Bethany deadlocked over church property

Town officials in Bethany Beach were reluctant to formally commit themselves to a plan to use the former Christian Church property adjacent to the town hall as “open space” when offered $250,000 to do so at the Jan. 21 town council meeting.

The $250,000 grant from the Delaware Department of Natural Resources (DNREC) would have required the town to legally bind itself to a restricted use for the property, one that would prohibit so much as a single air-conditioned building on the property.

The town paid $1.4 million for the property, with the stated intention of using it for open space and recreation, and that intention remains; but the legal limitations imposed by the grant proved too binding for a clear vote to accept it.

Instead, the council voted itself a stalemate, with council members Wayne Fuller, Carol Olmstead and Tony McClenny opposing the acceptance of the grant, and Jack Walsh, Lew Killmer and Harold Steele supporting it. Council Member Bob Degen was absent for the meeting and thus unable to break the tie.

As the town council requires an affirmative vote of four members to proceed with any action, the motion to accept the grant was dead — at least for the time being. It could potentially be considered at a future council meeting with all seven members present to vote, but it may be that the grant would no longer be available to the town at the time.

Town Attorney Terrence Jaywork said he would investigate whether the council’s failure to accept the grant at the Jan. 21 meeting will mean it is withdrawn by the state.

The stalemate from the council came at the end of extensive discussion of the restrictions imposed by the grant. The town applied for it in the spring of 2003, with a delayed granting process that made the town eligible for later grants on the earlier purchase of the land. The grant was awarded to the town Nov. 22, 2004 but had to be accepted by the council with some strings attached.

That acceptance hinged on council members’ willingness to accept the usage constraints imposed by the grant’s terms. The grant restricts the land’s use to open, recreational space and parkland.

If the town were to decide to construct an otherwise disallowed building upon the property, it would be required to offer up a similar parcel of unimproved land in its stead. That parcel would have to not only be unimproved open space of similar size, but also of similar value and composition (i.e., not wetlands).

The exchange would then have to be approved by DNREC and the state legislature, something Jaywork said he didn’t “sense would be that easy.” The terms refer to “unavoidable conversion,” he said, such as condemnation for widening of a road. “They are very serious about these restrictions,” he told the council members.

Killmer said he believed the town “should lock this up for future generations. This is our commons,” he said. Of the grant, he said, “This is a gift coming to us from the state. This use will maximize the open spaces we have left.”

Olmstead agreed that the initial decision for the use of the former Christian Church property had been for open, park use, but she questioned the need to lock the town into such use restrictions against all possible futures.

Fuller said he was disturbed by the prohibition against any buildings that were not open to the elements, while Walsh noted that uses such as a pavilion or tennis court were allowed even with the restrictions.

Planning Commission member Steve Wode said he believed the grant was too small an amount to offset the restrictions imposed. “We’re getting a quarter-million for the property that we paid $1.4 million for, and mortgaging it against the future. I think this is a bad idea,” he said.

Former Mayor Joseph McHugh, who has championed the acquisition of open parcels of land by the town, also opposed the acceptance of such restrictions. “We’re giving the property to the state for a quarter-million, when we paid $1.4 million for it,” he said.

In response, Jaywork noted that the state has no official claim of ownership under the terms of the grant, but the usage restrictions would be a permanent part of the deed to the property. He also reminded council members that the future needs of the town for the property are also subject to the whims of nature.

“Fifty years from now, there could be a hurricane, and this could be beach. And that property could be the location for the new town hall,” he said.

McClenny said he had wavered on the issue in recent weeks, initially believing the grant should be accepted and the property’s use locked for open space. But, he said, the language in the documents provided for the grant’s acceptance had not proven compatible with his idea of how it should be handled. “We will lose control of this property for a small amount of money. My mind has changed.”

Planning Commission member Phil Boesch, who was selected as its new chairman the following morning, questioned whether the town had a great enough financial need to justify the acceptance of the use restrictions in exchange for the $250,000 grant.

McClenny, as the new town treasurer, said, “It appears we are overspending our income. We’re not hurting now, but we could be in the future if we’re not careful.”

At that point in the discussion, it was pointed out by McHugh that a large expenditure by the town — one right on topic for the matter at hand — was on the horizon. McHugh announced that a recent court decision had begun to clear the way for the town to purchase the Neff property.

One of the only other remaining large parcels of open land, the Neff property sits across from the town hall, on the opposite corner of Routes 1 and 26. (Jaywork later confirmed the initial court decision in the Neffs’ favor had moved the issue forward in recent weeks, pending a 30-day appeal period.)

The purchase price for that property has been set at $600,000, with payments of $140,000 per year for five years. Town Manager Cliff Graviet noted the first year’s payment on that purchase has already been budgeted.

However, town council members said they believed the issue of the grant (and its restrictions) should be decided outside of the amount of the grant. Indeed, Jaywork said that while additional grants for the property were possible in future years, they were far from guaranteed and the town could expect to bring in no more than the current $250,000 being offered.

Killmer recommended the town lock the use of the property against the possible future decisions of other council members. “I don’t want somebody five years from now turning this into a hotel,” he said.

Steele seconded that sentiment, pointing out that other types of council action would not permanently bind the use of the property to open space and saying to his fellow council members, “If you want to exert your vote to keep this a parkland, vote for the grant tonight.”

Jaywork voiced a note of caution, asking, “Should these six people make a decision tonight that will forever bind this property?”

Olmstead voiced continued concern over the degree of restrictions imposed, while McHugh suggested a referendum on the issue to allow more residents of the town to voice their opinions.
Steele, however, moved that the council vote to accept the grant at that time. His motion was unsuccessful due to the tie vote of the six council members present.

Whether the issue of this particular grant (and its restrictions) will again surface for a council vote — or a public referendum — will depend largely on whether the council’s failure to accept it on this first vote negates the state’s offer of the grant. If it does not, and the grant is still being offered, seven council members (and the people they represent) may have to revisit the issue in the very near future.