OCEAN CITY – A new deck at the Lankford Hotel will be reconstructed after an appeals board denied the owner’s variance request.
Last Thursday, the Ocean City Board of Zoning Appeals (BZA) denied a variance request from 8th Street Properties LLC to reduce the 20-foot front yard requirement where decks and porches can be built to zero feet at the Boardwalk. The request comes after the town’s zoning department discovered a deck was being constructed at the Lankford Hotel property without the necessary building permit and not to the design specified in its approved site plan.
“This is not the way it should’ve happened,” said BZA member Emily Nock.
During last week’s public hearing, Zoning Administrator Kay Gordy said the applicant had secured site plan approval from the Ocean City Planning and Zoning Commission in March to redevelop the Lankford Hotel property and add an outdoor dining area and tiki bar along the Boardwalk. In May, however, the town issued a stop work order after discovering that construction had commenced before a building permit had been issued.
“During the review process, prior to permit issuance, the site was discovered to be under construction with decking as shown presently but not shown on the approved site plan and building permit application,” she told the board.
While site plans showed an outdoor dining area level with the Boardwalk, she said what had been constructed at the Lankford Hotel was an elevated deck.
“When we discovered it was under construction, it looked quite different,” she said. “The raised area begins right from the Boardwalk.”
Regan Smith, the attorney representing the applicant, said his client was seeking an after-the-fact variance to continue construction as shown on a revised building permit application drawing.
Smith told the appeals board last week that the elevated deck being built at the site will address a downward slope from the property to the Boardwalk. He said that slope not only presented a safety concern, but made outdoor dining a challenge.
“The idea is to take that slope and level it out so you have a level area for tables, seating, service, which again is a better safety situation for everybody and allows you to have outdoor dining …,” he said. “That is what they’re after.”
Smith pointed out that the Lankford Hotel’s prior owners had received approval from the BZA in recent years to construct a 48-inch elevated deck in the setback. He said his client was seeking approval for a 20-inch elevated deck.
“We’re asking for a lesser request than what was previously granted by the board,” he said.
Smith said his client had received approval for an outdoor bar and service from the Worcester County Board of License Commissioners (BLC). He noted, however, that the BLC did not like the idea of having a slope on the property.
Property owner Franko Fidanza said constructing the elevated deck addressed those concerns.
“Seating was on an angle,” he said. “We thought it was better to have an elevated deck, where it was much more feasible for customers to sit.”
When asked if the deck was constructed at the request of the BLC, Smith said it was not.
“They didn’t tell them to do it,” he replied. “The concern was the diners, but it was not any kind of requirement.”
BZA member Brian Shane questioned why the applicant would construct an elevated deck that was not approved in the site plan. Fidanza said the architect he had hired for the project did not think it would be an issue and had proceeded with construction.
“We are ultimately responsible of this, regardless of who made the decision,” Smith told the board. “That’s why we’re here.”
During the public hearing, Ocean City Development Corporation Executive Director Zach Bankert came before the board to share his objections to the request on behalf of his organization. He said he took issue with the fact the elevated deck was not in the approved site plan and was constructed without a building permit.
“Looking at any variance, with a project that went so far away from what it was originally permitted for, to me doesn’t seem like best practice and seems like we are putting the cart before the horse with this …,” he said. “Personally, I don’t think we should be looking at a variance at this point when we are so far off.”
Gordy said the applicant’s request must meet a two-part test for a variance to be granted. She said applicant must show the property is unique or different from surrounding properties such that the zoning code disproportionately impacts the property. She noted the applicant must also show practical difficulty.
During the board’s deliberations, BZA Chair Chris Rudolf said both parts of the two-part test must be met. He questioned if the applicant met the practical difficulty standard.
“I think a lot of this could’ve been avoided had the green light been given for a building permit before construction began,” he said.
Nock said she also had her concerns regarding the applicant’s request.
“I’m not 100% sure about it being unique to the area,” she said.
Ocean City Planning and Community Development Director Bill Neville said the BZA went through a similar review in recent years when the former owner of the Lankford Hotel secured approval to construct an elevated deck along the Boardwalk. He said the request was granted because the board found a change in elevation from the property to the Boardwalk made it a unique property.
“It was clear at site plan approval the plan was to utilize the lower elevation for outdoor dining,” Neville said of the applicant’s request. “I think they’ve come up with a superior solution … It was a better design.”
After further discussion, however, Shane made a motion to deny the applicant’s request.
“Based on our job tonight, which is to speak to the code, I’m going to suggest that we deny the variance request based on it not passing the two-part test in a way I believe is 100%, specifically the uniqueness of the property,” he said. “The code asks for exceptional topographic conditions or another extraordinary situation. I’m not seeing that 100% based on surrounding properties. I don’t believe with full confidence it would be unnecessarily burdensome to comply with the code or to have proceeded with the original plan that was submitted.”
The motion passed in a 3-0 vote.
“The property owner has indicated that the elevated outdoor deck would be reconstructed at the same level as the Boardwalk in conformance with code requirements,” Neville said in a statement this week. “Revised building permit plans are under review by the Planning and Community Development department.”