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The Dewey Beach Board of Adjustment voted 2-1 Wednesday, July 2, to deny a building permit to the owners of Ruddertowne for phase one of its Ruddertowne redevelopment project.
The board’s decision only involves plans submitted to the town Nov. 8, 2007, that would have allowed Crabber’s Cove and the Lighthouse to remain and continue in operation, while a new 35-foot high mixed-use residential and commercial structure was built where Ruddertowne and its parking lot are currently located. The Nov. 8 plans submitted and ruled upon were independent of and did not incorporate prior proposals for a 68-foot high or 48-foot high structure.
Two core issues emerged as attorneys for Dewey Beach and Ruddertowne owner Dewey Beach Enterprises (DBE) fiercely disputed numerous matters including what DBE was appealing. The first was whether the decision of building official Bill Mears, who approved the plans as code compliant, should stand after former town solicitor John Brady sent a letter nearly two months later stating the plans did not comply with the code.
The second was whether residential units in a mixed-use project must comply with a requirement that townhouses and multifamily dwellings on a single lot have a minimum lot size of 3,600 square feet per dwelling unit. The code sets no specific minimum lot size for mixed-use projects. As written it requires that the residential square footage not be more than twice the commercial square footage.
Following almost three hours of testimony, argument, public comment and discussion, the board found against DBE on the second issue. Board Chairman Rick Dryer and Leonard Read voted against approval. Don Ziegler voted to approve the plans. Board member Milton Wishard abstained, saying he was unsure the board has the authority to hear an appeal of a permit denial when the building official had never denied it, and Phillip Davenport was absent.
Read said that though the town’s zoning code is ambiguous, he believes the terms multifamily, multi-unit and mixed-use are used synonymously throughout. He said because mixed-use has no required lot square footage per residential unit it falls into the multifamily category. Read concluded the plans had to be denied because they did not meet the lot size requirements for a multifamily use. Dryer joined Read and adopted his reasoning.
Ziegler said he also believes there is some ambiguity in the code regarding mixed-use and multifamily structures, but he feels the ambiguity should be resolved in favor of DBE. Ziegler said he is also disturbed because the town’s building official, Mears, testified that he consistently said and still believes the plans are in compliance with the zoning code.
Mears testified that Brady, the town’s former attorney, originally agreed with him but then changed his opinion almost two months later. Brady sent a letter to DBE representatives on Dec. 24, saying the plans are not in compliance with the minimum lot area per residential unit requirements.
DBE principal David Sills testified that he asked Mears why he wouldn’t issue the building permit. Of Mears’ response Sills said, “He said, ‘If I do I’ll be fired. I’m not calling the shots here anymore.’” Mears confirmed under oath that the statement was accurate and truthful.
Mears testified that he was not consulted about the Brady letter, was not sent a copy of the letter and did not know there had been a letter until Jan. 2, when DBE partner Jim Baeurle questioned him about it. “It was December 24. I was on vacation,” Mears said.
Ziegler wanted to know why Brady changed his mind. Though Brady was present at the hearing as a potential witness, the town raised the possibility that his testimony could violate attorney-client privilege and did not call upon him to testify. The town offered no explanation as to Brady’s change in position.
“We’re getting half a loaf. To not be able to ask Mr. Brady why he changed his position makes us decide without the information we need,” said Ziegler. “We’re being asked to make a decision without all the facts.”
Baeurle is also looking for an answer. “On November 8 Bill Mears, the building official with sole authority to decide if we were code compliant, said we were. In every conversation we had over eight months he said we were code compliant. After two-and-a-half hours of testimony, including Mr. Mears’ repeatedly confirming under oath that we were code compliant and that he believes we are code compliant, we are still without a permit,” Baeurle said.
But Glenn Mandalas, named town solicitor June 25, said DBE’s arguments about what its representatives were told by Mears had no proper place in the board’s decision. “I am glad the board of adjustment focused on only one issue, code interpretation,” Mandalas said, adding that it was the only issue the board should have considered.
Mayor Dell Tush, who was present throughout the hearing, agreed. “Our zoning code would make no sense if something deemed mixed-use would be granted unlimited density,” Tush said.
Sills, also the contractor responsible for attaining all building permits for the project, testified that DBE spent $291,000 to obtain necessary county permits after obtaining a Nov. 8 letter of referral from Mears.
Indications are that the dispute is not over. “We’ve exhausted all avenues of compromise provided to us by the Town of Dewey Beach. Our attorneys are examining all other available options,” Baeurle said.
