Bethany Beach officials have already made a number of changes to the town’s Board of Adjustments, requiring training for members and setting up an independent attorney to serve as legal counsel being some of the changes adopted last year.
The most controversial of the proposed changes was a change from a three-member board to a five-member one. Council members generally favored the idea, saying it would provide a more solid basis for the board’s decisions with a greater number of people serving and voting on exceptions to town building code.
The membership increase would also lessen the likelihood of falling short of a quorum, of having decisions made by just two members, or even of a 1-1 split when only two members vote.
But the change, it turned out, came with a hitch. If made, it would require the town to comply with a state law on boards of adjustments that has since required all board members to be legal residents of the town — no non-resident property owners allowed.
Like many of the area’s beach towns, Bethany considers non-resident property owners full citizens. They can vote in town elections and serve equally in all elected and appointed positions except the town council’s three executive roles. It’s a rule town officials acknowledge not all state legislators like – particularly those from outside Sussex County.
Thus came the recommendation from Town Solicitor Terry Jaywork that the town not risk its grandfathered status of permitting non-resident citizens on the board of adjustments by asking for a change to the board’s membership. Doing so, it is feared, could trigger unwanted attention from legislators who oppose all non-resident voting and service in official positions.
Council members postponed discussion of the issue, taking no action on it while they adopted the bulk of other recommendations for changes to the board. But the issue was raised again at a Monday, Feb. 11, council workshop, where division over the idea appeared to have remained.
Bob Parsons, who has sat on the board for some 23 years and has served as its chairman for many of those, vehemently opposed many of the changes, particularly the shift in membership to five members and the potential removal of non-residents from the board as a result.
“Who wants to disenfranchise and prevent non-residents from serving?” he asked his fellow council members at the outset of discussion on Monday.
Vice-Mayor Tony McClenny objected to the question, saying that the issue of disenfranchising non-residents was not the real question behind the change from three members to five.
Parsons said he was also bothered that the issue had been raised before the council without consulting him as chairman of the board of adjustments, prior to his return to the council last September. He further questioned former council member Lew Killmer’s suggestion that the town could have more confidence in a five-member board than the existing three-member board.
“This doesn’t have anything to do with how people have performed,” Mayor Carol Olmstead said. But Parsons questioned why the town would seek change if the board’s performance had been perceived as good. Council Member Tracy Mulligan said he felt the notion had been to look to the future at a time when things had been going well.
“It’s not personal,” McClenny added.
Killmer, who had recommended the bulk of the changes to the board, cited the use of a five-member board in all of the coastal towns where non-resident voting is allowed. With more people serving, he said, there is less chance of a split decision that might prose problems for the town. He said he also felt residents should be given a greater voice on the board “because they have a greater stake in the town.”
Parsons said he also had concerns that a five-member board would have more difficulty meeting because it would be more difficult to coordinate five schedules than three. And as chairman, he said, he would not hold board meetings where the entire membership was not able to be present, even if that was four out of five members instead of two out of three.
Regardless of the number of members, Parsons said he felt the town should look to state legislators for a possible change in state law to accommodate the town’s non-resident citizens serving on the board.
Killmer, though, opposed the idea of proposing such a change to legislators. “[Jaywork] recommended not requesting the legislature change it. He said we would open a Pandora’s Box with a change to the charter.”
Mulligan pointed out that the town could seek change in one of two ways: (1) ask legislators to permit it to increase membership to five people without being subject to the requirements for all five to be residents; or (2) ask them to change the word “resident” in the section of state law dictating who can serve on municipal boards of adjustments to “qualified voters” or “citizens,” which should create just enough leeway for Bethany’s non-resident citizens to serve, council members agreed.
While Killmer was skeptical state legislators would permit such a change, council members agreed that they would like to pursue one of the options and thus potentially allow the board to increase to five members while not eliminating non-residents from serving upon it.
Parsons, who also chairs the town’s intergovernmental relations committee, said he would raise the issue with state Rep. Gerald Hocker (R-38th) and Sen. George Howard Bunting (D-20th) to garner their advice on how to proceed.
The council will also have to consider how to deal with the town’s Zoning Commission, which has been inactive for years and has in that time had what might normally be its workload performed instead by the Planning Commission.
The chairman of the Zoning Commission has one of the three seats on the board of adjustments, by right, so a proposed move to combine the two groups into a single entity would also affect membership of the board of adjustments.
Bethany Beach is the only one of the area’s towns to have both a planning commission and a zoning commission. State law requires independent commissions in all municipalities to deal with both aspects of town planning, but most towns opted to include the functions in a single commission.