By Rob Kunzig
Dewey Beach Enterprises has filed a third suit against Dewey Beach – this time, in the U.S. District Court, charging abuse of power and violation of the company’s right to develop its Ruddertowne property.
“The Town and its officials, for improper motives and for personal gain have participated in continuous, harassing conduct by misusing their official powers to ensure that all of DBE’s proposals would be denied,” the suit states.
Filed July 10 by Kathy Jennings of Drinker, Biddle & Reath in the District Court in Wilmington, the suit is the second in less than a week for Dewey, and the third filed by Dewey Beach Enterprises (DBE). Jennings said this suit specifically seeks to defend constitutional rights as a property owner.
Town attorney Glenn Mandalas said Dewey anticipated a federal suit. Ultimately, he said, the suit is less about ethics than it is about the town’s 35-foot height limit.
“While I appreciate the claims that are made,” Mandalas said, “the ultimate goal, I think, is to obtain a structure higher than 35 feet. They’re not really concerned about ethical missteps. Their overriding concern is did those ethical missteps – if there were any – get in the way.”
Former Commissioner Dale Cooke said that though he hadn’t read the lawsuit, DBE’s strategy is clear.
“They know the town is hard up for money,” he said. “To defend ourselves costs money, and unfortunately, we’re going to have to do it.”
The suit alleges 13 counts of misconduct, including due process, civil conspiracy and abuse of power. Mayor Dell Tush, Commissioner Diane Hanson, Commissioner Richard Hanewinckel and planning and zoning Vice Chairman David King are each accused as individuals of abuse of power.
The suit alleges Tush and King knowingly used their powers to hinder and delay DBE’s development of its Ruddertowne property. It accuses Tush of threatening to fire building inspector Bill Mears were he to approve DBE’s building plans, in addition to preventing any meeting between DBE and the commissioners.
Tush was unavailable for comment.
The suit accuses King of participating in planning and zoning meetings even when the Public Integrity Commission advised him to recuse himself, and preparing handouts, charts, visual aids and exhibits to lobby against Ruddertowne development. In a March 21 Cape Gazette article, King said he followed the commission’s advice and recused himself when necessary.
“King’s actions were intentional, malicious and specifically designed to frustrate, delay, harass and ultimately defeat the process to redevelop Ruddertowne to the detriment of DBE,” the suit states.
King declined to comment on the suit.
The suit also alleges that both Hanson and Hanewinckel have a conflicting interest as owners of rental properties, prejudicing them to the development of upscale condos. It accuses them of using a doctored photograph of DBE’s Ruddertowne concept during their 2007 bids for commissioner.
Hanson and Hanewinckel declined to comment.
DBE sued the board of adjustment in Superior Court on August 5, 2008 for upholding town council’s decision to deny a building permit for a 35-foot, mixed-use structure; Mandalas said the decision of Judge Scott Bradley is imminent.
DBE sued the town again on March 16 in the Court of Chancery, alleging that the zoning code is inconsistent with the town’s comprehensive plan.
Though still too early to tell, Mandalas isn’t ruling out a settlement.
“I wouldn’t say we’re there yet,” he said. “I would say there’s a spectrum on the council – there’s different degrees of interest in settling the case.”
He has yet to fully analyze the suit and advise the town on a course of action.
“I just don’t know what the response will be,” he said.