GUEST COLUMN -- Beach-use regulations get a closer look

By Chuck Coltman
Special to the Coastal Point

Despite what many people have been told, a careful reading of the amendments to the Beach Preservation Act of 1972 of 1980, 1984 and 1996 illustrates that most of the proposed changes are not a result of those amendments and are far more comprehensive than mere housekeeping. The changes are substantive, have significant financial impact on affected citizens today and much greater potential impact given the power DNREC has to change building lines in the future.

This analysis was prepared based on multiple readings of the law, each amendment, current regulations and the proposed regulations. Where language or intent is unclear as noted below, DNREC should provide specific explanations, in writing, and made part of the regulatory history so that as time passes and people change the record is clear.

While many of the proposed changes are contained in changed definitions, a full understanding is only possible after seeing how they are used in the text. The latter half of this analysis points out specific issues section by section. However, nothing can substitute for reading (and re-reading) both the current and proposed regulations.

WHO IS IMPACTED?

Massive impact: Property owners whose lots are now, or may be in the future, wholly seaward of the Building Line.

Major impact: Property owners whose structures are now partly, or may be in the future, seaward of the Building Line.

Impacted: Property owners whose structures are within the newly established Zones (see below) and are not likely to be moved across the Building Line.

Minimal or no impact: Property owners outside the new Zones but within the Beach, as defined.

Issues: There are approximately 481 homes wholly or in part seaward of the building line from the Delaware border to Cape Henlopen, representing billions of dollars in value. DNREC’s maps along the Delaware Bay do not show the same level of detail as along the ocean, so how many of these properties are affected is unknown. Every property owner along the coast should contact DNREC immediately if they are unable to determine where they stand from the published maps on DNREC’s Web site.

PURPOSES AND PRINCIPLES

Existing law and current regulations: “…purpose … is to enhance, protect, and preserve public and private beaches of the State, to mitigate beach erosion…”

Proposed regulations: adds the phrase “…to minimize storm damage…”

Implications: The intent is not clear and is not part of the law itself. Its meaning should be considered in the context of changes in definitions of the words repair, maintenance, “substantial destruction,” “substantial improvement,” among others. The phrase could be used to make sure that homes are kept small so as to reduce the damage caused by a storm in dollar terms, as suggested by the new regulations’ focus on limiting expenditures on improvements. Minimizing storm damage is also a justification now for requiring modification of design whereas in the current regulations (4.07) such measures were intended to mitigate “…damage to the beach seaward of the Building line…”

DEFINITIONS

• Beach — The new regulations define beach as back 1,000 feet landward from the ocean and 250 feet from the Inland Bays. This definition has been part of the law since 1984.

Implications: Can only be changed by changing the law. DNREC has stated publicly they do not intend to draw Building Lines and regulate along the inland bays. However, they could change their minds at any time, so owners 250 feet landward of the bays should review language for property both landward (Section 5.0) and seaward (Section 6.0) of Building Lines since DNREC could place them wherever they wish whenever they wish.

• Building lines — The definitions in the law and the new regulations are the same, and other language in the new regulations seem consistent with existing language. However, the location of the building line was moved landward based on elevations as of 2002.

Implications: Homes that were previously landward of the line are now seaward, and their owners may not know it. More importantly, many homes have been built since the latest revision and are now just landward of the Building Line. Once DNREC moves the line landward again, just a few feet, many other houses become subject to controls for properties seaward of the line (Section 6.0)

• Repairs — The current definition is “…the act of restoring a structure to good condition after it has been damaged.” The proposed definition is “…the act of restoring a structure to good condition after it has been damaged or deteriorated by any cause.”

Implications: No damage has to occur, merely deterioration caused by time. Many more actions on the owner’s part are subject to permits and approval (or rejection). This change impacts properties both seaward and landward of the building lines.

• Complete destruction — Current regulations define this as “…75% or more of the original structure, or, if a building, more than 50% of the original foundation pilings, are unsuitable…” Proposed regulations use the phrase “substantial damage,” and reads as follows: “…means damage of any origin (fire?) sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50% of the market value of the structure before the damage occurred.”

