Bethany approves height variance for surveyor error


The Bethany Beach Board of Adjustments approved on March 18 a variance for a home at 202 Fourth Street in the town’s R-1 district to exceed its 31-foot height limit by nearly 5 inches. The home, owned by Timothy and Martha Lelko, was planned to come in under the height limit by more than 7 inches, but a surveyor error led to the first-floor height being marked a full foot higher than standard.

Building Inspector John Eckrich explained to the board on Tuesday that he had discovered a discrepancy while reviewing documents submitted by the Lelkos in applying for their certificate of occupancy.

On the “as built” survey for the home, Simpler Surveying has marked the home as being in the Federal Emergency Management Agency (FEMA) AE Elevation 8 zone, instead of the AE Elevation 7 zone, where it actually is, according to FEMA flood maps.

The flood zone maps are designed to ensure that living areas and vital elements such as heating systems are built above a level that would only be reached by the floodwaters of a 100-year flood. The levels are set according to the vertical mark at which there exists a 1 percent chance of flooding over storms seen in 100 years.

Each zone is equivalent to a foot in height that those floodwaters might rise. Thus, a Zone 8 designation pushes a home’s starting point a full foot above the Zone 7 equivalent.

Bethany Beach allows property owners to measure their finished building height from either the flood map level or from the surrounding grade, at their discretion. Homes near the ocean are nearly always measured from the flood map level, since that allows for maximum height while keeping those living areas and mechanical systems above levels vulnerable to flooding. They’re also nearly always built on pilings for the same reason.

Eckrich said builder Susan Ryan of SKR Builders knew the home was in the AE7 flood zone but relied upon Simpler Surveying to properly mark the home’s pilings as related to its flood zone. Due to a staff error that the supervising surveyor said he didn’t notice until after construction, however, the nail or spike driven into the pilings to mark that vertical starting point ended up at the AE8 level instead of AE7.

The result is a home that’s no bigger than planned in its capacity but which starts higher in the air and peaks above the town’s 31-foot height limit.

Ryan said the error had come as a surprise to everyone involved in the project. SKR has been building in the area for nine years and is familiar with piling construction and the flood elevation issues, as well as concerns over height. They’ve employed Simpler Surveying during all of those nine years, she said, and never previously had an error.

The framer on the project, Ryan noted, has 25 years of experience and is notably reluctant to speed the setting of the building “notch” on the pilings for the first floor until he’s sure it’s in the right location.

“It takes him a week to do the calculations to make sure it fits the height restrictions,” Ryan said.

“We’ve never built a house above the height restriction,” she emphasized – until the surveyor’s error on the Fourth Street home came until play, that is.

“We built the home well under the height restriction if the mark was correct,” she said.

Ryan emphasized to the board also that her clients, the Lelkos, had obtained no gain in the error. The home itself is the same size, even if its roof peak is a foot higher than planned.

Error unusual in long history of company

Darren Windsor, a project manager for Simpler Surveying apologized profusely for the error on Tuesday, pointing to changes in company procedures that had been made as a result of discovering the problem.

He said a single-person review team for such points as flood elevation designations had been changed to a three-person team, just to avoid future errors of this nature.

When asked by the board about how common such errors are, Windsor said he’d never heard of one during the seven years he’s been with Simpler Surveying, which has been working in the area for more than 20 years.

He said typical allowances for error in measurement in the surveying industry are now down to no more than hundredths of an inch, while state regulations call for sub-millimeter accuracies on some measurements — a tiny fraction of the full foot the error on the Lelko home saw.

Windsor said the error was apparently generated when overlaying the FEMA flood zone maps with town maps of recorded lots — a process that he demonstrated to the board was fraught with potential for error.

The FEMA flood maps are in a different scale from the town’s property maps, Eckrich emphasized, leading to a high potential for error when trying to overlay the two. Eckrich said a single line width on the FEMA maps can cover as much as 20 to 30 feet — leading most surveyors to elect to conclude a property’s flood zone designation as the more restrictive of two neighboring zones when the property lies anywhere near the line.

