Property owners outraged at ‘taking,’ lack of notice
Owners of beachfront property in Delaware may be able to breathe a slight sigh of relief this week, with the news that any further action on draft state beach-use regulations will be delayed until after at least one more public hearing or workshop — likely in May or June. And some compromises on the draft language may be in the works.
The news came Wednesday via state Sen. George Howard Bunting Jr., who met with Delaware Department of Natural Resources and Environmental Control (DNREC) Secretary John A. Hughes, state Rep. Gerald Hocker, and DNREC’s Dave Small and Tony Pratt on the issue that morning, in the wake of a heated public hearing in Bethany Beach on Friday, Nov. 13.
“I think it was a very fruitful meeting,” Bunting said Wednesday of that morning’s meeting.
Property owners at the continued public hearing Friday (held over from a final December hearing, at the request of Bunting and Hocker) were upset with the apparent lack of sufficient notice about both the December hearing and that night’s continuation in Bethany Beach.
Many said they had never seen an official notice of the hearings that was legally required to be posted in The News Journal some 20 days prior to the hearing, or any public news releases sent to other, local newspapers.
Realtors complained that out-of-state property owners were unlikely to even subscribe to The News Journal, let alone read every legal ad that might pertain to their Delaware property. They questioned why DNREC hadn’t sent notice by mail or at least advertised more heavily. Bethany-Fenwick Area Chamber of Commerce Executive Director Karen McGrath opened the hearing with comments to that effect, adamantly requesting another hearing or workshop be held before the regulations were adopted.
Bethany Beach Vice-Mayor Carol Olmstead said Saturday that town officials had been told the hearing was just on matters of DNREC “housekeeping” and elected to simply send Building Inspector John Eckrich as their representative. No council members attended.
Some who did attend the hearing were openly suspicious of DNREC’s motives in not providing more notice, and in the department’s scheduling of the hearing during the middle of winter, when the fewest property owners are in the area. Others simply chalked it up to a poor communication system that was the standard of practice for DNREC.
Hocker and Bunting themselves said they hadn’t been informed of the December hearing until a day or two prior, and then by friends who called their offices, rather than through any official channel. Neither was able to attend that hearing in Dover.
“A lot of people frankly don’t read those legal sections — I don’t myself,” Bunting said Wednesday. “It’s rare that I glance at one. We have to figure out a mechanism for notifying people, even by e-mail,” he emphasized. “We live in a modern world today. It’s not that big a deal to notify those people who live in that beach strand.”
Of those few at the Jan. 13 hearing who had seen the notice from some 20 days prior, most complained they still hadn’t had sufficient time to look into the impact of the draft regulations on their individual properties, or that the language was too difficult or nebulous for them to understand. Even the best informed wanted clarification, or justification.
That request was complicated by the fact that the hearing was just that — a hearing allowing for further public comment, and not a public workshop that included a presentation of the basic elements in the draft regulations. The last workshop on the proposed regulations was held in 2003, in fact. More than two years later, on Friday, DNREC representatives answered specific questions on their draft but did not go over the whole of the lengthy document or its general import.
The bottom line: DNREC has proposed regulations that would enforce a 1996 state law apparently intended to help protect beach properties by limiting how close to the beach they can be built upon, through a building line that determines the easternmost building allowance. “Apparently” may be a key word, because, according to Bunting, the law is so old that not even its original sponsors in the state’s legislative houses even remember now what spurred its creation back then.
“We know what generated the boardwalk line,” Bunting said of the separate eastward building line specifically established for Bethany Beach and Rehoboth Beach at the western edge of their boardwalks, for properties neighboring the boardwalks. “An individual in Bethany wanted to sell the old Holiday House, and the way they cut the line through there negated part of what is now Mango Mike’s.
“That language took care of that westward line,” Bunting continued. “But Senate Bill 425 included a paragraph that gave a lot of latitude about the line (in other locations) to DNREC. And that’s what the public has to give strong input on, is how much latitude DNREC has.”
“The meaning of the bill was probably well intended. I’m not sure it wasn’t directed toward South Bethany at the time,” Bunting noted. “But even the sponsor’s not 100 percent sure.” He said the bill’s sponsors — the longest serving state senate pro tem in the nation and the state’s long-serving Speaker of the House — were “trying to go back 10 years now and figure out what generated this bill.”
