FENWICK ISLAND – In spite of public concerns, a protest petition and potential legal challenges, the Fenwick Island Town Council approved an ordinance that will allow the Sands Motel to be rebuilt and expanded.
Last Friday, Dec. 11, the town council voted 5-2 to approve an ordinance that would allow one room per 600 square feet at each of the town’s existing three hotels. The change will allow the Sands Motel, which is currently 38 rooms, to be rebuilt to include 65 rooms. The approval came in spite of concerns from Councilman Roy Williams, who voted against the code change with council member Julie Lee.
“There are three attorneys saying this could be a problem,” Williams said.
Williams said he’d heard from two residents who were attorneys as well as from Max Walton, a lawyer who represents resident Richard Benn. All three have questioned whether the ordinance meets Delaware code, which requires uniformity among buildings throughout a particular zoning district.
Walton also submitted a petition that he said contained the signatures of nearly 50 percent of the owners of the 104,000 square feet of property adjacent to the town’s three hotels, which under state code would mean that a three-fourths vote from the council would be needed to pass the ordinance. According to the code, the petition would need signatures from owners of more than 20 percent of “either the area of the lots included in such a proposed change or of those immediately adjacent thereto extending 100 feet therefrom or of those directly opposite thereto extending 100 feet back from the street frontage of such opposite lots.”
Though town solicitor Mary Schrider- Fox wasn’t present, town officials said Friday the petition wasn’t valid because it didn’t meet the 20 percent requirement.
When contacted Monday, Benn said the town employees who determined the petition’s legitimacy were not lawyers and he didn’t believe their decision was valid.
He said any questions regarding the area to be considered “adjacent” could have been answered by the town attorney if she’d been in attendance at the meeting.
“I believe she was not there so they could have plausible deniability when the town manager and building official stated the petition was not valid,” he said.
Though Williams said he had concerns about the potential legal ramifications of the ordinance, Bill Weistling, a town council member and member of the towns’ charter and ordinance committee, said Schrider-Fox had seen it.
“Our attorney is comfortable with it,” Weistling said.
In an effort to temper the effects of the ordinance, which as expected was approved by the majority of the council, the council also approved the first reading of a hotel moratorium. The moratorium, which was proposed by Lee, would put a two-year halt on the issuance of any permits, licenses or approvals related to new hotel uses in Fenwick Island. She said she was sorry the town solicitor wasn’t there to discuss the details but that the moratorium would not affect the development of the Sands Motel.
“It would give us an opportunity to work on the comprehensive plan and develop potentially a hotel district,” she said.
The moratorium would provide time for residents to discuss a potential expansion of the number of hotels in town as they developed the comprehensive plan, which must be completed by June 2017.
“Whereas, in light of the ongoing debate about whether to expand the total number of motel/hotel uses in the town and because the comprehensive plan update process may results in comprehensive and/or significant changes to the permitted land uses within the commercial zone,” the ordinance reads, “the town council deems it to be in the best interest of the town to maintain the status quo of existing motel/hotel uses during the comprehensive plan update process…”
A public hearing and second reading of the moratorium are set for the January meeting of the Fenwick Island Town Council.
And while the ordinance allowing developer Spiro Buas to move forward with a reconstruction of the Sands Motel has been passed, Benn says he will continue to fight against it.
“We definitely expect a long and costly, for both the town and us, legal battle and firmly believe that we have the legal high ground,” Benn said. “It is a shame that the council is not willing to take the simple steps to ask the developer to at least assuage the fears of those most impacted by the project by requiring him to provide plans and show how he is going to mitigate the impact of this increased density on the neighbors. Any other reasonable legislative body would have already done so. We still firmly contend that the ordinance as written does not meet the uniformity requirement and have other legal challenges that we will be bringing up in court filings.”