South Bethany considers construction rules

Following up on a promise to give a detailed examination to the town’s construction ordinances before adopting new legislation, South Bethany Town Council members on July 26 reviewed a draft of Ordinance 139-07, “Requirements for Contractors,” which cements new constraints on construction activity and the hours during which it takes place.

The move came on the heels of persistent complaints from some residents that contractors working on neighboring homes have been disturbing the peace and quiet of morning and evening with construction activity that the town never really intended to allow to take place at those times.

As it currently stands, South Bethany limits construction by contractors to between the hours of 8 a.m. and 6 p.m. But complaints have largely focused on construction activity taking place prior to 8 a.m., or to the start-up activities that happen prior to core construction activities beginning at 8 a.m.

“(Code Enforcement Constable) Joe (Vogel) has been permitting them to do ‘staging’ activities before 8 a.m.,” Mayor Gary Jayne told fellow council members last Friday. “He’s trying to be a nice guy.” Those staging activities have included the arrival of workers, the carrying of tools onto the property, and the delivery of materials and machinery.

Jayne said he believes the answer to the problem is enhanced enforcement of the town’s construction rules, combined with a clearer “definition of what can be done and when.”

That is the idea behind Ordinance 139-07, with a core element of defining construction activities as anything related to construction, from the unloading of personnel, equipment and materials to the swinging of hammers and the swipe of a paintbrush.

Under the draft developed by Jayne nearly two years ago and fine-tuned by Councilman John Fields and his colleagues in recent weeks, all such activity would be prohibited between 6 p.m. and 8 a.m., as well as all day on Sundays and on major national holidays.

Contractors and their employees could arrive on-site no earlier than 7:45 a.m. on permitted construction days, and they would have to leave by 6:15 p.m.

Fields, in his draft, proposed that the town actually make its construction restriction end earlier, at 7:30 a.m. He cited the idea as one that would better conform to a traditional construction workday that begins around 7 a.m. and runs until 3 p.m. or so. Under his proposal, contractors and employees could arrive no earlier than 7:15 a.m.

“Their practice is to show up at 7 a.m. and wait,” Fields said, with Councilwoman Bonnie Lambertson agreeing that, in her experience, most contractors were on-site by 7:30 a.m.

Jayne agreed on that point, noting that he expected the additional cost of that wait was being included as part of the final cost to those paying the contractors for work, even though no work was being done during that time. Fields said he believed that was a good reason to allow construction to start earlier, to allow a more productive day for construction and, to some degree, bowing to the inevitable scofflaws to avoid an enforcement issue for the town.

“They will start before 8 a.m. unless the code enforcement constable or the police are there,” he asserted. “If we make it any time after 7, we will have an enforcement issue. They want to start staging at 7 a.m.”

But Fields was alone in that concern and support for an earlier start time.

“Enforcement is the issue,” Councilman Jay Headman said. “There’s been no suggestion that we should allow them to start earlier. They just want us to enforce it at 8 a.m.”

“It is enforced,” emphasized Town Manager Melvin Cusick, pointing to enforcement records that document Vogel’s past enforcement actions in response to prior complaints.

Jayne opposed any wholesale shift to earlier hours, on the grounds that it would be a move away from the logical solution to the resident complaints and a larger step than required by the ongoing wave of complaints.

“This is not a widespread problem,” Jayne said. “There have only been a few.”

“Starting at 7:30 will get people pretty well worked up,” he added. “People are not going to like 7:30. We should leave it at 8 o’clock.”

The council was strongly in agreement on that issue, voting 5-1, with Councilman Richard Ronan absent and Fields opposed, to keep the construction start time at 8 a.m. and to agree that there will be no construction or start-up work of any kind permitted prior to 8 a.m.

Council members also said they favored keeping an existing allowance for property owners to continue construction activities on their own, during the restricted hours, with certain limitations.

Eliminated under the council’s latest draft is a specific allowance for homeowners to do their own construction activities until 8 p.m. Instead, the council said they would permit any homeowner-performed construction at any time — provided that activity is not able to be heard from a neighboring property. Other homeowner-conducted construction activity would have to be constrained to the period between 8 a.m. and 6 p.m., Monday through Saturday.

Jayne had previously pointed to cases wherein homeowners had been asked by police to stop interior painting work at night, under a strict enforcement of the current rules. That would no longer be the case under the draft ordinance.

Homeowners would also be allowed to have assistance on their projects under the allowance in the new ordinance, but those informal assistants could not be contractors or contractors’ employees, who would still be bound by the contractor regulations and restricted hours.

Further clarifying the issue, the council said they would consider any contractor performing work on their own property prior to obtaining a certificate of occupancy to be a contractor for purposes of the rules and not a homeowner, with the extra allowances permitted to them. That would eliminate past enforcement issues where contractor/owners had asserted the privileges allowed to homeowners even though they did not live at the location and in some cases planned to sell the finished home without ever living there.

Council members on July 26 also decided not to add any limitation on pile-driving activity during the summer. Pile driving is currently allowed year-round, and they expressed concern that prohibiting or limiting it during the summer would eliminate or delay construction to a degree that would prove financially devastating to the town in a time of ongoing financial pressure.

The council also agreed that a system of posted signs noting the construction restrictions in a prominent way would help with enforcement. Such a system has been put into place in recent weeks, mirroring a successful system already used in Rehoboth Beach.

With those decisions made, council forwarded the draft ordinance to the town solicitor, who is expected to review it prior to future council action.