Bethany BoA could grow to five members

The Bethany Beach Town Council considered possible changes to the composition of the town’s Board of Adjustments at their Monday, Feb. 12, council workshop. Primary among those changes could be a move to add two members to the board, which hears applications for variances from the town’s building code.

Council Member Lew Killmer presented an extensive list of points for discussion on Monday, netting a consensus from the five council members present that the time may have come to expand the board from three members to five.

“With three members, two people can make a decision for a significant adjustment,” Vice-Mayor Tony McClenny said, voicing the primary reason why the change in number of BoA members is being considered. “I wouldn’t want to be one of only two people making that kind of decision,” he added.

Indeed, with just two of its three members present, the Bethany Beach Board of Adjustments can hear cases and grant variances. Council members said they felt that was just too few people to be making decisions that can have a major impact on the town.

“We’re asking three or five people to override our rules. They can set a precedent,” Killmer said, emphasizing the importance of the board members’ duties that led to the discussion of several changes for its operation.

While council members were generally in agreement on the issue of increasing the number of seats on the board, there was some concern that making that change could result in a partial disenfranchisement of some of the town’s voters, namely non-residents.

Killmer said state law currently does not allow non-residents to serve on such a board, and that any changes made to the composition rules under town code would mean the town would have to abide by that prohibition. Whether non-residents can currently serve on the board is unclear, he said, and the subject of a question he’d fielded to Town Solicitor Terence Jaywork.

Absent clarity on that issue, council members were somewhat cautious about undesired impact from a possible change. But they were solidly behind the need to add members to the board — and soon.

Current Board Chairman Bob Parsons was leery of the change, expressing his reservations about that impact on non-residents in an extensive commentary document he supplied to the council in advance of Monday’s workshop. He said his impression of the current board rules were that non-residents were allowed to serve but would not be if changes were made.

Parsons and council members allowed that an exception to that rule might be pursued through legislation in the state legislature, with the understanding that Bethany is one of the few towns in the state where there are more non-resident property owners than resident property owners.

Their unique case might be pursued over the long haul, even if a short-term decision to increase membership to five would rule out non-resident board members in the interval. Killmer expressed doubt that an exception would be granted, but Mulligan said he felt the issue might be worth pursuing over time.

Training of board members a focal point

Also among possible changes to the board: a formal requirement for board members to be trained through the University of Delaware’s Institute for Public Administration (IPA), which currently offers seminars in the operation of such boards once or twice each year.

Killmer noted a requirement under state law that board members have experience, training and/or knowledge of urban and rural development. The IPA course helps meet that requirement, he said, full of praise for the IPA’s course offerings for local officials. Both Killmer and McClenny have been free with such praise, suggesting classes be encouraged or required of town council members, planning commissioners, board of adjustments members and others interested in the town’s operation.

In addition to the IPA courses, Killmer said he felt the town should make available to board members the town code, legal counsel and transcripts of prior board hearings, to ensure members were familiar with board procedures and past rulings.

“This training is one huge sign that you are setting precedent. You must be careful,” said Council Member Steve Wode. Regardless of the training offered, he added, the notion that board members can potentially set precedent should be emphasized to them as paramount.

Killmer said that the IPA course not only provided a grounding in the workings of the board but offered basic rules of behavior that board members should comply with to avoid its decisions being overturned on appeal. “Board behavior could lead to a ruling being overturned,” he said, offering as an example a board member who might visit a property alone in preparation for a hearing and happen to talk to the applicant while there — an ex parte communication.

McClenny said many such issues were addressed in the IPA course and could provide important guidelines for board members. He said the board members should be required to attend the course within the first year or two of their term. Mayor Carol Olmstead agreed, suggesting it could be required in the first year.

Council Member Tracy Mulligan took it a step further, saying he felt board members should be required to attend the course before their first hearing. That could prove difficult with the current IPA schedule of only twice a year, council members acknowledged, but Mulligan said he felt the town might look into having legal counsel provide some initial training or into having a private tutor teach a similar course inside the town on an as-needed basis.

