It’s been nearly 18 months since Ed’s Chicken in Dewey burned to the ground, and the town’s board of adjustment will soon decide if the property owner has the right to rebuild a legal, nonconforming structure or if what is built must conform to town code.
The board will meet at 6 p.m., Monday, Feb. 26. Property owners are questioning town Building Official Bill Mears’ denial of a request to maintain a legal nonconforming status as a food service enterprise that is operated partly or entirely outdoors. The appellant is also questioning Mears’ decision that any new structure must comply with elevation requirements for structures in flood-prone areas.
The 38-year-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. The crash severed a propane line setting off a fire that turned the famous shack into nothing but a pile of charred wood and kitchen equipment.
The restaurant 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.
In an August 2017 letter, attorney Glenn Mandalas, representing property owner W&C Catts Family Limited Partnership, said at the time of incorporation, Ed’s utilized an open-air barbecue pit and grill in the parking lot of the property, 2200 Coastal Highway. With the exception of a soda machine, Mandalas said, very little other equipment was involved in the operation.
Mandalas said in the mid-1980s, the shack was built, picnic tables were set up and a portable toilet was placed on the property, but the Ed’s continued the outdoor grill for food preparation. He said it wasn’t until the late 1980s that an indoor propane tank was installed and indoor cooking became possible.
“Consistently, thereafter, as recently as few summers ago, Ed’s would return to its open-air roots and prepare food on outdoor grills whenever the other equipment was unusable (which occurred frequently),” Mandalas said.
He also argues that just because it’s been 18 months since the property operated as a nonconforming use, that doesn’t mean the property owner intends to relinquish the grandfathered use. Even a lengthy cessation, caused by circumstances over which the property owner had no control, does not constitute proof of intent to abandon, Mandalas said.
The town denied the property owners request for the continued nonconforming use in an October 2017 from attorney Veronica Faust.
In 2001, said Faust, Ed’s filed for a business license as an eatery and Dewey officials granted the license. It was renewed annually until Ed’s went out of business in 2016, she said.
Faust said clearly the use of the property has changed over the years, including operating as an eatery for the past 16 years.
“Once Catts permitted structures and indoor cooking facilities to be constructed on the property and allowed its tenant, Ed’s, to operate as an eatery with indoor food preparation, Catts effectively abandoned or relinquished the use of the property for outdoor food preparation,” Faust writes.
In response to Mandalas’ argument the property owner hasn’t relinquished its nonconforming use despite the property sitting unchanged since the fire, Faust said the property owner has not applied for a building permit or submitted any plans rebuild. Citing town code, she said, the property’s nonconforming eatery will terminate if the property remains idle for a continuous period of one year and six months.
Finally, Faust said, outdoor food preparation cannot begin without securing a conditional use in accordance with town code.
The board of adjustment meeting is taking place in the Dewey Beach Life Saving Station, 1 Dagsworthy Ave.