Dewey grants variance, denies appeal after builder error

The Dewey Beach Board of Adjustment warily granted a variance and denied an appeal after a lengthy public hearing March 25.

The requests were submitted by Jasin Kania of Swell Design Build for the home located at 203 Carolina St., after what he and legal representative Hal Dukes say was an accident during preapproved demolition at the property.

In November 2025, the building company obtained a permit to raise the roof of the house and create an extension at the rear. This included rebuilding the house’s west wall, a portion of which is nonconforming.

The scope of work included framing the home to include a new roof, walls and floor joists, with the existing west wall and foundation marked clearly to remain in place. It also marked the north and east foundations to be removed where the new addition walls were to be built.

Kania got approval from the town in November to use an excavator to remove the front porch, right side and rear of the building, along with an underground propane tank.

Assistant Town Manager Jim Dedes said he warned Kania ahead of time to be cautious.

“I said, ‘Be careful about construction in there, because that could cause some problems if everything collapses,’” Dedes said. 

According to Kania, about a month later, while the work was being done, the excavator operator got his claw stuck in the rubber roof, which was coated in fiberglass and concrete. The weight of the single-story roof caused the masonry fireplace and exterior walls to collapse instantly, leaving the roof and walls flat on the floor joists.

That same day, Kania decided it was prudent to remove the debris, including the floor joists, in order to inspect the existing foundation. He said the builders had already removed the existing north and east foundation walls, and poured the concrete footings for those additions, which were approved by both the town and Sussex County.

Fast forward to March 25, when Kania testified before the town to request an appeal from the town building official’s interpretation that code does not permit the rebuilding of a nonconforming dwelling that has been demolished by the intentional actions of a contractor.

The appeal would allow the contractor to rebuild the nonconforming west portion of the house, removing the stop work order that was placed on the property by the town.

“I think the town is stating that we had intentionally demoed in some effort to gain some advantage here,” Kania said. “I can clearly tell you that was not the case. That is not our contract with the owners, and this is costing quite a bit of money for me to remedy. This is not advantageous to us in any way, shape or form.”

His decision to remove the debris and floor joists after the fact was an expensive learning lesson, he said.

According to county plan reviewers, since the existing foundation and a portion of the floor are remaining, and the new foundation work has been completed and inspected, the project would still be considered an addition and no changes to the plans would be necessary. They gave permission from their end for work to continue under the same permit.

Rebuilding the wall in a different spot or removing the remaining foundation, Kania said, would likely kill or damage the trees in the yard due to root disturbance. These 100-year-old trees have large root systems directly adjacent to the foundation at both neighboring property lines.

The town’s argument

The town’s argument against the appeal centered around a section of town code regarding damage or destruction of a nonconforming use or building.

The section reads, “If a nonconforming building is damaged by fire, storm, infestation or other peril not caused intentionally by the property owner, it may be repaired or reconstructed to essentially the same configuration as existed prior to the damage, provided that application for all required building permits be made within one year and six months of the date of the damage.”

The key phrase, Town Attorney Fred Townsend said, is “not caused intentionally.” 

“How that is interpreted is not whether the property owner intended for the damage to occur, but whether the property owner intended to do the acts that resulted in the damage,” Townsend said. “It’s a legal concept that is analogous to intentionally throwing a rock into a crowd of people. You might not intend for any particular person to suffer harm as a result of that, but your act of throwing the rock into the crowd was an intentional act, and that makes you liable for intentional conduct.”

In the case at hand, Townsend argued, it was not accidental that there was construction activity onsite. The construction activity was intentional, and it ultimately resulted in the property damage.

“I’m not saying that it was intended or was malicious,” Townsend said. “None of that needs to be established in order for the appeal to be denied.”

Since the damage was not caused by an unintentional act, Townsend continued, the town cannot, under code, allow the property to be freely rebuilt in a nonconforming fashion without a variance. 

“In applying this standard, once the property is taken down to this extent, it is no longer legally nonconforming and must be rebuilt in a conforming fashion,” Townsend said.

The board voted 4-1 to affirm the town’s decision to deny the appeal. Randy Wise was the only member who voted in favor of the appeal.

Alternate request for a variance

After the request was denied, Kania made an argument for his second request: for a variance – as an alternative to an appeal – from town code to permit the reconstruction of a previously nonconforming residential structure that has been demolished, utilizing the existing foundation, including the construction of the west wall extending 1.8 feet into the required 8-foot side-yard setback.

Darrell O’Connor, who has owned the 60-year-old house at 203 Carolina St. with his wife Carol for 30 or so years, said they plan to keep the same basic layout and cottage look and are just looking to add more space. 

He said he’s spoken to his neighbors regarding the construction and hasn’t received any opposition.

The town received at least seven letters from residents in favor of granting the variance.

After closing the public hearing, the board discussed the matter.

While the board does not set precedents and works on a case-by-case basis, member Rick Hardy said, this is the second time in just a few months where a builder has asked the board for forgiveness after work has already been done, rather than seeking permission beforehand.

While Hardy and the other board members agreed that in this case, the damage was caused by a genuine mistake with no malicious intent, they remained a bit wary.

“Builders shouldn’t be asking for forgiveness, they should [be asking] in advance,” Hardy said.

In the end, board members agreed the reconstruction the applicant is looking to do would match the character of the surrounding neighborhood and would not affect neighboring properties.

Additionally, board members felt the applicant demonstrated exceptional practical difficulty in that denying the variance would cause potential financial hardships, and having to recenter the house may cause damage to the property’s trees.

The board unanimously voted to grant the variance.

To view the materials from the hearing, including Kania’s variance application, or to watch a recording of the hearing, go to townofdeweybeach.gov/events/42407.