Sea Villas non-compliance up for discussion

Bethany Beach planning officials are once again examining how to deal with discrepancies between the standards, covenants and deeds in the Sea Villas community and the town’s standard residential zoning ordinances.

The initial proposal for handling those differences came in the form of a proposed R-1B residential zoning district at the Planning Commission’s April 22 meeting, but commissioners quickly made it clear that they weren’t sure that was the best way of dealing with the problem.

At the root of the issue: a unique set of standards that came along with Sea Villas when the Freeman-designed community was constructed between Bethany Beach and the Sea Colony high-rises to its south in the mid-1970s. Among the oddities:

Driveways well exceeding the 20-foot maximum width allowed in the town.
An allowance that permits property owners to build their homes and accessory structures right up to the property line, with no setbacks at all.
Requirements not to include windows on the side of homes facing the side of the neighbor’s property where encroachments are allowed.
An unparalleled easement permitting property owners to build open deck as much as 8 feet into (and 200 square feet maximum) their neighbor’s property to one side (north or south, depending on the side of the street).
“I’ve never heard of being able to build on your neighbor’s property,” Council and Commission Member Lew Killmer stated during the extended discussion of the issue on April 22.

Indeed, the covenants of the community allowed just that, though it’s been the source of some considerable surprise and consternation ever since, but especially since the town annexed the community, shortly after building began.

“It’s been a matter of good neighbors agreeing to this point,” Killmer said.

As time has moved forward, the town has tackled the driveway non-compliance and an earlier statement from a town official that appeared to have been unintentionally complicit in how the widths came to be, by way of mandating a minimum driveway square footage. The commission wrangled with the issue for years before finally, last year, insisting property owners adhere to current town ordinance for a maximum 20-foot width when reworking their existing drives.

The town also issued a blanket variance in 1993, designed to allow the encroachment of the open decks onto neighbors’ properties. But the variance was just a bit too blanketing — it also (apparently unintentionally) permitted the building of structures across that property line.

And, with more than 10 years gone since that variance, and about three decades since their original construction, the homes in Sea Villas have naturally come under the redevelopment gun, with some property owners already rebuilding homes on the lots — and raising all kinds of questions as to how they should be built and what standards should apply.

It’s a Catch-22 for them. Their covenants and deed restrictions grant them the unparalleled easements and just as clearly grant them to their other neighbors. Some have neighboring decks that are actually physically attached to their homes’ structures.

Others are concerned their neighbors will demand compliance with town ordinances and require them to tear down their existing decks. And they all need to know where their windows can and cannot go. And most of it is out of synch with town ordinances and standard practices.

The community could strip the troublesome allowances and restrictions, but they have previously failed to do so on every occasion. A two-thirds majority of property owners is required for such a major change, and the holdouts are determined, according to Council Member Tony McClenny, who resides in Sea Villas and is currently having his home rebuilt.

So the planning commissioners and Building Inspector John Eckrich have been left in the middle of a sticky situation, asked to provide guidance on what can and cannot be done within the annexed community.

Does town ordinance supersede community covenants? Is violation of town ordinances reason to hold up building or permitting, when the violations are permitted under the covenants? Should property owners simply give up what they’re allowed under the covenants to help out with eventually getting Sea Villas in line with town code? And will their neighbors agree to do the same?

Commission Chairwoman Kathleen Mink related that Town Solicitor Terence Jaywork had suggested a new zone be created to cover the community’s unique standards, rather than having the town’s Board of Adjustments constantly being called in to resolve the issues whenever the inevitable teardown comes up for review. The town, he said, does not have the authority to enforce the elements of the deeds that allow the deck encroachment.

But commissioners were reluctant to allow the ongoing non-compliance and leave open the issues that would naturally result from the odd set of allowances and requirements.

The simplest solution would, indeed, be in the community agreeing to make the changes. And commissioners agreed that was a place to start. Shelving talk of what authority the town might use to enforce its own ordinances, they focused instead on discussing the matter with property owners in the Sea Villas community, hoping there’s enough common ground to resolve the incongruity without creating a greater legal and administrative nightmare for the town.

McClenny noted that the homeowners’ association plans to hold its annual meeting Memorial Day weekend, providing the town with a good chance to see where their feelings lie and whether a mutually agreeable compromise might exist for all. Most had seen the need for a change, he said, and the support for the status quo was in the minority among the property owners, if a determined minority.

“The ones who don’t plan to tear down will be the ones who resist,” McClenny predicted.

Commissioner Steve Trodden took the point position on the issue, agreeing to work with McClenny and other representatives of the community on the initial research into the situation and arrange talks with the property owners.

“I’m optimistic that reason will prevail,” Mink said. “If this is successful, we won’t need a new zoning district. It will just be part of R-1.”

Also, April 22, Planning Commission members:

Granted unanimous approval for a final PRD plan for Mark and Kiki Zachary in the R-2 zoning district at 877 Garfield Parkway. The project, now named Bethany Crest, has received the bulk of needed state and county approvals. The four five-bedroom units will include six parking spaces per unit, with two provided outside and four underneath each unit.
Finalized work to accommodate homes on corner lots in the previously passed setback encroachment allowance for open stairways, originally designed to encourage obvious front entrances. The new allowance — for up to 5 feet, and no closer than 10 feet from the property line — would allow the encroaching steps to lead to any entrance, be it designated front or side, and could potentially be used on both faces (though that was considered unlikely due to the constraints it would impose on structure size).
Worked to firm up planning commission processes between commission vote and public hearing, after an admitted shortfall on time in recent months with Mink scheduled to present a proposed zoning ordinance change. Walsh emphasized that the commissioners have the power to call off an advertised hearing if they are not ready.
Commissioners were to meet again on May 20, moved up a week to coincide with an early council meeting, moved up to May 19.