Ivy on the Bay preliminary site plans approved

10 townhomes to replace Ivy nightclub, adjacent property
February 22, 2019

After much discussion on driveway code requirements, Dewey commissioners voted unanimously Feb. 9 to approve preliminary site plans for 10 townhomes on Dagsworthy Avenue bayside whose driveway design they had not seen.

The site plan for Ivy on the Bay was first unveiled to commissioners in January when applicant Highway One attorney Steven Spence told commissioners plans would not require planning and zoning review because no zoning change or conditional use was requested.

Town Counsel Fred Townsend agreed approval rests with commissioners, but he said a site plan of this size should include recommendations from planning and zoning. Commissioners referred plans to planning and zoning, which set a Feb. 16 meeting that was later cancelled.

On Feb. 9, Townsend said planning and zoning did not need to review the site plan.

“Commissioners had been led to believe that this was a matter for planning and zoning, and referred to it to planning and zoning,” Townsend said. “Subsequent to that, we took a closer look at the code, took comments from the applicants and noticed there was no requirement for it to go to planning and zoning.”

Commissioner Dale Cooke said he asked for planning and zoning to review the plans. “I wanted their comments, and I still think we should have their comments.”

Commissioner Gary Persinger agreed with Cooke. “It’s not their decision, it’s our decision. But I don’t see anything in the code that prevents us from referring to them.”

Town Manager Scott Koenig said the town planners and engineer reviewed the application and found the biggest issue was the number of driveways. Koenig said town code states one project can have two, 10-foot entrances or one, 20-foot entrance.

Spence said town code is confusing, citing townhomes built on Swedes Street with driveways comprising the entire parcel’s width with no public parking.

“Commissioners have the power to interpret their own code and reach a conclusion that’s consistent with good planning and still provides for parking,” Spence said, noting discussion should revolve around how many driveways per structure, not project.

Plans call for two groups of two townhomes and two groups of three townhomes, each with its own driveway, for a total of 10, 10-foot driveways with space between driveways for public parking.

Doug Warner of Element Design Group said the plan combines two properties, the Ivy nightclub and a residential unit, comprising .9 acres. Warner said the plan is below density, which calls for 12 townhomes per acre, and also reduces impervious materials.

The three- or four-bedroom townhomes will be about 2,000 square feet, with the ground level as storage because the homes are in a flood zone. Warner said a tentative boardwalk on the bay could be created by the developer, with maintenance negotiated with the town.

Spence requested commissioners approve the project with a 10-foot driveway for each townhome but said the applicant would agree to a redesign.

“Two driveways for the entire project would make no sense, but we will do it if necessary,” he said.

Koenig said if commissioners follow strict interpretation of the code, the design would be less desirable.

“It would most likely increase the amount of stormwater coming off the property and get away from the look of single-family design that’s more consistent with parts of Dewey Beach than what’s there now,” Koenig said.

Mayor TJ Redefer said the proposed plan would create 10 public parking spots.

“I really like this idea to take down one of the big old bars and restaurants, and have residential on the bay looking like individual single-family homes,” he said.

After several failed motions to approve the project as planned with 10, 10-foot driveways; with two, 10-foot driveways; or with eight, 10-foot driveways; commissioners unanimously approved the project with two, 10-foot driveways and a bayside boardwalk.

Immediately after the motion was approved, Koenig said commissioners did not know what the project looked like with two, 10-foot driveways. “We’ve never seen a drawing of that.”

Commissioner David Moskowitz said, “We just approved something we don’t know what it looks like.”

After Redefer asked how commissioners could correct the record, Cooke said they could not.

“We approved the concept,” Cooke said. “I don’t know if we can approve the layout or not.”

When Spence told commissioners they would approve the final site plan, Townsend disagreed.

“I’m not convinced you do see this again,” he said, adding that the final site plan is an administrative act approved by the town’s building official after the applicant receives approval from various state agencies.

Cooke said the building official will evaluate whether the new plan meets town code.

“I think we’re getting too deep in this,” he said. “We approved the number of driveways for the project and now it meets code. As long as they meet code, they’re free to put driveways wherever they feel is proper.”

Koenig said the unseen, approved plan could be less attractive than the preliminary site plan, and if the plan complies with code and the applicant applies for building permits, the town must issue them.

“One, I don’t want this to end up in a lawsuit and two, I don’t want this to end up that everyone is angry at staff because we’ve approved something now that we’ve never seen drawn,” he said. “Then everybody’s going to be mad at the staff, and mad at the building inspector, and mad at the town manager, and mad at the town attorney, and it will not be our fault.”

When Redefer asked how to make the record clear, Koenig said, “Everybody needs to understand this isn’t coming back to the commissioners. We can inform you of what was approved, but the comment period is passed.”

Persinger said when he first saw the plan in January, there was no discussion of driveways.

“I was alerted to the driveway issue seven days later in another meeting when talking to the town manager, and he noted an issue with driveways. I was depending on [planning and zoning] to take a look at this and give recommendations.”

Bauer said commissioners forced the two-driveway design on the applicant.

“They presented us something that looks very nice, but we were hung up on details of the code that say don’t make something so nice,” he said. “They agreed to do two driveways because of us.”

Before leaving, Spence had a few final words.

“Reasonable minds can differ, and that’s what we tried to establish as to what that particular code section requires,” he said. “You made a judgement and voted in favor unanimously for us to amend our site plan for two driveways, and that is what we are going to do. We don’t want to come back for any more because who knows what will happen then.”