Ruddertowne Oral Arguments Held

BY ROB KUNZIG | CAPE GAZETTE

Dewey Beach - ADewey Beach Enterprises continues to make the case for a 35-foot Ruddertowne complex. In the latest stage of its appeal against the Dewey Beach Board of Adjustment’s denial of a building permit, the Superior Court heard oral arguments from both sides Tuesday, Feb. 10.

Attorneys from Dewey Beach Enterprises (DBE) and the board of adjustment clung to the town code, each claiming that its use or abuse vindicated its position. A decision is pending from Judge E. Scott Bradley.

Attorneys were unable to comment on case particulars. Their arguments were clear enough: DBE attorneys questioned the board’s right to deny a permit, saying the decision rested with Building Inspector Bill Mears. Mears approved DBE’s plans for a 35-foot, mixed-use structure Nov. 8, 2007. A Christmas Eve 2007 letter from then-town solicitor John Brady told DBE its plans did not comply with the 3,600-square-foot minimum lot area per dwelling unit requirements. On July 2, 2008, the board of adjustment denied a permit 2-1, with one abstention and one absence.

Shawn Tucker, an attorney for DBE, said the board did not properly interpret the code and claimed ambiguities where none existed.

“The code is not ambiguous,” said Tucker. “If things have to be inferred or deciphered, that is a violation of the common law used by this court.”

The board of adjustment acts as an arbiter in building disputes. Tucker argued that a politically charged atmosphere crippled the board’s ability to act independently.

“What happened was not a procedural error – it was a fundamental, structural flaw,” Tucker said. He referenced Cardillo v. South Bethany, a 1991 zoning dispute that, he said, impels courts to rule in favor of unrestricted use of land.

Board of adjustment attorney Max Walton sought to have the appeal dismissed. DBE’s attorneys did not name the town as a party of interest, and Walton said the company’s issue was with the town, not the board. “I represent the board, which is an independent tribunal. I can’t represent the town,” he said.

Earlier, DBE attorney Kathy Jennings said the DBE did not have to cite the town as a party of interest because the town’s interests demonstrably dovetail with those of the board.
Walton also argued that Mears had issued the permit in violation of the town code, and DBE had no right to a permit issued in error.

“This proposal doesn’t satisfy the plain language of the code,” Walton said.
Judge E. Scott Bradley has 90 days to render a decision. A ruling in favor of DBE would not grant the developer a permit, but it would return them to the process of building the proposed 35-foot structure.

“At the end of the day, it’s whether the code applies or does not apply,” said Bradley, concluding the hearing. “This is one of those cases where the more you think about it, the more it hurts your head.”