FENWICK ISLAND – A group of Fenwick Island property owners have filed a petition in Superior Court demanding the town enforce its code.
Seventeen plaintiffs seeking a court order requiring Fenwick Island to enforce its town code filed a petition for writ of mandamus in Superior Court last week.
The action comes three months after attorney William Rhodunda issued a letter to the Fenwick Island Town Council on behalf of several property owners concerned about an outdoor bar with the potential for live or recorded music at the new Fenwick Shores hotel on Coastal Highway.
The petition asserts an outdoor deck and pool bar on the second floor of the hotel is a violation of numerous sections of the Fenwick code.
“Fenwick has failed to enforce the Code by permitting the Sands Hotel: (a) to have a bar, (b) to have a bar not connected to a restaurant, (c) to have a bar area in any outside service area, (d) to have an outside service area more than three feet above ground level, (e) to have music or entertainment on an outdoor deck on the top floor of the hotel, and (f) to have a large outdoor deck bar and entertainment area on the top floor of the hotel …,” the petition reads. “The foregoing are violations of the Fenwick Code and violations of Fenwick’s duty to enforce the Code.”
In 2018, developer Spiro Buas demolished the aging Sands Motel 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 his hotel guests, Buas applied with the state’s Alcoholic Beverage Control Commissioner (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, several property owners have voiced their objections to the developer’s variance request and argued the town code did not allow for an outdoor bar. The town, however, has taken the position that the outdoor bar is a hotel amenity, meaning it had no control over where the bar would be located.
According to the town code, “no bar … shall be allowed in any outside service area.” Town officials have pointed out that the town code specifically addresses bars and bar areas under the section heading “restaurants,” not “hotels,” making Buas’ variance request a permitted use.
In his letter dated May 22, Rhodunda threatened legal action against the town on behalf of his clients. The petition filed in Superior Court last week names plaintiffs who live near the new hotel, as well as those who have been long-time residents of Fenwick Island – including former council member and mayor Peter Frederick and former council member Roy Williams.
When contacted about the petition this week, both Town Manager Terry Tieman and Mayor Gene Langan declined to comment. But in a letter written to Rhodunda in June, the town’s attorney, Mary Schrider-Fox, addressed the legal threats, highlighting a similar case from 1995 in which Rhodunda was involved.
“As one of the attorneys involved in that matter, I trust you don’t need to be reminded that a Delaware court will not direct municipal officials to exercise their discretion in a particular manner, such as determining whether or not a zoning violation exists and determining whether to prosecute any such violation,” she wrote.
Moving forward, the town council has scheduled an executive session on Aug. 28 to discuss the pending litigation. Councilwoman Vicki Carmean said she would continue to request a public meeting, which she believes could have led to a different outcome for the town.
“I proud to live in this community and I’m proud of this group of people who support open government,” she said. “I think everybody thought they would roll over, but they didn’t.”