They couldn’t give him an immediate answer. What is clear is that the boardwalk line, for the few to whom it applies.
“The only oceanfront people who are considered ‘safe’ are those who have oceanfront property that faces on the boardwalk,” Bunting said of the separate line that applies only to some few properties in Rehoboth and Bethany.
As currently drafted, the regulation that allows DNREC to enforce the building restrictions moves the existing building line west anywhere from no distance at all, to 20 feet in some cases and even more. Due to the way the line is determined, it widely varies from property to property, based loosely on the historical erosion of that area (a nebulous determination, according to DNREC) and upon satellite photographs taken in 2004.
Therein lies another problem – the bulk of Delaware’s Atlantic beaches have been reconstructed since 2004. Lewes, Rehoboth Beach, Dewey Beach and Fenwick Island have all had massive dunes constructed or reconstructed since then, as well as wide expanses of beach that accompany them.
And Bethany Beach and South Bethany property owners are looking forward to the likely repetition of that reconstruction for their beaches, possibly starting this fall. Naturally, they all want the new, wider beach to be the state from which their building lines are determined.
DNREC officials noted that in no case was the building line moved eastward from its previous incarnation. DNREC’s Maria Sadler said that municipalities had specifically requested that in order to protect their towns from houses being built over the new dune lines.
Knowing the method used to determine the line in the future does most property owners little good, since it still requires consulting maps and other information to make individual determinations. And the hefty sheaves of maps offered up at the hearing did little more than stir more questions and concerns from those present.
Most notably, in some cases, the westward movement of the building line creates a tremendous change in where property owners can build on their properties. Though every case is — by necessity — individual in how the property has been impacted by the proposed building line, some property owners Friday were already reporting that their property, or a neighbor’s, was being rendered unbuildable.
“In some cases in Fenwick, it goes through their back porches,” Bunting said. “In event of a storm, they would have to move back.”
That’s because the new building line would be the farthest east that property owners could build if: a) their property is not currently built upon, b) they do voluntary renovations valued at more than 50 percent of the value of their home, or c) if their property is damaged or destroyed by storm, act of God or simply the ravages of time (another fine point of language with which hearing attendees took issue), to where it requires that same 50 percent of value put into the construction.
There is no grandfathering of existing footprints — another major beef for those at the Jan. 13 meeting.
For those with older, smaller beach cottages who hoped to build a larger, more modern home, that could spell the end. In some cases, they — or anyone they sell their property to — may simply be unable to build anything that could realistically be called a house. In others, they’d be restricted to a structure the same size or smaller.
But the only way to know that for sure is for the property owner to check with DNREC directly to find out where the proposed building line rests on their property. DNREC officials noted they’d fielded many calls of that nature in recent weeks and would continue to do so, but the demands on the office — and on the property owners trying to sift through the document to even make cogent comment — are tremendous.
Another bone the collective group had to pick with the draft regulations was over the definition of beach, which includes a notation of a 1,000-foot rule defining what DNREC considers “the beach.” Commentary at the hearing referenced a decided lack of sand, dunes or beach grasses within most of that 1,000 feet along most of the developed coast. It’s not what many would consider “beach.”
“Tony Pratt wants to clear up the thousand-foot rule, too,” Bunting said, “and redefine what a beach is according to the regulations.” He noted that the rule could mean additional permitting requirements for businesses along the area’s major north-south highway.
And Bunting said his and Hocker’s discussions with Hughes had included also possibly removing any option to use the same regulations to control building along the state’s inland bays, in addition to the Atlantic shore and Delaware Bay shoreline.
DNREC representatives had been very clear that the draft regulations state outright that DNREC will not enforce them on the Inland Bays, due to current staffing limitations. But the language that allows them to do so is also part of the draft, since it does not differentiate between beaches on the Atlantic, on the Delaware Bay or on the Inland Bays. There was much concern expressed that the regulations could eventually be applied to bayside properties as well, no matter what the current intentions.
“They’re talking about taking out the Inland Bays part of it,” Bunting advised Wednesday. “It just is not applicable.”
Beyond the potential direct impact to those desiring to build on their beachfront properties, the proposed regulations have created tremendous concern among the area’s Realtors, real estate attorneys and associated professionals.
