Dewey Beach Building Battle Goes To Delaware's Supreme Court - 47 ABC - Delmarva's Choice

Dewey Beach Building Battle Goes To Delaware's Supreme Court

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Michael McDermott - lead attorney for plaintiffs Michael McDermott - lead attorney for plaintiffs
Marcia Schieck - Dewey Beach resident Marcia Schieck - Dewey Beach resident

DEWEY BEACH, Del. - The controversial building battle in Dewey Beach continues as residents take their fight to Delaware's highest court.

"We're just a quirky little beach town, but we like it that way. You have what essentially is a bully that comes in and says, ‘I want it some other way, and I don't care what your laws are. I've got deep pockets, I've got a legal team, and I'm going to kick you down until I bankrupt you.' We would like the court to write this wrong and say this is not okay, and this will not be a precedent for how you come into communities," resident Marcia Schieck said.

It's a fight that began nearly 7 years ago when a developer proposed to build a 68-foot tall hotel in Dewey Beach, despite a 35-foot building restriction that's been in place since 1981.

"When he was denied the right to build bigger than anyone else in town, he began lawsuits against the town. He's filed five separate lawsuits against the town of Dewey beach, insisting that they should be able to build something bigger than anybody else in town," attorney Michael McDermott of Berger & Harris said.

It was a move that would put the entire community under water. So a private settlement was negotiated giving Dewey Beach Enterprises permission to build up to 45 feet.

"The town council members who are volunteer town council members trying to apply the zoning laws uniformly to every citizen in town, recognized that the town was going to be buried and bullied under litigation fees. The settlement was executed by the town manager in December 2010. By February 2011, the developer and the town say it was a done deal, but there was still a public hearing in June 2011 which was the final public hearing," McDermott said.

"It's taking a single property owner in this town and one single parcel, and contracting zoning code to them in a private agreement behind closed doors that no other property owner in this town gets. It's wrong. It's not good government. It sets horrible precedent for all towns in Delaware," Schieck said.

As a result, four residents hired attorney Michael McDermott and challenged the settlement when they sued the town of Dewey Beach and Dewey Beach Enterprises in August of 2011. But the Court of Chancery shot it down in July of 2012. They appealed the decision which now goes to Delaware's Supreme Court.  

"The court applied a very strict 60 day period during which they must challenge a zoning decision. Our position is that this kind of a zoning decision falls outside a statute that requires a 60 day challenge. So as an initial matter, we're asking the Delaware Supreme Court to reverse the Court of Chancery's decision that the citizens' challenge has been barred by that 60 day limit and that the citizens are allowed to challenge the settlement agreement as an invalid exercise of municipal authority," McDermott said.

The Delaware Supreme Court will hear oral arguments next Wednesday, April 10.

"One of the reasons why it's now at the Delaware Supreme Court - we believe is that it is unprecedented, and the court has never addressed that kind of a settlement involving zoning issues. This will be the first time they speak to it. And we believe that they will rectify it and they will allow the citizens to challenge the nature of the settlement agreement and the bypass of zoning laws," McDermott said.

Marcia is just one of many residents who refuses to be bullied by big fish and says now is the time to take a stand.

"Who's the next guy that comes in and wants the same thing? And then all of the sudden we have 48, 52, 62 feet buildings up and down the town - it changes the town forever. We can never get that back," she said.

The town manager of Dewey Beach, Marc Appelbaum provided WMDT with a statement regarding the suit: "The town entered into a deal they thought at the time was proper, and they are defending their decision. Until the court overturns the decision, we move forward."

WMDT also reached out to the developers for comment but have yet to receive an answer. 

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