Troubles continue at Paradise
Paradise Grill attorneys say residents of Pot-Nets Bayside lease their land and are not property owners. Therefore, they say, the restaurant did not have to mail notification to Pot-Nets Bayside residents about plans to expand the restaurant.
Paradise Grill is seeking to build a 19,000-square-foot addition to the existing restaurant on Bay Road in Pot-Nets Bayside. The addition would include a stage, a raw bar and bar, each with 24 seats each.
Residents from Pot-Nets Bayside and the Peninsula across Indian River Bay from Paradise Grill, protested the plan. Most protestors said the restaurant is already too noisy. In August, Paradise Grill was cited for excessive noise by the state Alcoholic Beverage Control Commission.
At a May 11 ABCC hearing, protestors also said they did not receive proper notification by mail of Paradise Grill’s intentions. State law states property owners who live within 1,000 feet of the premises should receive mailed notification. Commissioner John Cordrey agreed property owners must be notified, but allowed Paradise Grill’s attorneys to file legal briefs in their defense.
The Grill’s brief, filed May 20, argued the protestors are not real property owners because they lease their land, so state guidelines do not require mailed notice.
“These individuals live in mobile homes on land which they do not own,” the brief says.
Because a mobile home can be moved, the attorneys say it is not reasonable to require notice. Real property, they argued, has a fixed, definable location.
“These individuals are asking the commissioner to determine that they are property owners, presumably because they own their mobile homes, which are parked in the community. Mobile homes are defined by the Delaware code as vehicles,” the brief says.
In addition, the Grill’s attorneys argue, a mobile home cannot be placed on a permanent foundation unless the person owns the property or owns a 99-year lease, neither of which apply in this case. Leases in Pot-Nets, the attorneys say, are only for one year.
“These leases are, therefore, not considered ownership interests in real property,” the brief says.
The Grill’s attorneys say the Pot-Nets residents are just that, residents, not real property owners: the real property taxes are paid by the landowner, Tunnell Companies. The attorneys argued residents in the area received notice of the Grill’s plans through local newspapers and were certainly able to attend the protest hearing.
Paradise Grill sent out seven letters of notice to land owners within 1,000 feet, a list they said was provided by Sussex County. The attorneys also say it is the past precedent of the ABCC to grant applications without notice to lessees.
Cordrey said the next step is for the protestors to file an answering brief if they so choose and then he would decide whether proper notice was provided. He said if he rules the notice was proper, the hearing on Paradise Grill's application would continue. If not, the application would be denied and the restaurant would have the opportunity to refile.
