Delaware Supreme Court Opinion Issued on July 30, 2010
On Friday, July 30 the Delaware Supreme Court released their opinion as expected on the appeal by Dewey Beach Enterprises on the first lawsuit won by the town on the Ruddertowne plan. The State newspaper gave the impression that “DECISION ENDS DEWEY BEACH BATTLE” and this is a huge misnomer. The result of the Delaware Supreme Court decision is that DBE can build phase one of their plan at 35 feet but they do not have approval for phase two (48 feet) and phase three (68 feet) and they are far from overrunning this town’s laws with their goal of 240 condos and a 68 foot hotel!
DBE had made application to the town in the fall of 2008 to construct a concrete prison-like structure with commercial space on level one and 64 condos on levels two and three. Dewey Beach denied the application citing the area had only enough square footage for 35 condos. The DBE lawyers argued a loophole which would allow them to build close to double this density. The Delaware Superior Court agreed with the town Board of Adjustment and upheld the rejection of the DBE plan.
The Supreme Court ruled that the Dewey Beach zoning code was not specific regarding density in a mixed use application and reversed the Superior Court’s opinion.
THIS RULING HAS NOTHING TO DO WITH HEIGHT AND THIS MIXED USE STRUCTURE MUST COMPLY WITH THE 35 FOOT HEIGHT LIMIT!
The result of this ruling is that it allows for unlimited density if a developer chooses a mixed use, i.e. commercial and residential, in a commercial zone.
More density is not good for Dewey Beach.
The Supreme Court has issued a radical opinion. The Dewey Beach Planning and Zoning Commission, the Dewey Beach town attorney, the Board of Adjustment and the Delaware Superior Court all agreed that density was a requirement of all zoning. There are many mixed use complexes within Dewey Beach and all have met the zoning requirements for density. What Dewey Beach Enterprises has done is to exploit a loophole in the zoning code and force their intent to maximize their monetary gains at the expense of Dewey Beach.
The nuts and bolts of this Supreme Court decision is that DBE can construct their 64 condos in an area designated for 35 condos at Ruddertowne but only at a height of 35 feet.
The last thing Dewey Beach needs is more density yet DBE continues to be intent on forcing their money-hungry interests on the town.
DBE has three more pending law suits against Dewey Beach and their goal remains to construct a 68 foot hotel.
U.S. District Court Opinion Issued on August 2, 2010
On Monday, August 2, the US District Court rendered an opinion on one of these three law suits. The opinion allows the case to continue to the discovery phase. Bottom line is that DBE has succeeded in furthering this case to a trial. Their interest in litigating Dewey Beach to poverty is obvious as their allegations are far from fact. Yet thanks to the work of the last two Town Councils, the town is in strong shape to withstand this onslaught. The Town Council turned around the $800K deficit last year to be comfortably in the black. While some revenues are down this year, the town is still financially secure. In addition, the town’s insurer is standing squarely behind the town, providing coverage on all four lawsuits.
As one litigator put it, “The District Court ruling is not a ruling on the merits of DBE’s case. It is a preliminary ruling that merely allows the plaintiffs to proceed and conduct discovery of the facts. In dealing with any motion to dismiss a case, a court will merely assume that all factual allegations made by the plaintiff (DBE) in their complaint are in fact true and give the plaintiff a chance to prove it. The town will now answer the complaint, deny DBE’s allegations, and proceed with discovery to demonstrate that the key allegations by DBE are false.”
Your vigilance and support are more important now than ever.
For those of you who received the developer-supported “Dewey Beach News” cheerleading eblast that was released within hours of the Court’s decision, you can see clearly the true colors of this handful of developer supporters.
This September’s election is critical and we all must be vigilant as to the source and support of the campaign mailings we will receive. Dewey Beach is a small beach town with a huge heart and we will not lay down to special interests.