TOWN OF OCEAN VIEW

PLANNING AND ZONING COMMISSION MEETING

FEBRUARY 15, 2007

Chairman Dick Logue called the meeting to order at 7 p.m. with Commission Members Carol Goodhand, Joe Evans, and Perry Mitchell Saville present.  Town Administrative Official Charles McMullen, Town Solicitor Dennis Schrader, and Town Planning Consultant Susan Frederick were also in attendance.  Committee Member Garland Saville was not present because of a prior commitment.        

1.      The Pledge of Allegiance was recited. 

2.      Town Administrative Official McMullen reported that as a result of tonight’s decision by the Board of Adjustment, Application P-222 property must be removed from the agenda because it does not meet the requirements for a subdivision.  Chairman Logue noted that Item A. under New Business is deleted.  Perry Mitchell made a motion to approve the agenda as amended.  Carol Goodhand seconded the motion, and it was approved unanimously.

3.      There were no changes to the minutes from the December 21, 2006, meeting.  Joe Evans made a motion to approve these minutes.  Perry Mitchell seconded the motion, and it was unanimously approved. 

4.      Old Business

1. Site Plan Review  Review of site plan submitted by Miranda & Hardt on behalf of Gysm, LLC in conjunction with Application P-200 for an 8’ x 10’ refrigerated storage unit on property located at 111 Atlantic Avenue (095.000)  Tom Ford, Land Design, served as spokesman.  He said that the cooler has been reviewed by the Town and the letter from the Fire Marshall has been received, which were the two conditions of the approval.  In answer to   questions from Joe Evans, Mr. Ford said that he doesn’t know the exact height of the cooler but thinks that is about 9 to 10 feet high and doesn’t take up any parking spaces.  In answers to questions from Perry Mitchell, Mr. Ford said that it is a walk-in cooler and can’t say whether or not it has safety features but assumes that it is locked since it is outside.  Charles McMullen said that the Planning and Zoning Commission approved the preliminary site plan as Application P-164 on October 20, 2005, with conditions.  He then said that these conditions   have been met; i.e., the refrigerated storage unit and the fence are shown on the site plan, and the approval from the Fire Marshall’s Office has been submitted.  He then said that a scheduled check of the site on September 26, 2006, revealed that the parcel was in compliance with the previously approved site plan.  He said that subsequent observations of the site have shown that the parking requirements were met, and the dumpster has been fenced/enclosed on both sides.  He went on to say that he has not gone into the Kool Bean because of a previous request by a member of the Town staff but he did observe that the tables and chairs that were previously absent from the front porch are there now but he was unable to count the number of tables and seats in the restaurant.  In response to a request from Chairman Logue, Mr. McMullen explained that the reason for the table and seat count was that the original site plan approved in 2004 noted that Kool Bean was limited to 42 seats, which would require 14 parking spaces, 100 feet of carry-out space would require one parking space, and four employee parking spaces were allocated for a total of 19 parking spaces.  If the seating increased, the parking space requirement would increase, and there were no excess parking spaces to meet the requirements.  He said that 45 parking spaces were required, and they provided 46 parking spaces.  He said that the Commission directed at the last review of this application to check this site for compliance with the approved site plan.  In answer to a question from Chairman Logue, Mr. McMullen said that when he checked the Kool Bean site for a tenant fit-out on the second floor, which is above the Kool Bean, there were no tables or chairs on the front porch area; however,  recent observation revealed that there were tables and chairs on the front porch, but Charles  McMullen said that he was unable to do a table/chair count in the front porch area; therefore, he does not know if they do or do not meet their parking requirements.  He said that he had been told that he had to notify Kool Bean before he came to inspect the site.  In answer to a request for an opinion from Chairman Logue, Mr. Schrader reminded Mr. Ford and the Commission members that the calculations for parking for this particular application were complicated by the fact that there were different parking computations for the different types of uses that were proposed for this property.  He went on to say that if Mr. McMullen is attempting to confirm that parking calculations are being met by Kool Bean, he must be able to verify that there are 42 seats on the premises, which is located on the first floor.  If there are 42 seats or less, they are in compliance.  Mr. Schrader said that it is Mr. McMullen’s responsibility to perform this count and stated that it is not necessary to notify them of his plans for the visit.  Susan Frederick agreed that the conditions for approval have been met.  In answer to a question from Carol Goodhand, Susan Frederick and Dennis Schrader agreed that the cooler and the seating issues are separate and should be handled as two separate items.  Ann Whaley, 18 White’s Creek Lane, said that she and her husband received notice of this and the most recent review, but did not receive notice of the other reviews because of an administrative error.  She then asked several questions relating to the fact that the cooler was installed after the fact without approval, permits, or inspections and asked if a double standard exists as far as residential and commercial construction and went into some detail about that.  She expressed concerns about the possibility of a leak of the chemicals if the unit breaks or is punctured.  She is concerned that other commercial property owners might follow the same incorrect process if this “special use” is approves and recommended denial of this application.  The Town Solicitor explained that the Commission is not here to review a “special use” application; it is here to review a site plan.  He went on to say that the cooler is an approved use within the district in which it is located and does not require a special exception or a variance.  He then went into some detail about the purpose of a site plan review and said that environmental concerns were not part of the process for this application.  Mr. Schrader then received copies of two violation notices for the cooler that had been given to Miranda & Hardt.  In answer to a question from Ms. Whaley about possible sources for answers to her questions about environmental issues, Mr. McMullen explained that the Fire Marshall’s Office approved the location of the cooler and discussed her concerns.  The Town Solicitor explained that all of her questions were fair and legitimate and also explained the purpose of this review and advised her to seek answers from Mr. McMullen at a later time; he said that she is entitled to receive copies of the violation notices.  In answer to a request from Chairman Logue, Charles McMullen said that he would be happy to give the information to Mrs. Whaley.  Perry Mitchell moved to approve this application as a final site plan.  Chairman Logue noted that it is Application P-200, which includes the refrigerator and fence.  Carol Goodhand seconded the motion, and it was approved unanimously.  Chairman Logue said that he and the members of the Commission expect a continual inspection of the number of seats in the restaurant to make sure that there is no violation of the parking regulations.  Mr. McMullen agreed to do this. 

