Letter to Senators From Dewey Beach Commissioners June 26, 2009
Subject: From the Mayor and Commissioners of Dewey Beach
Honorable Senators:
First we send our condolences to the family, friends and colleagues of Senator Thurman Adams. Many of you have known Senator Adams for a long time and we know this is a difficult time for you.
We are aware that HHA/DBE’s lobbyist has been working to influence the Senators to defeat HB50. Yesterday, a letter to the editor appeared in the local paper from David Sills, a principal in Dewey Beach Enterprises. While we are not typically concerned with letters to the editor, this letter is from the developer lobbying to defeat HB50 and we feel a need to address the many inaccuracies that he is apparently using as talking points with you to garner support for his position.
Here are the key points:
• The Delaware Association of REALTORS is sending you a letter today stating that they are not opposing HB 50, and they are not part of DBE/HHA’s coalition against HB 50.
• The State Planning Office is not opposing the bill, but rather is neutral. They also deny that they are in a coalition with HHA/DBE to oppose HB50.
• Mr. Sills refers to a homeowners group, Citizens to Preserve Dewey, as a “special interest group” of outsiders from Washington, D.C.” CPD is an all-volunteer homeowners’ group that was formed in 2007 to oppose development that exceeded the town’s legal building height limit of 35 feet in an effort to preserve the town’s core values and character for future generations to come. Mr. Sills statements that CPD is a DC-based private interest lobby group are simply false. CPD’s supporters are Dewey Beach property owners that support HB50 and they are also this council’s constituents.
• The state is not inserting itself into local zoning issues by ratifying what the town’s voter’s want; you are doing just the opposite. You are allowing the local community to determine its fate. That is all we are asking you to do. If you vote against HB 50, you will be inserting the state into local land use decisions by helping moneyed interests bully a coastal town.
• If HB 50 were in place now we feel Dewey Beach would likely not have the current and potential future lawsuits against the town since the developer is frankly trying to financially drain the town into submission or bankruptcy. Their sole strategy is for the Town Council to give in to their demands. Having the limit in the charter totally neutralizes this strategy thus providing a greater level of protection against such tactics. Do bankrupt municipalities help or hurt the Delaware economy? Does it bring jobs or cost the jobs of local police, lifeguards, other town employees as well as other businesses? What is the impact on public safety and the quality of life due to inadequate or discontinued police, lifeguard or other vital services? Who will vacation in the town then? What would happen to property values? What businesses would survive? We respectfully submit the State Legislature not only benefits by protecting municipalities from such doomsday scenarios but has the obligation to act in whatever capacity is within their authority to do so.
• Mr. Sills claim that HB 50 would result in a forfeiture of jobs and income to the state is without merit. Dewey Beach encourages redevelopment projects in our town – they just have to abide with our laws and ordinances. DBE is free to initiate any project they see fit that is within permissible standards. Such development would bring the jobs and revenue Mr. Sills refers to Dewey Beach, Sussex County and the State of Delaware.
• We urge you to pass HB50 and when you are considering our bill please remember that:
• 86% of our homeowners voted for the charter change to keep the height limit of 35 feet to help protect the town.
• Those same voters elected a Town Council over the last two years that ran on a platform of keeping 35 feet, and all have pledged their words to do so.
• Our five Town Commissioners also voted unanimously to put this charter change on the ballot
• The State House voted unanimously to support this bill.
• While unusual, it is legal and the Town of Dewey Beach would like to formally include the height limit in our charter as a broad statement of the character of our town now and in the future. At least 10 other resort towns have elevated building height limits to their charters with affirmation of their General Assemblies.
A vote to ratify HB 50 is allowing local townspeople to determine the local development of the town, which is and has been the policy of this Legislature. A vote AGAINST HB 50 will insert the State into local land use development policy, and goes AGAINST your policy of letting local governments determine the development of their towns.
Senators, we are counting on you to support the concept of self-government and democracy and support the will of the people.
