Court Upholds Dewey Board Decision

DBE to Appeal to State Supreme Court

Dewey Beach—A Superior Court judge upheld the Dewey Beach Board of Adjustment’s decision to deny a developer a permit to build a 35-foot, mixed-use structure at Ruddertowne.

Judge Scott Bradley issued a decision Thursday, July 30, stating Dewey Beach Enterprises’ (DBE’s) proposed plans did not meet residential density standards and should not be granted an exception.
Read State Superior Court Judge Scott Bradley’s Decision Issued July 30, 2009 »

“DBE argues that because Ruddertowne is a mixture of commercial and residential uses that any Dewey Beach zoning code requirements applicable to residential uses do not apply. I have concluded that there is no merit to this argument,” Bradley wrote.

Bradley heard oral arguments from DBE and the board of adjustment Feb. 10.

“DBE’s planned expansion of Ruddertowne is certainly a multi-unit residential structure, and there is simply no exemption,” Bradley wrote.

DBE attorney Kathy Jennings said she was disappointed but plans to appeal the decision to the Supreme Court in Dover.

“We are disappointed with the result,” she said. “We respect the court’s decision, but we do intend to appeal to the Delaware Supreme Court.”

Commissioner Marc Appelbaum applauded the decision.

“It seems as though the court made the right decision,” he said. “And kudos to the board of adjustment for making the right decision, too.”

Appelbaum said Bradley’s decision will help the town defend against future zoning lawsuits – including two other suits filed by DBE in the Court of Chancery and the Federal District Court.

“The town needs to and will continue to mount a formidable defense against lawsuits,” Appelbaum said.

Mayor Dell Tush was unavailable for comment.

Former Mayor Pat Wright said she was surprised and disappointed by Bradley’s decision.

“I knew about the vote being torn,” she said, referring to the board of adjustment’s 2-1 vote. “I thought that was going to have a big effect, but obviously not.”

Still, she said, she respects Bradley’s authority and honors his decision.

“If the court comes and says ‘this is it,’ then this is it,” she said.

Board of adjustment attorney Max Walton said though he hadn’t yet reviewed the decision, he was happy with the outcome.

“We’re pleased that the court affirmed the board’s decision,” he said.

Town attorney Glenn Mandalas said Bradley’s decision is the first time the state has weighed in on the Ruddertowne redevelopment. He said it strengthens the town against future attacks on its zoning code.

“I wouldn’t want to overstate or understate our position,” Mandalas said. “But of course we’re thrilled with how the court ruled.”

In November 2007, DBE submitted plans for a 35-foot mixed-use structure to building inspector Bill Mears. The developer said Mears approved the structure on Nov. 8, 2007; however, on Dec. 24, 2007, then-town attorney John Brady sent DBE a letter denying the developer a building permit. DBE appealed the denial to the board of adjustment, which upheld it 2-1 with one abstention. The developer filed an appeal in Superior Court in Georgetown on Aug. 5, 2008.

On March 16, DBE filed against the town in the Court of Chancery in Georgetown, alleging that the new zoning code is inconsistent with the comprehensive plan. On July 10, DBE filed against Dewey in the Federal District Court in Wilmington, alleging the town violated the developer’s constitutional rights with regard to the Ruddertowne redevelopment.

“This is one of those cases where the more you think about it, the more it hurts your head,” said Bradley after the oral arguments.

By ROB KUNZIG | STAFF WRITER