Height restrictions focus of AGDC meeting


The Bethany Beach committee charged with drafting design guidelines for the town’s two commercial districts is nearing the finish line on the project, but that doesn’t mean any sighs of relief from the committee members.

“It’s getting more difficult. We’re getting into the minutiae,” said Lew Killmer, a town council member and member of the Architectural Guideline Development Committee for the C-1 and C-2 districts (AGDC), at the conclusion of their June 13 meeting.

In tackling what is expected to be a next-to-last or final draft of the guidelines, AGDC members found themselves re-examining some of the core zoning issues involved in designing the future preferred and prohibited types of structures in the downtown commercial district.

That includes the height limits and additional flexibility on height that the committee has tried to build into the guidelines to allow pitched roofs and other preferred architectural elements.

As it stands, the draft guidelines allow for the same 31-foot maximum height when habitable areas reach the roofline (as in a flat roof). But the new guidelines allow up to 36 feet in height when that additional five feet is non-habitable space, such as that used by a pitched roof.

However, a recommendation to allow up to 44 feet in total height for additional architectural elements (such as cupolas, turrets and chimneys) caught Killmer’s attention in the most recent draft of the guidelines.

“That’s huge,” Killmer told his fellow committee members, emphasizing the perception of height. “If you allow them to go to 44 feet with architectural features, you’re changing the skyline of the town.”

But committee member and developer Jack Burbage favored the allowance, emphasizing that the additional 9 feet above the new maximum would only be used for accent structures such as cupolas, likely one to a structure, and not for storage or other uses. “That doesn’t make the whole building taller,” he said.

Addressing Killmer’s concerns, Building Inspector John Eckrich and Town Manager Cliff Graviet suggested the additional allowance for architectural features be something reviewed by the proposed architectural review board or Board of Adjustments.

They could ensure the elements planned for a given structure weren’t overboard compared to the committee’s intent, they said. Decisions of the review board could be appealed to the town council, and BoA decisions in the courts.

But Killmer said he was concerned that the whole section of guidelines on height needed to be written much more tightly. He questioned whether the town’s policing power on the issues would be enough to stop property owners from building in disallowed ways, whether they would interpret the rules differently or find loopholes, and whether the town’s new rules would survive a legal challenge if they weren’t very specific about what is and is not to be allowed.

“I’m thinking about the guy who wants to take advantage,” Killmer explained.

Mayor Jack Walsh, also present at the meeting, further questioned whether the committee members had considered the additional overall height created by measuring the building height from FEMA dictated base flood elevation, versus the surrounding grade.

Eckrich said, for example, that the building housing Mango’s restaurant was at the current allowable 31 feet above base flood elevation, at its spot on the boardwalk. There, base flood elevation is at the boardwalk itself, some 12 feet above sea level. Echrich said the difference between measuring from base flood or from the surrounding grade was generally several feet.

The committee members were unable to reach total agreement on the issue and acknowledged that an extensive examination of it at that phase in the game would likely mean not meeting the deadline of the town’s 180-day moratorium on commercial construction.

“We’re getting bogged down in this,” Killmer said. “No, we are bogged down,” Graviet replied.

That moratorium was enacted Feb. 10, to allow development of the guidelines and related zoning moratorium, and is set to expire Aug. 9. AGDC members have tried to keep on track to at least have a final draft of the guidelines completed at that time, along with identifying what zoning changes will need to be made in the town to support it.

They stand a good chance of doing so, if an additional protracted discussion of height limits is not required in the immediate future. So, Graviet suggested Killmer and Eckrich consult with architect Jeff Schoellkopf, who has helped them develop the guidelines, and discuss the concerns over height.

They hoped to reach a solution to those concerns in time to complete the draft with a scheduled June 23 meeting of the committee, as well as providing a list of zoning changes.

Both of those elements would be presented to the town council and planning commission. From there, the commission could approve the zoning elements and schedule a required public hearing, to be followed by a possible council vote to adopt the plan and related zoning code.

The committee is still on track to complete those steps in July or August. AGDC Chairwoman and Vice-Mayor Carol Olmstead joined Killmer in saying she believed the final draft of the guidelines and list of zoning changes would be enough to satisfy the established timeline and goals for the project. Those documents would allow those planning major renovations or redevelopment in the district to know what the town was looking at encouraging and prohibiting, they said.

Already, at least two projects are lined up to proceed after the moratorium ends. Eckrich said both sets of property owners (including the McCabe family, which plans to redevelop the Blue Surf Motel as a mixed-use commercial-condominium complex) were being kept up to date on any changes to the draft as the committee continued to meet.

While the height issue remained to be resolved with a consultation with Schoellkopf, committee members continued to fine-tune a number of other elements of the guidelines. The committee members:

• Agreed to require an 8-foot setback for upper stories above 31 feet, versus the previously considered 24 feet.

• Abandoned consideration of changes in the C-2 district, west of Route 1, ruling out as impractical Schoellkopf’s recommendations for ways to make the area more pedestrian friendly by moving commercial buildings closer to the sidewalk. Killmer also cited potential increased noise and light pollution to bordering residences if parking areas were placed at the rear of those properties.

• Agreed not to place heating, ventilation and air conditioning (HVAC) elements among the “architectural features” allowed at increased heights. They may be permitted at or above the sill-plate level of a roof, if screened, but not at the extremes of the height allowance being considered.

• Decided not to prohibit any specific type of roof or roof pitch, except Mansard roofs or a plain, flat roof. A flat roof is to be allowed, but only if accented with decorative cornices, porches or other types of roof lines (such as high-pitched roofs) along the façade of the structure. The current minimum 5:12 roof pitch will be allowed but not encouraged. Also prohibited: roof signs.

• Retained existing parking requirements (two spaces per unit in the C-1 district, with a square footage control in the C-2 district) and accepted recommendations from Schoellkopf on the brightness allowed in lighting. Committee members were skeptical that the lighting would ever be measured, but they agreed a finite measurement would be a good enforcement tool.

• Agreed to discuss with Schoellkopf concerns about limits on lighting types, with lights not permitted above 12 feet from the ground in the current draft. They expressed concerns that upper-level porches and signs could not be lit under those rules, as well as concerns about restrictions on lighting types.

• Considered materials restrictions on fencing, focusing on whether concrete fences or fence pilings should be permitted. Graviet suggested input from Schoellkopf could be used to develop permitted surface materials other than the wood, metal and synthetic permitted in the current draft, but still ruling out plain concrete or concrete block. They also agreed to better define “screening” to ensure that the term isn’t used to get around restrictions on fencing.

• Cemented the notion of allowing first-floor residential use only by special exception, as part of efforts to prevent wholesale conversion of commercial property to residential use. In the case of structures on pilings, the first habitable floor would fall under that restriction, they decided.

• Reviewed new photographs of architectural examples in the town, taken by Jeri Walsh, that will be placed in the final guidelines document.

Each of the recommendations of the AGDC will have to be considered by the planning commission and town council before they are enacted by the town, and other elements — such as signage — will be tackled separately, at a later date.

Olmstead noted that that included previously discussed measured to prohibit the display of merchandise on the sidewalks of the town, which Killmer plans to deal with through the Charter and Ordinance Review Committee (CORC).