Dewey Nalu expansion approved

Despite restauranter Regan Derrickson’s admission he hasn’t adhered to a requirement of Nalu’s current conditional-use permit, Dewey Beach commissioners voted unanimously July 19, to pave the way for its expansion, noting the town has also not been enforcing its own code.

A new indoor dining area will include four four-seat tables, a 20-seat table, a nine-seat bar, a new set of men’s and women’s bathrooms, a storage area and an office, according to submitted plans. The stage will move to the new indoor dining area, which will connect to the outdoor patio via two sliding-glass doors.

Derrickson said his engineer told him that new energy and building codes now require substantial wall insulation which will help with noise. Derrickson said he was unaware that any neighbors except Jill Carr had issues with the restaurant’s noise levels until a letter to the editor appeared in the Cape Gazette June 11.

The expansion is a better setup than the current one, he said, because the stage will move to a more interior location. Now that he knows how residents feel, Derrickson said he will do his best to be a good neighbor, within reason. 

During public comment, five people spoke against the expansion and two people spoke in favor. Town Clerk Kate Banaszak said officials received 11 emails in favor and 14 against. Two people who wrote emails also spoke during public comment, she said, with one in favor and one against.

Noise and people on the deck after the 11 p.m. permitted time were the greatest issues voiced by residents. 

Carr, who lives two homes from Nalu, played a recording she said was made at 10:15 p.m. in her dining room with her doors and windows closed. The music from Nalu measured between 70 and 74 decibels, she said. 

Carr said she sent videos to commissioners of people on the deck after 11 p.m., and that the two new sliding-glass doors will be kept open. She said she has asked Derrickson to turn down the music and close the current sliding-glass door, but he wouldn’t. Derrickson has never been a good neighbor, Carr said, stating she wished commissioners would listen to the people who are affected by the noise. 

Van Dyke Avenue resident Diane Hanson said many residents have complained about noise and asked if police officers have the tools necessary to measure the sound. Nalu has been on good behavior since the letter to the editor appeared, she said, so the volume can be lowered. Hanson recommended waiting a year to see if Nalu follows regulations because allowing the conditional use now would be rewarding bad behavior.

Larisa Sawhney of Van Dyke Avenue said the ordinance doesn’t protect residents who “have been living in a threshold of annoyance” for years and are at their wit’s end with the noise.

Speaking in favor, Nalu employee Craig Krick said Derrickson is a responsible businessman and that the relocation of the stage will reduce noise.

Collins Avenue resident David Karp said deck patrons are told they must leave the outdoor area at 11 p.m. Karp said he hears a lot of fear and hyperbole, not facts, in opposing arguments, and businesses shouldn’t be prevented from expanding based on fear.

Commissioner Gary Persinger said the town is not meeting code because it doesn’t have an American National Standards Institute-certified police officer measuring sound levels in both dBA and dBC readings on a sound-level meter properly calibrated to ANSI standards. The town needs a more reliable, code-compliant way to measure sound levels, he said.

Attorney Elio Battista Jr., representing Derrickson, said the town’s problem with the code and how it is enforced is an issue for another day. The expansion plan is code-compliant, Battista said.

“We can’t do more than follow the law,” he said.

Persinger said the town needs more assurance Nalu will address the noise issue and clear the deck when required, noting Nalu’s current conditional-use permit is very clear that the deck needs to be emptied of patrons at 11 p.m.

Nalu made a big point about following the letter of the law in that sliding-glass doors are not windows, Persinger said, but has inconsistently followed a clear regulation regarding the deck.

At the planning and zoning commission’s June 27 public hearing on the proposed expansion, Assistant Town Manager Jim Dedes said when Nalu’s original conditional use was written, town leaders assumed the condition that windows must be closed at 11 p.m. would include sliding-glass doors, but they were mistaken. At that same meeting, Derrickson said he did not have to close that door at 11 p.m. but he would if needed. ​​

Commissioner David Jasinski said the town received a number of videos showing people on the deck well past 11 p.m., so Nalu hasn’t been following the requirement.

Derrickson said he had a problem with the outdoor dining expansions granted during the pandemic allowing people outside after 11 p.m., which he said was not fair to him.

“So that was my justification for that,” Derrickson said.

Jasinski said that’s not what Derrickson agreed to in his conditional use. “I don’t understand your point,” he said, noting he was a little concerned the town would be getting something other than what was sold to it.

Going forward, Battista said, Nalu will comply with the law.

When Persinger suggested Derrickson work with the town in the off season to determine an appropriate sound level, Derrickson said he has already been doing that.

Commissioner Paul Bauer said the solution lies with enforcement of the noise ordinance and that he was pretty sure the applicant wants to follow the rules. The town needs to do a better job enforcing the code, he said. 

Mayor Bill Stevens said he saw three issues at play. First, the code is inconsistent and council needs to ensure the town follows what is put in the ordinance. The ordinance needs teeth, he said, which is a task for another day. Finally, he said, when evaluating such changes, the town can’t look to the current operator, who is a good person, but rather what would transfer in the future if the property changes hands.

Stevens asked for a motion that requires a fixed placement of speakers as part of the plan and that all doors and windows must close at 11 p.m., which he said is a condition the town will gain that was not previously in place.

Addressing Derrickson, Stevens said: “I realize other people, and I know who you’re referring to, have taken liberties and it’s our job to make sure from an ordinance standpoint, from a town standpoint, to get those decks cleared at 11. But just allowing people out there because other people do, it’s not good.”

Jasinski motioned to approve the application with the conditions that the deck be cleared at 11 p.m. and that all windows and doors be closed at 11 p.m., except the egress doors on the east and northwest corner which can’t be propped open but which can be used. 

Further, Jasinksi said, the building is to have permanent insulated walls and is to be fully enclosed with double-pane glass windows and doors, and all speakers must be placed so they are not facing the exterior of the premises and are approved by the town building official.

Commissioners approved the motion unanimously, though Persinger said he felt some unease doing so, because the application follows the code, increased soundproofing will help reduce noise and that they trust Derrickson to follow the code and the town to enhance enforcement.

All existing conditions remain in full force and effect, Town Counsel Fred Townsend said.