TOWN OF OCEAN VIEW

BOARD OF ADJUSTMENT

NOVEMBER 15, 2007

Chairman Dick Logue called the meeting to order at 6:00 p.m. with Board Members Bill Olsen and   Tom Sylvia in attendance.  Town Administrative Official Charles McMullen and Town Solicitor Dennis Schrader were also present.. 

1.      The Pledge of Allegiance was recited. 

2.      Bill Olsen made a motion to amend the Agenda to postpone approval of the minutes from the October 18, 2007, meeting until the next meeting.   Tom Sylvia seconded the motion, and it was approved unanimously. 

3.      Old Business

None

4.      New Business

A.     Public Hearing  Application V-218, a request for a variance from Article V, § 222-20 of the Ocean View Code submitted by Patrick and Ximena Dowling who are seeking a variance that will permit them to encroach into the front and side yard setbacks with an existing structure in order to subdivide a parcel located at 35 Central Avenue (PIDN 241.000  Robert Witsil, an attorney representing Mr. and Mrs. Dowling, served as spokesman.  For the record, Mr. Witsil submitted an outline, six photographs, the original plat from ECI, and an additional plat that answers a question from the Town Solicitor’s about the width of lot and not just the frontage; i.e., if they took a perpendicular angle from the side yard, does it meet the width requirements.  Mr. Witsil said that it does.  He said that he is presenting this application for three variances.  The Town Solicitor then swore in Town Administrative Official Charles F. McMullen who stated that public notices were made in the form of an advertisement published 15 days prior to this hearing in the local newspaper, and notices were sent to property owners within 200 feet of the subject property.  He said that a list of these names and a copy of the notice in the newspaper are filed in the official record.  The Town Solicitor swore in Bruce Horn, Head of Operations for ECI.  Mr. Witsil said that he would combine his presentation with testimony from Mr. Horn.  He said that this application seeks three variances:  1) a front-yard variance.  Mr. Witsil explained that the front yard setback requirement is 25 feet, and this 1863 historical structure is almost exactly 6 feet from the front property line, which would require a 19 foot front-yard variance.  2) The side yard setback requirements are 15 feet; the existing structure on Lot 1 lies 8.1 feet distance from the newly proposed side yard boundary line, which would require a 6.9 foot variance.  3) The Town’s requirement for a 10 foot drainage easement lies along each side of the proposed center line of the subdivision and encroaches 1.9 feet into that easement area.  Mr. Witsil then introduced Mr. and Mrs. Dowling.  Mr. Witsil explained that the entire existing parcel is .72 acres, and the proposed Lot One is 15,733 square feet (SF), and the proposed Lot Two is 15,825 SF; both of them significantly exceed the minimum lot size of 14,000 SF.  The lot widths are 89.43 feet and 89.49 feet along the frontage, which significantly exceed the 75 foot footage requirement.  He explained that when taking the perpendicular line in the diagram that he presented, the lots exceed the 75 foot width requirement.  The Town Solicitor swore in Patrick Dowling who confirmed that to the best of his knowledge, the house was built in 1863.  Mr. Witsil referred to the six photographs that had been entered into the record.  Mr. Dowling confirmed that Photograph 1 was a picture of the house as shown from Central Avenue and confirmed that it is similar to other houses of the same age insofar as the proximity to the street.  Mr. Dowling confirmed that Photograph 2 shows the general width of the existing .72 acre lot on Central Avenue, and Lot Two is the closest to the photograph.  Mr. Dowling confirmed that Photograph 3 shows the depth of Lot Two, the southerly lot from the rear property line.  Mr. Dowling confirmed that Photograph 4 shows proposed Lot One, the northerly half of the lot with structures on it.  Mr. Dowling confirmed that Photograph 5 shows the structure immediately to the north of his property; i.e., the Interiors by Bennett building, which has a similar distance from the front property line.  Mr. Dowling confirmed that Photograph 6 shows a structure across the street, an older structure which is also close to the street.  In answer to a question from Mr. Witsil, Mr. Dowling explained that houses of similar age have a similar distance from the street and confirmed that he had been told that if the variances were approved, the property would meet the requirements for subdividing it.  In response to a request from Mr. Witsil, Mr. Dowling explained that this house is one of the older houses in the Town when his parents acquired it between 1969 and 1972.  The house was in poor condition, and his parents remodeled it to bring it into its original form.  He explained that his parents had been told that it would not be wise to move or seriously alter the architecture of the house because of the results of the settling of the house, and he has been given the same information over the years.  