“The Dewey Beach Board of Adjustment was clearly the last resort for my client’s appeal rights in the town,” said DBE’s attorney, Shawn Tucker.
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Ruddertowne development, redevelopment chronology
Ruddertowne’s development and redevelopment history, spanning from its construction in 1981 through the July board of adjustment decision denying its owners plans to build a 35-foot high mixed-use structure, is summarized below. The dates were derived from minutes of public meetings, documents that are part of the public record and sworn testimony presented during the July 2 hearing.
1981 – Ruddertowne built by Jay Prettyman.
1987 – The Baycenter is built.
1998 – Highway One buys Ruddertowne from Prettyman.
December 2006 – Highway One receives permit to construct 48 townhouses on the Ruddertowne site.
Feb. 2, 2007 – Town of Dewey Beach establishes the Ruddertowne Architectural Review Committee (RAC).
May 2007 – Harvey, Hanna and Associates (HHA) enters into an agreement to buy Ruddertowne.
May 24, 2007 - HHA meets with RAC and is informed of town’s desires for the Ruddertowne property.
June 15, 2007 – HHA unveils the rendering for the Ruddertowne redevelopment project, a 68-foot hotel and condominium complex integrating Town Center amenities including a bay walk, public restrooms and welcome center.
June 22, 2007 – HHA holds an open meeting at the Baycenter to obtain additional public input and answer questions.
June 29, 2007 - RAC votes 7-2 in favor of HHA’s Ruddertowne redevelopment proposal.
July 29, 2007 – Dewey’s comprehensive development plan is certified by the state, provided there are no major changes.
Aug. 23, 2007 – The Dewey Beach Planning & Zoning Commission holds its first meeting regarding rezoning of the Resort Business 1 district in which Ruddertowne is located.
Sept. 9, 2007 – Dell Tush, Diane Hanson and Rich Hanewinckel are elected as town commissioners, running on a 35-foot height limit platform
Oct. 19, 2007 – Planning and zoning commission recommends the town council reject the ordinance proposed by HHA to allow construction of a 68-foot-high project by a vote of 6-0 with one abstention.
Oct. 20, 2007 – Dewey Beach Town Council unanimously accepts planning and zoning’s recommendation and refers the 68-foot height ordinance to a public hearing on Nov. 10.
Oct. 31, 2007 – Dewey Beach Enterprises (DBE) buys the Ruddertowne property and businesses from Highway One.
Nov. 8, 2007 – DBE submits plans to Dewey Beach for a 35-foot high three-story mixed-use structure that provides garage parking and retains the existing Lighthouse Restaurant and Crabber’s Cove. DBE principals David Sills and Jim Baeurle meet with the town building official Bill Mears who determines the plans are code compliant and issues a letter of referral for DBE to obtain the necessary permits from Sussex County.
Nov. 10, 2007 – Town council rejects the proposed 68-foot height ordinance that would allow construction of the redevelopment project unveiled June 15. It also rejects by a 3-2 vote a proposed substitute ordinance for a 48-foot high structure.
Nov. 14, 2007 – Baeurle meets with Mears and is told that town solicitor John Brady confirmed the Nov. 8 plans were code compliant.
November-December 2007 – DBE obtains all required county permits and approvals for construction of the 35-foot high structure applied for Nov. 8, at a cost of $291,000.
Dec. 24, 2007 – Town solicitor John Brady sends a letter to DBE representatives saying the Nov. 8 plans were not in compliance with the minimum lot area per residential unit requirements.
Jan. 2, 2008 – Baeurle meets with Mears concerning Brady’s Dec. 24 letter. Mears did not know about the letter prior to the meeting.
Jan. 15, 2008 – DBE attorney Shawn Tucker sends a letter asking Brady to reconsider his position stated in the Dec. 24 letter.
April 4, 2008 – In anticipation that the town will approve a floor area ratio ordinance restricting the use of its property, DBE submits a building application for two new future Ruddertowne redevelopment phases that are proposed expansions to the project applied for on Nov. 8.
April 22, 2008 – Mears sends letter to DBE stating phase II and III plans cannot be considered as no final decision was rendered regarding phase I plans submitted Nov. 8.
May 9, 2008 – Dewey adopts interim town-wide floor area ratio of 1.2.
June 25, 2008 – Town council meets with DBE representatives in executive session to discuss status of the Ruddertowne redevelopment project and potential litigation.
July 2, 2008 – Dewey Beach Board of Adjustment rules on appeal of DBE from Brady letter refusing building permit and denies building permit for the Nov. 8 plans.
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