FENWICK ISLAND – Members of the Fenwick Island Town Council are calling for transparency and open communication after expressing their concerns over the decision-making process used by a resort committee to allow mechanical equipment on the roof of a new hotel to exceed the town’s height limit.
In recent months, the developer of the Sands Motel, located on Coastal Highway, applied for a building permit to demolish the aging hotel and reconstruct a new hotel in its place. In Fenwick Island, building permits exceeding $20,000 are reviewed and either approved or disapproved by the town’s Building Committee, and when it was learned that plans called for HVAC units and an elevator shaft on the roof of the hotel to exceed the town’s maximum height, the developer’s application was rejected.
Currently, buildings or structures in Fenwick Island cannot exceed 30 feet in height, or 32 feet in height if the building has a freeboard that elevates the structure.
Interpretations of that ordinance, however, were called into question by the applicant’s attorney, and, after seeking the opinion of the town solicitor and sharing in discussion with town staff, the Building Committee reversed its decision to allow the HVAC units to be placed on the roof.
While the units would exceed the town’s height limit, officials argued the mechanical equipment was not defined as a structure in the town’s ordinance and, therefore, should not be enforced in the height restrictions.
It should be noted that the developer of the hotel also received a variance from the town’s Board of Adjustment last month allowing the elevator shaft to exceed the town’s height limit by up to 4 feet 6 inches.
While they were in favor of a new hotel, Councilwomen Julie Lee and Vicki Carmean and Councilman Roy Williams said they opposed the decision-making process of the town’s Building Committee and were disappointed by the lack of information afforded to members of the town council before the decision was made.
“A decision was made before anyone even had a chance to give any input …,” Carmean said. “We only knew about the decision afterwards by reading notes between the town attorney and four other people in town.”
To that end, the three councilmembers filed a Freedom of Information Act (FOIA) complaint, which alleged that “important town business was not performed in an ‘open and public manner’” and that the building official, town solicitor, mayor, town manager and chair of the Building Committee violated FOIA by approving a building permit without holding a public meeting.
Last week, the Delaware Attorney General’s Office opined that the town’s Building Committee had violated FOIA, but not the five named individuals.
“Because the five individuals are not a public body, we find that they did not violate FOIA as alleged,” the opinion reads. “However, we determine that the Building Committee is a public body and that the Building Committee violated FOIA by its failure to conduct a public meeting to approve the building permit application.”
As remediation for its FOIA violation, the Building Committee held a public meeting on Sept. 4 to formally vote on the building permit application submitted by the hotel developer.
The three council members also called a special meeting of the town council last Thursday to clarify rules and procedures pertaining to open meetings, town committees, legal opinions and the like.
Attorney Bill Pepper, who was on hand at last week’s meeting to provide information on local government processes and FOIA issues, told the council he was not sure why the town had a Building Committee.
“To me, your process isn’t citizen friendly because it’s adding length of time to get something done …,” he said. “It just seems cumbersome.”
Lee told Pepper he was concerned that the town’s Building Committee did not share the solicitor’s opinion, or concerns about the height ordinance, with the council.
“When should that issue be brought forward to the public, or at least the members of council?” she said. “That’s one of the issues.”
Generally speaking, Pepper said the town council had a right to be informed of legal opinions and that consistent interpretation of the ordinance should be applied.
“If the ordinance has been on the books, and the interpretation has been consistent in manner for years, that interpretation, in my opinion, should follow unless there is a reason to depart from it,” he said. “If the ordinance has changed, it should be changed by council and not by the building official.”
Mayor Gene Langan noted, however, that the ordinance was never changed.
“The building official did refuse the permit on two issues initially and then consulted with legal counsel and the interpretation garnered from that discuss led to the decision,” he said. “We did not change the ordinance.”
Bill Weistling, chair of the town’s Charter and Ordinance and Building committees, added that the height ordinance was amended last year to include the definition of a structure and building, which changed how the ordinance was interpreted and enforced.
“When we passed those, that ordinance changed what we did in the past,” he said. “Now we have specific ordinance on our code book that all of us are required to follow … If we need to change it, we can change it at the Charter and Ordinance Committee, but until then we have to follow what’s on the books.”
Lee, Carmean and Williams argued that ambiguities in the amended ordinance were never mentioned by the town attorney when reviewed last year and called for the town to seek new legal counsel.
“I feel that the advice we have been given was negligent,” Carmean said.
The council, however, voted 4-3 with Langan and Councilmen Richard Mais, Bernie Merritt and Gardner Bunting opposed to deny the motion.