Sincerely,
Dell Tush, Mayor
Marc Appelbaum, Commissioner
Richard Hanewinckel, Commissioner
Diane Hanson, Commissioner
Martin Seitz, Commissioner
CPD Letter to Legislators Quoting Attorney Ken Kristl
Joy and Joan:
Here are my quick thoughts on the letter. They are more stragetic and less legal (sorry, there is no DE case involving a height restriction in a town charter):
1. To me, the strongest rebuttal of much of DBE’s letter is that the voters of Dewey overwhelmingly approved a height restriction being in the town charter. This is the will of the people of Dewey. I would think that legislators would be impressed by that (after all, their job is to carry out the will of the people).
2. The “dangerous legal precedent” argument is a red herring. HB 50 does not insert the General Assembly into anything to do with zoning. It simply has the General Assembly exercise its legislative power to enact what the people want–a change in the town charter. Nor does it make the General Assembly the “referee” of any disputes. Under HB 50, the actual issues about the application of the height restriction go where they would go without the amendment: to the Board of Adjustment and then to the courts of DE.
3. What is also a red herring is the implicit notion that HB 50 would prevent DBE’s project from going forward. In fact, DBE sought and was denied a variance from the height restriction in the zoning ordinance. So even if HB 50 was not passed, DBE cannot build because it did not and cannot satisfy the rules that existed before HB 50 and would exist if HB 50 is not passed.
4. A third red herring is the notion that HB 50 is the General Assembly “injecting itself in ongoing litigation” (which I presume to mean DBE’s suit against the City over the denial ofthe variance). Although this may frighten you a bit, the passage of HB 50 is irrelevant to that litigation in the sense that, if passed, HB 50 would not apply to knock out DBE’s claims. That is because the general rule is that a project is subject to the rules in existence at the time the project is formally presented. Under that general rule, DBE’s claim will be judged in a legal world in which HB 50 does not exist.
5. The “jobs” argument is perhaps the most problematic, simply because it has visceral appeal to legislators and the public (and that is why developers and industry always raise it). Let me suggest a few lines of indirect attack in response:
A. HB 50 does not impact the project (see #3 and #4 above).
B. The “will of the people of Dewey Beach” (as evidenced by the referendum) is that they don’t want buildings over 35 feet because they want to maintain the character of the town. DBE’s project was out there and known to the voters at the time of the referendum, so it is reasonable to assume that, despite the potential jobs and economic benefits, the people of Dewey Beach chose to impose the height restriction instead of allowing unbridled growth. Legislators should respect the will of the people.
C. The notion that a height restriction in one small DE town is a sign that the whole STATE of DE is “closed for business” is overblown hyperbole that suggests the lack of merit in DBE’s position.
D. This is a smoke screen because DBE does not have the public good in mind. The fact that DBE says it filed suit against the Town and is willing to bankrupt the town in order to get its way evidences that this is solely about DBE’s private good, and the Town of Dewey Beach can suffer at DBE’s hands until it knuckles under to DBE. Is that “good citizenship” and “good standing”?
Hope that helps.
Kenneth T. Kristl
Associate Professor of Law
Widener University School of Law
Director, Environmental and Natural Resources Law Clinic
302-477-2053
ktkristl@widener.edu
Letter to Sen. Bonini from Marcia Schieck June 26th
Dear Honorable Senator Bonini,
First I want to express my condolences for the loss of your colleague Senator Adams. Our thoughts and prayers go out to his family and friends.
I want to thank you for taking the time to speak with me on Tuesday regarding HB50 at Legislative Hall. I understand that your main concern is that by placing building height language in our town charter it sets a precedent which is inappropriate and potentially dangerous. I have attached a document outlining some brief research we have completed listing several towns throughout the US where the General Assemblies of those states have affirmed the town’s wishes to elevate height limit to a public policy governing position by adding it to their town charter. I have also included below our town attorney’s opinion addressing your previously communicated concerns.
I appreciate your reviewing this information and understanding our desire to move HB50 forward. This is a public policy position which is a core value to our town’s overall governance. By placing a height limit in our charter we are elevating this to the charter to reflect this position and the overwhelming support by the homeowners of Dewey Beach. It is certainly consistent with how many coastal towns throughout the US are addressing their rights to further protect their natural resources and town character for future generations. Thank you for taking the time to review this information and our Town Solicitor’s opinion below. We hope that this might address your concerns. We would greatly appreciate your support of HB50 today.
Per Glenn Mandalas, Town Solicitor, Dewey Beach, DE. Previously addressed to Senator Peterson and later forwarded to all Senators.