Implications: The new language brings more properties within the rebuilding rules under 5.0 and 6.0 (see below). More homes, all or in part, over the building line would have to be rebuilt, relocated landward, and probably reduced in size as a function of DNREC’s 4-Step Process.

• Substantial improvement — The current regulations are silent on this topic. The proposed regulations read, “…means any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure … before the improvement is started.”

Implications: This language, as used, has a devastating impact on people with properties now (or in the future), all or in part, over the building line. Particularly among older homes, the cost of renewing kitchens, bathrooms, and flooring would easily exceed 50 percent of the existing structure. Accordingly, these homes must be rebuilt further landward (with structures on either side remaining forward) as part of the 4-Step Process at significantly greater cost, or else allowed to deteriorate over time. Deteriorating homes along the ocean will not bode well for property values in the entire community.

• Beach zone, erosion/wave zone, flood zone, wave/overwash zone — These zones are not defined or referred to in the current regulation or in any part of the Beach Preservation Act, as amended. They are used extensively in the proposed regulations. They refer to areas landward of the building line and are described in DNREC’s Coastal Vulnerability Assessment Maps. The maps are not shown on DNREC’s Web site, whereas the Building Lines are shown. They result from a 1997 study prepared for DNREC that attempts to reflect a potential 100-year flood event and a Category 3 hurricane. Properties within these zones are subject to new building requirements.

Implications: The new building codes are contained in Section 8.0. They appear reasonable and appropriate given the improvement in building standards in recent years. Nevertheless, the location of these zones should be readily available on the Internet to those who are subject to the new rules. Another question is how applicable they are today, given that much has happened to our shore since 1997, mostly good. A point raised by Mr. Godwin of Prime Hook at the recent hearing in Bethany Beach was that no Category 2 hurricane had ever hit Delaware and that the study reflected a once-in-500-years event.

SPECIFIC ISSUES IN THE PROPOSED REGULATIONS

What follows below does not address all the concerns that some residents of the beach, as defined, may have. They are, however, the most significant ones that I have identified over the past two weeks, listed by numbered section from the regulations.

1) 7.0 Prohibited Activities

7.3 — “ Construction of any structure, or portion thereof, on any lot or parcel of real property that is located entirely seaward of the Building Line that was not owned by the applicant on the effective date of the regulations is prohibited.”

Implications: Seaward of the building line, no owner can modify their property. They can not repair beyond siding, painting, etc. They can not improve more than 50 percent of the market value of the existing structure without rebuilding – but only the existing owner can rebuild. If damaged in a storm, the existing owner (only) can rebuild. If passed on to children, they cannot rebuild. It can be sold, but the new owner can not rebuild. Who would buy under those conditions? What lender would not demand payment even from existing owners under a material adverse change clause?

2) 6.0 Seaward of the Building Line

Approvals are required for any construction, modification, expansion, repair, relocation, reconstruction, or maintenance (except cleaning, painting, siding and windows).

• 6.1.2 — Any activity seaward of the building line requires use of the 4 Step Process.

6.1.2.3.1-4 — 4 Step Process: In summary, owners must rebuild as far landward on the lot as possible, the size of the reconstruction based on contiguous properties’ average size. DNREC advises that this process has been in place since 1997 and is based on language in current regulations 3.1 and 3.2.

Current: “…any modification or redesign will not conflict with any Federal, County or local laws, regulations or planning, zoning, and building ordinances.”

Proposed: “…must begin at the setback line established…by the county or town.”

Implications — Changes suggest that local community ordinances will be ignored. However, after the Bethany hearing, DNREC’s Tony Pratt and Maria Sadler informed the writer, among others, that it was not their intent to bypass local community setbacks and ordinances. The language should be changed accordingly.

• Current — The size determination uses at least six properties on either side to get an average square footage for the new footprint.

Proposed — Size will be determined “…among adjacent structures within the smallest subset of lots”. Smallest subset of lots is defined as areas within a community between walkways.

