A month after coming to a consensus on proposed zoning changes, Dewey commissioners voted Feb. 12 on an ordinance that reversed previous decisions on the number of stories allowed and corner-lot setbacks.

After initial agreements to set a three-story limit on homes and 8-foot minimum corner-lot setbacks for side yards abutting streets in the NR district, commissioners voted 3-2 to maintain the two-and-a-half maximum number of stories currently in town code and allow 12-foot setbacks. 

The change in position caught some commissioners and members of the public off guard after Commissioner Gary Persinger stated he was comfortable with all changes council had agreed upon in January except for the three-story limit and 8-foot minimum setbacks.

After a lot of thinking, Persinger said, he decided that keeping the two-and-a-half story limit made sense because it was consistent with the town’s comprehensive plan and already established in town code. With a two-and-a-half story limit, he said, owners could still raise their homes on pilings to add a garage to a house. He said lowering the minimum setback from the current 15-foot requirement to 12-foot would be a conservative approach that would give property owners with corner lots some relief.

During public comment, property owners said commissioners would be going against the advice of the planning and zoning commission, which recommended a three-story limit and 8-foot setbacks. 

Residents said they thought the three-story limit was a “done deal” after the last meeting, and that limiting the number of stories would promote building to the maximum footprint. Others said it was irresponsible to make zoning laws that encourage building on the ground level just a few hundred yards from the ocean. 

Commissioner Bill Stevens said the town should respect the planning commission’s decision of a three-story limit; he said doing otherwise would infringe upon property owner rights and open the town up to litigation. 

“I can tell you that going less than three stories is a bait and switch, and I will not support it,” he said.

Commissioner Paul Bauer agreed, stating the decision would also be unfair to corner-lot owners who have larger setbacks. Bauer said he disagreed with reducing the maximum square footage of a home, stating it would work to eliminate backyards and garages in areas where people want more open space.

The corner-lot setback is 15 feet now, Persinger said, so reducing it to 12 would give property owners additional room. The first story that is a garage wouldn’t count toward the maximum, he said, and the house would still look like a full three-story house.  

Commissioner David Jaskinski, who motioned to approve the ordinance with Persinger’s suggested changes, said zoning issues are all about compromise. He said people in the NR district want to keep the area as it is, stating there is a big difference between a one-story house and a three-story house towering next to it. 

In response to Bauer’s concern that the public thought commissioners had already come to a decision on the ordinance, Town Counsel Fred Townsend said he understood the sentiment, but the meeting was duly noticed and the possible amendment was up for grabs; the public can’t assume any item is off the table.

“Zoning law is essentially restricting people’s property rights; this is not entirely new territory,” he said. “We have zoning in the town already, so it's not fair to say we are necessarily unduly restricting or taking people’s property rights as a result of implementing an area restriction like that.” 

Mayor Dale Cooke said he was not worried about potential lawsuits; he said this is a litigious society and lawsuits are always a possibility. He said commissioners were trying to do what’s best for Dewey Beach, and that enough time, work and advice had been given on the subject.

“We’ve wrung the water out of the rag here, and this can't go on any further,” he said. “I think now it's time to take a vote.”

The motion passed 3-2, with Cooke, Persinger and Jasinski for, and Bauer and Stevens against. 

In the NR district, the ordinance also sets a minimum 4/12 roof pitch on stories above the first level. For lots less than 7,500 square feet, the maximum house size would be 4,000 square feet with six bedrooms and a 500-square-foot allowance for a garage. Decks, unenclosed porches and areas under houses raised on pilings, elevator space, and unfinished attics with fold-away stairs would not count toward the maximum square footage. Tiered setbacks are no longer required.

The ordinance will take effect 180 days from Feb. 12.