He said that the Town’s folklore claims that this house is the reason for Ocean View’s name because a boarder in the 1860’s saw the ocean from the third floor.  Mr. Dowling said that they wish to keep the house in the same location rather than attempting to move it and thinks that it is advantageous for the Town to keep it as it is now rather than have it damaged during a move or modified in such a way that it looses its historical significance.  In answer to a question from Mr. Witsil, Mr. Dowling confirmed that he has no contract on this house at this time and does not intend to sell it in the immediate future; he explained that he has two daughters, and two lots are attractive to him.  In answer to another question from Mr. Witsil, he said that understands that he might have to construct something within the next 5 years as required by the Town Code.  The Town Solicitor then swore in Carl Alesi of Alesi Construction and Renovations, Inc.  In answer to questions from Mr. Witsil, Mr. Alesi confirmed that his firm specializes in renovation and reconstruction of homes and said that he has inspected the Dowling home and briefly explained that it would hurt the structural integrity of the building if it were moved.  In answer to questions from Mr. Witsil, Bruce Horn, ECI, Rehoboth, testified that this two-lot subdivision would meet all of the requirements of the Ocean View Subdivision Code, and the subdivision would be impossible if the three variances were not granted.  He said that he does not view this as a self-imposed hardship by the Dowling.  He said that the parcels are similar in size to most of the surrounding other parcels on Central and does not think that this subdivision would cause any hardship on adjacent lots.  Mr. Witsil said that he thinks that sufficient evidence has been provided to justify the variance requests and noted pages 8, 9, and 12 of the Town’s Comprehensive Land Use Plan, which referred to the Town’s goal of preserving its older homes.  Chairman Logue asked him to reiterate for the record that the granting of these variances in order to meet the requirements of the subdivided lot do in fact create a totally legal lot without any variances needed in the new lot.  Mr. Horn said that the answer is yes and added that the shed that encroaches into the proposed Lot Two will be removed; Lot two will have no structures once the shed is removed and will require no variances.  The other shed will be removed as well.  Bill Olsen asked if they would have enough land if the proposed boundary line is moved 5.9 feet and was told by Mr. Horn that it would be less than the minimum.  After some explanation by Mr. Horn, Mr. McMullen explained that that an original survey was done; DelDOT approved it.  This survey did what Mr. Olsen proposed to do; however, DelDOT required a right of way, which would be extracted from the total footage of the lot.  After extracting 1,700 SF for the right of way from the lot, the lot that would have been created would have not meet the 14,000 SF minimum lot size and would have required another variance.  He said that they moved the lot line over in order to keep Lot Two at 14,000+ SF, and this caused the rear of the house to encroach 6.9 feet into the setback.  There were no questions or comments from the public.  Chairman Logue declared the public hearing to have been held.  In answer to a question from Chairman Logue, the Town Solicitor said that all of tonight’s submissions will be made part of the record as well as the application, Mr. McMullen’s overview, the notice of publication, and the summary statement submitted earlier.  Mr. McMullen noted a typographical error in his overview; i.e., line two of the second paragraph should state 6.9 feet rather than 1.9 feet.  He also stated that the DelDOT approval for the lot is for the lot creation as he previously discussed; however, the lot configuration has changed, and the DelDOT approval has not been recorded for the current subdivision that will be applied for at the Planning and Zoning Commission meeting.  He thinks that it might have been preferable to wait for this meeting to raise that issue; it should have nothing to do with the variance request.  In answer to a question from Chairman Logue, the Town Solicitor said that if the variance requests are approved, the approval could be conditioned upon removal of the two sheds.  Bill Olsen made a motion that they approve this application.  He said that this action would retain this historic house.  Tom Sylvia seconded the motion.  Bill Olsen then made a motion that they approve the house as the subdivision plot shows with the sheds removed.  He said that one of the reasons is the historic value of the house, which fits into the rest of the neighborhood.  He thinks that there are many houses on that street that are closer to the street and it does fit in.  Tom Sylvia had no comments.  Chairman Logue said that he hopes that whatever is built on the adjacent lot is in keeping with the whole street scene that now exists because it is a beautiful street.  The motion was approved unanimously.

