Rehoboth sets residency requirement for referendum

Rehoboth Beach is facing two lawsuits over the city charter’s six-month eligibility requirement for voting, but city officials say the requirement will remain in place when voters go to the polls in the upcoming Saturday, Nov. 7 zoning ordinance referendum.

City Solicitor Glenn Mandalas said in order to vote in the referendum, a voter must have owned property or have been a resident for at least six months before the referendum, per city charter.

“We have to act according to our charter,” he said.

Mandalas said the rules of the election would be similar to those of a typical municipal election in that only registered voters will be eligible to vote. The city’s stance comes in light of two lawsuits, one in U.S. District Court and the other in Delaware Court of Chancery, challenging the six-month residency requirement.

The first suit, filed by Rehoboth resident Jackie Nichols in U.S. District Court, is due to go to trial sometime in August 2016 unless a settlement is reached. That suit, filed in July, is challenging the vote allowing the city to pursue $52.5 million in funding for an ocean outfall. The city has filed a motion to dismiss.

A second lawsuit in the Court of Chancery, filed Sept. 17, seeks a temporary restraining order stopping the city from enforcing its new zoning ordinance, adopted July 17. The intent of the ordinance was to shrink the size of residential houses, requiring increased open space and allowing less buildable area, particularly for houses with swimming pools.

Opponents of the ordinance garnered enough petition signatures to force suspension of the ordinance and put it to a referendum. City officials have maintained the view that the ordinance has never been defeated and is considered pending, giving it the force of law.

That continued enforcement is at the heart of the suit filed by Barry and Sharon Covington and Anthony Zacchei, who are seeking a restraining order preventing the city from enforcing the zoning ordinance and asking the court to expedite the proceedings.

The suit says the Covingtons and Zacchei submitted plans to build homes that would have been allowed under the old zoning ordinance but are not legal under the new ordinance. The ordinance is currently suspended, but the Covingtons and Zacchei have not received building permits.

At the same time, the Covingtons say they cannot vote in the referendum election because of the six-month rule. According to their suit, the Covingtons closed on their property June 22. Zacchei closed on his property on April 30, meaning he could vote as of Oct. 30. The suit was filed before the commissioners picked a date for the referendum, and Zacchei was concerned he would also be barred from voting. However, he becomes eligible the day registration closes and is eligible for the Nov. 7 referendum.

The city argues that the ability of nonresidents to vote in Rehoboth was granted by the General Assembly and if invalidated, could have the unintended consequence of not allowing any nonresidents to vote.

"In fact, plaintiffs' challenge to the six-month ownership requirement is self-defeating because, if they are successful, the entirety of the nonresident voting provision must be stricken," the city's brief says.

Attorneys for the Covingtons and Zacchei say the city cannot use the pending ordinance doctrine to keep the suspended ordinance alive. Once the ordinance is suspended it is not pending, they argue.

Zacchei and the Covingtons say they would be irreparably harmed by enforcement of the zoning ordinance. They say because the ordinance is suspended, they have a right to seek a building permit under the old code. If the ordinance is affirmed in a referendum, they will lose that right forever, the suit says.

For its part, the city argues that Zacchei and the Covingtons claims are flawed because they are not city residents. While they own property in Rehoboth, the Covingtons live in Maryland and Zacchei lives in Pennsylvania. The city's attorneys say they cannot challenge the six-month rule since the rule applies only to city residents.

In addition, the city's attorneys argue Zacchei and the Covingtons failed to exhaust their administrative remedies by not appealing the denial of their building permits to the board of adjustment. The city says the Covingtons did not even apply for a building permit, instead sending a letter to building and licensing asking if they could apply.

"Plaintiffs cannot establish they are entitled to judgment on the constitutional claims because they, as nonresident property owners, have no Fourteenth Amendment right to vote in municipal elections at all. Plaintiffs cannot rewrite the charter to overcome the strong presumption that it is constitutional," the city's answering brief says.

The city's attorneys argue the charter states that the only way a nonresident property owner can vote is if they have been a property owner for six months prior to the election. The city's brief says this ability is granted by the General Assembly, which approved the city's charter and gives it the force of state law.

The city is asking for the case to be dismissed.

Forces gather for referendum vote

Meanwhile, competing citizens groups are trying to get voters to the polls.

Just after the referendum vote was announced Sept. 17, a group called Rehoboth Neighbors United formed in support of the zoning ordinance.

“We look forward to the referendum and are sure that the citizens will support the ordinance that preserves the quality of life in our neighborhoods," said spokewoman Susan Gay. "Our group will further grow in strength as the facts about the ordinance are discussed further."

A coalition of homeowners, the group intends to answer questions as to how the zoning ordinance affects them and to correct what they say is misinformation and scare tactics as to what the law contains.

“We’re promoting the ordinance as a balanced and common-sense approach to preserve the unique character of Rehoboth, protect property values, and present options for building and design amid threats from developers who want to make it as easy as possible to build as much as possible in the city," said Gay.

"Responsible rules and zoning have always increased property values in Rehoboth Beach and other cities. This ordinance will keep our property values strong, protect the quality of life in our neighborhoods, and ensure that our community retains its reputation as one of the very best places in America to live, work and visit," she said.

Meanwhile, another citizens group has formed in opposition to the ordinance. Led in part by former commissioner candidate Richard Perry, One Rehoboth Moving Forward has begun sending out letters and mailers encouraging people to register to vote.

Long-term, the group hopes to provide a voice in shaping the city’s future, Perry said, noting in the short term, the goal is to ensure that citizens purged from the city’s voting rolls know they can still register to vote. He said the group also wants citizens to understand the results of the zoning changes.

“One of the missions that this group has is being sure that people understand the consequences and the ramifications of the changes, which on the surface may look simple. People need to understand the impact of those changes on their individual property,” Perry said.

At the commissioners’ Oct. 5 workshop meeting, Perry asked city officials to reinstitute Saturday office hours prior to the referendum in order to give potential voters who may not be in town during the week an opportunity to register to vote.

“I don’t think reinstituting office hours on a Saturday for a couple of weekends should be viewed as all that onerous for the city,” he said.

The city has complied with Perry's request, opening the city administrative offices from 8:30 a.m. to noon, Saturday, Oct. 10, Oct. 17 and Oct. 24. Voters must register in person.

In addition, Perry said the group is also calling for a citizen task force composed of people from both sides of the zoning debate to come together to provide feedback to improve or change the ordinance.

The city is giving voters until the close of business Friday, Oct. 30, to register. Voters can vote absentee with ballots being accepted until noon the day of the election. Absentee ballots are now available at City Hall.