”As some members of the Town have suggested, the height limitation transgresses a simple zoning law—it is a statement of core policy, fundamental to the character of the Town. When the bill was moving through the House, some legislators questioned the legality of placing a height limitation in the Charter. After amending the bill to provide for an appeal to the Board of Adjustment, the House members concluded that the charter change was not violative of State law, and voted favorably on it. Indeed, towns across the nation have height restrictions in their charters. The charter for Neptune Beach, FL, for example, limits residential construction to 28 feet, and commercial construction to 35 feet. Atlantic Beach, FL’s charter limits commercial and residential construction to 35 feet—as do Jacksonville Beach and Newport.
Possibly most notably, Washington, D.C, by the Heights of Buildings Act of 1899 passed by the 55th Congress, originally restricted building heights in that no building could be constructed taller than the United States Capitol Building which is 288 feet. This act was amended by the Heights of Building Act of 1910 passed by the 61st Congress, which further restricts heights. As a result of the acts passed in 1899 and 1910, buildings in Washington, D.C. have been restricted to the United States Capitol building’s height. Placing a height restriction in the Charter is unconventional, and possibly unprecedented in our State. However, if—as the House concluded—the charter amendment is not unlawful, and if—as the Town concluded—the charter amendment is a core policy, fundamental to the character of the Town, shouldn’t the General Assembly seek to honor the request of a subordinate government? I apologize for the length of this e-mail, but hope you have found it informative. Please feel free to share it with your colleagues as you deem appropriate.” – Glen Mandalas, Town Solicitor
Again, I greatly appreciate your taking the time to talk with me and Tuesday and your willingness to review this information.
Respectfully,
Marcia Schieck on behalf of Citizens to Preserve Dewey Dewey Beach Homewowner
Additional Letter to Senator Bonini from Dewey Beach Homeowner
Dear Senator Bonini:
Thank you for your reply. I note your courtesy - you are the only member of the Delaware legislature who provided a timely response to my concerns. Nevertheless, I ask here for further information from you as to your position and hope that you will encourage your colleagues to respond to my prior and current inquiries.
First, I am troubled by your comment to me about “trying to steam-roll my colleagues with blast emails from non-Delaware residents.” I understand that as a property owner in Dewey Beach I am entitled to vote in a number of matters that determine the operation of my town. Your comment suggests that votes and related opinions of non-Delaware residents who make legitimate votes regarding Town issues are somehow subordinate to votes and opinions of Delaware residents when all voters are Dewey Beach property owners and voting on the same Town specific issues. Please explain to me why as a non-Delaware resident my votes and opinions regarding operation of my town have any different quality than those of others, who like me, are summer residents of my town, but are also residents of Delaware.
Second, I ask you and all other addressees to provide me with a detail of meetings that you or your staff have had with Harvey Hanna and Associates (HHA) and/or Bewey Beach Enterprises (DBE) or any party representing either, or any party who raised issues involving these parties’ interest, along with records of campaign or other contributions received from, by or in behalf of the same parties.
I understand that HHA and DBE and their representatives have engaged in active lobbying of state legislators. Absent any nefarious relationships I am certain that all members of the state legislature would be willing to provide this information.
Third, it seems to me, state legislators should be glad to provide prompt response to concerns of a Delaware property owner to matters that involve that property. Therefore I do not understand the reticence of state legislators to respond to my prior communication (other than your reply), or any failure to disclose as requested here on the matter of lobbying by a Delaware corporation that opposes the wishes of Dewey Beach voters.
Finally, I ask that you and all other addressees review and comment as to the basis for any legal basis for disagreement you have with the Dewey Beach town attorney’s opinion that obviates all concerns raised by state legislators. I am an attorney in a real estate practice and Mr. Mandalas’ legal opinion looks to me like it is on the money. Here is his opinion:
Sen. Peterson – Thank you for your reply. Three central issues see to have emerged. First, Dewey Beach Enterprises (DBE) is a land development enterprise that has been vocal about its desire to build something in excess of Dewey Beach’s 35 foot limitation on building height. It has been suggested that the Senate should not take up the proposed charter amendment since there is pending litigation between the Town of Dewey Beach, its Board of Adjustment, and DBE. There are two suits pending. The first suit relates to the Town’s denial of DBE’s plan to build a structure 35 feet in height. While the plan satisfied the height limitation, it was denied because it did not satisfy other density requirements in the Town’s Code. DBE challenged the Town’s decision by appealing to the Dewey Beach Board of Adjustment. The Board of Adjustment affirmed the decision of the Town. DBE then challenged the decision of the Board of Adjustment by filing suit in Superior Court, and the Court has not decided the case yet.
