Rehoboth moves pool suit to federal court

Rehoboth Beach attorneys are seeking to dismiss a federal civil lawsuit related to the city’s pool moratorium.

The city moved the case to U.S. District Court in Wilmington after contractor E & R Enterprise claimed it had been denied its constitutional right to due process when city officials denied its request to build a house with a swimming pool. E & R has amended its complaint since the case was moved to federal court.

In the amended complaint, E & R added the city commissioners as defendants as well as building inspector Terri Sullivan. The company maintains it was unfairly denied a building permit for a home with pool even though it had submitted complete plans to the city’s building and licensing department before a hearing on the moratorium was set. E & R’s attorneys, Todd Coomes and Travis Hunter, claim the city issued pool permits to at least one other property owner but denied E & R.

“E & R believes that the city has permitted other property owners, who, upon information and belief, submitted pool applications around the same time as E & R, to construct pools while maintaining that the moratorium precludes E & R’s ability to construct a pool,” the attorneys wrote.

Coomes and Hunter are seeking compensatory and punitive damages for what they call selective application of the law by the city.

City Solicitor Glenn Mandalas said the city moved the case to federal court because of the constitutional claims made by E & R. He said the city has asked Judge Leonard Stark to dismiss the federal claims so the case can be moved back to state court. Because the city has not filed an answer to the complaint, Mandalas said E & R can amend the complaint as many times as they like. The city has submitted a draft motion to dismiss to Stark.

Mayor Sam Cooper said applications for pools filed before the moratorium passed had to be complete enough to determine the pool complied with the code. He said it is the city's position that E & R did not meet that standard.

At a special meeting held Dec. 19, the commissioners began debate on a new pool ordinance that would define and regulate pools.

The ordinance, drafted by a working group headed by consultant Kyle Gulbronson, would require all new swimming pools to obtain a permit. The applicant must submit a layout of the entire building lot where the pool will be located. The city's building and licensing department would also be able to inspect a pool site before a permit is issued.

The ordinance says pools must be at least 10 feet from the property line and pumps and filters must be enclosed to reduce noise.

Houses rented for profit would also need a pool operation license, which would be renewed annually and require inspection. Rental houses with pools would also need to include safety signs and equipment and would need to be maintained by a certified pool operator licensed by the Delaware Division of Public Health.

Finally, the ordinance designates 11 p.m. to 9 a.m. as quiet hours where pool users must keep the volume down. Violations of the ordinance will be considered civil offenses subject to fines.

The commissioners will continue discussion of the draft pool ordinance at their Monday, Jan. 5 workshop meeting.

The commissioners have spent the past two months discussing a new noise ordinance and additional regulations for short-term rentals including registration certificates for units rented for 120 days or less, annual inspections of rental properties and requiring rental houses to have a designated contact person on file at building and licensing who would be available 24/7 to deal with complaints. A good neighbor brochure would be provided for every rental unit.

The commissioners have rejected the idea of occupancy limits, saying it would encourage developers to chop homes into as many bedrooms as possible.

A brief history of pool moratorium

Sept. 12 – Rehoboth commissioners hold joint meeting with the planning commission concerning pools. The moratorium is first proposed, and applicants are directed that any pool applications should be submitted by Sept. 19.

Sept. 15 – E & R submits building application.

Sept. 19 – Commissioners adopt a resolution setting a public hearing on the pool moratorium. City policy has been that once a public hearing is set, an ordinance is pending legislation and has the effect of law.

Oct. 14 – E & R informed its building application was rejected.

Oct. 15 – E & R contractor Allen Walker meets with city officials and is told the application was rejected due to the city’s interpretation of the pool moratorium.

Oct. 17 – Commissioners enact the pool moratorium.

Oct. 23 –City officials meet with E & R to discuss the case.

Oct. 31 – Commissioners meet in executive session to discuss the pool moratorium. The commissioners take no action.

Nov. 17 – After an exchange of letters with E & R on the status of their application, the commissioners hold another executive session. No further action is taken.

Nov. 18 – E & R files suit in Delaware Court of Chancery.

Dec. 2 – Rehoboth attorneys move the case to U.S. District Court in Wilmington.