Fenwick wrangles with setback wording


Fenwick Island’s recent tussle in the courts over its front yard setback requirements was behind an ordinance change proposed with a first reading at the town council’s Oct. 28 meeting.

The lengthy, 271-word sentence the town currently uses to define how a setback is measured left it in some legal limbo earlier this year, when the owner of a non-conforming property that contains two dwellings disputed how her required setbacks were being determined.

While the judge in the case said the town’s established method of calculating the setback requirement was perfectly fine, he also said it wasn’t clearly codified in town ordinances. As such, it couldn’t be enforced.

The ordinance change was targeted at not only codifying that calculation method but also making the ordinance shorter and easier to understand than its current wordy incarnation.

In essence, the change means that the town has a lowest minimum front yard setback of 25 feet, but in cases where the average setback on a block exceeds that measure, the town has established a minimum setback of that average — up to a maximum of 40 feet. If the average setback exceeds 40 feet, the town requires a setback of 40 feet only.

Council Member Harry Haon noted that the calculation method to determine the appropriate setback had been in use not only by current Building Official Patricia Schuchman but also by her predecessor, for some 25 years total.

Council Member Vicki Carmean said she felt the proposed change was still vague because it didn’t clearly indicate to her how the average was being calculated and was particularly troublesome in the case of multiple dwellings on a single property – the very situation that had taken the town to court.

Carmean instead proposed that the forwardmost building on a property be used for the calculation, but Haon said that with the established practice such a change might prove to be unfair for residents who had already had to build farther back.

Carmean then proposed a flat minimum setback of 25 feet, aiming to avoid mathematical problems in the future and advocating simplicity, while Haon countered that the average setback on some blocks was already 30 feet — again pointing to an inherent unfairness for property owners who built before any ordinance change.

Council Member Audrey Serio, returning to council meetings for the first time since injuring herself in a fall, said the difference boiled down to new houses versus old, with the trend eventually putting all homes at roughly the 25-foot minimum setback.

Carmean offered the idea of dividing the town into two sections with two different setbacks, for ocean-side houses and bay-side houses, for example. When possible needed exceptions were pointed out, Haon noted there were only 18 blocks in the town and detailing exceptions could end up with differing requirements for each block — much as with the formula.

Serio, however, said she wasn’t sure the formula would accomplish what it was designed to do in keeping houses back from the roads.

Carmean requested Haon attempt another rewrite on the ordinance, aimed at further clarifying it but with the caveat that it not get longer again. Haon said he couldn’t promise that and expected it would get longer with any revisions. Still, he said he would take a swing at a revision prior to any second reading for the ordinance.

As it stood, Carmean and Serio voted against the change on first reading, while Haon, Chris Clark and Theo Brans voted for it. (Martha Keller and Mayor Peter Frederick were both absent from the meeting.)

Council members deferred action on a planned first reading for a signage ordinance change, with Clark and Carmean noting they were still working on revisions in light of the recent Your Town workshop on development.

There was, however, resounding approval for the scheduling of the second Fenwick Freeze New Year’s Day ocean plunge, with council members voting unanimously to authorize the event as planning for it begins. Clark did defer similar action to approve the town’s first “aqualathon” to allow organizers to firm up liability issues for the town.

Carmean requested — and received — agreement from the council to make flooding a priority for future budgeting, after a lengthy discussion on the depth of the problem on Dagsboro Street and elsewhere in the town.

Police Chief Colette Sutherland likewise received council approval for an $800 donation from the town to pay for transport of donated goods for Gulf Coast police departments in the wake of this summer’s devastating hurricanes.

The items were donated by local residents and police departments, along with $1,200 in cash, as part of a drive organized by FIPD Officer Jason Bergman, who served a two-week Army National Guard stint in the area after the storms.

But Bergman had been unable to arrange transport for the donated items through the National Guard and a recent effort to get them sent via the Air Force Reserves also failed. Finally, they found a shipping company willing to transport what is presumed to be in excess of 1,000 pounds of goods at a reduced cost of $400 per pound.

With approval of the $800 from town coffers to pay that cost, Bergman was to make final arrangements to ensure the appropriate police personal in Mississippi would be able to receive it and the items were to be on their way in the immediate future.

Public Works Supervisor Neil Hanrahan reported that the town’s median beautification and reconstruction project was approximately 80 percent complete last week, with only some work on concrete structures in the medians and final inspections remaining to be done to verify any loss of vegetation now and in the spring.

The $116,074.26 spent on the project was fully reimbursed, Hanrahan noted, with not a penny of town funds spent by the time all was said and done.

Similarly complete is the town’s work on a “living fence” designed to disguise the town’s recycling area and the storage area for garbage trucks, off Cannon and Bayard streets. Carmean noted that while efforts had been made to find a place to relocate the vehicles and recycling bins, they had not been successful — hence the plantings to disguise them instead.

The plantings feature holly trees and other Delaware native plants, she pointed out, praising the work of volunteers who did some of the planting, as well as the extra work done by Public Works employees to not only install the hardscaping but to give the area a nautical flare.

Carmean requested anyone living on Bayard Street be patient if they felt the plantings were not large enough — they will grow quickly, she said.

Schuchman noted that an item in the town’s most recent newsletter had been inaccurate — and thus the subject of many phone calls to the town hall. The CRS insurance discount for homeowners living in the town is 10 percent, not 15 percent as suggested in the newsletter. She said property owners could look for the number 8 on their insurance policies to ensure they were getting the discount.

Town Administrator Helen Torres asked for — and received — some volunteers to assist with the town’s annual holiday post-tree-lighting party on Dec. 10. Staff was too busy to do the work, she said, opening up the duties for volunteers. Additional volunteers should contact town hall for more information.

Clark asked that anyone wanting to give input on possible banners for the town, similar to those currently displayed in Bethany Beach, attend a Nov. 7 Beautification Committee meeting, set for 9 a.m.

Haon noted that the Parks and Recreation Committee had approved the replacement of five small trees in the town park after they died, at a cost of $750. That spurred Serio to ask Carmean about plans to replace dead plantings in the town’s decorative pots. Carmean said a contractor would be replacing the large plants, with volunteers doing the underplantings once again.

Carmean noted that the Beautification Committee was pursuing the purchase of two “smoker’s outposts” to replace the existing sand-filled urns as cigarette receptacles at the town hall, by way of setting an example.

During the public input segment of the meeting, residents asked whether the town could inquire with the Delaware Department of Transportation for a possible change in the cycle of traffic lights, noting one light that remained red on the side street in the week hours of the morning, despite no oncoming traffic from Coastal Highway, and requesting flashing yellow lights again be considered during the winter.

Both items had been mentioned to DelDOT officials at previous meetings, with the implication that neither was practical. But Sutherland suggested that town residents attend monthly DelDOT meetings held in Lewes to give them their input directly.

Council members said they would also pursue the issues through channels.