Is miniature golf a “game of skill”? The Bethany Beach Board of Adjustments ruled it to be so when they recently approved the request of a commercial property owner to develop a miniature golf course at the corner of Pennsylvania Avenue and Central Boulevard.
The board decided to permit the use in that case, under an existing rule and precedent that has previously permitted mini-golf as a use in the town by special exception, along with other “games of skill,” such as bowling and pinball.
The application was challenged by some nearby residents, however, and those opponents have continued to object to its being permitted. They filed an appeal to the BoA’s decision, citing their belief that miniature golf is not a “game of skill.”
“Appeals to BoA decisions go to the State of Delaware courts, not the Town Council, and proceed according to the Court’s protocol,” noted Planning Commission Chairwoman Kathleen Mink about the case this week. “So the matter has been removed from the Town’s hands.”
However, the appeal and the controversy over the new mini-golf business led the Bethany Beach Town Council to request the Planning Commission review two potential amendments to the town’s zoning code. They did just that at their March 17 meeting.
The first of the two alternatives would specifically add the language “miniature golf” among the list of types of activities that are permitted as uses by special exception under town code. If that amendment were to be passed, the use would be specifically given a place among the uses that can be allowed by special exception and would no longer be simply understood to be a use allowed among the “games of skill” already able to be granted a special exception.
As in the case of the Pennsylvania Avenue property, uses by special exception are subject to any conditions and limitations the Board of Adjustments chooses to place upon them. That would further control such businesses in cases where a special exception for use as a miniature golf course was granted. The limitations in the pending case included restrictions on hours of operation and prohibitions on visual and audible elements of the business.
The second proposed amendment, as an alternative, would make miniature golf a “use by right” in the C-1 commercial district, meaning that it would be permitted there without requiring a hearing before the Board of Adjustments or that a special exception be granted.
As proposed, the amendment would also place conditions and limitations for such a business’ operation right in the code. “These conditions and limitation would be specific to miniature golf as a business category, not case-by-case,” Mink told the Coastal Point.
On March 17, the Planning Commission recommended that the town pursue the proposed amendment that would make miniature golf a “use-by-right,” Mink said, “with the view toward making the recognition and regulation for a miniature golf business equal to that of other seasonal businesses.”
Mink noted that Planning Commissioner and Town Council Member Lew Killmer had pointed out throughout the commissioners’ discussion Saturday that the pursuit and passage of such an amendment would have no impact on the appeal that has been filed in the case of the proposed pirate-themed mini-golf business on Pennsylvania Avenue. “That matter will proceed on its own course,” Mink said.
Killmer recused himself from voting on the commission’s recommendation, citing the fact that he would be expected to vote on the matter as a town council member.
Use would likely be limited
Mink noted that a public hearing on the issue would potentially include input from the public upon what sort of restrictions should be legislated upon miniature golf businesses if the use were to become a use-by-right.
Among the restrictions listed in the draft version of the proposed amendment to that effect:
(1) No miniature golf course shall be open for business between the hours of 12:01 a.m. and 10 a.m.
(2) Noise. No central loudspeaker shall be permitted. All outdoor entertainment devices and facilities shall be conducted without disturbing music or other unnecessary noise. The licensee will conduct the entire premises in such a manner as to prevent annoyance and other disturbance to adjoining property owners and to prevent the mini-golf course from becoming a nuisance.
(3) No miniature golf course shall be constructed or operated unless solid walls or fences, not more than 8 feet high are erected along each property line not abutting a public street.
(4) No miniature golf course shall be constructed or operated unless all artificial lighting meets the conditions that are outlined in the Illumination Section of the Bethany Beach Commercial Districts Design Guidelines.
(5) No miniature golf course shall be constructed or operated unless consistent with the Bethany Beach Commercial Districts Design Guidelines.
Those restrictions could be changed, eliminated or added to, based on public input and the council’s own preferences. That assumes, of course, that the council chooses to follow the commission’s recommendation.
Mink emphasized that the commissioners’ recommendation was not the final word on the matter and that the town council could decide to go with either one of the proposed amendments, with a different one, or to do nothing at all.
Aside from the designation of miniature golf as a use-by-right in the recommended amendment, or as a previously determined “game of skill” under a special exception use, the two amendments are virtually identical.
Both make extensive note of the town’s place as a “quiet, family resort” in which a miniature golf course is a suitable entertainment for families and young children, and in which miniature golf had been a tradition until the final remaining course inside town limits — or, indeed, in the immediate area — closed in 2005.
With the commissioners’ recommendation made, the town council this week set a public hearing and special meeting at which the issue will be discussed and potentially voted upon. The hearing is set for Thursday, April 12, at 10 a.m., with the council’s special meeting on the issue to follow at 11 a.m.