Rehoboth zoning ordinance again under fire

Two Rehoboth Beach property owners are challenging the city’s new zoning ordinance, but whether the city will allow them to make their case is still to be determined.

At a March 28 meeting, the Rehoboth board of adjustment continued a hearing on two appeals brought forth by attorney Gene Lawson.

The property owners, Barry and Sharon Covington and Real Property Development LLC, have appealed a building inspector’s decision denying a building permit because their application did not conform to the new zoning code, passed in July and affirmed at referendum in November.

The Covingtons had been part of a lawsuit in Delaware Court of Chancery where they argued their plans, which complied with the old zoning code but not the new one, should be approved because the ordinance had been suspended prior to the November referendum.

The city argued the new ordinance remained in effect as a pending ordinance under city code, meaning it had the force of law prior to a vote by the city commissioners. The city also argued the Covingtons had failed to exhaust their administrative remedies because they did not appeal the building official's decision to the board of adjustment.

The case was dismissed without prejudice; Judge Sam Glasscock agreed with the city’s contention that the Covingtons had not exercised all administrative remedies. Glasscock's decision allows the Covingtons to first exhaust their appeal to the board of adjustment.

Lawson said after Glasscock's ruling, the Covingtons and six other clients, including Real Property Development, filed their plans with the building inspector and were denied. Lawson's clients appealed the ruling to the board, necessitating the March 28 meeting.

At that meeting however, City Solicitor Glenn Mandalas moved to dismiss the Covingtons' and Real Property Development’s appeals, arguing the board did not have jurisdiction over the case because the claims were matters related to the city charter, which the board does not have authority to rule on.

The board is a quasi-judicial body that rules on zoning matters specifically, appeals of building inspector decisions or variance requests.

Mandalas cited case law he said supported his position. Lawson and the board were both caught off guard by Mandalas’s position, as he had not presented any case law or arguments before the March 28 meeting.

Board solicitor Craig Karsnitz was incredulous that the city had argued in Court of Chancery that the Covingtons had not exhausted their administrative remedies, but Mandalas was now arguing the board had no jurisdiction.

“How can you stand before this board and say there is no jurisdiction? Isn’t that completely contrary to the papers you filed in a court of law?” Karsnitz asked.

After the meeting, Lawson accused the city of talking out of both sides of its mouth.

In his defense, Mandalas said he had only come up with his argument just prior to the meeting.

"Something felt wrong about this," he said.

Karsnitz said it was unfair to Lawson to put together a legal argument and present it the night of the meeting without allowing Lawson the chance to see it first.

Board Chairman Tom Evans said Mandalas’ actions were atypical.

“As a lawyer, you’re doing some of the strangest, oddest things I’ve ever seen,” Evans said.

When it came time for Lawson to speak, Karsnitz and Evans all but begged him to take a continuance, to give him more time to react to Mandalas’ arguments. After a 10-minute break in which they allowed Lawson time to speak with his clients, Lawson elected to go on asking the board to make a ruling on the matter, reasoning that no matter how it turns out, the decision will be appealed.

“To use the old Western term, I’ve been bushwhacked,” Lawson said.

The board moved to continue the hearing until its next scheduled meeting, Monday, April 25. The board also required both attorneys to submit arguments in written briefs prior to the April meeting.