Board denies pool request near Fenwick


Dana Kishter’s neighbors in the unincorporated area of Fenwick Island say they’re full of sympathy for Kishter’s medical condition. The Bethesda, Md., woman is to undergo a bone marrow transplant and has been told by her doctors that she should use a pool for therapy as part of her recovery. And that’s where the neighbors say their sympathy has to make way for practical considerations.

Kishter and her husband, Neil, own one of two adjoining Coquina Club Condominium units on Bunting and Maryland Avenues, south of the town limits. They want to build a small private pool on the property that Kishter could use for her prescribed therapy when the couple uses the beach-block home during the spring, summer and fall.

The private pool is needed, doctors wrote, because Kishter’s medical condition leaves her immuno-compromised and thus unable to safely share a pool with the general public or to use the ocean for her therapy. And their condominium neighbor has approved of the addition.

But the Kishters’ small lot won’t easily accommodate even the small, 3-foot-deep therapy pool, even after they remove the existing hot tub and picnic table. So they requested side-yard and rear-yard setback variances from the Sussex County Board of Adjustments at the board’s Feb. 5 meeting.

Neighbors emphasized their feelings of sympathy for the battle Kishter has been fighting with her illness but were unforgiving of potential impacts on their own properties by the proposed pool. They particularly cited concerns about how rainfall and water drained from the pool for maintenance would be handled on the site, which already largely comprises impermeable surface.

The Kishters said they planned to do any draining of the pool onto the backyard common area next to the pool but that they had been assured by their pool contractor that the system was self-contained and would be maintained rigorously to prevent biological contamination and limit outflow of water. The couple said they had also been considering a hard top for the pool that they were told would minimize the amount of rainfall infiltration and resulting pool overflow.

But the neighbors said they still believed the pool would result in water flowing from the Kishter property and onto their own or the neighboring street, where there are already problems with drainage and no storm drains to accommodate additional flow.

Additionally, neighbors present in opposition to the Kishters’ request on Monday said they were worried about whether Kishter would truly be the only one to use the pool. They said friends and family already frequented the property during the warm season, creating concerns about noise and additional users if the pool were built. And they were further concerned that renters of neighboring properties might make use of the pool without permission when the Kishters weren’t there.

The Kishters, who do not rent their own property to others, said they planned to keep the pool top locked in place when not in use by their family and noted an existing 6-foot-tall fence that surrounds the property. The family said they also planned EPA and engineering studies before constructing the pool, to determine any potential problems with flooding, but the neighbors remained concerned about that issue and others.

Neil Kishter and the couple’s attorney did most of the talking on Monday night, but Dana Kishter rose briefly to address the board as well, only to return to her seat as the emotion of her situation prevented her from saying a word.

The board initially took the case under advisement at their Feb. 5 meeting, delaying deliberations and a vote until the end of that night’s lengthy meeting. And in later deliberations, they took note of the fact that the small lot had previously been granted a variance to its setbacks.

In the end, the decision focused on the issue of flooding. “I’m empathetic to her condition, but I don’t see how they can have a pool without letting the water go on someone else’s property,” board member John Mills said. “They had a previous variance to allow reasonable use, and now they’re asking for more,” he added.

Mills said he felt the Kishters could look at building their small pool in the existing garage area, if it was really needed, but that granting the variance would alter the essential character of the neighborhood — a criterion under which the board typically denies variance requests. He said the Kishters also had the ability, if they so chose, to sell the property in favor of one that already had a pool — as several other neighboring properties do.

Board members were solid in the consensus that the pool maintenance would pose a likely flooding problem for neighbors and on that basis voted unanimously to deny the request for a variance.