Dewey says no to rebuilding Ed's Chicken as it once stood
Maddy LauriaEd's Chicken and Crabs in Dewey Beach can be rebuilt, but its owners need to comply with modern laws regarding construction in a flood zone and will need additional permission to cook outdoors.
The Dewey Beach Board of Adjustment sided with town officials on Monday night, unanimously voting to uphold previous decisions not to issue a building permit or validate Ed's grandfathered status. The board's ruling rejects an appeal filed by the owners of the former site of Ed's Chicken on the corner of Del. 1 and Swedes Street.
Property owner Rusty Catts, who was out of town during the vote, said he will have to discuss his legal options with his attorney.
"My gut instinct is to appeal the decision because it's not right," he said.
An appeal of the board's decision would go to Superior Court.
The decades-old restaurant was destroyed in August 2016, when Michelle Small of Camden-Wyoming crashed her 2013 Mini Cooper into the building, severing a propane line and sparking a massive fire.
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.
Attorneys for the Town of Dewey Beach and property owner W & C Catts Family Limited Partnership debated for three hours on Feb. 26 whether Ed's Chicken legally could keep its grandfathered status and avoid complying with modern floodplain regulations.
W & C Catts' legal representation hinged his argument on the fact that the building was destroyed by no fault of the owners.
That debate came after W & C Catts filed an appeal to a town building official's denial of an application to rebuild the eatery as it was before the devastating fire.
Ed's Chicken began as a simple operation with an open-air grill and limited menu in 1978 – three years before the Town of Dewey was incorporated. A shack constructed in the 1980s moved most of the operations indoors. In 2001, Ed Riggin, who owns the business but not the land, applied for a business license as an eatery, which requires indoor cooking and approval from state health officials.
The board agreed that since the building was constructed, Riggin and property owners could not cite consistent examples of using the site for open-air food preparation.
Because they instead mainly used the property to cook indoors and applied annually for the eatery license, Ed's essentially forfeited its nonconforming status before the fire occurred, the board ruled.
"It's been operating as an eatery since 2001 and gave up its right for outdoor cooking," said board member Rick Dryer.
The board also unanimously voted to uphold the town's decision that any rebuilding on that property would have to comply with modern floodplain regulations, which require one foot of freeboard plus two feet of elevation.
"The town’s not trying to take their legal rights away and building in the same footprint is good," said board member Rick Dryer.
"It's going to flood," said board member Julie Johnson. "It floods there all the time. [Elevating the building] protects everybody."
Contact reporter Maddy Lauria at (302) 345-0608, mlauria@delawareonline.com or on Twitter @MaddyinMilford.
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