Revised Addy-Cooper project presented in Bethany Beach

Having been on the receiving end of an uproar from neighboring property owners when they first presented their plans for an 18-home subdivision at 67 and 69 Kent Avenue, next to the South Coastal Library in Bethany Beach, in October of 2007, members of the Addy and Cooper families offered up a new vision of the project this week, at the Nov. 20 meeting of the town’s planning commission.

The revised plan deals with the controversial storm pond and berm stormwater system – which would have required clear-cutting and filling the entire property – by eliminating it completely. Instead, owners John Cooper, Carolyn Hockman, and John, William and Christine Addy propose to tie into existing Town of Bethany Beach stormwater systems.

That solution came about as the result of meetings this summer between the developers, their representatives and those of the Sussex Conservation District, DelDOT, DNREC and the Town of Bethany Beach, as well as state Rep. Gerald Hocker and Sen. George Bunting.

Ideally, Jeff Clark of Land Tech – who represented the Cooper and Addy families at the Nov. 20 hearing – said, the project would have directed its stormwater into DelDOT systems based on state-controlled Kent Avenue. But after a year of trying to come to a solution with state officials on that notion, “They just said, ‘No,’” explained Councilman and Planning Commission Chairman Lew Killmer.

“We have yet to receive a written response,” Clark said of their most recent efforts to reach an agreement with DelDOT.

The preliminary site plan for the original project was reviewed by the Planning Commission in June 2008, with approval granted in November of 2009, clearing the way for presentation of a final site plan and possible approval for construction to begin. But neighbors’ concerns about drainage, trees both on and adjacent to the property and stormwater systems led to major revisions at the suggestion of the commission.

So, in April of 2010 – two and a half years after the initial presentation on the project – Town Manager Cliff Graviet contacted the developers and arranged a meeting between Building Inspector Susan Frederick, Public Works Director Brett Warner, Clark and himself, to review the potential for drainage systems that would tie into existing town systems.

The resulting changes eliminated the storm ponds and berms in favor of open swales that tie into systems draining through Bethany West and, eventually, into the Assawoman Canal. The changes allowed the restoration of two lots that had been eliminated by the proposed stormwater ponds, taking the project back up to 18 single-family home lots.

Those changes were so significant, in fact, that Frederick determined that the existing preliminary approval for the project would have to be scrapped, and new hearings held, starting the process over again with a sketch plan review, which was held Nov. 20.

That review requires no notification to be sent to neighboring property owners, no posting of the property and only a minimal or “sketch” plan (rather than a detailed drawing that includes systems). The focus of commissioners at that stage is to make sure the sketch plan adheres to town, state and other regulations, and to consider its impact on abutting properties.

It is an informal review, Killmer emphasized – noting that there had already been confusion and misinformation about the process at this stage. The commissioners can, he said, make suggestions for what they want added or changed in the sketch plan, though.

Once sketch plan review is complete, the project can move on to review and approval of the more-detailed preliminary plan, which involves sending a notarized letter to owners of property within 300 yards of the project, publication in a newspaper and posting on the property 45 days prior to the hearing. Then – if approval is granted – the project moves on to review and approval of the final site plan, at which time construction can begin.

Killmer noted on Nov. 20 that the Addy-Cooper property was subject to higher standards than such projects received in the past.

“In 2008, we recognized that there were only seven large tracts left in town that could be developed,” he said. “And we desired that they have a much higher level of standards.” Additional standards were approved, and the Addy-Cooper project falls under those standards.

However, attorney Heidi Balliet Gilmore of Tunnell & Raysor – representing the two families – said on Nov. 20 that she felt her clients had faced “a mountain of regulatory challenges – not just because it is one of the last undeveloped parcels in the town, but also because it has been the de facto stormwater drainage for the three surrounding developments for years.”

“Our goal is to ensure this is a fair and just process – not that town has been unfair in the past,” she said, asserting that she was in possession of e-mails from at least one commissioner to neighboring property owners “that the application has already been negatively decided.”

Commissioners denied that such communications had taken place and took umbrage at the suggestion that they would be making anything but a fairly considered decision.

“That’s my job, and I don’t need to assure you of anything,” said an incensed Commissioner Chuck Peterson.

“I am offended also. … I find that question insulting. If you feel things are judged by whoever sends the most information, we don’t need a planning commission; we’re not prejudging anybody,” said Killmer.

