At some point there may be a new restaurant on the Ed’s Chicken and Crabs property in Dewey, but it appears it will have to go through the town’s conditional-use process and meet floodplain regulations.
By unanimous vote March 12, the Dewey Beach Board of Adjustment affirmed the town’s denial of a request by property owner Rusty Catts to maintain the property’s legal nonconforming status as a food service enterprise operated partly or entirely outdoors. The board also voted unanimously to affirm the town’s decision that any new structure must comply with federal elevation requirements for structures in flood-prone areas. In the case of this property, the elevation requirement would be four feet – three feet to meet federal standards, plus the town’s 1-foot freeboard.
The restaurant, 2200 Coastal Highway, was granted legal, nonconforming status as a food service enterprise providing carry-out and eat-in food and beverage service that is operated partly or entirely outdoors when Dewey incorporated as a town in June 1981.
The nearly four-decade-old restaurant was destroyed in August 2016, when a southbound car on Route 1 skipped the median and plowed into the small, cedar-shingled building that served as the kitchen and indoor dining area, setting off a fiery blaze that leveled the building.
The board’s decision came after nearly three hours of testimony Feb. 26.
During the first meeting, attorney John Paradee, representing Catts, said the property should be allowed to restore its legal, nonconforming status because it met a strict four-pronged definition – a nonconforming building that was damaged through no fault of the property owner, who was seeking to be rebuild in the same footprint within 18 months of being damaged.
Paradee also argued any future structure shouldn’t have to meet the federal floodplain regulations because the property is located in the resort business district, and Ordinance 710, adopted in 2014, says legal, nonconforming, nonresidential buildings do not have to rebuild to federal standards in this district.
Attorney Veronica Faust represented the town. She argued the restaurant lost the privilege to cook outside when, in 2001, Riggin got a business license as an eatery, which has its own set of conditions.
Faust also said the town is not stopping Catts from rebuilding the shack, as long as he meets building standards for flood zones.
The board of adjustments deliberations were deliberate, but board members appeared to be on the same page from the beginning.
The group voted on each issue separately, and both times board member Rick Dryer began the discussion. Regarding the grandfathered outdoor cooking use, he said, the restaurant had at least 17 years of cooking indoors, which showed the intended use of the property. He said if the property owner wants to cook outside occasionally, the town allows for up to three special use permits a year.
Addressing floodplain regulations, Dryer the town’s flood reduce loss ordinance, passed in March 2015, supersedes other town code. The town is not trying to take away the rights, he said, but it is trying to protect the welfare of the property owner and neighbors.
Board member Julie Johnson said she would better understand the hardship argument for complying with federal floodplain regulations if half the restaurant had remained unscathed by the fire. In this case, she said, anything built would be all brand new, so elevating the structure wouldn’t be too hard since it would be starting from scratch.
Paradee was not in attendance at the March 12 meeting, but in an email March 13, he said, reasonable minds can reach different conclusions in any fact-finding exercise.
“That said, we continue to maintain that cooking outdoors is permitted as an accessory use in the RB1 Zoning District,” he said.
Regarding the board’s decision on floodplain regulations, Paradee the board’s determination is legally erroneous.
“If we appeal the Board’s decision, we are confident that we will prevail in court on this issue,” he said.
At the time of the email, Paradee said he had not yet spoken with Catts, but there was plenty of time to determine the next step. Catts has 30 days to appeal the decision from the issuance of the board’s written decision.
Board Chair Beverly Corelle said the board’s official decision will be made in writing within 30 days of the March 12 decision.