Del. Court Dismisses Fenwick Lawsuit

FENWICK ISLAND – A company’s lawsuit against the Town of Fenwick Island regarding its development plans for the old Dairy Queen property has been dismissed.

In an order issued Tuesday, Delaware Superior Court Judge Mark Conner dismissed Balsamo Real Estate LLC’s case against the Town of Fenwick Island.

The decision comes six months after the company filed a complaint in Delaware Superior Court seeking a writ of mandamus commanding the town to enforce its code and vote upon the company’s development plan for 1007 Coastal Highway.

“Both Plaintiff and Defendant argue additional points regarding the requirements for issuance of a writ of mandamus,” the order reads. “However, the additional arguments do not warrant discussion. Simply, the requirements for issuing a writ of mandamus have not been met, meaning dismissal of the petition is appropriate. Since Plaintiff is unable to establish the necessary requirements for issuance of a writ of mandamus, the Court does not need to discuss any additional arguments made by the parties.”

Late last summer, Balsamo Real Estate submitted to the town its development plan for the former Dairy Queen property. As owner, the company is looking to add 1,500 square feet to the existing building for the development of new restaurant space.

At the time, Balsamo Real Estate submitted its plan under Chapter 142 town’s subdivision code, in which an application of any subdivision or development of land must be submitted to the town council for plan approval.

However, town staff advised that the town refused to consider the company’s plans, asserting that it would have to submit a building permit application as required by Chapter 61 of the town code.

To that end, Balsamo Real Estate filed a petition for writ of mandamus, as well as a motion for summary judgement, in Delaware Superior Court, which heard arguments throughout the fall and winter months.

In the order issued Tuesday, Conner asserted the defendant had failed to meet the standards for obtaining a writ of mandamus.

“The party seeking the issuance of a writ of mandamus must prove that they have a clear legal right to the performance of the duty, no other adequate remedy is available, and the lower court, agency or official has arbitrarily failed or refused to perform that duty,” the order reads.

The judge ruled the company had no legal right to review its renovation plan under Chapter 142 of the town code, which pertains to subdividing real estate. Conner added the company had an alternative remedy by applying for a building permit under Chapter 61 of the town code.

“The last requirement that must be met before a writ of mandamus can be issued is that the lower court, agency, or public official arbitrarily fails or refuses to perform the duty …,” the order reads. “Defendant is not arbitrarily failing or refusing to perform the duty of reviewing plans. Instead, Defendant is refusing to perform the duty in the manner Plaintiff wishes.”

The judge ultimately denied Balsamo Real Estate’s petition for writ of mandamus and motion for summary judgement and granted the town’s motion to dismiss the case.

In an interview this week, the company’s attorney, Richard Abbott, said the court had failed to address the plaintiff’s central argument, that Chapter 142 addresses land development.

“That was the lynchpin on which the entire decision was supposed to be based …,” he said. “It’s kind of baffling. From our perspective, a 1,500-square-foot modification to the existing building is development because development is new construction. The point is you have to get plan approval.”

Abbott said his client could appeal the decision or ask for reconsideration.

“We’re currently considering our options,” he said. “As for the decision itself, the court sidestepped the fundamental issue, which was the meaning of the term development. If you look at the decision, it was not discussed.”

In a statement this week, Mayor Natalie Magdeburger said the town is pleased with the court’s order dismissing the case.

“This ruling clarifies that the Town’s position throughout the litigation has been the legally correct one and the Town is now hopeful that Balsamo Real Estate will proceed by filing for a building permit, as required by our code and as they were advised to do,” she wrote. “Recently, the Town worked hand-in-hand with Balsamo Real Estate to promote the sidewalk project in which the Town will secure and pay for sidewalks on the northwest side of our commercial district. Hopefully, Balsamo Real Estate’s take away from that experience is that the Town truly wants to benefit and enhance our business community and will result in Balsamo Real Estate moving forward with constructive dialogue with the Town instead of resorting to meritless litigation. The Town looks forward to Balsamo Real Estate obtaining the necessary permits to begin making improvements to the old Dairy Queen site.”

About The Author: Bethany Hooper

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Bethany Hooper has been with The Dispatch since 2016. She currently covers various general stories. Hooper graduated from Stephen Decatur High School in 2012 and the University of Maryland in 2016, where she completed double majors in journalism and economics.