FENWICK ISLAND – A member of the Fenwick Island Town Council is calling for transparency after expressing her concerns about the decision-making process officials used to allow an outdoor pool bar with music at a new hotel on Coastal Highway.
On July 22, Delaware Deputy Attorney General Dorey Cole responded to a petition filed by Councilwoman Vicki Carmean, opining the town did not violate the state’s Freedom of Information Act (FOIA) as alleged during its correspondence with attorneys, town officials and the state’s Alcoholic Beverage Control Commissioner (ABCC) regarding the Fenwick Shores outdoor pool bar.
“The crux of the Petition is that the Town Council did not discuss in a public meeting the approval of the open pool bar and that certain Town officials made statements on behalf of the Town, allegedly without authority to do so,” the opinion reads. “We offer no opinion on those allegations as the legality and appropriateness of such matters are outside the scope of Section 10005. ‘To be clear, FOIA does not determine when a public body must take up a matter of public business.’ As such, the question of whether the Town officials should have discussed the open pool bar at a public meeting and whether Town officials appropriately spoke on behalf of the Town are matters outside the scope of FOIA. Based on above, we find that the Town has not violated FOIA as alleged.”
In 2018, developer Spiro Buas demolished the aging Sands Motel – which he purchased in 2015 – and began building a new hotel in its place. Fenwick Shores, a Tapestry Collection by Hilton, will be a 65-room boutique hotel.
To allow alcohol service for hotel guests, Buas applied with the ABCC for a hotel liquor license back in March. The application also seeks a patio permit and a variance to permit live entertainment, external speakers, a paging system and a wet bar on the second-floor patio of his property.
Since that time, however, several property owners have voiced their objections to the developer’s variance request and argued town code did not allow for an outdoor bar.
“As the bar is an amenity of the hotel, the town has no control over where that bar would be located …,” Councilman Bill Weistling told the public in March. “Everything that has come up on this hotel we have passed it by our town attorney, and as councilmembers we might not agree with the town attorney, but we accept her guidance and interpretation of the town code.”
While the town has no jurisdiction over the issuance of liquor licenses, officials in recent months acknowledged that Buas had agreed to add a restriction to his license and seek permission from the council for any live outdoor entertainment at Fenwick Shores. A letter sent from Town Manager Terry Tieman to the ABCC on March 20 even acknowledges the agreed-upon restriction.
But it was this correspondence, along with several other comments, letters and emails from town officials, property owners and attorneys, that prompted Carmean to file a FOIA petition.
“As a member of the Council for fourteen years, I can state unequivocally that Fenwick, as one of Delaware’s Quiet Resorts, has always enforced the existing Town Code and never allowed an outdoor bar or sound system based on that Code,” she wrote. “Furthermore, if there was to be a change in the interpretation of the Code, the public should have been given notice of the interpretation, public hearings held to discuss the new interpretation with two readings along with a public Council vote before permitting uses that conflicted with the existing Code. None of those steps were taken in this case, effectively eliminating any administrative remedies the public would normally have in order to lodge their objections to this convoluted interpretation that effectively reverses years of prohibition of outdoor bars in Fenwick Island.”
In an interview this week, Carmean said not all members of the town council were privy to internal communications regarding the interpretation of the town code, and the town did not act by a majority of its elected officials.
“I was reluctant to do this, but I felt like I had exhausted all other avenues,” she said. “It was a decision made by a small group of people and the rest of us were told that was that.”
In her petition, Carmean questioned the authority of Tieman, Weistling, Mayor Gene Langan and town attorney Mary Schrider-Fox to make decisions regarding the interpretation of the town code without a discussion, vote and public notice.
“There has been no attempt to discuss or vote on these issues as part of an official process and resolution from the Council,” she wrote. “Thus, I am also hoping that this complaint will assist in bringing some transparency to these problems.”
In a town council meeting last week, Langan shared the outcome of the petition.
“Vicki Carmean filed a FOIA complaint on July 15 against the town, certain council members and certain employees,” he said. “One week later, the attorney general ruled the town had not violated FOIA as alleged. To me, it’s just more legal bills.”
Carmean argued, however, that the Office of the Attorney General did not find a violation because it did not rule on the issues in question. She requested the council agenda for next month’s meeting include a discussion about the town’s position regarding the Fenwick Shores liquor license.
In the meantime, a law firm has been hired by a group of property owners seeking enforcement of the town’s existing ordinances. In a May letter submitted to the town on behalf his clients, attorney William Rhodunda requested the town withdraw its letter to the ABCC, demonstrating that the hotel is not in compliance with the town code.
“I am concerned the town is facing a legal challenge, which I understand will soon be filed,” Carmean said. “We owe it to the residents who live here and pay taxes to look at this issue and make sure everything has been done and we’ve followed the rules … I don’t believe in pushing it in a closet, closing it and keeping it a secret, so I’d really like to have it on the agenda for the next meeting.”