Fenwick Island deadlocks on front yards

Fenwick Island Town Council members debated a clarified requirement for front yard setbacks (how close to the street property owners can build something) at the Nov. 18 council meeting but ended up in a 3-3 deadlock (Council Member R. Chris Clark absent).
The motion failed.

Council Members Harry Haon and Vicki Carmean, and Mayor Peter Frederick, liked that Haon’s rewrite significantly simplified town code, and/or required deeper front yard setbacks. However, Council Members Martha Keller, Theo Brans and Audrey Serio suggested it was still too complicated, and perhaps too restrictive.

The tie vote was a little strange, in that the draft ordinance was actually a revision of a draft that received an up vote at the October council meeting, Haon pointed out.

“We actually passed this last month, but some points were made that it could be improved,” he noted at introduction. Haon said there’d been some concerns regarding the clarity of the draft ordinance.

Arguably, anything would have been better than the convoluted, 200-plus word sentence explaining how the town should calculate the setbacks — as if written by a committee of lawyers, Haon quipped.

He’d cleaned it up by pulling the language defining a “block” out of the mega-sentence and placing that language in the definitions section. But that still left plenty of complexity.

In Fenwick Island, residents who live on a street where more than half of the houses are more than 25 feet from the road fall into a special category. There, the town requires front yards be at least as deep as the average of all the front yards along the street (or 40 feet deep, whichever is less).

But there are some problems.

First, this mathematical operation does not exist in written town code — it’s a policy that evolved over the years, but isn’t specified in so many words. This legal technicality caused problems for the town in a recent court case.

Second, because every new project changes the average, the number has to be recalculated over and over, throughout all eternity. Haon proposed to nail it down as whatever average exists as of the date council decides to enact the ordinance.

As Haon reminded his colleagues, in failing to move forward on the ordinance, they were in effect voting to maintain a status quo of shaky legality.

However, Serio was strong for a flat 25-foot setback. The method of averages was arbitrary, she said. In some cases, the front yard restrictions were being governed by some phantom property owners’ personal decisions about where to place their houses back in the mid-1950s.

Haon said he’d been able to resurrect just what rationale the town’s founding fathers had relied upon when they enacted the existing ordinance (which dates back to 1953). He suggested it was to prevent one neighbor from jumping out of line and blocking everyone else’s view down the street.

“Yes, but we’re not addressing that with this average,” Serio countered. While Frederick would eventually support the ordinance on its better-than-what-we’ve-got merits, he did agree with Serio on this point. “On average, (any new homes) are going to be in front of half of the other houses,” he noted.

Haon said he would have concerns about changing to a flat 25-foot front yard requirement, raising concerns of a backlash from builders who’d recently complied with the law of averages.

“How are we going to say 25 feet when the guys right next to them, we required they be 40 feet from the road, six months earlier,” he pointed out.

Better to impose a flat, 40-foot setback from here on out, he suggested. That restriction would be a little more stringent than some local towns’ residential zoning requirements, a little less stringent than others.

• South Bethany — 20 feet, in nearly all cases

• Bethany Beach — at least 40 feet, and in many cases 50 or more

• Rehoboth Beach — 75 feet, in the special “Central Park” district, but just 10 feet everywhere else

• Ocean View — 25 feet, in nearly all cases

The town used to have a similar provision for streets where more than half the front yards were less than 25 feet deep, but 25 feet has become the minimum all over town.

Keller supported that part of the code, but said asking people to provide much more of a setback might be unreasonable.

“What about someone who’d rather have a big back yard?” Keller asked.

The vote may have failed, but Frederick didn’t intend to let the matter die. He asked Keller, Brans and Serio to send Haon a memo listing what changes he should make to redraft an ordinance they could live with, “in order to get a positive vote.”

Council members took a fair bit of input from the public after the vote, and some suggested they should have opened the floor sooner. (Per standard procedure, council doesn’t hold public hearing at the time of an ordinance’s first reading — that hearing comes later, before the second reading.)

In other business, council unanimously enacted a few modifications to the sign ordinance, covering how many U.S. flags business owners can fly in the residential zone during national holidays, giving council the authority to waive the time limit businesses could fly special-event banners and modifying the rules for political campaign signs. (They can now put them up 30 days prior to the election, but must take them down two days later.)

And council approved Haon’s request to bring back the old-fashioned “Beach Rules” signs — the ones the town used until a few years ago, when they switched to metal signs.

They are large, wooden signs with wood-burned lettering. Haon said the town had the foresight to save those signs when it switched to metal, and still had six in storage. However, the town would need to refurbish those signs, and purchase another seven.

Frederick asked him if it would be possible to purchase some smaller wooden signs warning beachgoers of lightning (beach closed) or rip tides (swim with care). The lifeguards could hang these signs from the bottom of the larger sign, he suggested. He also recommended the addition of a lighthouse logo.

Haon was amenable, and modified his motion, tacking another $1,000 onto his $2,500 estimate to cover repair and purchase of the larger signs (council passed that motion in unanimity).