Tie vote leaves questions about Rehoboth building inspector’s authority

A proposed ordinance to confirm that the Rehoboth Beach building inspector – not the planning commission – has interpretive authority over the zoning code has failed after a vote by city commissioners that would have sent to the ordinance to a public hearing ended in a tie during a meeting Sept. 20.

This issue has been on the commissioners’ to-do list for most of the year. In February, at the request of the city commissioners, planning commissioners issued a report with a number of suggested changes to the site-plan review process. One of those changes included language that would give the planning commission the authority to determine if a site plan meets city code.

The planning commission has said it’s a clarification of the process that is already in place, but not everyone agrees. Numerous times during the site-plan review of proposed hotels on the Boardwalk, attorneys for the developers and the planning commission have been at odds because the building official has read city code one way, but the planning commission, while taking the building inspector report under advisement, has read it another way.

The Sept. 20 vote was the second time commissioners had discussed the topic, but it was the first time the public had language to look at. As proposed, the wording would confirm the building inspector’s authority and confirm that the planning commission may appeal a decision of the building inspector to the city’s board of adjustment if it disagrees with the building inspector.

Mayor Stan Mills said the goal of the agenda topic was to move the ordinance to a public hearing, not to vote on the changes.

Public comment on the subject was mixed.

Four of nine planning commissioners attended the meeting to voice their opposition to the proposed language.

Michael Strange, the planning commission’s longest-serving member, said there have been a number of times during his tenure when building inspectors have said something was compliant, only to be found non-compliant when reviewed by the planning commission.

One person is incapable of knowing everything, said Strange.

Planning Commissioner Nan Hunter reminded everyone that the planning commission only gets involved with large projects. The building inspector is the sole authority on a whole range of areas, including residential, she said.

City code calls for a planning commission site-plan review for any project involving four or more dwelling units; the development or redevelopment of a parcel of land in excess of 20,000 square feet; a commercial project over 15,000 square feet of gross floor area or which requires substantial renovation or increase in intensity of usage; a development requiring a change in zoning; or a site plan referred to the planning commission by the building inspector.

Property owner Jan Konesey, a former planning commission member, said the language was wrong. If the building official presents accurate information, the planning commission will know it, she said.

As he’s done in the past, former planning commission Chair Rick Perry said the planning commission was attempting to obfuscate the power of the building inspector. This is not normal, he said.

Perry recognized that there are individuals on the current planning commission with expertise in building code. However, he said, that might not always be the case, and it’s time to make code clearer.

Property owner Tom Gaynor said the building inspector is a professional who can be held accountable and can also get help when needed. Who would the planning commission be accountable to? he asked.

One of the reasons the issue was delayed was because City Building Inspector Matt Janis said he needed time to prepare his thoughts. At the close of the previous meeting, the expectation was that Janis would present those thoughts at some point in the future. That didn’t happen.

Property owner Frances Kelleher asked if she had missed the presentation. Mills said no, without providing a reason why.

Commissioners voiced their opinions prior to the vote.

Commissioner Francis “Bunky” Markert said planning commissioners are accountable to the city commissioners. These large projects can have a significant effect on the community, he said.

Commissioner Craig Thier, who had been sworn in along with Commissioner Suzanne Goode at the beginning of the meeting, said he had trouble believing Janis would be open to changing his opinion at the request of the planning commission.

Thier cited a board of adjustment hearing a few months ago at which a local business owner’s opening was delayed into summer in large part because Janis told that owner everything was fine, only to realize at the last minute that a variance was needed. Everyone makes mistakes, but during that hearing, he was obstinate, Thier said.

Commissioner Edward Chrzanowski said it was his understanding the ordinance clarifys code to keep the status quo. These are not significant changes, he said.

Ultimately, with Commissioner Don Preston absent, the vote ended in a 3-3 tie.

Immediately following the meeting, Mills said he didn’t think a presentation by Janis would have made any difference.

The next day, Mills said people need to be mindful that the vote did not decide the merits of the proposed language, but rather whether a public hearing on the matter should be conducted.

Unfortunately, he said, the vote denied a public hearing that would have provided additional opportunity for more constituents to voice an opinion.

“There is no other path forward at this time,” said Mills.