FENWICK ISLAND – A real estate company is taking legal action against the Town of Fenwick Island as it seeks to have its development plan for the old Dairy Queen property approved.
On Sept. 1, Balsamo Real Estate LLC filed a complaint in Delaware Superior Court seeking a writ of mandamus commanding the Town of Fenwick Island to enforce its code and vote upon the company’s development plan for 1007 Coastal Highway.
While the company has submitted plans to improve the property for the use of a new restaurant, Joe Balsamo Jr., representing Balsamo Real Estate, said the town has indicated it would not consider the company’s plans until pending legislation that would set new parking ratios for commercial properties could be voted upon.
“The last thing we wanted to do was take the town to court,” he said in an interview this week. “We want to work this out.”
As owner of the former Dairy Queen property, Balsamo said the company is looking to add 1,500 square feet to the existing property by constructing a second story. He noted Balsamo Real Estate has two potential tenants that are looking to utilize the space.
“We’re not going to put anything there that’s not going to be a benefit to the community,” he said. “We’re not talking about a 7,000-square-foot restaurant. This is only 2,800 square feet of patron use.”
But Balsamo noted the company’s plans have yet to be approved by the town, which called Balsamo’s engineer last month to advise it would not consider the company’s application until the town council decided on a pending ordinance amendment regarding commercial parking ratios.
“Counsel for Balsamo contacted Fenwick’s Town Manager …,” a complaint filed in Superior Court this month reads. “At that time, the Town Manager indicated that processing of the Plan was being held up by her since a Town Code provision prohibited Plan consideration due to a pending Town Parking Ordinance which, if approved, would increase the amount of parking required beyond what the Plan proposed.”
In July, several members of the Fenwick Island business community came before the town council to share their opposition to a proposed ordinance amendment that would establish new, more stringent parking ratios for new or redeveloped commercial properties.
In an interview this week, Balsamo noted the ratios would double the amount of parking required for restaurant use – from one parking space for every 100 square feet of patron area to one parking space for every 50 square feet of patron area.
And while he said parking at the property exceeds the current parking ratios, any redevelopment under the proposed parking amendments would require the company to increase the number of required spaces from 28 to 56, or 17 spaces more than the company has provided under its development plan.
“If they pass this ordinance, we’ll have to file a lawsuit because the ordinance is erroneous and it’s not economically feasible,” he said.
In an email sent to Balsamo’s attorney last month, Town Solicitor Luke Mette advised that the town refused to consider the company’s plan, asserting that it would first have to apply for a building permit.
“Ms. Schuchman [town manager] has concluded that the procedural path forward for the Town’s consideration of the Proposed Improvements is for Mr. Balsamo to submit a building permit application under Chapter 61 (Building and Utility Construction) of the Town Code,” the email reads. “It is my understanding that no such building permit application has been submitted to the town … In this regard, please note that earlier this year, a building permit application regarding the Property for ‘repair and replace roof’ and ‘interior demolition’ was submitted, and the Town issued a building permit for that work.”
The email continues, “Both you and Mr. Wahl [engineer] have stated the Proposed Improvements to the Property should be evaluated as a site plan under Chapter 142 (Subdivision of Land) of the Town Code. However, Chapter 142 is not applicable to the Proposed Improvements, as the Proposed Improvements do not constitute a subdivision or development of land or real estate or rearrangement of lots as that chapter has been construed by the Town.”
The complaint, however, asserts the company has followed the correct procedure in submitting a development plan and that the Town of Fenwick Island had violated Chapter 142 of the town code.
“The Town Refusal is part of a subterfuge whereby Fenwick is hoping to hold up the ability of Balsamo to receive approval of the Plan,” the complaint reads.
The complaint ultimately asks the court to issue a writ of mandamus “commanding Fenwick to place a vote on the Plan on the next Town Council meeting agenda.”
A motions hearing has been scheduled for Oct. 7. In the meantime, the Fenwick Island Town Council will hold a second public hearing on the proposed parking ratio amendments on Sept. 19.
Schuchman did not respond to interview requests this week, and Mayor Natalie Magdeburger declined to comment on the lawsuit.
“It would be improper for us to comment on any pending litigation at this time,” she said.
