Dewey board grants Bay Resort Hotel variances

Owner sought relief from freeboard requirement, setbacks to make improvements
August 2, 2022

The Dewey Beach Board of Adjustment voted July 12 to approve three variance requests sought by Moore Blue Water, owner of the Bay Resort Hotel.

Attorney Glenn Mandalas, representing Moore Blue Water, said if the variances were not approved, his client would be unable to proceed with normal, modest improvements on the property.  

At the board’s first hearing on the matter in May, the applicant sought four variance requests, two special exemptions and an appeal. The board granted a request to permit an elevator bulkhead structure to extend 42 inches above the roof peak, but it did not take action on other requests. At the time, Chair Julie Johnson said members were presented with a great deal of information and votes might not occur that evening.

One variance was requested to permit a proposed pool enclosure and multi-level deck to extend 7 feet into the 10-foot rear-yard setback. A second variance request sought to permit a ground-level cabana to extend 6 feet into the 18-foot front setback, and a third requested a variance of 7.5 inches from the town’s requirement for 12 inches of freeboard.

Requests originally sought but withdrawn by the applicant due to concerns voiced by residents at the May meeting included a variance request to permit a proposed new outdoor pool along Rehoboth Bay to extend 4 feet into the 10-foot side-yard setback, a special exception to relocate an existing gazebo, and an appeal of the town building manager’s decision that a proposed outdoor pool is not in compliance.

A scheduled June meeting was postponed until July 12, when final votes took place on the three remaining variance requests.

The hotel is in the AE flood zone, Mandalas said, and the Federal Emergency Management Agency requires the structure be elevated 6 feet. The building is elevated at 6.4 feet, putting it 0.4 feet above FEMA requirements, but 7.5 inches below the town’s additional 12-inch freeboard requirement, Mandalas said.

In seeking relief from the freeboard requirement, Mandalas said the hotel was compliant when it was constructed, but because of regulations enacted since that time, it is now a legal nonconforming structure.

Raising the 30,000-square-foot structure so that it meets the freeboard requirements would be cost prohibitive, Mandalas said, and raising the floor of the hotel’s first story would cause it to be noncompliant with required ceiling heights.

“That really is our hardship and our practical difficulty,” Mandalas said. “It was built legally. The code was changed, and to elevate the entire structure to make these modest improvements would be quite a hardship and practical difficulty.” 

The freeboard requirement is a good idea for new construction but not improvements, Mandalas said, and legal standards to be applied to the decision don’t deal with flood insurance rates.

Blue Water architect Jeff Schoellkopf said other towns have approved freeboard exceptions of less than a foot with no impact on insurance costs. The net effect of denying the request, Schoellkopf said, would prohibit property owners from upgrading their facilities.

Town Counsel Fred Townsend said FEMA allows towns to grant relief from freeboard requirements.

Johnson and board member Rick Dryer voted to approve the 7.5-inch variance request, stating the building, an existing structure, was within FEMA requirements. Board member David Shuey voted against, stating he felt the applicant showed insufficient cause on how improvements could not be made without the variance.

Johnson and Dryer also voted to approve a variance that would permit a proposed pool enclosure and multi-level deck to extend 7 feet into the 10-foot rear-yard setback, while Shuey voted against, stating he was concerned the variance would create a precedent. Townsend said an encroachment into the setback already exists, and Johnson said all future requests are evaluated on a case-by-case basis.

The variance request to permit a ground-level cabana to extend 6 feet into the 18-foot front setback was approved unanimously.


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