Board defers decision on height variance

By M. Patricia Titus
Staff Reporter

Board members said they wanted the time to visit the site once again before making a decision on the variance request, for some 2.18 feet in additional height allowance on one building and 2.82 feet on the other. Both are already built.

In making their presentation to the board Feb. 6, NV Homes attorney Heidi Balliet (Tunnell & Raysor) announced they would withdraw applications for variances on four other — as yet unbuilt — homes in the project, set for a hearing on Feb. 27.

Neighbors rallied in opposition to the application, citing a previous 8-foot height variance that was approved by the board last year, under an agreement between the builders and the neighbors to allow decorative cupolas on top of the structures. There were 17 letters of opposition presented to the board this time out, with 11 opponents attending the hearing Monday.

As is often the case with requests for height variances in coastal Sussex, opponents argued the resulting height was out of character with the neighborhood, served to block the views from existing homes and would likely set a precedent for such variances that would be difficult to avoid employing again in the future.

Balliet and Fenwick Shores developer Clinton Bunting, of Dewey Beach, freely admitted that there had been a problem with the construction of the two existing homes.

Balliet said the construction company — building its first project in Delaware with Fenwick Shores — had merely had its own Delaware-licensed architect review the plans and sign off on them. That, under county building processes, allowed them to skip the usual Planning & Zoning Commission (P&Z) review and hearing.

With that done and the cupola variance later granted, the builder proceeded under the International Building Code (IBC) adopted by the county May 1, 2005, Balliet said, and measured the height of the structures according to the IBC standard — the mean, or average, height of each structure. The county building code calls for a maximum height of 42 feet, and Balliet said the builder believed the Fenwick Shores homes met that restriction with the IBC-style measurement.

However, the county code also dictates how the maximum height is measured — from the base flood elevation. Under that measurement, the two buildings — even with the previous variance for the cupolas — are over the height they were allowed.

Balliet argued that the IBC, as adopted by the county and in combination with the existing county building code, has created an inherent conflict in how the height of buildings is to be measured — one that still needs to be resolved.

“The hardship is created by the conflict in the two codes,” she said. “Unfortunately, the building code process didn’t allow us to pick that up in the review period.”

Balliet said the builder had relied upon the architect’s review to pick up any such issues before the application for the original variance was entered. But the architect hadn’t discovered the problem. “That was the last of the reviews until we finished the construction,” she noted.

She emphasized that the homes were not pre-fabricated but were of a pre-designed variety, in which the various elements were pre-measured and installed on a standard plan — usually following the widely-used IBC. “When they saw that Delaware follows the IBC, you could see how it could be overlooked,” she explained.

Bunting expressed his personal disappointment with the builder and the mistake that was made.

“I’m upset that I’m here tonight,” he said. “I expect the people who build houses on my properties to follow the law to the letter.”

Bunting personally apologized for the problem but explained that it was simply a mistake. “They followed the rule as they thought the rule was. They didn’t know about the other one. They went to the 42-foot mean. … We’re here because of a mistake,” he said.

The developer said that, in retrospect, the previous variance request for the cupolas had been another mistake, since it complicated the height issue. “I wish I never had come in for it,” he said.

But the mistakes could be costly for Bunting. The obvious remedy for it, if no additional variance is granted, is for the roofs of the two homes to be removed and rebuilt at lower height. He said that would mean not only a loss of money for him but a potential loss of customers.

Regardless of the board’s decision in his case, Bunting said he hoped they would clarify the code, “so this doesn’t happen to anyone else.”

Dave Wideman, representing the neighboring property owners who opposed the variances, said he didn’t think the code needed clarifying.

“They’re trying to create an issue and conflict that does not exist,” he said. “The county code is clear that the height is capped at 42 feet. The definition is clear: it’s measured from base flood elevation to the highest point of any part of the structure. That code and the IBC are not incompatible.”

Wideman said there was a potential, if builders argued that the IBC trumped the 42-foot maximum height in county code, to build to nearly unlimited heights — simply by creating roofs with higher pitches. That would comparatively reduce the average height of the structure, with low sides to offset the higher peaks.

But, Wideman emphasized, “The code is absolutely clear that you cap it at 42 feet.” Builders, he said, could use the IBC in their work, so long as the building — under the county’s flood-plane-based measurement — was still under that 42-foot maximum.

Wideman said the flaw in the process was in the review waiver allowance. “The architect should have known county code says 42 feet, period. The definition is clear. And before you start building multi-million-dollar structures, if you have any questions, you should say to the county, ‘We need an opinion as to allowed height for these structures.’”

Moreover, Wideman emphasized, “The building permit has a handwritten notation regarding height limitation: ‘42 feet maximum from base flood elevation.’ That’s telling the builder how you measure the structure. That takes all the guesswork out of it, gentlemen,” he told the board members. “You have to build in accordance with building permit.”

And he again emphasized that the previous variance had specifically been made to allow the cupolas only, not for additional roof height. If granted a variance for additional roof height now, he said, “Where does it end?”

Opponent Bill Strom noted for the board members that the county planning office was still, as of last week, telling people that maximum building height was measured from the base elevation to the peak of the roof – not an average of the whole roof.

Architect and Fenwick Island resident Phil Craig, who has worked on a number of projects in the area, enlightened board members on how the IBC is viewed in his business.

“I don’t care what code you have — the first thing you do is go to the local zoning ordinance and they give you the guidelines; they set the limits,” he cautioned. “The IBC that was adopted is very general in that sense. That code is modified all over the country. And Sussex County has determined [the maximum height] to be 42 feet. And it has nothing to do with average height.”

Indeed, nearby Bethany Beach also adopted the IBC in 2005, with some modifications, and has recently moved toward adopting the related International Property Maintenance Code, also with modifications to allow for existing stricter elements of town code and eliminate elements of the IBC deemed not applicable.

The argument was a winning one for one board member, with the suggestion to vote immediately on the variance application. “The opposition showed the IBC is basically a guideline. It doesn’t take precedent over local building codes. And the building code very clear in that requirement,” he said.

But other board members were not quite convinced, allowing that there might be a question as to whether the IBC or county code takes precedence.

A site visit and the additional time to consider the issue could help resolve things before the board’s next scheduled meeting — Feb. 27.

In other BoA business, the board unanimously granted approval of a special-use exception for a day-care center for Cassell and Edna Thomas at a property south of Route 20, near Road 485.