Dewey delays decision on rebuilding Ed's Chicken and Crabs

It's been nearly two years since Ed's Chicken & Crabs in Dewey Beach caught on fire after a DUI-related crash, and property owner Rusty Catts said he wants the chance to rebuild the landmark eatery.

"If I could sell a cold soda and a bag of potato chips, that would be wonderful," Catts said.

Dewey Beach's Board of Adjustment on Monday voted to table a decision on whether to uphold the town's ruling that rebuilding Ed's would mean property owners have to comply with current zoning code and floodplain regulations. Owners want to rebuild onsite as is.

The board is expected to reconvene for a vote on March 12.

Dewey Beach officials initially denied the request to rebuild, prompting an appeal from property owners W & C Catts Family Limited Partnership.

Attorneys representing Catts argued that Ed's Chicken was built before the town had government officials or zoning codes and that the fire that destroyed the building was no fault of the owner so officials should allow it to be rebuilt as a grandfathered, nonconforming building.

For more than 40 years, a former sandy parking lot on a street corner in Dewey Beach has been owned by the family of Rusty Catts.

Standing in the middle of the now-vacant lot on the corner of Del. 1 and Swedes Street, Catts pointed to the spot where, around 1978, Ed Riggin Sr. first fired up a grill pit and set up a soda machine during the earliest days of Ed's Chicken and Crabs.

"I would love the opportunity to enjoy Ed's chicken again," Catts said. Riggin and Catts' father, Dick Catts, were business partners until his death in 2014. Riggin then retained ownership of the business while the Catts family continued owning the property through a limited partnership.

The decades-old eatery served Dewey visitors and residents each summer until Michelle Small of Camden-Wyoming crashed her 2013 Mini Cooper into the building, severing a propane line and sparking a massive fire in August 2016.

Small was pulled out of her driver’s side window moments before the building became fully engulfed in flames. She later pleaded guilty to driving under the influence and criminal mischief and was ordered to pay $241,000 in damages and serve two years of probation.

While Catts said he plans to rebuild, he was hesitant to say whether Riggin, who is approaching his 85th birthday, would return to grilling.

Regardless of who fires up the grill and what is cooked on it, Catts said he wants to reconstruct the building and allow a future tenant to serve food in Dewey's resort district, said his attorney John Pardee.

Before Ed's burnt down, it took decades to add crabs to the menu and move to a mixture of indoor and outdoor food preparation. Town records show Riggin applied for a business license as an eatery, which requires indoor cooking and state health officials' approval, in 2001. That license was renewed annually until the fire.

Nonconforming or grandfathered use of the property will expire 18 months after the property sits idle or unused.

Assistant Town Manager Jim Dedes testified that the town has no record of any business licenses for Ed's prior to the 2001 eatery license. There also is no record of a conditional-use, meaning that Ed's Chicken operated as a nonconforming commercial use.

In 2017, an eatery license renewal application was denied, Catts said, testifying that former Town Manager Marc Applebaum denied his request and ripped up a check he had written for the license.

"Applebaum was determined to close it down," Catts testified.

Dewey is in the process of hiring former Dover City Manager Scott Koenig following Applebaum's vacancy due to months of allegations of racism, sexual harassment and abuse of power that were eventually settled between Applebaum and the town.

Throughout Ed's four decades of business, Riggin would make minor improvements and expansions in the off-season until the menu of chicken and soda expanded to also include hot crabs and the eatery became a landmark bustling with people, Catts said.

"I think a crab house would probably be the way to go, but right now, for this summer 2018, if I could sell a soda and a bag of potato chips on that property, I should be able to," Catts said.

Gervis "Gard" Shugart III was just feet away, about to fall asleep in Ed's office when he heard the commotion of the car crashing into the restaurant. Since the fire, Shugart said he has had a tough time dealing with family deaths and illnesses and finding a new job after nearly 30 years of working at Ed's.

"It's a lot of memories," he said, looking at the charred roof on one of the remaining buildings on the lot. 

Those memories included countless hours pushing water off the flood-prone lot so that people could get a hot lunch or dinner.

Flooding problems at the ocean side lot were at the heart of the town's denial of upholding the grandfathered use. Attorney Veronica Faust said rebuilding on the property means the building must be raised two feet, plus the town's required one-foot freeboard to comply with current regulations.

Because the eatery primarily was built before Dewey had a government or building codes, it previously was not required to comply with modern requirements for buildings in flood-prone areas and was considered a grandfathered, or non-conforming commercial use.

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Town officials also argued in their initial denial of Catts' request that once Riggin started cooking indoors and got a business license to operate Ed's as an eatery, that he relinquished the right to cook outside.

But Paradee said Ed's was non-conforming as an eatery because the town never granted or required a conditional-use approval. He said it is likely indoor cooking also predates the town's conditional-use requirements, and argued any outdoor cooking would be allowed as an "accessory use."

Riggin and Catts both said during Monday's hearing that they were never told by town officials that getting an eatery license would mean they were not allowed to cook outdoors.

The two attorneys debated town zoning codes, flood plain regulations and how those rules relate to Ed's future rebuilding for nearly three hours before the board tabled a decision.

Contact reporter Maddy Lauria at (302) 345-0608, mlauria@delawareonline.com or on Twitter @MaddyinMilford.