“I have had no communication with anyone other than what comes to me through the town – not a single conversation, e-mail, phone call or picture other than what comes to us. I have had no ex parte communications and I have not made up my mind,” added Commissioner John Gaughan.

“We didn’t receive anything outside what the town gave us to see,” noted Killmer.

Sidewalks and trees weighed in the balance

Clark explained that the engineers on the project had determined that, as a result of the planned changes to the stormwater system, they “did not have to manage the quantity of water increase as the result of the development but must manage the quality of water as discharge. We don’t need large pond structures to store stormwater quantity,” he said.

Additionally, Clark said, much of the controversy over the prior plan had surrounded the expected loss of trees – both those on the property and on neighboring ones. The presence of the ponds required the entire site be filled 3 to 4 feet, necessitating clear-cutting on the property and raising concerns about the resulting impact on neighboring trees.

Now, Clark said, the project “will not involve mass filling of the property.” A new drawing of the project shows areas of green where trees could be retained around many lots, in addition to some others he said might be retained if property owners site their homes carefully. Neighbors said, however, that they didn’t think there were many trees in those designated areas.

Clark noted that the new plan also eliminated curbing and sidewalks in favor of a roadside swale drainage system – which, he said, would be familiar from its ubiquity in surrounding communities.

However, that not only conflicts with town code on subdivisions but with some of the expectations for the new community.

“The section in the ordinance gives the Planning Commission the ability to grant waivers in the ordinance if they consider it to be favorable,” Clark said. “We realized it was in the ordinance, but it was an issue to discuss today.” He said he did consider the swales as stormwater drainage to be “gutters,” which he defined as “conveyance for stormwater so it doesn’t lay on the street and become a hazard for vehicles and pedestrians.”

Killmer offered input in favor of sidewalks, noting that town council members had recently attended a workshop on the walkability of towns.

“There is no connectivity between your community and the rest of Bethany Beach. There is going to be a sidewalk on Kent Avenue at some time in the future,” Killmer asserted. “And it’s been proven over and over again that sidewalks add between $3,000 and $5,000 to the value of a property. I think these are important additions to your project, but I don’t have a vote on the commission.”

But, the engineering of the new plan, Clark said, precluded curbs and sidewalks if the open swales are to be used for drainage – a key component of the new stormwater system design.

“When you curb the streets, you have to capture stormwater in caches and drain it into pipes,” Clark explained. “There is no stormwater quality management, nothing to cleanse that water. It requires everything to be built up. We would need to fill, and then we’re back to where we started. We worked with the town to allow this plan to be discussed, to retain the existing vegetation, and a closed drainage system requires fill and enclose pipes. The effect of that may be unacceptable.”

“Are you suggesting it is a trade off?” Killmer asked. “If we have curbs and gutters and sidewalks, we can’t retain the vegetation?”

“The curbs and gutters create an enclosed drainage system,” Clark replied, “and every single community surrounding us has open systems. We’re just asking to be treated the same.”

Applicants noted that past hearings had indicated that the public didn’t want sidewalks in its communities, but some of those present at the hearing last week said they were concerned about the safety of open swales – particularly if children might be present in the area.

Mike Timchalk, who lives in the Beechwood community that adjoins the Addy-Cooper property, said, “Our neighborhood has suggested they don’t like curbs and wanted the same … open swale.” Others, while opposed to the open swales, also appeared to favor a solution that would help retain trees and avoid filling the entire property.

Commissioners offered consensus last Saturday that an open drainage system should be permitted, coming short of a formal vote to do so, but offering expectations of the project’s preliminary plan that it will feature open swales and lack sidewalks and curbs. Commissioner Fulton Loppatto, though, said he was bothered that little opposition had been heard when the ordinances requiring sidewalks were passed but so many now came out with a feeling against them in this case.

Proposed system would reduce need for fill

Timchalk also expressed concerns about whether the project will still involve fill, and whether that will result in water going onto the neighboring properties.

“They can’t raise it up higher than yours,” emphasized Frederick. “They have to bring it up to the same level.”

“They’re not permitted to transfer [drainage] to your properties,” Killmer said.

Engineer Mike Kobin of GMB addressed concerns about the drainage.

“In the original plan, we were kind of boxed in by the requirements of DelDOT. That pushed us into a lot of fill on the lot – basically clear-cutting everything on the lot, everything going to enclosed drainage systems, and even then struggling with the impact on neighboring properties,” he said. “This has open drainage and minimal fill. The edges will remain at the existing elevations, and we’ll maintain as many trees as possible. That can all be done because it is an open drainage system,” he emphasized.

