Bethany tables change to BoA numbers

Bethany Beach Town Council members this week tabled what was the most controversial of the proposals to make changes to the town’s Board of Adjustments: the move from three members to five.

The increase in membership was itself generally viewed as a good idea, as it would provide for less likelihood of falling short of a quorum or making decisions with just two members voting. But the impact that change would likely have had on who those members could be has been subject to some opposition.

Boards of Adjustments in Delaware are state-required bodies. Council members can make appointments for members of the BoA, but the BoA itself follows rules dictated by the state and by its own membership. Under those auspices, the state can mandate who can and who cannot serve on the board, such as allowing residents to serve but not non-residents who might have the right to vote in town elections.

Such voting rights are not common in Delaware but are very much so in the state’s beach towns, where the majority of property owners are generally not Delaware residents or town residents. Bethany Beach is one such town, with a majority of eligible voters not being town residents but instead non-resident property owners.

That difference has caused a problem in the town’s election reforms under the new state Title 15, which omitted any allowance for absentee ballots to be provided for non-resident citizens who didn’t travel to the town to vote. The oversight could be rectified in the coming weeks, with legislation passed in the state House and pending in the Senate.

But, as it stands now, the difference between citizenship in a beach town such as Bethany Beach and in more traditional inland towns also looms over the potential change to the town’s board of adjustments, since state law currently restricts board membership to appointees who are residents of their town.

That is not a rule that was in place when Bethany’s BoA was formed, and non-residents have served upon it. But without an exemption from that requirement granted by the state legislature, any significant change to the board’s membership would likely require the town to accede to current state requirements for the body’s membership – forcing them to now add a requirement for residency.

Non-resident board members could be halted

The issue of the voice of non-resident property owners has come up before in Bethany Beach, with previous suggestions that limits be placed on how many non-resident property owners could vote by virtue of ownership of part of a property. Concern about someone stacking an election with vast numbers of part-owners on a given property was the reason behind that suggestion.

In the end, the previous suggested reforms did not move out of the town’s ordinance committee, but the issue has also been raised again recently, as part of the election reforms coming before the town council due to statewide Title 15 reforms.

On the other hand, councils have also in the past made an effort to make the town’s meetings and committees more friendly to non-residents, setting meetings on Fridays, Mondays and weekends as much as possible, so to better enable travel for those who would participate.

But maintaining membership of non-residents on the council, committees, commissions and boards has still proven a challenge. It’s not a challenge the council had wanted to eliminate for the Board of Adjustments, by virtue of a complete prohibition, however.

Council members have in recent months weighed the potential impact of eliminating the possibility of non-residents serving on the board of adjustments against the potential improvements to its function if it had five members instead of just three. And they have split on whether the change is worth the price.

Council Member Lew Killmer, who has championed the other changes proposed for the board, has said he felt the town would be pushing the limits if it forced the state legislature to further consider the additional rights some towns in the state give to their non-resident property owners. He favored simply making the move to five members and living with the consequences.

Killmer said he feared legislators might object not only to allowing non-resident BoA members but non-resident voters, and might take the opportunity of a request for an exemption as a chance to force conformity on all citizen rights state-wide as related to those additional rights afforded non-resident property owners by some towns.

Council Member Tracy Mulligan has said he very much favored the increase in membership but felt that the town should push for an exception for non-resident membership to be allowed. And Board of Adjustments Chairman Bob Parsons, while favoring an increase in numbers, has adamantly opposed to any potential prohibition of non-resident membership.

With those differences of opinion being representative of the split that has developed on the issue, Killmer at the council’s May 18 meeting requested the council table discussion and any decision on that aspect of the BoA reforms, and they agreed.

Jaywork will continue to represent town

Also somewhat controversial has been the notion of hiring independent legal counsel for the Board. Currently, it is represented in potential legal matters by Town Solicitor Terence Jaywork. But the case of a variance that would have allowed the Bethany Beach Volunteer Fire Company to build a tall communications tower behind its downtown fire hall pitted some on the council against the board, which favored the allowance.

Faced with the idea that the town — under the recommendation of the council — could be legally opposed to its own Board of Adjustments, the town was forced to recognize that the future might hold many such circumstances.