With regard to the first suit, since the proposed plan complies with the 35 foot height limitation, the General Assembly’s adoption of the proposed charter amendment would have no impact on the litigation or its outcome. Moreover, since the plan was filed and in the pipeline before any action by the General Assembly on the height limitation, the Town would likely conclude that the application is grandfathered in any event. The second suit by DBE challenges the Town’s adoption in January, 2009, of a new zoning code. The new zoning code maintains the same 35 foot building height limitation that existed in the previous code. DBE alleges, among other things, that the Town’s 2007 Comprehensive Plan mandates relaxed bulk standards in the RB-1 zoning district, which is the zoning district in which DBE’s land is located. The Town maintains that of all the zoning districts created in the new zoning code, the RB-1 zoning district has the most relaxed standards.
Most importantly, although the Comprehensive Plan does provide for relaxed bulk standers in the RB-1 zoning district, it does not contemplate a building height limitation higher than 35 feet. DBE has additionally alleged procedural violations by the Town during its adoption of the new zoning code. Even if the Court determines that Dewey Beach made errors in the adoption of its new zoning code, there is no scenario under which the Court would direct the Town to adopt a height limitation higher than 35 feet because there is no such obligation under the Comprehensive Plan.
As is the case in the first suit, the second suit does not address the 35 foot height limitation and consequently, it should have no bearing on the General Assembly’s action on the proposed charter amendment. As a side note, it seems somewhat suspect that the General Assembly or its members would take the position that since litigation has been filed that might indirectly relate to certain legislation, then the General Assembly should not take up the legislation. It seems that would provide an easy way to hinder legislation if a simple filing with one of our courts would effectively veto any proposed legislation.
The second issue that has emerged is the notion that the proposed charter amendment is inconsistent with the Town’s 2007 Comprehensive Plan. The Town disagrees. Although the Comprehensive Plan does provide for relaxed bulk standers in the RB-1 zoning district, it does not contemplate a building height limitation higher than 35 feet. So you are aware, and are able to share it with the other members of the Committee, provided below is the text from the Town’s Comprehensive Plan that sets out the criteria for the RB-1 zoning district: Resort Business-1 (RB-1). This zone is the most intensely developed, most dense, zone. As Map 9 indicates, it is recommended for a relatively small area west of S.R. 1 between Rodney and Van Dyke Avenues. The features of this zone include the following. • Mixed-use structures with floor-area square footage of not less than one third commercial land use and not greater than two thirds residential land use are required. • If not mixed use, a structure must be entirely dedicated to commercial land use. • Permitted commercial land uses are similar to those permitted commercial land uses in the current RB Zone. • Parking is the same as in current RB Zone. • Single-family detached dwellings are prohibited. • Relaxed bulk standards (setbacks, lot coverage, etc.) are available for contiguous tracts consisting of at least 80,000 square feet with a detailed commercial, mixed and multi-family land-use development-plan review as an overlay district or alternate method of development, provided that there is public access to all common areas of the development and any waterfront area shall be for public use. Commercial land use is required on the first floor (or, if the first floor is substantially below grade, the street-level floor) in all structures within a mixed-use overlay district. (See 2007 Dewey Beach Comprehensive Land Development Plan at 22).
As you can see, the Comprehensive Plan does not provide for a building height limitation greater than 35 feet. There is some additional text in the Comprehensive Plan that some have pointed to on this issue, but it is a red herring. The text cited is the following: “. . . with the development plans filed before the enactment of this Comprehensive Plan, which could be considered inconsistent with this Plan, the working group’s final agreement upon ratification by the Commissioners shall be considered consistent with the Plan.” (See 2007 Dewey Beach Comprehensive Land Development Plan at 22). Without burdening you with all the permutations and different interpretations of that text, suffice it to say that the plans that had been submitted when that text was inserted into the Comprehensive Plan have since been abandoned. Consequently, the text is not operative as to any of the current discussions about the proposed charter amendment. It is simply an uninformed position to suggest that the charter amendment should not move forward because it is inconsistent with the Comprehensive Development Plan.