Wode noted that when board members were due to end their terms in the future, the council could at least make a preliminary nomination for the appointment of a replacement and have that person take the IPA course in advance of taking their seat on the board, bringing in a trained member from the start.

BoA schedule could be more regular

Also up for discussion Feb. 12 was the board’s schedule of hearings. Currently, they’re held as needed. But Killmer said he felt a set schedule would be a better arrangement for the town. He said some local towns — such as Rehoboth Beach, Ocean View and Fenwick Island — used a fixed schedule, with other using a flexible schedule, as in South Bethany.

Killmer, who has 26 years of experience serving on a board of adjustments in Pennsylvania, said that a fixed schedule meant that town officials, developers and builders knew to keep that date free on their schedules, in case they’d be needed to attend a hearing. He said they also, as a result, did more preparation to have all necessary paperwork prepared well in advance, so as not to be pushed back to a future hearing, a concern Parsons expressed.

If no hearing was pending, a regularly scheduled meeting would be canceled, Killmer said, as is the current practice of the town’s new Design Review Committee on commercial architecture. And any case needing an urgent hearing could be scheduled at the parties’ convenience.

Beyond the issue of regular scheduling, Killmer said he felt the board’s meetings might be held on a weekday evening or Saturday morning, to best enable increased public input. He said the board should itself decide that issue but with the enhancement of public input in mind. Responding to a question from Wode, Killmer said his experience was that public input at a hearing could sway the decision in a given case.

Wode and McClenny noted that the function of the board is somewhat different from the town’s planning commission, which relies upon existing code as the basis of its decisions. With the Board of Adjustments making decisions to possibly allow exceptions to those rules, McClenny said their work was “full of discretion.” That enhances the impact of public input at a hearing.

However, Olmstead said she felt that most who were interested in such proceedings kept abreast of when they were to happen and would be there regardless of when they were scheduled. Reminded that some were prevented from attending by work requirements, she said she could see both sides of the issue.

Independent counsel for board considered

Finally, council members were generally of one mind on the issue of an independent legal counsel for the board. The issue came up most recently during the consideration of a variance to allow the Bethany Beach Volunteer Fire Company its requested radio tower next to town hall.

Some council members opposed the variance at that time and were prepared to fight it in court, should the board decide in contrast with a council majority to allow it at its full requested height. That would have put Town Solicitor Terence Jaywork in the position of needing to serve both the board and the town council on opposing sides of a court case.

The BBVFC variance was eventually settled with a compromise on height between the town and the fire company, and the truncated tower has since been erected without any need for legal action. But a second attorney would be needed if such a case were to go forward in the future.

With that in mind, Killmer proposed Monday that the town hire a second, separate attorney to act as legal counsel for the board of adjustments. Independent counsel is among the IPA recommendations for boards of adjustments.

There also Parsons disagreed in his comments to the council, saying he felt that Jaywork’s experience with the town and knowledge of past board decisions left him exceptionally qualified to act as their legal counsel. He said cases that potentially involved a conflict of interest could be dealt with differently, recognizing that conflict.

But Killmer argued that conflicts of interest weren’t always clear. “It’s time to separate the two,” he said, based on his own experience. He noted that not for every application would a counsel even be required — only those in which the applicant was to be represented by an attorney, or when an appeal was anticipated or the legal issues were particularly complex. Additional expense to the town would be minimal, if any, he said.

If the council decides to make such a move, Killmer said council members would be making the choice of a new legal counsel for the board, since that person would be employed by the town on behalf of the board. Issues such as local history and knowledge of past board decisions would be considered in that hiring process, he said.

Council did not make formal votes on any of the issues related to the board this week. A future vote on many of the issues is likely. Killmer was still awaiting word from Jaywork as to whether non-residents were allowed to serve on the board — something that could potentially impact whether a change to five members is made.