Cape Gazette
http://capegazette.villagesoup.com/p/1013525

Supreme Court dismisses Ruddertowne lawsuit

Justices: Claim was filed after legal deadline
By Kara Nuzback | Jun 10, 2013
Photo by: Kara Nuzback Efforts to halt construction at Ruddertowne failed in a June 10 Supreme Court decision.

Dewey Beach — Delaware Supreme Court has dismissed an effort to halt construction at Ruddertowne in Dewey Beach.

In a June 10 decision, justices say the plaintiffs waited too long to challenge an agreement between the town and Ruddertowne developer Dewey Beach Enterprises.  The agreement allowed construction to begin.

Property owners Tony Murray, Charles McKinney, David Kaminsky and Elizabeth Cadell filed the initial lawsuit in August 2011, challenging the legality of the agreement.  The Feb. 26, 2011 agreement allowed DBE to build in excess of a townwide, 35-foot height limit in exchange for certain amenities, such as designated town space, public restrooms and a baywalk.

Chancery Court Vice Chancellor John Noble dismissed the complaint in May 2012 because the property owners did not file the complaint within 60 days – the legal deadline.

In August 2012, the property owners appealed to Delaware Supreme Court. A panel of Delaware Supreme Court Justices heard oral arguments in the case April 10.

Michael McDermott, attorney for the property owners, said the 60-day statute of repose is valid only for ordinances and amendments to ordinances.  The Ruddertowne agreement was approved by resolution.

DBE attorney Shawn Tucker argued the agreement was a legislative action susceptible to the 60-day statute of repose.  He said the process DBE and the town used to approve the agreement was consistent with a section of Delaware Code that mandates a 60-day deadline for a legal challenge.

According to Delaware Code, the legislative action must be published in a general circulation newspaper, and then opponents have 60 days to challenge the action.

“The statute should be read broadly to accomplish its purpose,” the decision states.  Justice Carolyn Berger wrote the choice of language should not be allowed to defeat the purpose of the 60-day statute.

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