Rehoboth commissioners deadlock on lake ordinance

While Rehoboth Beach officials were deadlocked on a site-plan review ordinance for lakefront properties, opponents of the controversial house at Lot 6 Silver Lane are gearing up for another fight. Attorney Gene Lawson is trying to prove the house does not meet city zoning code and should not be granted a certificate of occupancy, the last hurdle before the home can be moved into. BY RYAN MAVITY
February 22, 2013

The Rehoboth Beach commissioners took no action on a proposed ordinance mandating review of plans for any new construction within 25 feet of the city’s lakes.

The commissioners deadlocked, 3-3, on the ordinance. Commissioner Mark Hunker was absent.

The city has had a site plan review ordinance on the books since 2009 for large commercial and residential developments, but the process has not yet been used for individual homes.

Mayor Sam Cooper said, “We have a site-plan review process. The planning commission has recommended, because of the unique nature of these lots, that the commissioners consider including them in the process.”

The proposed ordinance would have amended the current code to include lakefront properties, so any structure proposed within 25 feet of the lake’s edge would be subject to a public review by the planning commission.

Commissioners Stan Mills, Lorraine Zellers and Pat Coluzzi voted against the ordinance, while Cooper and commissioners Patrick Gossett and Bill Sargent voted in favor at the commissioners’ Feb. 15 meeting.

Mills and Zellers said they were still not clear on what criteria will be used in determining properties or amenities that require site plan review.

Mills said the ordinance does not protect the public's view of the lake and targets lakeside property owners, causing them unnecessary delays. He said the ordinance would apply to items such as fencing and walkways being built within the 25 feet of the shoreline; that would cause a lakefront property owner to have to wait two months for a preliminary review and public hearing by the planning commission before installing a fence.

Mills said the city should instead enact measures regarding bank stabilization, construction silt fencing and pollution control. He pointed to the planning commission’s lakes report, which said pollution and runoff into the lake comes from properties within the watershed, not primarily from lakefront property owners. Mills said other ways to approach lake protection could be more effective than site-plan review.

“I’m not satisfied with this,” he said.

Coluzzi said she supports protecting the lake, but she agreed the proposed ordinance is not the right way to go about it. She said she favored larger setbacks for lakefront properties.

“Taken by itself, I don’t think it’s going to do what we want it to do,” she said.

Gossett said, “I feel there needs to be some kind of review process for lakefront properties. I feel perfectly secure that this is the one to use.”

He said site-plan review is a tool that would help the city preserve the lakefront view and open space for generations.

Cooper supported the ordinance because it would provide public review of plans for building around the lake, giving the public a say in the process. Cooper referred to the controversy over the house at Lot 6 Silver Lane, saying that while site-plan review may not have made a difference, it would have spared everyone involved the angst of wondering why a decision was made to allow the house be built.

“I’m not sold on this thing, but I’m guessing in two years, if we don’t do it, somebody is going to say, ‘How the hell did the city allow that to happen?’ Well, if we had site-plan review, it would have been out in the public, and they would have understood why,” he said.

The city received three letters in opposition to the ordinance. The first two were from Silver Lake property owners Marti Cochran and Joe Filipek, who supported an ordinance establishing a 10-foot, no-build buffer, a measure on which the commissioners will hold a public hearing Friday, March 15, but not the site plan review ordinance, which they said would add more red tape for homeowners and could lead to an unfair, arbitrary and potentially political process.

Save Our Lakes Alliance3 also opposes the ordinance. In a letter dated Feb. 15, SOLA3 President Sallie Forman said the ordinance addresses only structures, but not the environmental impact construction could have on the lakes.

Forman said the city should instead look into measures dealing with construction practices, such as silt fencing, to prevent sediment runoff into the lakes.

Filipek and Cochran both said the ordinance would affect only a handful of properties. Gossett noted there are 45 properties that could be affected by the ordinance.

The site-plan review ordinance could come before the commissioners again, possibly in a revised form.

New fight over Lot 6?

The commissioners began discussing a buffer and site-plan review for properties along Silver Lake after a house at Lot 6 Silver Lane prompted a storm of controversy. Opponents objected to the house because of its close proximity to Silver Lake.

City officials did not halt work on the house, but a new fight may be building over the home’s certificate of occupancy.

A homeowner is required to obtain the certificate before moving into a new house. Building inspector Terri Sullivan said typical practice is for the building and licensing department to conduct a final inspection before issuing the certificate. Much like a building permit, a certificate of occupancy can be appealed to the board of adjustment.

Gene Lawson, attorney for Save Our Lakes Alliance3 said the group opposes a certificate because the house does not meet city setback requirements and therefore does not meet the city zoning code.  If the house does not meet the zoning code, a certificate of occupancy cannot be granted, Lawson said.

A 1979 deed from Thomas Markey, who owned the subdivision that is now referred to as Silver Lake Shores, to Warren MacDonald, previously the owner of Lot 6, describes the shoreline boundary to a concrete monument in Silver Lake. The subsequent deeds from MacDonald, who passed away in 2008, to his revocable trust and then to the Levys also put the boundary marker in the lake.

Lawson said any new lot derived from a subdivision, as Lot 6 was, must be consistent with the deed description conveying the property to the subdivider. The deeds conveying the land to Markey, Lawson said, did not convey any property extending into the lake.

Lawson said any property within the lake is property of the state; the Department of Natural Resources and Environmental Control has recently asserted ownership of the lake and the lake bottom, but the agency has not yet moved forward to enforce its ownership.

Besides the property line, Lawson objects to riprap installed at the lake’s edge. Sullivan said one layer of riprap was installed. She said the house did not receive any permits from DNREC when the riprap was installed.

Scott Wilcox, attorney for the Levys, said the family has been traveling but will release a statement in the future.


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