Bethany Beach planners look at major subdivison

It has been more than a year and a half since Bethany Beach Planning Commission members were presented with a sketch plan for a subdivision consisting of 18 single-family homes on the combined properties of the Addy and Cooper families at 67 and 69 Kent Avenue, south of the South Coastal Library.

The project has since lain largely dormant, aside for some minor revisions in the preliminary plan that was presented to the commission at their June 20 meeting, with crowd of about 20 concerned neighbors present.

The parcels are, according to Building Inspector John Eckrich, two of the largest pieces of undeveloped upland property remaining in the town, and have, since the project was first discussed, been the source of concern about the likelihood of their being clear-cut of existing trees and how the development of the land might affect drainage on adjacent properties.

Back in October of 2007, the subdivision plan was presented as having 18 single-family homes on a T-shaped street, with lots having 60-foot minimum frontages, and stormwater areas planned for the rear of properties that abut the main street. Lot sizes were to range from 7,020 to 7,900 square feet.

The updated project calls for 16 single-family homes on that T-shaped street arrangement – not permitted under town code in 2007 but since made an option with support from the state fire marshal’s office. Six homes will sit on either side of the proposed Cooper Drive, which leads from Kent Avenue, with four homes on the west side of the intersecting Addy Lane, at the rear of the property.

Streets with a curb and sidewalk system, with gutters, are featured on the plan, as recommended in the town’s subdivision code. Streetlights shaded to cast light away from homes are also planned, to address concerns about light pollution.

A stormwater pond roughly the size of one of the proposed single-family home lots sits at the northeast corner of the property, adjacent to Kent Avenue and Cooper Drive, while a larger T-shaped pond runs takes up the southeast corner of the property and a narrower swath nearly the length of the south side of the property.

Both stormwater ponds – needed to control both the water on the property and that already draining onto it from neighboring properties – are designed as “dry” ponds, which would not show standing water except during and after a storm. Water-friendly vegetation would disguise the resulting wetland-type environment in periods of dryness or mere damp.

Despite the lack of apparent water in the planned ponds, neighbor Jim Whalen said he was still concerned about the result.

“Our frame of reference is there library, where they’ve been moving water for years and it still resembles a rice paddy in the back,” he said, asking LandTech’s Jeffrey Clark, who represented the Addy and Cooper families at the June 20 public hearing on the revised plan, and engineer Michael G. Kobin of George, Miles & Buhr LLC (GMB) if they were optimistic that the holding ponds would be dry except for periods of rain.

“Even if there is water lying there, you won’t see it because of the vegetation,” Clark said. “It is essentially a wetland. When [developers] use wet ponds, it essentially becomes a lake and then they sell it as waterfront property,” he cautioned with a note of humor.

“You won’t see any standing water because the outfall to Kent will allow that to go away,” Kobin said of the single permitted off-property outfall for drainage from one corner area of the site.

The upgrades to the existing drainage won some approval from Commission Chairman Lew Killmer, who said the design was an improvement to the current situation and noted that if mosquito problems develop there, the town will apply its existing abatement plan, as it does throughout the town, using a combination of spraying and larvacide.

Kobin said the plan for the community is to have a professional maintain the ponds on a monthly basis – a plan Eckrich said would deal with such a problem, to some extent.

“You have that problem now when water lays there after storm events,” Clark noted in praise of the upgrades to drainage on the parcels.

Plan to clear-cut a major concern

The property’s drainage problems are not only a source of concern for neighbors but the root cause of the apparent need to clear-cut the property, according to Clark.

“There are no trees that can be saved to make the site work as we envision it,” Clark said, allowing that, “If there are trees that we don’t have to remove and can still satisfy agency requirements for the development as planned, we’d be happy to do that.”

He said it was critical that the town engineer or a horticultural expert review plans to determine if any trees can be saved before the project proceeds, if the town is to require the lot not be clear-cut.

Clark explained that state officials had denied the property owners’ requests to allow an outfall of additional stormwater on the property to stormwater systems on state-controlled Kent Avenue, requiring them to deal not only with the water on the site itself but to continue to take on water draining from neighboring parcels.

“There’s a considerable volume,” said Kobin. “We had to sacrifice two lots. We had to build it up. We shifted the entire facility to one side. We squeezed this every which way to make it work. And it’s going to require us to bring in a lot of imported material. The entire site has to be filled to make this work.”

“The entire site has to be filled?” Killmer asked.

“Yes, sir,” Kobin confirmed.

The result: a re-grading of the entire parcel, creation of the two stormwater ponds and a 2-foot-tall berm along the perimeter of the property – forcing the developers to take down what they say are all of the existing trees on the two properties.

