Rehoboth’s BeachWalk developer wants city to hear appeal

Attorneys for the BeachWalk development in Rehoboth Beach say the city’s planning commission effectively denied its application for site plan review and are asking the city commissioners to take up their appeal.

Dennis Schrader, attorney for BeachWalk developer Keith Monigle, said in legal briefs that the commissioners have jurisdiction over the case because the planners took final action when they decided to take no further action on the application. The city’s attorneys have argued that the commissioners cannot hear the case because the planners neither approved nor disapproved the project, so no final action has been taken.

Monigle, operating under the company name Ocean Bay Mart, is seeking to build a 63-unit condominium development at the Rehoboth Beach Plaza shopping center on Route 1. The 7.75-acre parcel is zoned C-1 commercial and would be redeveloped with 58 single-family homes and five multifamily units. Monigle filed his plans as a condominium development not a subdivision, meaning the homes would all be built on one lot. The plans met with opposition from city police and fire officials as well as neighboring residents.

The planners ruled in October that the proposed development constituted a major subdivision and asked Schrader and Monigle to file an application as a major subdivision. In separate meetings in December and January, Monigle and Schrader refused the request, asking the plans be considered as submitted. The commission gave them an additional 60 days to file as a major subdivision. If no major subdivision application was filed, the commission stated it would take no further action.

At the end of the 60 days, Schrader filed an appeal with the city commissioners. Attorneys for the planning commission have filed a motion to dismiss the appeal.

“The planning commission paints the decision as final enough to effectively deny Ocean Bay Mart’s application but yet, not final enough for appeal,” Schrader wrote in his legal briefs.

He said the planning commission’s argument is an attempt to avoid a review and called the commission’s attorneys’ interpretation of the city code on this point “creative.”

“The phrase ‘final action’ means exactly what it appears to mean - an action that concludes the matter. The term includes all planning commission votes that, by effect, approve or deny an application. That is what the planning commission did in this case by permanently tabling the application,” Schrader said.

By doing so, he said, the decision is final enough for an appeal. Schrader said the commission in effect denied the application, and now that Ocean Bay Mart has appealed, it is trying to backtrack and say the application was not denied.

“Not only does the planning commission’s new tactic run afoul of basic principles of good faith, but it arguably runs afoul of the ethical standards for quasi-judicial bodies,” Schrader said. “A denial is a denial regardless of how the planning commission attempts to characterize the denial.”

Mayor Sam Cooper has said a decision on the motion will likely come in September.