DBE says new council could overturn agreement
By Kara Nuzback | Oct 03, 2011
Link to original article at Cape Gazette
Photo by: Kara Nuzback DBE attorney Shawn Tucker filed a Sept. 22 letter, requesting the court suspend an earlier request to drop five lawsuits against the town.
Dewey Beach — Just when it seemed like Dewey Beach officials had their heads above water, a new wave threatens to submerge them. The wave took the form of a Sept. 22 letter, filed by Shawn Tucker, attorney for Dewey Beach Enterprises, developer of the Ruddertowne site.
In the letter, Tucker asks Chancery Court Judge John Noble to suspend consideration of Tucker’s Sept. 14 request to dismiss five lawsuits against Dewey Beach and its officials.
The request to dismiss DBE’s lawsuits was filed only eight days before the request to let the lawsuits remain; the first request came just three days before Dewey Beach elections, which ended in the selection of the three candidates who most clearly opposed the Ruddertowne plan.
All three newly elected commissioners were supported by political action committee Citizens to Preserve Dewey; CPD and its supporters are outspoken opponents of DBE’s plan to redevelop the Ruddertowne site into a 45.67-foot mixed-use facility.
In Tucker’s second request, he stipulates the lawsuits should remain in place until town council confirms it does not intend to breach a Feb. 26 mutual agreement between the town and DBE. That agreement allows the developer to go ahead with a project that exceeds the town’s 35-foot height limit.
The agreement was approved by the previous council, which included Commissioners Jim Laird and Marty Seitz and former Commissioners Rick Solloway and Zeke Przygocki, who lost their seats in the Sept. 17 election. Mayor Diane Hanson, the only incumbent who was re-elected, was the only commissioner to vote against the agreement.
Tucker wrote, “Plaintiffs reasonably fear that the commissioners-elect may attempt to improperly nullify or void the MAR.”
Tucker said immediately after the election, he and attorney Kathleen Jennings contacted Dewey Beach attorneys Glenn Mandalas and Megan Mantzavinos by phone to ask what the newly elected commissioners’ position was regarding the agreement. “Megan and Glenn said they did not know,” Tucker said. More than two weeks later, Tucker said, he has received no response from Dewey Beach attorneys.
“The prior leaders of CPD are the town commission now,” Tucker said. “CPD has taken the position that the MAR is unenforceable and invalid.”
Tucker said a letter or an official statement would suffice to confirm commissioners plan to honor the agreement. “We would be satisfied with them putting it on the record that they’re going to honor it,” Tucker said.
Tucker said the Sept. 14 request to dismiss the lawsuits against the town was due in Chancery Court before the Sept. 17 election; otherwise DBE would have waited until after the election to file the documents. “We didn’t want to waive our right to file a motion to dismiss,” he said.
Hanson pledges to honor agreement
Newly elected commissioners said they have no intention of invalidating the mutual agreement. “We will honor the agreement as long as they do,” Hanson said.
Newly elected Commissioner Anna Legates said in an email she plans to honor the agreement; Seitz said as far as he knows, council has no plans to overturn the agreement.
CPD co-founder and newly elected Commissioner Joy Howell said she absolutely intends to honor the agreement. “I have to carry out my duties as a commissioner and do what’s in the best interest of the town,” Howell said.
Mantzavinos filed a Sept. 27 response to Tucker’s request, saying his request is unwarranted and contrary to the settlement.
In the response, Mantzavinos said the agreement to redevelop Ruddertowne allows DBE to take action if the town breaches the agreement. According to the approved document, if DBE or the town breaches the agreement, the nonbreaching party is entitled to recover all costs and attorneys’ fees. “DBE should not now be permitted to petition the court for more than it bargained for,” Mantzavinos wrote.
Tucker said Mantzavinos’ letter does not say commissioners plan to honor the mutual agreement.
Seitz denies interfering with documents
In his letter, Tucker also alleged Seitz tried to prevent DBE from obtaining certain time-sensitive documents because Seitz told Mark Allen, who was scheduled to serve as a temporary town manager, not to report to work on the Monday following the election.
Tucker said he had requested a number of documents from the town that DBE needed to file its Sept. 21 motion to dismiss a separate complaint, filed Aug. 15 by four Dewey Beach property owners, to nullify the mutual agreement. “When the new town manager was told not to show up, that seemed to frustrate our efforts in preparing the motion to dismiss,” he said.
Seitz said he called Allen to delay his start date, not to terminate his employment. Seitz and Allen both said Allen withdrew his request to fill the temporary position. “Nobody’s a slave; I can’t demand that he not withdraw his name,” Seitz said. “I hope he can work with the town in the future.”
As for time-sensitive documents, Seitz said there were none, calling such documents a figment of Tucker’s imagination. Allen had not reported to town hall and was not handed any assignments before withdrawing his name, Seitz said. “The idea he was supposed to help Shawn with something is incredible,” Seitz said.
According to an Oct. 3 email from Mantzavinos, DBE requested 23 documents from the town, and were provided with all but six of the documents, which Mantzavinos said she is still trying to locate.
At an Oct. 1 town council meeting, former Commissioner Marc Appelbaum asked Mandalas if a $480,000 building permit issued to DBE to begin construction at Ruddertowne was conditional on the town’s release from the lawsuits. Mandalas said according to the agreement, DBE must release the town from the lawsuits unless an appeal overturns the agreement. “The only way that there would not be a release is if they are not able to build,” he said.