The final issue that has emerged is the notion that a height limitation is a zoning law, and therefore belongs in the Town Code rather than the Town’s Charter. The Town recognizes that the proposed charter amendment is inconsistent with the general and typical practice of placing zoning laws in the municipal zoning code. Admittedly, if the charter amendment is approved, it will indeed be a more difficult process to change the height limitation than is currently the circumstance since the height limitation is only codified in the Town’s zoning code. But if a Town, such as Dewey Beach, feels so deeply that a height limitation is part of the fabric and character of the Town, and if the Town places such importance on a height limitation as evidenced by the results of a referendum question, what is the harm in providing some additional protection to that height limitation by codifying it in the municipal charter?
As some members of the Town have suggested, the height limitation transgresses a simple zoning law—it is a statement of core policy, fundamental to the character of the Town. When the bill was moving through the House, some legislators questioned the legality of placing a height limitation in the Charter. After amending the bill to provide for an appeal to the Board of Adjustment, the House members concluded that the charter change was not violative of State law, and voted favorably on it.
Indeed, towns across the nation have height restrictions in their charters. The charter for Neptune Beach, FL, for example, limits residential construction to 28 feet, and commercial construction to 35 feet. Atlantic Beach, FL’s charter limits commercial and residential construction to 35 feet—as do Jacksonville Beach and Newport. Possibly most notably, Washington, D.C, by the Heights of Buildings Act of 1899 passed by the 55th Congress, originally restricted building heights in that no building could be constructed taller than the United States Capitol Building which is 288 feet. This act was amended by the Heights of Building Act of 1910 passed by the 61st Congress, which further restricts heights. As a result of the acts passed in 1899 and 1910, buildings in Washington, D.C. have been restricted to the United States Capitol building’s height. Placing a height restriction in the Charter is unconventional, and possibly unprecedented in our State.
However, if—as the House concluded—the charter amendment is not unlawful, and if—as the Town concluded—the charter amendment is a core policy, fundamental to the character of the Town, shouldn’t the General Assembly seek to honor the request of a subordinate government? I apologize for the length of this e-mail, but hope you have found it informative. Please feel free to share it with your colleagues as you deem appropriate. Thank you Glenn C. Mandalas BAIRD MANDALAS, LLC 103 S Bradford St | Dover, Delaware 19904 (302) 677-0061 (tel) | (302) 677-0065 (fax) glenn@bairdmandalas.com
Senator Bonini, from where I stand this is having trouble passing the smell test. I look forward to substantive replies from all addressees, with copies of the replies to all addressees, to the matters raised in this communication that, I hope, will give it a better odor.
David R. Kaminsky
Dewey Beach, DE 19971
Letter to Senators From Homeowners
Dear Senators:
We have been residential property owners in Dewey Beach for over nine years and family vacationers for more than forty-five years. Currently we spend five months over all at our home in Dewey Beach.For the past nine years it has been our priority to be at our home in Dewey to vote on town issues. Last year in an attempt to preserve our town 86% of us voted to maintain our 35
foot building height limit.
We want Dewey to remain a small family beach town. May I reiterate FAMILY. Please allow HB50 to be voted on by the full senate. Act Now—Please don’t let a big developer with deep pockets bankrupt our town with another lawsuit. We are all counting on you.
Sincerely,
Kay and Patrick Carney
Dewey Beach, DE 19971
Please don’t help a developer bankrupt our town–letter from homeowner
Dear Senators:
Please vote to support HB 50, in Caucus today if it is brought up, and on the floor of the Senate if it is brought to the floor. As a Dewey Beach homeowner, I am only asking you, and Dewey Beach only needs you as the state authority, to ratify what the local people have already done. We are not asking you to get the state involved in local land use issues, only to NOT get involved, to not help a developer bankrupt the town, and to please let the local government determine the fate of the town’s development. All five Dewey Beach Commissioners and Mayor support HB 50, along with 86% of the town’s voters.
Thank you for your support,
Joy Howell
Dewey Beach, DE