Attorney General’s Office finds no FOIA violation in Fenwick

A ruling by the Delaware Attorney General’s Office has found that five individuals associated with the Town of Fenwick Island did not violate the Freedom of Information Act (FOIA) by discussing a building permit application. However, the AG’s Office said the Town’s Building Committee should hold a public meeting to conduct a formal vote.

Three members of the Fenwick Island Town Council filed a FOIA complaint with the Office of the Attorney General of the State of Delaware last month, arguing that there had been a violation of the Delaware Open Meetings Law and the Town Code.

The complaint, initially filed by Council Member Vicki Carmean, questioned the actions of Town Solicitor Mary Schrider-Fox, Mayor Gene Langan, Town Manager Theresa Tieman, Building Official Pat Schuchman and Bill Weistling, a former council member who serves on several committees, including the Building Committee.

The complaint states that in May/June, Fenwick Sands — the developer looking to replace the Sands Motel — had submitted plans for the new hotel building, which included a 6-foot HVAC unit and elevator shaft to be placed on the roof of the building. Both would encroach into the Town’s 32-foot height restriction.

Carmean wrote that she had told Langan that the request should be handled by the Town’s Board of Adjustment; however, she later learned that it had been approved without going before the board.

“My response was, ‘How can this be?!’” wrote Carmean in the complaint, dated July 30. “Mr. Langan responded that Mary Fox, Esquire, had made the decision because of ‘gray areas’ within the Code.”

Carmean went on to write that Council Members Julie Lee and Roy Williams had learned of the “possible gray areas” shortly thereafter. (Both subsequently joined the FOIA complaint the Carmean had filed.)

Carmean stated that Lee would go on to “obtain firsthand information from the Town Hall,” receiving 27 pages of emails between Fox, Schuchman, Tieman, Weistling and Tim Willard, legal counsel to Fenwick Sands.

“By way of rough summary of those 27 pages, what the three of us have derived is that this exchange of emails began on June 5 with a thank you from Tim Willard to Mary Fox for all her help on the new ordinances for the proposed hotel,” wrote Carmean.

“As a member of the council and the Charter & Ordinance Committee, I was unaware of anything official being discussed by these two lawyers. As a council, we have never authorized Mary Fox to assist the Sand’s owners.”

The decision to allow for the new hotel’s HVAC system to encroach beyond the height restriction, said Carmean, was “reached by a small group of people who did not comply with the Code or the variance process outlined therein without informing Council members in a timely fashion by way of an Executive meeting, regular meeting or giving public notice to the residents.”

Carmean requested that the Attorney General’s Office review the emails to determine if a violation occurred, but also requested a remediation process, “including a finding that the decision for this ‘de facto’ variance be reversed with a requirement that the owners of the Sands Motel comply with the original height restriction and/or apply for a variance following the protocol for requesting the same.”

On Aug. 9, Schrider-Fox responded to the complaint, stating “how FOIA has allegedly been violated is not easily identified.”

Schrider-Fox cited Chapter 61 of the Fenwick Island Town Code, describing the building plan review and building permit approval process within the Town. She noted, per code, all property owners must submit information about a proposed construction project to the Town’s Building Official, who will review the submitted plans, “which may include, but not necessarily be limited to, discussing the same with the owner or his agent as necessary and identifying possible reasons for denial of a permit.”

The plan is then submitted to the Building Committee members for approval, with the signature of two members required for approval and the issuance of a permit.

“In this particular instance, the commercial property owner in question did, in fact, submit building plans and request for a building permit to the Town’s Building Official… As part of Ms. Schuchman’s review of the building plans, she engaged in some discussion with the property owner about certain aspects of the plan,” Schrider-Fox said.

“Ms. Schuchman also conferred with her supervisor, the Town Manager, as well as the Mayor… Chairman of the Building Committee, and the Town Solicitor concerning certain Zoning Code interpretation issues.”

Schrider-Fox wrote that the interpretation issues related to whether roof-mounted mechanical equipment and/or elevator shafts were included in the building-height calculation of a structure.

“As part of that review process, the property owner’s attorney also contacted the Town Solicitor to share his interpretation of the Town’s Zoning Code.”

Schrider-Fox said Schuchman went on to confer with Weistling and Building Committee Member Jesse Sheppard, both of whom, separately, accepted and signed off on the building permit application, excluding the elevator shaft.

“The above-described process of Building Official review, which sometimes occurs with the assistance of legal counsel and/or Town supervisors and/or the Building Committee Chairman as necessary, followed by the individual consultations with the Building Committee members, has been the building plan review and building permit approval process followed by the Town for at least the last twenty-five years,” wrote Schrider-Fox.

“It has not been the practice of the Town to involve the Town Council in the review of building plans and/or the issuance of building permits for either residential or commercial projects in the Town…

“Accordingly, because the Town Council was not required to be part of the decision-making process concerning the building plans and building permit application underlying Ms. Carmean’s letter of complaint, a meeting of the Town Council was not required and no FOIA violation has occurred.”

The response goes on to state that “the Town certainly disagrees with the factual accuracy of many of the statements made in Ms. Carmean’s letter,” citing descriptions of conversations she or other members of council had with Mayor Langan as one of a number of inaccuracies.

In an Aug. 24 letter from the Attorney General’s Office, Deputy Attorney General Dory L. Cole found that the discussion of the building permit application was not in violation of FOIA.

“Because the Five Individuals are not a public body, we find that they did not violate FOIA as alleged.”

Dorey did note, however, that “the Building Committee is a public body and that the Building Committee violated FOIA by its failure to conduct a public meeting to approve the building permit application.

“As remediation, we recommend that the Building Committee conduct a public meeting to formally vote on the building permit application in question.”

By Maria Counts
Staff Reporter