FENWICK ISLAND – A petition to have the Town of Fenwick Island enforce its town code will move forward this week after a Superior Court judge denied the town’s motion to dismiss the case.
Late last month, Delaware Superior Court Judge Craig Karsnitz heard oral arguments from attorneys regarding a motion to dismiss a complaint alleging the town had violated its zoning code by allowing an outdoor, rooftop bar at the newly constructed Fenwick Shores hotel on Coastal Highway.
While the plaintiffs in the case – a group of Fenwick Island property owners – believe the outdoor bar violates numerous sections of the town code, the town contends the bar is a hotel amenity, meaning it has no control over where the bar would be located.
In an order issued Tuesday, Karsnitz denied the town’s motion to dismiss the complaint.
“The motion and response address the facts as the respective party sees them,” the opinion reads. “If the Town’s version of the facts is accepted, it is undoubtedly entitled to have its motion granted. Petitioners’ version presents a more complicated case, and the Town has not addressed this version of its analysis. As a result, and applying the standard for a motion for summary judgement, I am denying the motion.”
Last August, 17 plaintiffs filed a petition for writ of mandamus in Delaware Superior Court demanding the Town of Fenwick Island address and prohibit alleged zoning violations at the Fenwick Shores.
In 2018, developer Spiro Buas demolished the aging Sands Motel and began building a new Tapestry brand hotel in its place. The hotel, which features 65 rooms, also includes amenities such as a gym, event space and a second-floor pool deck with an outdoor bar. As part of the process, Buas applied with the state’s Alcoholic Beverage Control Commissioner (ABCC) for a hotel liquor license. The application also sought a patio permit and 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 his request and argued the town code did not allow for an outdoor bar.
“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 …,” their petition reads. “The foregoing are violations of the Fenwick Code and violations of Fenwick’s duty to enforce the Code.”
The plaintiffs also took issue with a letter the town sent to the ABCC, in which it took no position on the liquor license application.
“Although the Town has previously confirmed that a hotel is a permitted use of the above-referenced property according to the Town’s Zoning Code and takes no position either in favor of or in opposition to the pending application, the Town finds that it is prudent and necessary to clarify that certain types of outdoor entertainment events requires the advance approval of the Town Council,” Town Manager Terry Tieman wrote to the ABCC last March.
In November, legal counsel for the town filed a motion to dismiss the complaint, “contending it is nothing more than an attempt to impermissibly have me substitute my judgement for that of the building officials,” Karsnitz wrote in his opinion this week.
The judge ultimately denied the town’s motion, pointing out “significant disputes of fact” between the town and the property owners.
“At argument, counsel for Petitioners told me that the Town was unaware of this rooftop bar until it was brought to its attention by a letter from the Delaware Alcoholic Beverage Control Commission (‘DABCC’) … The DABCC requires a letter from local authorities indicating the applicants comply with local zoning regulations. The response from the Town was less than clear, but seems to have expressed the opinion the applicants did meet Town regulations, but added it was taking no position on the application,” the opinion reads. “On the other hand, the Town’s counsel told me the Town was aware of the proposed rooftop use as early as 2019, and approved it as in compliance with its zoning code. If this information is correct, parties aggrieved by the decision (presumable some or all Petitioners) could have appealed the decision to the Town Board of Adjustment.”
When reached for comment this week, a statement from the town noted the judge’s ruling on the motion did not negate the town’s actions.
“The town is still reviewing the court’s decision and conferring with legal counsel about next steps in the pending case,” a statement reads. “However, the decision does not invalidate the lawful decision of the town relative to the construction of the Fenwick Shores Hotel.”
The plaintiffs’ attorney, William Rhodunda, did not return requests for comment this week.