Even back in 2007, the notion of clear-cutting the parcels raised strong concerns for planners.

“This will be a good test for us with the tree replacement plan,” Eckrich said back then, noting that the tree plan’s requirements to plot existing trees and replace those not within building footprints did not specifically apply to a major subdivision like the one being proposed by the Addys and Coopers but was designed for planned residential developments, or PRDs.

“We have to communicate to them what we’re going to require,” he told the commissioners in 2007, adding, “It’s almost impossible to do a project of this size without clear-cutting.”

That hasn’t satisfied some of the neighboring property owners, such as Elaine Murphy.

“I was sick at heart to hear about those beautiful, beautiful old trees, and I’m not talking about the screening ones,” she said last week. “We had a tree removed at our own expense from the border, but there are big, healthy trees there.”

Murphy’s concerns about the trees and density on the developed property aligned.

“It seems to me that while you are talking about reducing from 18 to 16, which is preferable to us, 16 according to this plan is still a cheek-by-jowl, high-density development,” she said. “Can we save some of those big old trees if you reduce the number of lots?”

Killmer nipped that idea in the bud, stating, “The lot size meets the zoning code. There’s no legal way to force them to do it. They meet all the laws.”

But Murphy still held out hope. “People pay a lot of money for a big, wooded lot,” she said, to a shake of the head and statement of “This is the plan” from members of the two families.

Town officials also had little to offer any who had hoped that appealing to state agencies for more drainage off the property might resolve the issue of the need to clear-cut.

“We’ve never had much success with DelDoT giving in to us or any developer,” said Eckrich. “It’s not the first time we’ve run into this. On Route 26, several property developers had to go through extensive work like this and remove all the trees just to get to work on their property.

“The state hasn’t let us do it, not even on some of our own projects,” he continued. “DelDoT did 26, and they showed us drawings where they were going to take care of some water issues. But they ended up closing off some pipes and putting it into our system. We’re now making extensive changes to take care of this problem, and they now tell us it’s our problem.”

“It’s like going to the Supreme Court with an issue,” put in Commissioner Don Doyle. “They don’t come back for seconds.”

Asked if the town would push for a reconsideration anyway, Killmer said, “We could, but it’s like we already know the answer. They’ve never reversed themselves, ever.”

Lack of tree-replacement plan faulted

Neighbor Bob Bradley, a professional engineer with 40 years of experience in the field, said the issue of additional stormwater outfall to Kent Avenue wasn’t a make-or-break issue for the trees.

“If DelDOT would accept that, they would still have to fill it back in so it would flow properly,” he said. “This is a very restrictive design issue. The effect on trees would still be there.”

Acknowledging the likely need for clear-cutting the property, Eckrich said in 2007 that, with careful planning, tree restoration after clear-cutting could bring about an attractive result over the long term. He pointed to what had been done in the construction of Turtle Walk, where all trees had been removed for construction and, now, mature trees surround the area.

But no landscaping or tree-restoration plan was presented by the Addys and Coopers on June 20 – an omission the commissioners found to be a decided fault in considering approval of the preliminary plan.

“We’re going to need another hearing, at least because of the requirement for a landscaping plan,” Killmer said.

Clark debated the need for the landscaping plan to be presented for last week’s public hearing, however.

“My reading of ordinance is that this process of the subdivision ordinance is separate from the plantings on site,” Clark replied, saying he believed the filing of the required landscaping plan didn’t require another public hearing, rather just that the commissioners have the plan before they vote on approval. The record could be closed to public input before the landscaping plan was submitted, he argued.

“But this is one of the things citizens want to see,” Killmer countered. “Neighbors especially want to see how it affects them. It’s not something that is out of the ordinary,” he added. “We always have it with these applications.

“And I’m concerned about the need to clear-cut this lot – that’s the reason why we wrote this ordinance. We as a community value trees on our properties. We like to preserve large trees as much as we can. And, at this point, we don’t know the footprint of any of the structures on the lots. To eliminate them without knowing the future footprint of the homes…”

Most of those in attendance at the hearing erupted in applause.

Commissioner Kathleen Mink was firm in the need for the plan before commissioners vote on preliminary approval.

“This is part of your requirement. Trees of a certain dimension outside the footprint need to be replaced. Removing them for the movement of equipment is one thing. We understand sometimes they must be taken down. But they must be replaced – all of the ones outside the footprints.”

