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Rehoboth board rejects zoning appeal

Cape Gazette of Lewes, Delaware

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The Rehoboth Beach Board of Adjustment, by a 3-2 vote, upheld the city's building inspector's decision denying a building permit to a St. Lawrence Street couple who tried to submit plans while the city's new zoning ordinance was suspended. The board's vote came after a lengthy hearing April 25 in which the board first had to rule that it had jurisdiction over the case before hearing the actual appeal. At the board's March 21 meeting, City Solicitor Glenn Mandalas moved to dismiss the case, brought by Barry and Sharon Covington, 105 St. Lawrence St., on grounds the board had no jurisdiction over the matter. The Covingtons' attorney, Gene Lawson, had previously taken the matter to Delaware Court of Chancery, where a judge agreed with the city's assertion that the Covingtons had not exhausted their administrative remedies.

Last fall, Lawson had led a petition for a referendum on the city's new zoning ordinance, passed July 17. When enough signatures were reached to trigger a referendum, the ordinance was suspended. The Covingtons had submitted building plans before the ordinance was enacted, a plan that complied with the old code but did not meet the lot coverage requirements of the new one. Lawson argued that once the new ordinance was suspended, the Covingtons' plans should have been approved. However, the city took the position that even though the ordinance was suspended, it fell under the pending ordinance doctrine in the city charter, which states that once a hearing is set on a piece of zoning legislation, the ordinance has the force of law. After the Court of Chancery ruling, the case, one of six similar cases, went back to the board of adjustment. In his motion to dismiss, Mandalas said the board could not rule on the Covington case because the board's powers are limited to zoning matters, not the city charter. Board Solicitor Craig Karsnitz immediately challenged Mandalas' argument, saying the building inspector made a decision to apply a code provision; and the board has the power to review decisions of the building inspector. Lawson stuck to his argument that the pending ordinance doctrine did not apply because the ordinance had been suspended without effect. He agreed with Karsnitz's assertion that the board has the power to review decisions of the building inspector and thus, had jurisdiction over the case. The board unanimously voted that it had jurisdiction to rule on the case, denying Mandalas' motion to dismiss. In reviewing the actual case, Mandalas and Lawson made the same arguments made in the jurisdiction matter. Chairman Tom Evans asked for a motion from the board and member Chuck Donahoe moved to deny the appeal, but the motion was not seconded. After no member of the board made a motion to reverse the building inspector's decision, Donahoe again moved to deny the appeal, which was then seconded by board member Clif Hilderley. "It's clear to me the pending ordinance doctrine applies," Hilderley said. Donahoe, Hilderley and board member Doug Popham voted in favor, while Evans and member Myrna Kelley voted no. Evans then asked Lawson whether he wanted to go forward with his second appeal, this one on behalf of Real Property Development LLC, owners of 102 Rodney St. Lawson asked for a continuance to confer with his clients about what they wanted to do next. Mandalas immediately asked the board not to continue the hearing but to vote on the second case right then and there. That led Karsnitz to quip, "Mr. Mandalas, you were the one that didn't want us to hear these cases altogether." The board granted Lawson's continuance; Lawson could also appeal the board's ruling to Delaware Superior Court of Court of Chancery, but he said he did not know how his clients would proceed.

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Original Publication Date: April 29, 2016

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