2. Site Plan Review   Review of a site plan submitted by Douglas Brown on behalf of Bear Trap Farms, LLC in conjunction with Application P-212 for amendment of the previously approved site plan for the Village of Bear Trap Dunes’ RPC for subdivision of one lot to create an additional lot (327.123) for the area previously granted conditional use under Ordinance No. 195—Application P-208  Doug Brown, Carl M. Freeman Communities, served as spokesman.   He said that the water tower and propane tanks now sit on approximately 15 acres, which is one big 15-acre lot on the original plot, and the developer wants to carve out and hold the 1-acre plot because it contains the utilities and deed the other lot to the Homeowners’ Association (HOA).  In answer to a question from Chairman Logue,  Mr. Brown said that he has worked very closely with the HOA for the past 18 months concerning the transfer of the common areas to the HOA and has no knowledge of any objection from that organization to this request.  Chairman Logue asked if this was being done to create a parcel for the purpose of donating it to the Homeowners’ Association.  Mr. Brown agreed, and said this organization is not interested in taking over the area that contains the utilities and noted that it has a propane tanks and a water tower and the recently approved water treatment facility.  He said that this parcel would stay with the developer who would deal with utility issues.  They are basically turning over wetlands and wooded areas to the HOA.  Doug  Brown said that the HOA’s attorney is not eager to have those types of facilities, which is another reason to carve out this land.  Chairman Logue asked the Town Solicitor to explain what type of zoning would be applied to this parcel since it was part of the property that was granted conditional use.  Mr. Schrader said that it would still be subject to the same zoning if they accepted the proposal to subdivide the lot; it would still be a conditional use.  In answer to more questions from Chairman Logue, the Town Solicitor said that this parcel would still be subject to the same terms and conditions that were previously imposed upon this site; e.g., the fencing, landscaping.  Chairman Logue was told by the Town Solicitor that granting this special zoning classification would not cause subsequent horror stories from the HOA.  Charles McMullen said that this application was originally heard on May 18, 2006, as part of a three-part application.  The other two parts were approved, but this one was deferred because a previous application (P-208) that affected the same portion of land had not met the conditions.  He said that Tidewater and Bear Trap have met the conditional use conditions, and the conditional use was recorded on November 21, 2006.  He said that the only thing that he requested from the applicant that they provide a letter of NO OBJECTION from DelDOT because this is a creation of a new lot on a state-maintained road.  He said that this has been provided by the applicant.  Susan Frederick said that she has nothing to add; it is just general housekeeping for them to regulate what the homeowners are and are not overseeing.  She agreed that the zoning does not change.  There were no public comments.  Carol Goodhand made a motion to approve Application P-212 with a request for a letter of no objection from DelDOT.  Joe Evans seconded the motion, and it was approved unanimously. 

