instead focused on the design of the survey, saying she hoped FAR would prove a learning process for the town in how not to design a survey. “The letter should have had information on how many votes per property (would be counted),” she said.

But Frederick said he felt the reason the council had never specifically addressed that issue had been because they’d expected controversy over how votes would be counted in what might be perceived as a non-binding referendum. He said some property owners had declared their intention to vote once for each property, regardless of how the council structured the survey.

Then he quickly moved on in favor of other issues.