Roof-pitch measure repealed in Bethany


Bethany Beach officials adopted a roof-height allowance in April that was intended to encourage property owners to build homes with more pitched — and generally more architecturally interesting — roofs.

But the allowance was controversial from the start, sparking objection that led to a petition in a referendum effort this summer. And the successful petition drive led this week to the voluntary repeal of the ordinance by the council on a 6-0 vote.

The move avoided a potential referendum but set the stage for future consideration of a number of Bethany’s existing restrictions on structure size.

Ordinance No. 412 permitted those building a roof with a 7:12 pitch over 60 percent of a home to build to a height of 35 feet from the surrounding grade, in the R-1 residential district.

In most cases, that provided a little bit of leeway from the existing 31-foot height cap, in which the additional bit of roof height could be accommodated without reducing the resulting interior space of the home. In some few cases, homes would have been even shorter, as previous amendments allowed property owners to build up to 31 feet from the base flood elevation on their property — in some cases, up to 36 feet from surrounding grade.

Council members, planning commissioners and members of the zoning ad-hoc committee that helped develop the allowance emphasized throughout the process that the only portion of a home that could get taller under the ordinance was the portion between the sill plate and the roof peak — uninhabitable roof space to accommodate the higher pitch.

They said the resulting roof pitch not only better broke up what might otherwise be plain, “big-box” facades facing on town streets but actually made larger facades have less visual impact from the street, since the homes would seem narrower under a steeper roof.

And a Sept. 14 article in the Wall Street Journal noted Bethany Beach as one of many communities nationwide dealing with the shift toward flat roofs and complaints about “big boxes” through ordinances restricting them. The article cited one reason behind the trend as the desire to maximize property values, as has been considered the case in Bethany.

But opponents from day one stressed the ability for the overall height of the home to be increased under the ordinance, with a resulting negative impact on the town’s skyline and from the street. They emphasized a desire from the town’s citizens to see smaller houses — actually smaller, and not reliant upon a trick of the eye to mitigate what was in some cases a measurably taller home — and certainly not in any way larger.

Ordinance divided town, influenced elections

Among sitting council members at the time of the April vote, only then-Mayor Jack Walsh voted against the measure, siding with opponents who said there was insufficient justification for any additional height allowance to be granted.

That set up a contentious election season, as signatures calling for the repeal of the ordinance were gathered, incumbents were targeted over their support of the allowance and the town sought to clarify the intention behind an ordinance that was far from easily explained. The issue became central to September’s council elections.

Council Member Harold Steele vociferously supported the ordinance, tried repeatedly to explain it in a way that negated opponents’ concerns and may have paid the price for that support with a narrow loss in his re-election campaign for what would have been his third term. Council and Planning Commission Member Lew Killmer, who helped draft the ordinance, was even more narrowly defeated, but was later reappointed to fill the seat Walsh abruptly resigned.

Petition certified, options weighed

Petitioners had gathered signatures throughout the summer, attempting to gain the names of some 15 percent of property owners and thus secure the right to a referendum on the possible repeal of Ordinance No. 412. In September, they turned in petitions with 837 signatures — 53 of which could not be validated.

That result was certified Oct. 20. With 784 valid signatures and just 714 needed, council members validated the petition and its call for a referendum on the ordinance. The remaining question was which of several options they would exercise in dealing with the ordinance.

There were three options: (1) for the council to voluntarily repeal the ordinance, (2) to allow the call for referendum to move forward and schedule within 90 days a vote on the ordinance’s possible repeal, (3) to take no action and by doing so give a defacto repeal to the ordinance, under the town’s code regarding such referendums.

Mayor Carol Olmstead suggested the first option at the council’s Oct. 20 meeting, saying that the ordinance had been an attempt to address issues of aesthetics and encourage architectural diversity, but that its intent had been misunderstood and that it was confusing.

“It seems best that the town council repeal it and send it back to the Planning Commission,” Olmstead said, adding that the town really needed to craft guidelines for the style of homes built.

