Dewey code forbids elevation for nonconforming homes

A Dewey Beach property owner wants to elevate his home to avoid flooding, but town code limits how high his condo can go.

Walter Bruhl’s Read Avenue condominium sustained substantial damage from Superstorm Sandy in October 2012.  Afterwards, town officials told him that he must elevate the condo during reconstruction.

Building Official Bill Mears sent Bruhl a Feb. 21 letter, stating the condo suffered more than 50 percent damage, so it must be rebuilt in compliance with the town code’s Flood Zone Management section.  “The most significant requirement is that the lowest floor…must be elevated to or above the base flood elevation…plus one foot,” Mears wrote.

Federal Emergency Management Agency guidelines for homes in high-risk flood areas, such as Read Avenue, include elevating seven feet above the 100-year flood level.

Town code requires at least one additional foot, which would total eight feet.

But Bruhl’s home is nonconforming in that it was built into required setbacks.  Town code says if a nonconforming structure is damaged by a storm, it must be reconstructed to essentially the same configuration that existed prior to the damage.  “If a different configuration or an expansion of the original building is proposed, it must conform to all applicable regulations, including all applicable setbacks, height and elevation requirements,” the code says.

Despite this section of the code, Town Manager Marc Appelbaum and Town Hall employee Jim Dedes said Bruhl could rebuild the home to FEMA’s standards of elevation, but no higher.

In a Sept. 24 letter, Town Attorney Fred Townsend said if Bruhl raises the home any higher than one foot above the minimum required by FEMA, town code would trigger compliance with all zoning regulations, including setback requirements.

But Bruhl wants to elevate higher.  He filed an Oct. 8 request for a Board of Adjustment hearing asking for a variance from the code to allow him to elevate eight feet above grade – about three feet higher than eight feet above the 100-year flood plain.

Bruhl's elevation request would not violate the townwide 35-foot height limit.

In his request, Bruhl said Mears granted his May 29 building permit to allow first-floor elevation eight feet above grade.  “Subsequently, the applicant was advised that it was the determination of the building official that the first-floor elevation could be no more than one foot above the 100-year flood elevation, or approximately five feet above grade,” Bruhl wrote.

Bruhl, a Newark resident, argues the building official’s new determination is contrary to the requirements of town code and is arbitrary and capricious.

“We’re following the letter of the law,” said Bruhl’s son, Martin Bruhl.  Town code says “at least one foot above the 100-year flood elevation,” which is what Bruhl is proposing, Martin said.  “There’s no room for interpretation,” he said.

“We’re not increasing the size of the house,” Martin said.  “We’re happy with it being a small cottage.”

He said the family does not want to elevate again in five or 10 years.  “We’re already paying somebody to lift the house,” Martin said. “Have you seen that road lately?”

Martin said the board of adjustment is finalizing a date in November for a hearing on Bruhl’s request for a variance.  Dewey Beach Planning Commission is working to amend the zoning code to avoid conflicting with FEMA.