Delaware Superior Court has upheld a Dewey Beach Board of Adjustment decision that any structure built on Ed’s Chicken and Crabs property must follow current zoning and floodplain requirements.

The Nov. 30 opinion found the BOA’s decision was supported by substantial evidence, free from legal error and based on testimony from the proprietor, Ed Riggin.

The restaurant received legal, nonconforming status as an outdoor food and beverage enterprise when Dewey incorporated as a town in 1981. Riggin added a shack, including an indoor kitchen, in the mid-1980s. The property is owned by W&C Catts Family Limited Partnership.

Riggin testified he occasionally still cooked outside, but told the court the outdoor kitchen “wasn’t needed” after the indoor kitchen was built, Judge Richard Stokes wrote. The nature of Ed’s Chicken then became an eatery as defined by town code.

In August 2016, a drunk driver crashed into the property, causing a fire that destroyed the Dewey landmark. Property owner Rusty Catts sought to maintain the business’s legal nonconforming status, but the town denied it, because he abandoned its nonconforming status as defined by city code for a continuous period of at least one year after the indoor kitchen was built.

The board upheld the town’s denial in March, and also affirmed the town’s decision that a new structure must comply with federal requirements that any new structure be raised because the lot is in a flood-prone area.

Dewey Town Manager Scott Koenig said he was happy with the court’s ruling, but noted an appeal can be filed within 30 days.

“We are consulting with our attorney about next steps from a code enforcement timeline,” Koenig said. “We intend to pursue code enforcement actions against the property unless the property owner voluntarily complies with our codes.”

Dewey Mayor TJ Redefer said the town will wait until all appeals periods have passed before taking any action.

“I know the owners of this property,” he said. “These are good people with a long family history of working with Dewey Beach, and I am confident that once the legal questions are resolved, that they will begin again and get the property back in shape.”

Catts’ lawyer John Paradee said he and his client are evaluating whether to appeal the court’s decision.

“It is hard to fathom how the law would preclude a property owner from rebuilding a business that was destroyed by a fire caused through no fault of the property owner,” he said.

Paradee said his client only wants to restore the property to the same condition it was prior to the fire.

“We believe that town code provides relief for a property owner who finds himself in this unfortunate circumstance through no fault of his own,” Paradee wrote. “Obviously, the court decided otherwise, and that outcome is disappointing.”