On December 11, Milford Board of Adjustments approved a variance for a 264-unit apartment complex located on South Walnut Street north of the intersection with Flying Geese Drive. The request asked for a variance of under five feet for the height of the building. Currently, city code limits the height of a building to 35 feet and the developer wanted the apartments to be 39.5 feet.
“The applicant obtained final site plan approval from the city on August 26, 2025, for the construction of the 264 multi-family units,” City Planner Rob Pierce said. “Building height is defined by the vertical distance measured from the average elevation of the finished grade at the front of the building to the highest point of the roof.”
Tim Metzner of Davis Bowen & Friedel, the engineer for the project, explained that the original apartments were to be part of the Milford Ponds development and each time there was a new site plan, the apartments were modified slightly. Metropolitan 2, LLC, purchased the property in 2025. The property is zoned R3, which is garden apartment and townhouse zoning. Metzner explained that buildings within Milford Ponds and Simpson Crossing had maximum building heights of 48 and 50 feet.
“If the restriction is not removed, it would create an unnecessary hardship or exceptional practical difficulty for the owner in his efforts to make normal improvements in character of that use of the property,” Metzner said. “The owners purchased the property this year and was advised after settlement that the 35-foot restriction was in place after they had expended significant money in design fees, building plans and marketing documents.”
Metzner pointed out that the height limit was changed after the property was sold, as the previous definition measured from the eve to the top of the floor. Using that definition, the building met the requirements of the city. Without the variance, the building would either have to have reduced ceiling heights or a flat roof that would not be as aesthetically appealing compared to the surrounding neighborhoods.
Board member Ronald Rizzo asked if a denial would impact the design of the roof or the heights of ceilings. Pierce explained that the current code required nine-foot ceilings. Rizzo pointed out that this would require a sloped roof which would require more height on the building. Board chairman Brendan Warfel pointed out that when the new owners purchased the property, they were told that the requirements were the same as Milford Ponds and Simpson Crossing.
“There were a couple of items that came before the Board of Adjustment related to the site design before it headed towards the planning commission,” Pierce said. “One was a parking reduction and the other was the central refuse collection. Because this was part of Phase 4 for Milford Ponds, I think the height came in around 48 feet and it wasn’t caught at the time.”
Pierce also stated that the city amended their zoning rules and modified the definition of building height in 2022, which made it the average height of the roof rather than to the underside of the uppermost story. If we hadn’t made that change, this plan would have been compliant and that may be something we need to go back and look at, as it would make three-story buildings more prohibitive to build.
“Obviously, even if you went to eight-foot ceilings, you still couldn’t make it work,” Warfel said. “So, the hardship would be just the complication of the entire transaction.”
John Rathfon, owner of Metropolitan LLC, told the board that this had been a long time in the making.
“We have, I think, obtained preliminary plan approval three separate times for changing zones, changing codes and things of that nature,” Rathfon said. “The hardship is on the cost and redesign. We’ve invested a significant amount of money into architectural, structural and marketing material. On top of that, we’re trying to bring quality housing stock to Milford. We are proud to be here. We are not developers who get a project approved, build it and flip it. We own and operate about 4,000 apartments right now and have 3,500 more in our pipeline.”
During the public hearing portion of the request, no one who lived near the property spoke against the project, although two people spoke against it from other areas of town.
“The 39-and-a-half-foot variance is ahead of the rest of our system, our fire protection, our access standards, our codes have not caught up to this kind of mid-rise project,” Julie Morris, who stated an address of 210 East Street, said. “The R3 district says 35 feet. The only hardship is that they would like a taller roof, more flexibility in their design, and that’s self-created. It’s not an exceptional, practical hardship under the variance criteria.”
Morris claimed that the height requirement had been loosened in 2022, not made more restrictive, despite Pierce’s statement that the code had been strengthened in 2022. Morris also suggested eight-foot ceilings although Warfel, who owns a construction company, had already stated that eight-foot ceilings would not allow the building to be constructed under 35 feet.
“Carlisle frontline engines carry ground ladders that are 35 feet. There is one ladder track that can work comfortably at 39 and a half feet, but what if that truck is out of service,” Morris continued. “Also, once you get above 35 feet, modern fire codes start expecting standpipes inside those buildings, vertical pipes and stairwells with hose connections on every floor.”
When Morris finished speaking, Warfel commented that some of the comments she made were incorrect. Research found that Carlisle Fire Company has an engine known as Tower 42 with a ladder that reaches 100 feet. Other engines have ladders that can reach over 35 feet.
“I would also like to point out that I think Mr. Pierce should check all the rules, regulations and variances before he buys these properties,” Dawn Tomzack, who gave an address on Linestone Lane, said. “Then we could possibly avoid this.”
Pierce pointed out that he was the planning director, not the developer. Tomzack corrected herself.
“My question is based on what Rob just said a few minutes ago that Julie’s information is incorrect in some aspects,” Trish Marvel, who gave an address on Shawnee Road, said. “He didn’t specifically say if it is incorrect where it pertained to the height or the fire apparatus or if the fire department is limited on what they can or cannot do. It would probably be helpful to share that in this meeting after public comment to perhaps make some clarification that would help people make an informed decision.”
Pierce pointed out that he did not make the statement that information was incorrect, but that Chairman Warfel had done so.
“I think that was related to under the prior code, the height definition was the underside of the uppermost story which would not be the top of the ridge of the roof, but the underside of the eve,” Pierce said. “In essence, by modifying the definition of the height, we made it more restrictive. The chairman can clarify his comments.”
Warfel stated that Pierce was correct and that he just wanted those in attendance or listening online not to be confused by someone coming in making uneducated comments.
“For the record, any building permits for apartment units like this would have to meet the commercial building code and are subject to approvals from the fire marshal’s office and the state fire regulations are reviewed and approved by them,” Pierce said. “There were some comments related to hydrant location and that all has to be approved by the State Fire Marshal’s office.”
Pierce also explained that the city had received a technical assistance grant from Delaware State Housing Authority and one of the things they would be reviewing is building height. Those recommendations would come before the Planning Commission in the future. Warfel clarified that this building was part of a Planned Urban Development (PUD) many years ago in an effort to bring diversified housing to Milford.
“And the PUD allowed up to four stories, up to 48 to 50 feet,” Pierce stated. “Cypress Hall is a PUD, Simpson Crossing is a PUD, Hearthstone Manor is a PUD. A lot of these developments were from the early 2000s with various housing types. When they separated this project, however, it was not part of the PUD anymore, so it had to meet other zoning requirements.”
Rizzo made a motion to approve the variance with board member Joe Wiley seconding. Rizzo voted yes as the height was not excessive and was only about 10 percent higher. Keeping the height would be beneficial to those living in the apartments. Wiley and Ronald Mescola also voted yes based on Rizzo’s comments.
“I vote yes per Mr. Rizzo’s comments and the complexity of the zoning change in the past years,” Warfel said.
The measure passed by a vote of four to zero with Andria White absent from the meeting.