B.      Public Hearing  Application V-219, a request for a variance from Article XXI, § 222-94-A-3 of the Ocean View Code submitted by Ryan Homes, which is seeking a variance that will permit them to retain a 4 x 8 foot temporary double-sided marketing sign announcing sale of new homes on property located at Central Avenue (PIDN 402.000)  Darlene Gray, Sales Manager for Ryan Homes Delaware South, explained that she has a letter that authorizes her to speak on behalf of this application.  The Town Solicitor swore in Ms. Gray.  In answer to a question from the Town Solicitor, the Town Administrative Official said that this application was noticed in the local newspaper, and notices were sent out to all property owners within a 200 foot radius of this property.  Copies of the list of homeowners and the public notice are filed in the public record.  Ms. Gray explained that she has a picture of the sign and its specifications and apologized for erecting this sign without obtaining a permit to do so.  She said that this sign meets all of her company’s specifications, which she must follow.  This sign serves to introduce the new community and explains what can be found in the community; e.g., type of homes, selling price.  In answer to a question from the Town Solicitor, Ms. Gray explained that they did receive a letter about this issue.  Mr. McMullen explained that they were not cited but were advised of the infraction and the available avenues to correct the situation; i.e., remove the sign or apply for a variance, which would permit them to retain the sign until the Board of Adjustment’s decision.  In answer to questions from the Town Solicitor, Ms. Gray said that the sign is 4 x 8 feet—32 square feet and also said that it is double-sided and said that they would remove the sign when the sales of the project are finished.  In answer to a question from Tom Sylvia, Ms. Gray said that the sign could be up for the duration of the sale of the towns but they typically move the sign back when the entrance monument is in place.  She said that she could move it further back to the villa or single-family sections.  In answer to a question from Tom Sylvia, Mr. McMullen said that the Town’s sign ordinance is very restrictive, and nothing in the Code permits this type of sign; the Code only permits a 6 square foot sign for temporary real estate sales on the lot that is being sold.  There is nothing in the Code that permits developers to market their products; therefore, the sign will not meet the Code regardless of its location.  In answer to a question from Bill Olsen about the difference between 6 and 32 square feet, Mr. McMullen said that the sign in question is 64 square feet, and the Town Code only allows a 6 square foot sign.  He went on to say that the Town of Ocean View has nothing in its Code that permits a developer to announce that a new development is coming; the Town simply allows the placement of a small real estate sign on each lot that is for sale.  In this instance, the condo area would be the lot, and they would be permitted to have one sign on the lot that is for sale.  In answer to a question from Bill Olsen about the inclusion of the sign in the site plan approval by the Planning and Zoning Commission, Ms. Gray said that the developer obtained the Planning and Zoning approval; Ryan Homes is the builder, and she is in charge of marketing the homes for that company.  She said that the site plan approval probably included the entrance monument.  In answer to a comment from Mr. Olsen, Ms. Gray explained that this sign is a marketing sign that announces the community and the type of products and prices.  In answer to a comment from Bill Olsen about the word “temporary,” Ms. Gray said that a development such as Fairway Village with 332 homes would need a longer temporary sign than a smaller development and could not specify the length of time that the sign would be needed.  Ms. Gray said that her company is very firm about adherence to its sign specifications, and she is not allowed to deviate from them.  Mr. McMullen agreed with Chairman Logue’s statement that the Town Code has nothing that deals with a sign of this type.  A brief discussion about the history of the sign ordinance took place.  Chairman Logue said that they must alert the Town Council to the need for an ordinance to address this matter.  Mr. McMullen agreed to do this but said no ordinance could be approved for several months.  Chairman Logue then asked the Town Solicitor if they could approve a variance for a specific time that would allow the Town to develop a reasonable ordinance for this type of sign; he said that he would be willing to approve this sign for a specific time and withdraw this approval if the Council doesn’t take action on the matter within this prescribed time, and the sign would then be removed.  The Town Solicitor then explained that there is no clear-cut definition of the word “temporary,” particularly as it relates to real estate signs and thinks that it could be a long time from beginning to end of the sale period in view of the number of homes in this subdivision.  He then recommended that the Board defer action and take time to decide on the course of action that will be taken on this matter and allow the sign to remain with the understanding that it is not permitted, and they may be told to take it down in the future when the Council decides that whether or not it wants to change the ordinance.  Mr. Schrader then asked if Ryan Homes had a smaller sign and asked her if she could return to the Board with a smaller sign.  Ms. Gray said that she has a book with different signs for different purposes; this is the sign that Ryan Homes uses to introduce a new community.   She said that she will remove the sign if told to do so and said that Ryan Homes does not intend to offend any jurisdiction or any citizens in a jurisdiction.  She said that she is responsible for erecting the sign and will comply with the Board’s recommendations.  In answer to a question from Chairman Logue, the Town Solicitor said that he would like to keep the public record open so that Ms. Gray can return with a potentially smaller sign.  There were no public comments.  Chairman Logue said that they will keep the record open for the purpose of the potential other signs.  Tom Sylvia made a motion to defer the sign until next month.  Bill Olsen seconded the motion, and it was approved unanimously.  In answer to a question from Ms. Gray, Chairman Logue said that this application would be considered at the January meeting since the Board would prefer not to meet in December. 

Tom Sylvia made a motion to adjourn the meeting.  Bill Olsen seconded the motion, and it was approved unanimously.  The meeting adjourned at 6:58 p.m.

                                                                                    Respectfully submitted,

                                                                                    Richard J. Logue      

                                                                                    Chairman  

                                                                                    Board of Adjustment

Transcribed from Tape: January 12, 2008