South Bethany continues mandatory freeboard discussion

The South Bethany Town Council will be continuing its discussion of requiring 2 feet of mandatory freeboard following a change in some council members’ minds after their Oct. 23 workshop.

As the Town of South Bethany participates in the National Flood Insurance Program, it is required to adhere to specific requirements of the federal government and, more specifically, the Federal Emergency Management Agency (FEMA). Currently, FEMA is requiring all municipalities to update their flood maps and the regulations that govern construction within a flood zone.

FEMA released a “basic model ordinance” for municipalities to use, if they chose to do so, during the process. Additionally, a recommended of 12 to 18 inches of freeboard — a factor of safety in elevating a building’s lowest floor above predicted base flood elevations — is a recommended requirement within the ordinance used by the governments.

The council had previously agreed to give residents the option of having 2 feet of freeboard.

Mayor Pat Voveris, concerned with the council vote at the October workshop to discuss the flood plain ordinance, had previously contacted Deputy Attorney General Edward Black, who had given a presentation at town hall earlier in the year regarding the Freedom of Information Act (FOIA).

“I wanted to make sure, if we had violated [FOIA], that we correct the mistake,” Voveris said earlier this week. “We had a long conversation, and he told me basically that the purpose of the Freedom of information Act is to allow people to observe and monitor their government at work.

“Not having specific language that said ‘mandatory freeboard’ on the agenda — we really weren’t doing that. Our agenda wasn’t correct. To compound that, mandatory freeboard has a cost associated with it. You really shouldn’t be speaking about items that will incur cost to our constituents without them having the ability to observe and monitor.”

At last Friday’s meeting, Voveris recommended the council follow Black’s recommendation by making their October action on the issue null and void, and repost it on an agenda.

“I just don’t see how council can’t listen to the Attorney General,” she said. “I didn’t make it up. I spoke to the man.”

Councilwoman Sue Callaway supported Voveris’ motion, stating that it was clear at the October workshop that the topic was not on the agenda.

“We were moving ahead with an issue that the public had not been informed that we would be voting on and making a decision about that was obviously of magnitude to people — otherwise, we wouldn’t have had the kind of response we’re having,” she said.

“Pat and I both said very clearly, as soon as the motion was made, that it was not an appropriate step… We were overlooked, and the vote went through.”

Councilman Al Rae disagreed with the opinion given, stating that Black’s decision, in part, was based on false information that had been printed in a local newspaper.

“It’s procedural,” said Councilman Tim Saxton of the problem. “I struggle with this vote because this town council acted in good faith.”

Councilman George Junkin said he believed the October meeting and the topic of freeboard was properly advertised on the meeting’s agenda. Due to freeboard being one of a number of facets of the Town’s in-progress floodplain ordinance.

One resident asked why the council would take the chance of being wrong procedurally by not nullifying the October vote.

“Because it says we did something wrong, and we didn’t,” responded Junkin.

The majority of the council did not agree with Black’s recommendation Friday night and voted not to nullify the October vote. Voveris, Callaway and Saxton voted in favor of nullifying the vote, while Jim Gross, Al Rae, Tony Caputo and Junkin voted against the motion.

“Whether it was a violation of FOIA or not, we violated South Bethany process,” said Callaway. “We turned around after eight months of work on an ordinance that we spent an enormous amount of time on… I support Pat 100 percent. I think all the actions she took were appropriate.”

“I was disappointed they did that,” said Voveris earlier this week. “When you’re advised by the Attorney General, I think it’s in your best interest to proceed as they recommend. It would’ve cost us nothing to acquiesce to the recommendation of the Attorney General, because we had it right back on the agenda.”

Later in the meeting, the council voted to keep the mandatory freeboard language in the draft ordinance, with Saxton, Voveris and Callaway opposed.

Rae said he was voting to keep the language because it reaffirmed the action at the October workshop but said he would support a referendum on the issue.

An estimated 70 residents were in attendance for the meeting, with the overwhelming majority against mandatory freeboard.

One resident voiced concern that the council would be deciding on the matter during the off-season, while many property owners are not living in town.

Bill Beckett said requiring 2 feet of freeboard would be an “overreach by council.”

“We don’t really need the council to tell us how to use or appropriate land that we own,” said Beckett, who formerly served on the council, adding that the council needs to be as transparent with the process as possible. “This council does not want to get a reputation of trying to pass things while people are out of town.”

Michael Walsh, who has owned property in the town for 40 years, said that, while the concept of freeboard is good, he and his wife are strongly opposed to mandatory freeboard.

“This is happening now in virtually the dead of winter,” he said. “To come up suddenly like this… seems a little unusual.”

Caputo said he had initially voted for voluntary freeboard before having enough information to realize mandatory freeboard would be more appropriate for the town. He explained that, if a resident were to renovate their home, the mandatory freeboard would require the home to be raised to base flood elevation, plus 2 feet.

“It doesn’t change the fact you have to raise your home. You have to go to base plus two feet,” he said. “If you’re raising your home today, you’re talking about a fairly inexpensive amount of money.”

“Nonsense,” said one homeowner in the audience.

Resident Brad Gough said his home is not conducive being raised, and he believes freeboard should not be mandated.

“Don’t force me. I would love it to be voluntary. It’s a good idea. If my lot was conducive, I would be happy to do it,” he said. “It’s an individual thing. … How does making an individual raise or lower [their home] — if it doesn’t benefit or hurt anybody else, why is it appropriate to make it mandatory for everyone else?”

“I personally believe it helps everybody,” responded Junkin. “If your house is worth more because it’s 2 feet in elevation higher, it makes South Bethany a better place to live.”

Resident Carol Stevenson asked the council what had happened in a matter of 10 weeks to make them change their minds regarding mandatory freeboard. Junkin referred residents to a newsletter he had sent to residents stating his rationale for supporting mandatory freeboard.

In the newsletter, Junkin stated that his standpoint was based on the following reasons: “the risk of flooding is significantly reduced when there is freeboard; property values will be higher if there is freeboard; insurance is significantly less when there is freeboard; FEMA strongly recommends that there be 1 to 3 feet of freeboard; New Castle and Kent counties and many local communities already require mandatory freeboard; base flood elevations (BFEs) in South Bethany have increased 3 feet in the last 30 years; freeboard would have kept homeowners from having homes that are now below BFE; [and] statistically, homes that are built [only] to the minimum BFE standards will see damage from flooding in their lifetime.”

Junkin said his support of mandatory freeboard is also based on his personal experience after making substantial improvements to his home in 2001.

Resident Joan Marini told council she would support mandatory freeboard, citing routine coastal flooding.

“When you look at these new houses that are being built, I’m not seeing any of the new houses going up without freeboard,” she said, stating that there could be a need for older homes being renovated to require freeboard. She recommended the Town conduct a nonbinding referendum to see how its citizens feel regarding the matter.

Junkin added that the ordinance is not set in stone, as there will be time for public comment during public hearings for the draft ordinance.

Code Enforcement Constable Joe Hinks emphasized to the council that the ordinance must have FEMA’s stamp of approval by March 15, 2015. Prior to that, it must be reviewed and approved by the Delaware Department of Natural Resources & Environmental Control, prior to being sent to FEMA for review and comment.

If the document is not approved by FEMA by the March deadline, the Town runs the risk of being suspended from the flood insurance program.

The council was scheduled to continue its discussion on mandatory freeboard at its Nov. 20 workshop, following Coastal Point’s news deadline this week. Junkin requested the item be placed on the agenda.

“Maybe Thursday will be a good day for South Bethany,” Voveris said early this week. “All I need is one person [on council] to have a change of position and conscience and come forward.”