Lewes BOA chair will recuse from net reel appeal

Lewes Board of Adjustment Chair Brook Hedge will recuse herself from the Monday, Sept. 20 appeal hearing regarding the menhaden fishing net reel.

Hedge’s recusal comes after emails with Mayor Ted Becker have come to light in which she expressed an opinion on the issue. City Solicitor Glenn Mandalas shared the emails with the board and Lewes Historical Society’s attorneys early Sept. 8. In the email, Mandalas said he was obligated to share Hedge’s emails in the interest of transparency and fairness.

Becker and Mandalas each declined to comment. Hedge also declined to comment other than to state she had notified all parties Sept. 8 that she had chosen to recuse.

Mark Dunkle, attorney for Lewes Historical Society, is urging the city to take even further action. He hand delivered a request to city hall Sept. 9, asking the city to remove and replace Hedge.

“Sitting out the hearing by recusal is not sufficient given the conduct, and it leaves the applicant with less than a full five-member board, which puts the applicant at a disadvantage not of its own making,” Dunkle said. “Removal and replacement by council with unbiased members so there are five voting members is what’s requested to restore confidence in the fairness of the board of adjustment.”

In the email exchange between attorneys, provided by Dunkle, board of adjustment attorney Barrett Edwards says board member Bill Sharkey has also chosen to recuse, leaving the board with three members to consider the appeal.

Dunkle has requested the Sept. 20 hearing be postponed until board of adjustment membership is back to full strength.

Edwards said the meeting will not be postponed.

“I’m not aware of any authority we’d have to temporarily replace those members for purposes of holding this hearing with a full board,” he wrote in a Sept. 8 email to Dunkle. “With respect to any potential bias of the remaining three members, they enjoy a presumption of impartiality.”

If Dunkle can provide evidence of bias with one of the remaining board members, he said, it can be addressed at that time.

Recusals are not uncommon in local government when a voting member of a committee, commission or council has a conflict of interest or has publicly expressed an opinion on the issue at hand. Recently, three members of the planning commission recused themselves from consideration and a Sept. 1 vote on the controversial Fisher’s Cove major subdivision application.

While a lot has been said about the appropriateness of the menhaden fishing net reel on the Lewes Historical Society campus, the issue before the board of adjustment will be whether the historic preservation architectural review commission has authority over the cultural/historic zoning district, in which Lewes Historical Society sits.

In a Sept. 8 email to Dunkle and Edwards, Mandalas said he will address at the Sept. 20 meeting the code requirement that says Lewes Historical Society is subject to review by historic preservation, and will not address the net reel or the political and racial positions that have been advanced.

“Those are not issues subject to the board of adjustment’s review,” he wrote.