In the case of Bethany Beach, many town properties in the 100 block — just one off the ocean — are in the AE8 zone, while those in the 200 block are in often in the AE7 zone. But even some board members — two of whom are longtime residents of the area — had a less-than-easy time discerning 102 Fourth Street from 202 Fourth Street on the provided FEMA map that Windsor said was a full-scale copy of what his surveying staff works with on a regular basis.

Windsor said the problem was an “unintended error” and apologized again for the result, while asking for mercy on behalf of the Lelkos, saying there would be no detriment to the public or the town’s rules in granting a variance.

Martha Lelko had traveled from the couple’s home in New Mexico to support the request for a variance — the denial of which might have forced the couple to have their roof altered and certainly would have further delayed their receiving a certificate of occupancy on the home.

Lelko said she hadn’t known about the error until December, when she and her husband came into town to put furniture back in the completed home and discovered they could not get a certificate of occupancy.

She said that after living with a smaller, cottage-style home on the lot as their vacation and planned retirement residence, she and her husband had been forced to consider building a new one when Tropical Storm Ernesto dropped a power line on the cottage’s roof in 2006, ruining its electrical system. Other problems with the old home led them to raze it and rebuild rather than try to replace the electrical system alone.

The resulting home has been planned as one of the stops in the annual Beach and Bay Cottage Tour for 2008, Lelko said — a recognition she said she hoped it would still be able to enjoy, with the certificate of occupancy in limbo.

“No one would notice a problem with it from the street,” Lelko argued. “It was only once the sign went up (advertising the board hearing) that people have had an issue.”

Opposition comes from neighbors

Indeed, some neighbors have taken issue with the too-tall home. Neighbor Jane Reister said she had heard second-hand that workers on the job site were aware of the height excess as far back as July of 2007 — something Ryan vehemently denied.

“He was shocked,” she said of the project’s experienced lead framer, who she said learned of the error only in November 2007, when Eckrich discovered it on review of the “as built” survey. Ryan said that of the four times she had Simpler Surveying visit the construction site, the problem had never been noticed until well afterward, when Eckrich called them to inquire about it in November.

Even Reister had to credit the design and construction of the Lelko’s new home.

“It’s a beautiful house,” she said, praising the quality of Ryan’s construction. But, she added, “If we have a rule here that says it has to be a certain level, it should be that.”

Other neighbors agreed, with four filing letters of opposition to the requested variance and another filing a letter in favor of it.

“They may not understand how it came about,” Ryan argued about those who had written in opposition. Lelko said her efforts to reach out to her neighbors about the problem had gone ignored.

Board Chairman J. Robert “Bob” Parsons said he could understand how the error had happened.

“Someone who lives there could pick out the flood zone in a heartbeat. But Simpler operates all over the county,” he said.

Parsons noted efforts by some state legislators to create an administrative process by which Eckrich and other code officials, without the need for a hearing before the board, could approve variances of this nature, where human error — and not intent — led to minor violations of building code.

He noted the problem as the result of an “unusual error,” and though strict interpretation of the reasons for giving a variance might suggest the lot itself would need to be unusual to qualify, Parsons said the fact that a single error by Simpler Surveying in the course of at least seven years had caused the problem was sufficient to suggest the board had reason to grant a variance for the Lelkos.

Parsons said the granting of the variance would cause no detriment to the public.

It was possible detriment to the Lelkos that brought Board Member Thomas Mahler to support the variance.

“It’s not the intent of the board to create a hardship for the owner,” he said, while calling Simpler onto the carpet for making the error in the first place. “A professional should be responsible for this error,” he added, while noting the board had no power by which to sanction the company.

“If we applied the code strictly,” Mahler added, “it would create an injustice on the owner.”

Board Member Robert Graham said he felt Simpler’s solid record and Windsor’s assurances that steps had been taken to prevent such errors in the future was enough.

“We take this very seriously,” Windsor emphasized to the board. “We take high pride in our work, and we want to make it right.”

Ryan agreed. “They stepped up to the plate as soon as they found out,” she said.

Board members voted unanimously to grant the requested variance, which Simpler had requested on the Lelkos’ behalf. Opponents have 30 days after the filing of the written opinion in the case to file an appeal to the state court system.