By Georgia Leonhart
The Dewey Beach Planning & Zoning Commission spent nearly three hours discussing, creating, amending and refining town code definitions at a Saturday, March 1 meeting.
“The challenge is to keep the definitions and zoning code simple while meeting the needs of everyone in Dewey,” said Vice Chairman David King who presided over the meeting in the absence of Chairman Harry Wilson. The challenge, he added, is enhanced because the commission must define words that have never been defined and deal with words whose definitions have become archaic since the code was created in the early 1980s and subsequently modified.
“This is truly the first step of the process,” King said. The aim is to present a draft zoning code prepared by Remington, Vernick & Beach Engineers by June for consideration and public hearings that will take place from July through September.
Starting March 1, with definitions of words that spanned the alphabet, the commissioners touched upon almost every major comprehensive code issue facing the town by the time they finished words starting with the letter “B.”
Bars and restaurants
Five words starting with the letter “A” passed muster, leaving “bar” to become the first word to raise concerns. With this word and others, the commissioners had to address the relationship between the different parts of the code and the relationship between the code and state law while addressing substantive issues.
The town’s current definition of bar states no new bars shall be permitted as of April 11, 1992, the date the definition was adopted, prompting King to ask whether the prohibition should be included in the definition.
Town Solicitor John Brady said the prohibition was language from an ordinance and was added to alert people to the prohibition against new bars. However, he suggested the prohibition belongs in a different code section. Planner Jim Dedes suggested its inclusion in a footnote to the definition.
Christopher Fazio, a regional manager and senior associate with Remington, Vernick & Beach Engineers, recommended not including language from ordinances in the code definition section.
“Usually you don’t put ordinances in your definition because sometimes they change; sometimes, unfortunately, frequently,” Fazio said, adding the commission would not want to create a situation where a change to an ordinance would also require a change to the zoning code. “This is supposed to be the foundation for everything that is in the town’s ordinances.”
Dedes raised questions regarding the distinction between a tavern and bar, while planner Faith Duncan said she wants to be certain the definitions clearly distinguish between businesses that are restaurants and those that are bars.
Brady said a requirement now exists that for a business to be a restaurant 75 percent of its income has to be generated by food.
“The breakout of bars and restaurants was done in ordinance 228 several years ago,” Brady said and asked Town Manager Gordon Elliott to provide the commissioners with the ordinance before their next meeting.
Where can people sleep?
Discussions of the words “basement” and “bed-and-breakfast inn” highlighted commissioners’ concerns about where people can stay, how long they can stay and how many can stay in the properties located within Dewey.
King discussed a prohibition on allowing basements to be used as living quarters, leading to a suggestion by Dedes about the possible inclusion of a definition for the word crawlspace, incorporating height and restrictions as to use that would prevent people from sleeping in crawlspaces.
Fazio suggested the commission not create a definition for a word unless the word is actually to be used elsewhere in the code.
A foray into a definition of “bed-and-breakfast inn,” a phrase that combines the concept of a personal residence with that of a commercial establishment, evolved into a major issue on the number of bedrooms available to guests. King conferred with Vivian Barry who, he said, with her husband, Bob, owns Dewey’s only bed and breakfast.
The issue, Barry said, is exacerbated by imposition of a state accommodation tax if the bed and breakfast has more than four bedrooms available.
Duncan was concerned over a definition saying a bed and breakfast may serve breakfast, opening the door to the possibility that homes could become bed and breakfasts without serving breakfast. King suggested including language to say the bed and breakfast must offer breakfast.
Looking for definitions consistent with those used by the state, Brady discovered a tax code definition of the word tourist home as having five or more bedrooms. Duncan wanted to delete the word inn and expressed concern over possible creation of a group home – a possibility Brady says is avoided by the use of the word transient, which in state law requires a stay of not more than 30 days. Duncan said she is concerned about people renting rooms in their houses and Dedes said he was concerned regarding the possibility of opening a loophole that would permit group homes in Dewey.
Brady said group homes wouldn’t be a problem if guests must be transient. But he then said there is no definition of transient guests and asked whether they should include transient guests who arrive Memorial Day and leave Labor Day and may include lifeguards, bartenders and international students.
Discussing other possible means of defining types of accommodations led to discussions of what would constitute cooking facilities and the differences between rooming houses and hotels.
“The difference between a rooming house and a hotel is whether there’s more than six rooms,” Brady said referring to another state code provision.
In response to a suggestion that the discussion was premature, Fazio said the exercise was helpful because it assists in identifying what words will be in the code and will require definitions.
Boat by any other name
The word “boat” raised another slew of issues, as the commissioners searched for a definition that would permit the town to regulate certain vessels without interfering with children at play.
Questions were raised regarding whether inflatables are boats and how to define vessels that travel on the water. More questions were raised about whether paddleboats and Zodiacs should be included. Brady, who wanted to say boats were things that were propelled with oars, was faced with issue of vessels moving by wind power, making sails become an issue.
Brady summarized his dilemma saying, “When we come up with a definition it had better be as inclusive as possible but I’m just concerned about unintended consequences. I don’t think we want to regulate a five-year-old on something like a big Bart Simpson blow-up. Would self-propelling help?”
King suggested doing an all-encompassing definition with a “but not including” provision listing the things not included as opposed to listing the things that are.
“The technology is growing faster than the definitions,” Brady said.
Trying to define it at this level may be an exercise in futility, Fazio said, leaving Brady to suggest a definition based on the use for which the thing (boat, vessel, raft) was primarily designed.
What gets built, where
Building official Bill Mears joined in the discussion as the commissioners reached “building, height of,” “bulk” and “building line.”
“The height of a building can be higher based on the grade where it is built,” Mears said, adding that grade is ascertained based on the centerline of the road and that the current definition suggests the grade on the lot is to be used instead of the centerline of the road.
“The point is this definition is ambiguous,” said King.
“Bulk,” which generally seems to be used to describe characteristics of buildings, resulted in two definitions and the suggestion they be consolidated prior to further consideration.
Finally, as for “building restriction line,” Mears said there’s little consequence in Dewey creating a definition because it is defined by the Delaware Department of Natural Resources and Environmental Control.
Beyond the “B”s
Existing definitions continued to be examined, discussed and challenged as words were pegged as possible problems.
Words requiring work in the food and beverage category included: cabaret, drive-in, eatery, outside service area and restaurant.
Words that commissioners wrestled with in the guest accommodations category included: dwelling, townhouse and unit, cooking facilities, hotel, motel, tourist home and rooming house.
Included among those that prompted discussion about how Dewey distinguishes between and regulates commercial and private enterprises: commercial unit; day-care center, elder-care, filling station; junk; kennel; kiosk; marina; multi-use; parking lot; and playhouse.
Also included among those words without established definitions in the housing and building category are: significant progress in construction; completion of construction; grade; half story; unnecessary hardship; lot width; mixed use; tiered setback; sketch plan; structure; and temporary structure.
Dewey’s current definitions appear at Section 1-16 of Chapter 1, Article III of its municipal code.
Contact Georgia Leonhart at g.l.leonhart@comcast.net