Dewey homeowners challenge Read Avenue elevation

Board of adjustment acted illegally, neighbors say
Read Avenue property owners are appealing a decision of Dewey Beach Board of Adjustment to allow a neighboring nonconforming home to elevate beyond what town code requires. BY KARA NUZBACK
January 15, 2014

A recent zoning decision in Dewey Beach is pitting neighbor against neighbor.

The town’s board of adjustment is allowing Read Avenue property owner Walter Bruhl to elevate his home above what town officials said they would allow to protect the home against future flood damage.

Bruhl’s neighbors are appealing the board’s decision, calling it illegal.

The home, one of four units on one Read Avenue lot, sustained substantial damage from Superstorm Sandy in October 2012.

Building Official Bill Mears told Bruhl he must elevate the condo a total of eight feet above the base flood elevation to comply with town code’s Flood Zone Management section and Federal Emergency Management Agency requirements.

Dewey Beach Town Code also 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.

Bruhl was issued a building permit to elevate eight feet above grade, which was more than three feet higher than eight feet above the base flood elevation.

At a Nov. 20 hearing, Bruhl’s attorney, James Fuqua, said after construction began, Mears told Bruhl the home could be elevated only five feet above grade, or eight feet above the base flood elevation.

Town Attorney Fred Townsend sent Bruhl a follow-up letter, saying if he elevated the home any higher than the minimum, it would trigger compliance with all zoning regulations, including setback requirements, which would have forced Bruhl’s to move his nonconforming home.

After the hearing, Dewey Beach Board of Adjustment voted 4-1 Nov. 20 that Bruhl could elevate his home above the minimum required by FEMA and the zoning code, even though the home is built into setbacks.

In its final decision, filed Dec. 6, the board said the extra three feet doesn’t make much difference.  “Specifically, the board concludes that the appellants’ plan to raise the structure eight feet is permitted under the town code as it would result in essentially the same configuration as existed prior to the damage,” the board wrote.

Read Avenue homeowners Jim and Betty Laird, Suzanne Messina and Philip Winkler; Vista Road homeowners Peter and Rose Lucas; and Hayden Road homeowners Joseph and Katie McAvoy and Kathleen Sullivan filed an appeal of the board of adjustment’s decision Jan. 2 in Sussex County Superior Court.

In the two-page appeal notice, plaintiffs’ attorney David Ferry, who also owns a home in Dewey Beach, said the board’s decision was illegal because there was no evidence included in the record to support the board’s finding.

“The decision of the board was arbitrary, capricious and unreasonable,” Ferry wrote.  “The board committed errors of law in making its decision.”

In an email, Ferry said specifics of the plaintiffs' objections to the board's decision would be detailed in a legal brief.  He did not say when the brief would be filed.

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