Despite the threat of a lawsuit, the Dewey Beach Board of Adjustment voted unanimously Sept. 15, to grant variances and a special exception to The Starboard to permanently maintain outdoor dining.

In making the request, The Starboard attorney Glenn Mandalas explained that since the restaurant was built 21 years before the town’s incorporation and its subsequent zoning laws, it is a legally nonconfoming structure.

Because The Starboard predates town zoning laws, Mandalas said, it does not have a conditional-use approval and, therefore, can’t request an extension of one as other restaurants in town have done. 

The only way The Starboard can be approved for outdoor dining is by the board; no other mechanisms can apply, Mandalas said, presenting an exceptional circumstance that leads to an exceptional practical difficulty.

Citing a Delaware Supreme Court decision, Mandalas said an exceptional practical difficulty exists when a proposed change is minimal and the harm to the applicant if the variance is denied is greater than the effect on neighboring properties if the variance is granted.

A board needs to consider four factors when determining if an exceptional practical difficulty exists, Mandalas said. These include the nature of the zone in which the property lies, the character and uses of the neighborhood, if the removal of the restriction would seriously affect neighboring properties, and if the restriction is not removed, it would create a hardship for the owner in making normal improvements of the property.

The Starboard is in the resort business district with neighboring restaurants up and down the highway, so it is in character, Mandalas said. 

Family dining is supported by the town’s comprehensive plan, Mandalas said, as outdoor dining leads to more family dining. He noted that The Starboard’s food sales have gone up at a higher rate than alcohol sales with the additional outdoor tables.

The Starboard owner Steve “Monty” Montgomery asked commissioners to allow him to continue to allow outdoor dining as they have done for the last three summers. He said he has not received any complaints.

“The greatest silver living for the country from COVID has been outdoor dining,” Montgomery said, noting the virus is still extant. 

Town Counsel Fred Townsend confirmed the space would be for seated dining only, the tent size would be restricted to 30-by-40 feet, outdoor service would end at 11 p.m., no external speakers would be used, and the restaurant would comply with ADA requirements and the town noise ordinance. 

Board Chair Julie Johnson said she received 30 emails in support of The Starboard’s requests and one against.

During public comment, former Commissioner Claire Walsh said she grew up across the street from The Starboard. Allowing outdoor dining contributes to the health, safety and welfare of residents and visitors, and adds to the character of the town, she said.

Navigating in and out of The Starboard’s seven-spot former parking lot is dangerous, she added.

The Starboard employee Travis Parker said taking away the 20 outdoor tables would negatively impact employees’ earnings.

Highway One Companies head Alex Pires, who also owns Jimmy’s Grille, spoke via Zoom against The Starboard’s requests.

Pires said it is a use variance, not an area variance, and that Mandalas made untrue statements. The Starboard has had parking until recently, he said, and if the parking requirements are waived, all other businesses will want to do the same.

“I'm a noncomforming use at the Rudder,” Pires said. “I have 90 spaces. I love Monty dearly. He's a great competitor; he’s a nice person. If you're going to let him have no parking and do whatever he wants ... he's got a 15,000-square-foot lot, one of the biggest restaurants in town, and he has no parking. Well then, why should I have 90 spaces at the Rudder? I’m going to take all my spaces and turn it into an extension.”

The Starboard claimed it has less than 4,000 square feet of patron space, which Pires said is “ludicrous,” so Montgomery got a lawyer to find a way around it.

“There's no hardship here,” Pires said. “We’re talking about multimillionaires asking to change all the rules. I ask you, when you do this, if you want to approve this, please do. I want you to know I’m going to apply for the Rudder and I don't want any parking either. Why should I have 90 spaces and be a fool?”

Why should any businesses provide parking? he asked. 

“Vote carefully, I hope you do,” Pires said. “I hope Monty gets what he wants, because I'm going to do the same thing, and if you stop us, we're going to sue you all. You can’t have strange rules because Monty buys everybody free drinks. That's not how society works.”

Now, The Starboard wants three variances, Pires said, telling the board it's the most important decision of their careers, and that if approved, parking would be nonexistent throughout town.

“Everybody is going to sue you, including myself,” Pires said. “Why should I be a sucker and have 90 spaces? Why? Because I follow the rules, that's why … I’m not going to let somebody get something that I can't have. That's just not fair.”

Pires said he applied three times for tents for the Rudder and was never granted one. If Montgomery gets approval for the tent, Pires said he would erect one at all of his places. 

Mandalas said his firm represents Pires and would support Pires’ interests in seeking approvals to expand his businesses. The decisions the board makes are not precedent-setting because every case is different, Mandalas said, and the request is an area variance because it regards an expansion of an area for dining.

Highway One partner John Snow said the group has several legal nonconforming businesses that have been unable to expand. The approval of the variances would give them and other businesses a path forward to expand outdoor dining into parking lots as well, he said.

Former Commissioner David Moskowitz spoke via Zoom in favor of The Starboard’s application; he said Pires had the same opportunity to do outdoor dining at the Rudder and chose not to, but did with Jimmy’s Grille.

Pires asked to address Moskowitz’s comments, and Johnson explained that public comment is not meant to be a back and forth. When Pires spoke again, Johnson directed him to be muted.

The board granted a special-exception request allowing The Starboard to continue to use its roughly 1,736 square feet of expanded outdoor dining area approved during the pandemic, a variance to continue the placement of a tent over the dining area, and a waiver for relief from any off-street parking requirements.

Fifer’s request denied

The board also voted unanimously to deny a variance requested by architect Marc Redden on behalf of the owner of Fifer’s Farm Kitchen. The lot size allows for 2.79 residential units, Redden said, and requested that the board round up the number of units to three so that they could construct two, two-bedroom units and one four-bedroom unit. The board determined the request did not present an exceptional practical difficulty, as Fifer’s could still construct two, four-bedroom units within code.