3. Site Plan Review  Review of site plan submitted by Douglas R. Brown in conjunction with Application P-223 on behalf of Bear Trap Commercial LLC for construction of four residential units at 21 and 24 Village Green Dr.  (PIDN’s  331.017 and 331.018)  Doug Brown, Carl M. Freeman Communities, served as spokesman. He said that this application was deferred in December 2006 because the Commission asked for some additional information about the unit count, which has been provided.  He explained that they have had trouble leasing the commercial space in the two buildings that sit opposite the clubhouse in Bear Trap and also said that the space that has been leased is subsidized by the developer; i.e., Sea Coast Realty and the Bare Essentials convenience store.  He explained that they wish to convert the 5,000 square feet on the second floor of each building into residential use and create two condominium units on each floor for a total of four additional units, which represents a change in the original number of 700 units.  He said that he provided the information that the Homeowners Association requested at the previous meeting, and this organization had no further questions or issues after their January meeting.  Charles McMullen read portions of his February 8^th report.  Susan Frederick thanked Messrs. Brown and Scott for providing the additional information and said it was very helpful.  She confirmed that they have 700 units and said that she compared the original submission to the final product mix and said that the greatest changes took place in the number of single-family versus townhouse/row-house units permitted, and the final number of multifamily is six units less than originally planned.  She doesn’t think that the additional four multifamily units will create a major change to the plat or to the residential mix and will not make any significant changes to the overall population or the amenities.  She referred to other items that were mentioned at the previous review:  there is sufficient parking; egress, deliveries, and trash removal for the commercial and residential units have been addressed; the existing buildings are designed for separation and independent use between the first and second floors; and the Bear Trap HOA reviewed this matter and is not opposed to the additional four units at the location and in the community.  In answer to a question from the Town Solicitor, Messrs. Brown and Scott said that these units will be subject to the same covenants and conditions in the code of regulations that are applicable to all the units in the Village of Bear Trap Dunes, including architectural guidelines.  In answer to another question from the Town Solicitor about dues and association fees, Mr. Brown said that it will be a separate condominium association that will be subordinate to the existing Homeowners Association.  William Scott, attorney for Bear Trap, explained that Bear Trap now has an umbrella Homeowners’ Association and a subordinate condominium association.  If this application it approved, it will be a mixed use, and they will create a separate condominium association that will be exactly the same as the existing condominium association but will have some details that pertain to the mixed use and will be subordinate to the Homeowners’ Association.  In answer to a question from Chairman Logue, Mr. Brown said that if these units are approved, they will get an architect to redesign this space into residential units, which will be sold and will not be rental units.  Bob Svenson, Woodland Avenue, made some general observations about tonight’s process.  Joe Evans made a motion that they approve Application P-223 on behalf of Bear Trap.  Carol Goodhand seconded the motion.  Chairman Logue then expressed concerns about the fact that Bear Trap came into the Town with RPC zoning and then wanted to get rid of much of the commercial and build 25 more residential units with the condition that they will have 20,000 square feet of commercial.  He said that they are coming back to eliminate part of this commercial and said that he has seen no evidence that they tried to rent this space.  He is concerned that they are setting the stage for eliminating the remaining commercial because they have said that both commercial units are subsidized by Carl Freeman.  He said that it appears to him that it is defeating the whole purpose of the RPC zoning.  The motion was approved unanimously.

Bob Svenson said that Canal Landing has plans for commercial endeavors and said that people forget that there is a very small population from October to April, and second-floor retail is difficult under   any circumstances, and he doesn’t think that commercial will pay for itself.  He thinks that it is shortsighted to put this into the plan.  Chairman Logue said that it does allow them additional density.

Carol Goodhand made a motion to adjourn the meeting.  The motion was seconded and approved unanimously.   The meeting adjourned at 7:47 p.m.

                                                                     Respectfully submitted,

                                                                     Richard J. Logue

                                                                     Chairperson

                                                                     Planning and Zoning Commission

Transcribed from tape and notes:  March 10, 2007