“The minute you start putting water into an enclosed system,” Kobin added, “you have to cover the pipes. Everything has to come up, and then we’re back into a situation where we have a lot of imported fill and concern about the impact on adjacent lots.”

Kobin said that, at the time neighboring communities were developed, no provisions were made for the eventual development of the Addy and Cooper properties. In fact, he said, what drainage had been planned in Beechwood – a swale at the rear of the bordering properties – had never actually been constructed, despite appearing on the original plans for the community as approved by the town.

The water there, he said, “has been allowed to go into the Addy and Cooper properties, and they have been allowed to become unofficial stormwater retention ponds for that area.”

He noted that developers of the project will have to prove to both state agencies that it can handle the water that will flow into the open swales. He pointed out, though that the ditch involved is tidal. “There will be water in there from time to time,” he said, noting that less water will be seen in upper reaches of the system.

System could improve drainage in the area

“I understand this will correct some of what is wrong with this system,” Killmer said of the plans to join into the existing drainage system through Bethany West.

“Open drainage systems are amazingly efficient,” Kobin said. “The existing channel at Bethany West, in order to go to a closed system and have anything near the capacity of that channel would need three 48-inch pipes and still couldn’t match the capacity of that existing channel.”

“Are we going to get water from the canal?” Timchalk inquired. “We already have problems on the north side of town.”

Kobin said there might be an occasional incidence of that, but that during small rain events the system will drain more efficiently than it does now. Those small events, he said, comprise 95 percent of the town’s rain events.

In response to questions about the path the drainage system is proposed to take to join in the existing town system and the existing trees and vegetation there, Gilmore noted that the areas indicated in the plan were legal drainage areas already established on plot plans for the neighboring properties.

“They’re already established,” she said. “They’re not supposed to grow with vegetation. They’re supposed to be kept clear.”

She said some cases, such as an oak tree that some believe is 100 years old, were going to be taken into consideration, “But if plantings in those areas were put in by the developer…”

“Those are drainage easements that are on the plot plans for the town,” Killmer confirmed. “Whether they have been utilized is one thing, but they are legal easements.”

Neighbors ask for lower density

Neighboring property owner Elaine Murphy took the opportunity last Saturday to appeal to commissioners for extraordinary consideration.

“These are 18 large houses, which will take down most of the trees when built,” she said, noting with derision that the retention of some smaller number of trees had been offered as a kind of compensation.

“Allowing them to build to maximum density is asking the surrounding neighbors to sacrifice,” Murphy continued. “‘We have to drain our land so we can have maximum density, so we are going to use swales along other peoples’ property with an open ditch,’ so you can have maximum density.”

“It’s very advantageous for you to be blaming the surrounding low-density developments,” she added, later saying, “They’re basically saying, ‘Hurrah! Hurrah! We can how build 18 houses and maximize our profits at the expense of our neighbors.’ You can’t prevent that?” and suggesting the commission require a lower density than that allowed by right on the property.

Commissioners were clear on that issue. They cannot do that, “as long as [developers] follow the code.”

Kobin pointed out that the project, as proposed now, actually has the same density as the Beechwood development, with nine lots on both sides of the shared property line. Further, he objected to Murphy’s characterization of the swales as adding a danger to the community. “It was the intent of the design of your subdivision that you have an open channel back there,” he said of the unconstructed but planned swale in Beechwood.

“It doesn’t flood,” she replied.

“It doesn’t flood your property,” Kobin emphasized.

Neighbors also expressed some objection last Saturday after Gaughan inquired about the town’s legal remedies over the unconstructed Beechwood swale.

“We need to do some research on whether there is a requirement where we can we go back retroactively and have them do that,” he said. “It seems to me, if I understood the engineer, that the presence of that swale would be a help to the stormwater management situation. I don’t know if the town has any legal recourse to that developer, but that would be an issue I would want to look into.”

Clark said there had been some indication that a swale on the Addy side of Beechwood did once exist but was now intermittent.

“It is conceivable that a lack of maintenance has led to that,” he said. “People from time to time fill them in inadvertently.”

Gilmore said she’d tried to contact Beechwood’s developer about the issue but that they were no longer in business and there was no further information in the records for the property.

No vote was taken at the informal sketch plan hearing on Nov. 20. Developers will return to the town with a preliminary plan and associated documents, at which time a formal public hearing and vote on approval of the plan will be held.