In those cases, who should represent the town? Should it be Jaywork? If he had already advised the Board on the case, he really couldn’t do so. Should the Board have to seek its own counsel in those cases? Should the town council hold Jaywork as the town attorney and the Board be required to replace him entirely?

Killmer told fellow council members on May 18 that he recommended the Board find its own independent attorney and that Jaywork continue to represent the town. He said the University of Delaware’s Institute for Public Administration had recommended boards hire an independent attorney during training sessions on the topic.

Parsons has also adamantly opposed that recommendation, however, noting that Jaywork’s decades of experience with the town, its ordinances and the board can simply not be replaced.

He has instead favored allowing Jaywork to continue as the Board’s legal counsel, but recognizing that Jaywork may need to recuse himself in cases of potential conflict of interest between town interests and board rulings, or in conflicts of interest of his own. In those cases alone, Parsons has advocated, the board would seek a different, independent counsel.

Jaywork himself said he could see both sides of the issue. He said cases where such conflicts arise were rare, in his experience. In 20 years representing Smyrna, he said, he had only recently run into one such case.

On the other hand, he said it was potentially difficult to obtain a fill-in attorney “on short notice” and that such a person would certainly be lacking in experience with Bethany’s history. With that in mind, having a permanent BoA attorney other than himself could prove a wiser choice.

Jaywork said there were also potentially conflicts — again, rare ones — in his advising the Board or town while also advising the town’s building inspector, who enforces the ordinances to which the board grants exceptions.

Town Manager Cliff Graviet said he personally recommended the council hire an outside attorney for the board as a standard of practice. He said he favored ensuring that the town and its council always had the availability of Jaywork’s expertise, as the best person for that job.

Killmer also noted that hiring an outside attorney on a case-by-case basis could prove extra costly for the town, requiring extra time for that person to get up to speed, whereas hiring a new attorney to represent the board would enable that person to gradually learn the same things Jaywork has come to know over time. Hiring an expert in related ordinances and code should help with that process, Killmer said.

It was a convincing argument for the council. They voted unanimously to accept the recommendation for the Board to have its own attorney and to reserve Jaywork as the town’s attorney.

Council mandates training, makes changes

Council members have been largely of one mind on the issue of requiring training of Board members.

Killmer has emphasized the need to ensure that correct procedures and a thorough understanding of ordinances are exercised by the board, since it has the ability not only to set potential precedent but to bring the town into what can become a court case. Both he and Vice-Mayor Tony McClenny have heartily favored the IPA’s training sessions as a key element of that training.

The state standards for the board require that members have expertise in the matters they will hear. That could include experience serving on a board elsewhere or perhaps in the construction field. But council members have focused more on formal training, as provided by the IPA.

Council Member Jerry Dorfman, however, questioned whether the council can formally require specific training of board members. Jaywork said the state statutes also allow the town to remove board members “for cause.” They do not define what that cause can or cannot be, he said. Thus, failure to obtain council-mandated training might be a legitimate reason for removal from the board.

Exactly which courses the council would require, and when they would have to be taken, was up for debate by the council last Friday, however.

The intermediate decision was that Killmer would join with Parsons — who voluntarily took the most recent IPA course on the operation of BoA’s — to create a specific list of requirements for board member training. The timeline for that training would be a year or less, possibly as little as six months, with assurances from the IPA that courses will be more freely available or could be contracted by the town to be held at town hall, for example.

With that agreed upon, council members voted unanimously to require training for board members. It was also unanimous for the addition of BoA rules and procedures to the town code book, as an appendix rather than a formal part of town code.

The council also voted unanimously to recommend the board consider decreasing its maximum time for rendering a written opinion from 90 days to 45 business days from the oral opinion in a case.

Killmer said he was concerned about the risk taken by applicants if they proceeded with work during that period but then lost a legal appeal, which can only be filed after the written opinion is issued. With 26 years on a Pennsylvania board, he said he knew it could be done in 45 days.

Jaywork, however, said some complex and lengthy cases could prove difficult to issue a written opinion upon in 45 days. He said some had taken nearly 90 days in the past, largely thanks to the demands of getting a legal transcript of the proceedings. But he said it could be done.

The council’s action on the issue referred only to consideration of the reduced timeframe and does not mandate what only the board can decide.