Bethany considers changes to fencing regulations

Good fences may make good neighbors, but with the potential for neighborly conflict over fencing already proven, Bethany Beach Planning Commissioners are now tackling the town’s fencing ordinance, or, rather, the relative lack of one.

Commissioners met on Nov. 19 and went over a first draft of new fencing ordinances that would aim to define what is and what is not a fence, and how the town will regulate fences. That came on the heels of a Board of Adjustments case this summer in which an existing 6-foot-tall fence required a variance if it was to remain in place, due to the town’s 4-foot height limit on residential fences in most cases.

The town currently permits fences higher than 4 feet only where the fence borders a commercial property. Councilman and commission Chairman Lew Killmer pointed out that the current code allows for those fences to be 6 feet tall.

“So you don’t have to look at their Dumpster,” noted Building Inspector Susan Frederick, adding that there are also exceptions for taller fences in existence before the height limit was adopted. But for most residential properties, fences are supposed to top out at 4 feet tall.

How the 6-foot section of fence – 13.5 feet long, free-standing and far from the property’s perimeter – came to be accepted by the Town when it was constructed back in 2004 remains somewhat of a mystery.

The property owner asserted back in August that it had been in place when the renovated home had been given a certificate of occupancy. However, Frederick said she had not found it referenced in the property’s permit documents or under any separate permit or code exception when she had been notified about the too-tall fence by a neighbor who was being required to take down a new fence that was also higher than the code allows.

The issue went before the Board of Adjustments, which found that the apparent knowledge of the former building inspector of the fence’s existence had likely led the property owner to believe back in 2004 that it was in compliance with town code, and that they should not require him to remove it now, even though the neighbor’s newly constructed fence had been removed at the Town’s insistence.

But the BoA hearing had also raised some other issues regarding fences, as board members discussed whether the fence, mid-property, even qualified as a fence that was to be restricted in height according to town code.

“Because it was obvious to members of the board that there were a lot of issues,” Killmer said of the town’s existing code. “When is a fence a fence, basically?” Killmer said the town council and planning commission members had been forced to ask themselves in the wake of the BoA hearing and the questions raised.

He noted that the existing code lacks definitions of what, exactly, a fence is, or is not.

“We looked around, and our code is probably the most minimalist of all the fence codes in this area,” Killmer explained. “We asked ourselves, what is a trellis, what is an arbor? We wanted to come to conclusions about those things … so that when people have questions … they know what they can do.

“I personally think the current code is open to a lot of interpretation,” he added. “When people want to put up fence around a hot tub, for privacy purposes … can they do that? Do they have to come in and get a permit?”

Killmer said Frederick had had requests from some property owners for taller fences designed to create privacy. “But our code doesn’t permit that.”

The result was an effort on the part of commissioners to begin a dialogue about the larger issue of fences in the town code, with a first draft of a new code culled from existing code elsewhere in the state. Killmer said his work on the draft was “not written in stone” but was instead intended to be the starting point for a discussion.

“Do we want to upgrade our fence regulations or keep exactly what we have? Do we want to modify we have, or a combination of both?” he posed to commissioners.

Commissioner Fulton Loppatto said that he liked what Killmer had come up with, with just a few suggestions. “It’s a great start. It hit all the areas.”

Killmer said the draft included related definitions and spells out what does and does not need a permit. “This was brought to our attention by BoA. We heard them loud and clear, and I agree with them. And it was, ‘When is a fence, a fence,’ basically.”

Commissioners said they still had questions about some circumstances, such as those free-standing sections of fence that don’t connect to each other or don’t connect at a post.

“Those are the same questions I have,” Frederick said of her work in enforcing the code.

“If it’s within 5 feet of the perimeter, that’s a fence, whether it connects or not,” Killmer replied.

Loppatto noted also that the draft had exempted trellises and landscape walls from regulations on fences, not considering them to be fences at all.

“I didn’t understand about the retaining walls,” he said. “Why are walls different? But I came from England, where they have stone walls,” he added with a chuckle. “Why is a stone wall difference from a regular fence?”

Killmer said the exemption of landscape walls from the fence regulations was intended to acknowledge that they weren’t necessarily on perimeters and served other purposes.

“So, it’s a retaining wall, as opposed to a stone fence?” Loppatto replied.

Killmer said landscape walls, including retaining walls, were generally used on a sloping property, where a retaining wall was placed around the grade change, “But it’s not a fence.”

“There’s a grade difference,” Frederick emphasized, saying that that circumstance makes such a wall a retaining wall, not a fence that would be regulated.

Loppatto said he did like some of the changes in the proposed code. “This was last done in 1989,” he noted. “This gives the home owner a little more flexibility, which we’re hearing from the public is needed.”

Killmer pointed out that he had even included an exemption from requirements for a permit for fences 4 feet tall or less, which he said most of the towns’ codes had offered, “Because most of our fences are 4 feet.”

“County code does that,” Frederick added.

Loppatto, said, however, that he was concerned about the potential for dangerous fences to be constructed. By requiring a permit for all fences, he said, the Town could avoid a system under which a home owner could build a fence less than 4 feet tall that was also dangerous.

Frederick suggested a no-fee permit might be the answer for those smaller fences. “It’s good, because it goes in the file for that property, and we can see that they put that little fence up last year.”

Commissioners agreed to discuss the fence code at length at their next meeting, which is set for January, though a final date was yet to be determined, due to conflicts with the usual meeting date.

A final draft of any changes to the code would be subject to a public hearing and eventual council vote before it would go into effect.

Addy-Cooper project continues to hit roadblocks

Also on Nov. 19, Frederick reported that she had received a copy of a letter sent to the Addy and Cooper families in response to their request to neighbors for easements to be granted to help create a stormwater system on their proposed multi-home project. Frederick said the letter from one neighbor declined that request, creating another roadblock for the much-delayed Addy-Cooper development.

“I don’t think they’re going very far,” she said.

“That was our position from beginning,” Killmer added, saying that the commissioners had basically concluded that unless the Addy and Cooper families could get neighbors in the Wilgus subdivision to approve easements, the stormwater plan for the project would not be acceptable.

“There were never any easements given there,” Frederick noted.

“So they’re going across private property,” Killmer continued. “After we walked the property, it was clear there wasn’t much in terms of rear yards to begin with.”

Killmer also reported on Nov. 19 that he expected to have an updated copy of the town’s comprehensive plan update for the commission to review at their January meeting, now that it has been reviewed by the State’s Preliminary Land Use Service (PLUS).

He said he planned to remove all references to the Indian River power plant from the document, due to the related requests to detail the town’s relationship with the facility, which is minimal at most.

Killmer said he planned to incorporate most of what the PLUS reviewers said, but to exclude issues such as brownfields, which the town doesn’t have. He said he also planned not to include the requested 100-foot buffers from bodies of water on every property in the future.

“I was told we met all the requirements, that we even got compliments,” Killmer noted. “They said the plan is certifiable in its present state, but it is appropriate to make changes to show that we’re trying to accommodate them and to incorporate their ideas where appropriate.”

The commissioners’ final take on the plan will have to go back out for final State approval before it can be formally adopted by the town.