Asked by Planning Commission and Zoning Ad-hoc Committee Chairwoman Kathleen Mink if repeal was the best way to deal with an issue of misunderstanding or if the town should make further efforts to make things understood, Olmstead emphasized, “Our intent was never to increase roof height, per se. We were trying to encourage a steeper roof pitch.”

But with the petition validated, the council was required to make some sort of decision on the issue, even if that decision was not to decide.

The real question: bulk or height?

Faced with such a decision, Olmstead favored having the entire issue looked at again. And lead opponent Dan Costello emphasized that need in stating that the height allowance had been targeted as the only recent town action that dealt with a trend toward increased home size and density.

“There has been no vote on bulk or square footage, so we dealt with height,” he said of the petition drive. Costello questioned whether the purview of the ad-hoc committee had been sufficiently large in scope to have really dealt with such an issue, since it was focused on aesthetics and curb appeal.

“It was too narrow to deal with the real issue, which is bulk,” he said. “The issue is there is too much square footage now.”

Hearing that, new Council Member and former Planning Commissioner Steve Wode questioned whether the appropriate move was to repeal the ordinance and send the roof-pitch issue back to the commission. He said he favored a referendum instead, to see whether there was real public objection to the roof pitch allowance or whether it was a sort of legislative whipping boy for larger issues.

“This ordinance doesn’t address the issue of concern: bulk,” he pointed out. “We played with this for a long time,” he added of the commission. Vice-Mayor Tony McClenny supported that assertion and implied that a lack of understanding was still at play, saying, “The Planning Commission had facts.”

New Council Member Tracy Mulligan — who continued his public opposition to the ordinance — supported a referendum, saying that more than 700 people had called for the referendum and that the council should listen. He said some might have signed the petitions in hopes of just putting the issue on the ballot and not necessarily in opposition to the allowance.

But Olmstead said she feared a referendum would more likely reflect an ordinance that was never explained well. And Killmer said he was concerned that a winter referendum would result in low turnout in a time when 30 voters had decided the September council elections, possibly netting a result that was less than reflective of overall town sentiment on the issue.

Wode, however, said he wondered where the results would differ if the town just sent the issue back to the planning commission. They had arrived at the ordinance recommendation once and might do so again, he said.

Staunch in their support for the referendum as an avenue of progress on the issue, Wode and Mulligan voted against the immediate repeal of the ordinance, while the other four council members voted for repeal. (Council Member Wayne Fuller was absent.)

Repeal leads way for future debate

The 4-2 split cemented the repeal, striking the controversial ordinance from the town code and leaving open the issue of how to proceed.

There also the council members split — at least as to the hows and whys.

Killmer sounded resigned. “I don’t know what else can be done,” he said, acknowledging the town-wide split over the ordinance, as well as “a lot of misunderstanding.”

“At the end of the day, the issue is height. And the only way to get rid of the flat roof is pitch. The only way to get pitch (without losing floor space) is height,” he reiterated. Killmer further emphasized the range of people who had been involved in drafting the ordinance, from planning commissioners and citizens to builders and architects. “They all had input. What else would they change?”

Olmstead replied that the concept of the ordinance might not change at all but that how it is written and explained might. She emphasized the need to deal with the issue of flat roofs in some manner, separately from the larger issue of height.

From the other side, Mulligan reminded council members that taking no further action on the issue was also a possibility.

But there were also concerns expressed over whether future efforts to deal with such issues would all end up being about the trend to increased bulk, density and height, and away from the more traditional small cottage.

Indeed, what has been to-date considered a rather successful and clear-cut element of the town’s code — the 40 percent lot coverage cap, working in concert with height limits and setbacks — could potentially see a future where, like many of its coastal neighbors, Bethany Beach may instead have to consider the complex issues of floor-area ratio, limits on occupancy, and caps on bedrooms or bathrooms.

For now, with a final 6-0 vote to send the issue of roof pitch back to the planning commission, the council has all but guaranteed some future action on the issue, with some additional consideration of those larger issues of bulk, density and aesthetic appeal likely to be on the near horizon.