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Ruddertowne owner Dewey Beach Enterprises has taken its request for a building permit to Delaware Superior Court, appealing a decision of the Dewey Beach Board of Adjustment.
Dewey Beach Enterprises filed an opening brief after the board of adjustment’s July 2 ruling to deny a permit for the project.
In the suit, DBE claims it has a right to move forward with its plans because the plans comply with the zoning code. The appeal attributes the town’s refusal to grant a building permit to inappropriate political influence intended to block DBE’s right to redevelop its property. The suit targets the actions of Mayor Dell Tush, suggesting that as the owner of rental units, she has a personal interest in preventing a possible increase in rental units; she has publicly opposed all attempts to redevelop the Ruddertowne property; and she has improperly involved herself in the permit-approval process.
In an email to the Cape Gazette Wednesday, Oct. 29, Dewey Beach town attorney Glenn Mandalas said any substantive comments would be premature as litigation is pending.
“Suffice it to say the town intends to defend the litigation competently and comprehensively,” he wrote.
DBE attorney Kathleen Jennings also declined to comment. “I don’t believe it would be appropriate regarding this pending matter. Our arguments say it all,” she said Oct. 30.
DBE’s arguments
Owning the block of land on Rehoboth Bay, bordered by Dickinson and Van Dyke Avenues, DBE applied for a building permit on Nov. 8 to construct a 35-foot, mixed commercial and residential use building with a parking garage while retaining the existing Lighthouse Restaurant, Crabbers Cove and Baycenter. DBE claims it is entitled to a building permit as a matter of right because its plans comply with the town’s zoning code.
DBE raises three challenges to the board of adjustment’s decision denying a building permit.
First, the suit asserts the building inspector did not deny the permit, and that the building inspector is the only person authorized by town code to issue or deny building permits.
DBE also argues a letter denying a permit, written by then-town attorney John Brady on Dec. 24, was an improper political manipulation of the process and that Brady had no authority to deny the permit.
DBE further claims the town’s decision to assert attorney-client privilege to prevent Brady from testifying during a July 2 board of adjustment hearing prevented the board from hearing necessary evidence, and as a result, the decision should be reversed. Board members Don Ziegler and Rick Dryer said they wanted to question Brady, but he was not permitted to testify.
Finally DBE claims, in 13 pages of argument, that its application for a mixed-use commercial and residential structure in a resort-business zoning district is not subject to code limitations for residential multi-units such as townhouses.
DBE denies the residential lot area requirements apply and claims that the most the town has established is the possibility that its code is vague and ambiguous regarding that issue. The suit quotes comments made by board members during the July 2 public hearing that acknowledged ambiguity, absence of definitions, a need to decipher code provisions and the need to make inferences.
DBE’s suit claims that if the zoning code is ambiguous, any ambiguity must be construed in favor of the property owner, so a building permit must be issued.
The town is represented by the law firm Marks, O’Neill, O’Brien & Courtney, P.C., which was retained by Dewey’s insurance carrier. Mandalas is assisting them.
DBE is represented by WolfBlock LLP and is being assisted by local counsel Timothy Willard of Fugua & Yori, PA.
Town officials, through insurance defense counsel, will prepare and file an answering brief, which will be followed by a reply brief from DBE. The Superior Court will then decide whether it will hear oral argument.
Brady was not available for comment and Tush did not respond to requests for comment.
Court sets dates for briefs
Delaware Superior Court for Sussex County set the following schedule:
Dewey Board of Adjustment answering brief to be filed Monday, Nov. 17.
Dewey Beach Enterprises reply brief to be filed Thursday, Nov. 27.
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