“The purpose of the ordinance is that large tracts of land won’t be clear-cut as they are developed,” Killmer emphasized. “If you can convince this committee that there’s no way to save these trees and at the same time develop a landscaping plan…”

“We’re trying to maintain/return this beautiful tract of land to get what you want out of this and also what the community wants,” he added.

Commissioners emphasized that their focus for a tree replacement plan will be on common areas of the development, not on the individual lots that could see a variety of custom homes built to lot owners’ preferences and unknown points in the future. With those homes existing as an unknown, the commission will aim for restoration of trees in areas that will become streets and open space.

The issue saw a firm consensus from the commissioners, who voted on June 20 to continue that day’s public hearing until their July 18 meeting, at which time they expected to have a landscaping plan for the project in hand and to allow further public comment before rendering a decision on the application.

Preserving trees through development a challenge

Planning Commissioner Fulton Loppatto said in 2007 that he was particularly concerned about the trees being lost and praised the benefits of mature trees, but the Addys and Coopers countered they had already been having problems with some of the trees succumbing to the vagaries of old age, falling down and endangering property and infrastructure.

They reiterated that concern last week, while neighbors expressed their own concerns about who would be responsible if trees weakened by construction activity were to fall on their homes, as has happened since renovation to the neighboring South Coastal Library property.

“We get calls three or four times a year to deal with trees falling down,” the Addy and Cooper families said. “These are very old trees, and they fall every time we have a storm. The neighbors want us to take down trees that threaten their property. We have liability if a tree falls on someone’s house, and the screening trees” – encouraged by Killmer to be retained – “are the ones our neighbors are concerned about.”

Eckrich acknowledged that attempting to preserve mature trees in such a project often leads to circumstances in which the trees still eventually die, due to the impacts of construction.

“I have seen in a couple different developments, where they did a plan and started working on it and a storm comes, and because the wind exposure is different, they lost some trees,” he said. “It’s inevitable that anything within a certain distance of the property lines – the soil has been disturbed, the wind exposure changed – will lose some trees. But I don’t have a crystal ball to say, ‘This tree will fall down.’”

And it’s not just the trees on the Addy-Cooper property that were of concern to neighbors.

“I’m concerned about the effect of excavation and grading on the site to the trees on surrounding properties. You have trees with a 30- to 42-inch caliper measurement and a 40-foot canopy and root zone. The installation of the stormwater facility will affect the root zones,” Bradley added.

Bradley said he would like to see the town require, as part of any approval for the project, that the Addys and Coopers be held responsible for three years for trees in an area 25 around the perimeter of the property. If any of the trees were to die, he said, the developers would pay to have those trees taken down.

“Our home built was in 1989,” he noted. “Within three years, I had to take 10 trees down, from construction traffic over the root zones.”

Drainage impacts on neighbors pose a concern

Despite the apparent improvements to the existing drainage situation on the property, some neighbors were still leery of the possible impact of the development on their properties.

Ron Vickers allowed that the development should go forward. “The Coopers and Addys have right to develop this land,” he said. “But we’re concerned about the library renovations. The library grade is 2 feet higher and runs down into other people’s yards. We’re concerned about water runoff.”

Kobin said the plan calls for a 2-foot-tall berm, with a 6-foot flat section on top. A storm drain runs under the berm, with pipes to adjoining properties to pick up water that collects there.

“The only time you should see water on your side is during storm events when the pond is full, because they won’t be able to accept more water,” he said. “There will be nothing coming from the project side to the adjacent property.”

Clark said, “We’re accepting all the drainage of our neighbors, and these owners have lost two lots, having to manage a problem that wasn’t created by them.”

“These features, the drainage design were all made with an eye toward protecting the neighbors because of water draining from their yards onto this property,” he emphasized.

Those efforts got some approval from Eckrich, who commented, “They are working with us. They’ve run across some difficulties with the drainage because the state won’t take any of it. They’re trying to good a job with managing it and taking water from adjacent properties. And I anticipate a landscaping plan that, now that we’re on same page, will be adequate.”

With that understanding, Killmer said he’d like to have the July continuation of the hearing to include the required landscaping plan, plus some visual aids of what the planned berms will look like – especially in relation to surrounding homes. He said Bradley had made some excellent points and requested the developers address them at the hearing.

Also on June 20, planning commissioners:

• Voted to scrap plans for a townwide survey, after finding that issues to be addressed in their update of the town comprehensive plan were not among the survey topics they had decided they might want to pursue.

• Tabled the start of a discussion on possible legislation to address the installation of solar power devices in the town to the July meeting. The issue is part of the commission’s ongoing “green” initiatives, dealing with geothermal heating and cooling systems, wind power and more.