With the potential to remove some portions of valuable beachfront property from buildable status, they’re worried about potential future lawsuits if proper disclosure isn’t made to future — or even current — buyers.
“This has put things on hold for some people selling with current contracts, as I understand it,” Bunting said.
DNREC officials said at the hearing that the change in the building line shouldn’t make an impact on federal flood maps used to determine insurance rates but didn’t entirely rule out the possibility that they could have some kind of influence someday in the future.
The greatest point of contention at the meeting — beyond the notification — was likely the method by which speakers were determined by DNREC.
With a crowd overflowing into the hallway, speaking time was initially limited to those who had not spoken at the previous Dover hearing. That left some who had attended to hear from one particular Dover-area property owner ready to mutiny, since he had previously spoken. Many waived their time in his favor, and he finally rose to speak as the hearing neared its scheduled close — against the prohibitions of the DNREC attorney, who then took the hearing off the record.
Eventually, he was allowed to speak, satisfying some and sparking in others a whole new set of questions and concerns about how DNREC had handled the notification process and even the basic elements of developing the new regulations. Were their standards accurate, up-to-date? Were they trying to grab property and power they might not be granted if everyone was fully aware of the issues involved and the potential impact to their property?
With all of the concerns expressed and the animosity that only seemed to grow during the course of the hearing, the attorney running the hearing for DNREC conceded — under pressure — to recommend an additional hearing on the regulations. Hocker and Bunting themselves promised to call for legislative resolutions that would force one if it wasn’t otherwise scheduled. They got their wishes during the Wednesday meeting with Hughes, though the exact date and nature of the hearing (or workshop) has yet to be determined.
Now it’s the public’s turn to take up some of the load of the issue, Bunting said.
“I hope the public is going to get involved. We’ve gotten a lot of calls, so I know they are. There are a lot of legal people very much interested in this. This regulation could have one of the largest impacts on some of the real estate values,” Bunting allowed.
The animosity the hearing generated, though, Bunting said was regrettable.
“I did apologize to Tony Pratt, who I highly respect — he’s the messenger here. I think the hearing got a little out of hand.”
“There’s a lot of frustration with the government,” Bunting acknowledged. “When you have a hearing like this, you’d better be prepared for people to vent their frustration, and the lack of notification was one of the things that disturbed people the most.
“When you know about it and can find out the information, that’s one thing. But when you don’t know about it and it’s such a critical thing, then that’s where the public gets very upset,” Bunting allowed.
Hocker and Bunting made a successful attempt at ensuring their constituents, and others, are able to get the information they need and voice their opinions this time out. DNREC will be unable to move forward with the regulations until the latest hearing is held.
“They can’t,” Bunting assured. “We don’t feel the public has been as duly informed as they should have been.”
And, this time, there will be written notification to property owners by mail, he promised.
Bunting said he hoped property owners would take advantage of the third chance at the hearing process and show up at the new hearing date, even if it ends up during the busy early-summer period. There may be little sympathy for those who find they have more important things to do.
“If you have property worth millions, you’d better drop what you were doing. Some things we’ve held hearings on in June or July, we filled the whole building with,” Bunting said.
The timing of the proposed new hearing was intentional, he noted. “Representative Hocker suggested May or June, because it gives us some time that, if in fact, we need legislation on this issue, we have time to draft it. We have a very busy legislative year ahead of us.”
That, at the last, is a potential safety valve for a process some feel has run amuck since the 2003 workshops on the regulations. With a 10-year-old piece of legislation at the root of DNREC’s proposed regulations — and what many property owners have deemed a “taking” of some of the most valuable property in the state, the importance of ensuring the state law does what legislators really want it to do is all the more obvious.
“One little paragraph in a bill has really caused some consternation,” Bunting said.
DNREC will have a chance to mitigate that when the regulations are again considered in the coming months. Copies of the draft regulations are available on the Internet at: www.dnrec.state.de.us/dnrec2000/Divisions/soil/ShorelineCons/Draftregula... or by calling the Shoreline and Waterway Management Section at (302) 739-9921.
Those wishing to submit comments are still being asked to send them to: Maria Sadler at: Division of Soil and Water Conservation, Department of Natural Resources and Environmental Control, 89 Kings Highway, Dover, DE 19901.
For further information, including details on how the proposed building line may impact specific parcels, contact Maria Sadler at (302) 739-9921.