Implications — Meaning and application are unclear. Ocean Ridge comes to mind, where there are large lots and smaller lots with walkways. Larger lot homes are to the north. If the building line moves a few feet landward and the structure is subsequently damaged, a rebuild landward might now be substantially smaller than the existing home.

• 6.1.4 — Maintenance and Repair — If maintenance or repair work costs more than 50 percent of the current market value of the structure it must be rebuilt from scratch and relocated as far landward as possible as part of the 4-Step Process (6.1.4.3). No such language is in the current regulations. Painting, cleaning, siding, and windows are excluded. (6.1.6)

Implications: For older homes, it will not take much to exceed 50 percent, perhaps only a new kitchen, floors and bathrooms. Older communities’ oceanfront homes may deteriorate over time. Community values will suffer. The purpose of this new language is unclear unless it is merely designed to force homeowners to rebuild further landward. The first home to move will have its view impeded, impacting value if sold.

• 6.1.7 — Modification or Expansion — “…is limited to the area contained within the existing walls.” (6.1.7.1.2)

Implications: The language is unclear. The intent is unclear. The application is unclear. What is clear is that no change to the form and current design is allowed. One resident has asked whether an additional story could be added to such a structure. DNREC’s Maria Sadler told them it could. How that could be accomplished “within existing walls” is unclear. The reference was to a one-level cottage in Cotton Patch Hills. Going straight up would result in a pretty bizarre-looking structure along the ocean.

3) 5.0 Landward of the Building Line

Based on the definition of construction in the current regulations, both the current and proposed regulations require approval for construction, modification, repair, expansion and relocation. The definition of construction in the current regulations, however, is not consistent with the definition of construction contained in the law.

What is new is that the definition of repair is expanded to include normal wear and tear, or dating of an item. In addition, maintenance now requires approval. Painting, cleaning and replacement of windows and siding do not require approval. Maintenance is defined as “…any work aimed at keeping a structure in operating and useable condition.

Implications: It would appear that in writing the current regulations DNREC exceeded the intent of the law. It would also appear that any effort under the new regulations to update the inside of an older home requires approval. The reason for this is unclear. The law is silent on this issue.

4) 8.0 Construction Standards

This entire section is an addition to DNREC’s regulations of the Beach Preservation Act of 1972, as amended. The section imposes significant changes in building standards for structures seaward of the building line and the various Zones referred to above. Much of the work may require architects and structural engineers. The justification for these additions is based on the need “…to minimize future storm damage along Delaware’s coast…” You will recall that this is the phrase added to the purpose/objectives language in the proposed regulations. No such language exists in the Act itself.

Implications: It is unclear whether DNREC has exceeded its authority by adding this section, and the phrase which justifies it, to the Law, or whether another body or statute would better serve as the vehicle for change. Undoubtedly, operating under these new requirements will cost homeowners additional funds to accomplish what they intend. Nevertheless, updating building standards seem justified given the improvements in construction technology. A different issue is whether DNREC’s 1997 study, and the Zones that result, is current and represents the appropriate threat level.

THE FUTURE

As noted above, no private citizen should be preparing this document. DNREC should provide a similar review of the current and proposed language, explain to the public the reason for the changes, and give very specific examples of what each point means, and what it doesn’t mean. In the absence of such a document, private citizens have had to make their own assumptions, which may or may not be wholly correct.

Subsequent to completing this analysis, I spent almost three hours on Jan. 20 with Tony Pratt of DNREC, in what proved to be a very open, candid and constructive meeting. He committed to prepare a more detailed comparison of the current regulations and what is proposed.

He agreed to provide more information on what specific language might mean in practice. He stated that several of my observations were not what the drafters of the regulations intended. He recognized that verbal assurances have little value should those who made them no longer be around and that all such clarifications needed to be in writing for both future homeowners and regulators.

Based on these discussions I believe that an additional workshop will provide the opportunity to give homeowners a better understanding of the reasons for the proposed changes. Furthermore, there is the good chance that with a few revisions, brought about in a cooperative and constructive environment, DNREC’s overall objectives can be accomplished while simultaneously greatly reducing the impact on homeowners.

Chuck Coltman is a Bethany Beach property owner.