Property owners hoping to keep a historic Bethany Beach cottage out of their back yards have filed a lawsuit against the Town of Bethany Beach, seeking immediate injunctive relief.
The lawsuit was filed March 10 in the Delaware Court of Chancery by five people whose Bethany Beach homes abut the proposed new location for the Dinker Cottage, which was donated to the Town and accepted by the council in January.
Named as petitioners are Phillip L. Feliciano, Mary C. Feliciano, Joseph Tropea, Mary Jane Tropea and David A. Namrow. Named as defendants are Bethany Beach Mayor Jack Gordon; Vice Mayor Lew Kilmer; Secretary/Treasurer Chuck Peterson; Council Members Bruce Frye, Rosemary Hardiman, Jerry Morris and Joseph Healy; and Town Manager Cliff Graviet.
The 23-page lawsuit, filed for the five homeowners by attorney Robert Witsil, alleges that there was an agreement made between Christine and Clement Edgar, owners of the Dinker Cottage, and the Town that constitutes “an illegal contract in which the Town bargained away its and its Planning Commission’s duty/responsibility to determine a land-use application.”
According to the lawsuit, the “preliminary agreement” between the Edgars and the Town, as well as the town council’s unanimous vote in favor of accepting the Edgars’ donation of the house and in favor of its relocation to Maryland Avenue Extended, which occurred a day prior to the Planning Commission’s approval of the Edgars’ application to divide their property into two lots, is evidence of a “smoking gun” of illegal activity.
The legal action also alleges that the officials violated the Town’s comprehensive plan by approving the relocation of the cottage, because the parcel, which is owned by the Town, is depicted on the town’s land use map as part of a 59-acre area designated for “open space” and “parks and recreation.”
According to the lawsuit, the plaintiffs allege the Town “invalidly” adopted a separate zoning district in 2003, doing so, they assert, without properly revising the town’s Comprehensive Land Use Maps.
The district, known as the “Municipal, Open Space, Recreational Facilities & Educational” district (MORE) is not shown on maps associated with the Town’s Comprehensive Land Use Plan, according to the suit. (The Coastal Point reported in 2006 that council members had voted 6-0 for a mapping change from the Parks, Recreation & Open Space (PROS) district to the Municipal, Open Space, Recreation & Education (MORE) district, incorporating some previously unlabeled municipal property and additional uses.)
The fourth count laid out in the lawsuit alleges that the Town violated Delaware’s Freedom of Information Act (FOIA) and that such action invalidates the Town’s approval of the Dinker Cottage acquisition.
The suit alleges the Bethany Beach Town Council and the Town’s Cultural & Historical Affairs Committee failed to properly post agenda items for council meetings and committee meetings at which the donation of the cottage was discussed.
Phillip Feliciano, one of the five homeowners filing the lawsuit, said he first became aware of the possibility of the Dinker Cottage being moved to the Maryland Avenue Extended property last October, when he noticed stakes had been placed in the ground there. At that point, he said, he filed a FOIA request for information on the property and the Dinker Cottage acquisition but did not receive the information he requested within the two-week window set forth in state law.
Feliciano said he also believes the classification of the cottage as historic has been improperly handled because the cottage, he said, has been “extensively remodeled” — though, in the town’s comprehensive plan, it is cited as one of only 12 properties of the 141 in the town that had not been substantially renovated, demolished or added to.
Originally owned by William Dinker, a founder of Bethany Beach, the cottage was moved from its original site east of Route 1 nearly 100 years ago and briefly served as the town’s post office. It has been in Christina Edgar’s family for 85 years.
Feliciano said he and the other homeowners filing the suit feel they have been ignored throughout the process.
“Most of my neighbors and myself would have been happy to talk to them about what they wanted to do and what they wanted to accomplish,” Feliciano said.
“We would like to leave the area open, and we’d like to not put a house there that has potential problems with it,” he said. Feliciano pointed to potential issues with moving the cottage, from structural issues to possible issues with hazardous materials being exposed, including lead paint, during the relocation process.
Whether the project is wise use of the Town’s funds is another issue of concern, Feliciano said.
“We question the financial wisdom of the Town spending money on a house that has not been properly declared a historic home,” he said. Graviet had quoted a cost of $45,600 just to move the cottage to the Maryland Avenue Extended location.
Joseph Tropea, another homeowner listed in the lawsuit, said, “The biggest thing we are trying to accomplish is hoping that it will allow the people on the town council to be a little bit more responsive and transparent.”
“They want to do this in the dead of winter, when 90 percent of the people are not here,” Tropea said. He also said that he feels some homeowners have the wrong impression of the residents who are fighting the Dinker Cottage move.
“I think that a lot of people who don’t live in the area have gotten the idea that we think this is our own private playground,” Tropea said of the Town property, which he admitted has been used over the years as open space for neighboring homes.
Bethany Beach Mayor Jack Gordon said this week that he did not wish to comment on the lawsuit. He said no further action has been taken toward actually moving the cottage since the council voted to approve the acquisition of the cottage and the move to the proposed site on Maryland Avenue Extended in January.
The council did formally vote March 18 to officially close the property to general vehicular traffic, mirroring the process used when the northern section of Maryland Avenue Extended was added to the property now being developed as “Central Park.”
This week’s vote also included a provision still allowing access, at the Town’s discretion, to an existing paved/graveled section for use by residents as a cut-through between Hollywood and Parkwood streets. It also allows the public continued access to areas of the property that will remain open even after the cottage is moved.