The Dewey Beach Planning and Zoning Commission voted unanimously Oct. 7 to recommend approval of outdoor dining conditions for applicants Woody’s, Dewey Beer Company and the Dewey Post, but kept open the hearing for Dewey Beach Country Club to gather more information.

Planner Dave Lyons said conditions for all applicants include no smoking or live entertainment, that all previous conditions will continue, and that the areas will close at 11 p.m. and be cleaned at the end of the night.

Determining whether the number of bathrooms meets the increased patron space is a matter for the state Department of Health, Lyons said, and is not part of the conditional-use process. 

Town Counsel Fred Townsend said the conditional-use process deals only with the area being sought for expansion and not building code issues, including building permits.

In the hearing for Dewey Beach Country Club, owner Greg Plummer said via Zoom that outdoor dining would continue as it had for three years. Four tables in the front outdoor area and eight out back were approved during the pandemic and by the Alcohol Beverage Control Commissioner, Plummer said.

During public comment, property owner Phil Davenport said he lives in a three-story unit behind Dewey Beach Country Club. Davenport said people use the backyard area as a bathroom, that lights shine into all three floors of his home at night, and that he thought the backyard was unusable because it is a swamp. 

When Townsend asked Davenport whether the outdoor lights were there previously or were installed due to the outdoor dining, Davenport said they were there previously.

“I’ve stopped people that threatened to shoot them out,” Davenport said.

Davenport said that Dewey Beach Country Club put a rubberized sheet on the ground under the outdoor dining area so that rather than seeping into the ground, water moves over to his property. The restaurant stays open until 2 a.m., and sometimes they forget to turn the lights off, he said.

Townsend asked Davenport if he had made a complaint to the town, and Davenport said he was hoping things would change but they had not. The walk-in freezer door can be heard slamming, Davenport said, and the grass goes uncut. Townsend said the grass is not relevant to the current discussion. 

“As far as animals coming through there, I’ve spotted a wolf, a fox and a 7-foot-long snake,” Davenport said. “My grandkids cannot come to the beach because a guy was out there with his date … they were out there right where all this stuff is and the guy had a beer can in each hand standing up there and the girl unzipped his pants ...”

Townsend interrupted, stating it was not relevant to the topic, but Davenport said it was and pressed on.

“But my granddaughter saw it and said, Grand Paw Paw, what are they doing?” Davenport said, noting his daughter-in-law said the next morning that his granddaughter could not come back.

Planner Dale Cooke said such matters would not be handled by the commission. Davenport said there was some “hanky-panky” going on behind the restaurant because they installed a fence within a fence.

Chair Mike Harmer said that drainage, lighting and noise after 11 p.m. seem to be the issue. Addressing Plummer, Harmer said, “Mr. Plummer, I'm not too happy. I don't really like what you’re doing, to tell the truth. What are you going to do to help this guy?”

Plummer said Davenport complained to him about a light before he even owned the building or opened the restaurant.

“We took the light bulbs out,” Plummer said. “They’re motion sensors above the back door of the building. They’re the original lights, nothing changed. It’s been there since 1999 when it was McShea’s. Everything he’s described is the same thing he said to me when I went in the building.”

Harmer told Plummer his neighbors weren’t happy with him, and Plummer said just one was unhappy.

“One is one,” Harmer said. “His daughter or somebody saw sex happen or whatever.”

“That’s what he said when I first got there, before we were even open,” Plummer said, chuckling. “Like, I’ve heard this story before.”

“OK so that was a different establishment, sir?” Harmer asked.

“It was McShea’s then,” Plummer repeated.

“So that wasn’t when he had outdoor dining,” Harmer said to the room.

Plummer said he has string lights across the back deck, which closes at 11 p.m. The only lights Davenport complained about are the motion lights that go off when employees take out the trash, but they’re pointed straight down, Plummer said.

“He’s always been an issue,” Plummer said of Davenport, suggesting planners speak to Dewey Police Sgt. Cliff Dempsey and Lt. Billy Hocker for background. “I don’t even know what to say about it. It has nothing to do with me at all, completely.”

The walk-in door doesn’t even make noise, Plummer added. “For whatever reason, I can't make this gentleman happy,” he said, and later added that there is no rubber underneath the outdoor dining area.

Townsend said planners need to ensure the expansion is not contrary to the public welfare, and whether the requested area is suitable for patrons. The backyard deck will need to be permitted, Townsend said, and the town will need dimensions on its height and setbacks.

After discussion on what limits and conditions could be imposed, Lyons said he felt there was not enough detail in the application.

When Building Official Daune Hinks noted that the temporary expansion of premises expires Oct. 31, Townsend said commissioners have extended the deadline before and would not shut down restaurant operations if they are actively pursuing approval for outdoor dining. 

Planner Mark Nordquist proposed approving the outdoor space that was allowed while also recommending that commissioners review current possible problems to ensure due diligence for Davenport.

Townsend said planners could continue the hearing to a later date, recommend conditional approval giving commissioners the opportunity to examine the outdoor area, or simply recommend approval.

Cooke said he would like to see the town look into issues involving lighting, fencing and draining. Planners have made such recommendations in the past, Cooke said, noting he would not vote for a motion if planners were unable to attach recommendations.

Hinks said a site plan was required to be submitted but was not, to which Lyons reiterated he felt there was not enough detail provided to make a fair assessment on whether approval would be appropriate given the space’s location and its effect on the community.

Planners voted to table the vote and keep open the hearing until Friday, Nov. 4. 

Unanimous decisions to refer other applications to town commissioners took just minutes. 

Dewey Beer Company attorney Blake Carey said the outside patio comprises 1,200 square feet with one eight-top table, 10 four-tops and four two-tops and has been operating without incident since May 26, 2020. 

A gated fence and landscaping will surround the patio, which is within code setbacks, Carey said. The area will be handicap-accessible, will not have outdoor music, he said, and his client will abide by all conditions.

Woody’s owner Jimmy O’Conor also sits on the planning and zoning commission and recused himself from all discussion and votes. O’Conor said Woody’s has been operating for 13 years, and the last three have been with an extended patio comprising six tables. 

O’Conor said that his landlord Harry Wilson emailed planners expressing his approval, as did Bruce Vavala, his neighbor in the retail complex; planners confirmed they received the emails. Harry Wilson’s son Jason Wilson spoke in person in favor of Woody’s application as president of the condo association.

Dewey Post owners Ashley and Lo Skarda said they bought the building previously occupied by Mezcali in May and wanted to continue the conditional-use expansion Mezcali received during the pandemic. The front area is 7-feet-by-33-feet, Ashley said, comprising four planter boxes and four tables with 10 total seats. 

Commissioners are set to hold final public hearings for Woody’s, Dewey Beer Company and the Dewey Post on Friday, Oct. 21.

An agenda for the Friday, Nov. 4 planning and zoning commission meeting was not yet posted by the Cape Gazette print deadline.