Hotel vs. hotel in debate over height variance

A height variance for a new Route 1 hotel has raised a legal issue about the definition of a hardship, one of the five standards considered by the Sussex County Board of Adjustment in making a decision.

The July 24 debate has also pitted Rehoboth Beach hotels against one another. Tru by Hilton seeks to build a new hotel adjacent to the existing Comfort Inn, which has been operating for more than two decades.

The properties are connected with a cross-access easement and share the same access point onto Route 1. The parcel for the proposed new hotel has been home to Jake's Seafood House since 2003.

Jim Fuqua, attorney for KLEM LLC and a proposed Tru by Hilton, says the hotel can't be built without a height variance, which creates a hardship. He said the company brand requires all of its hotels to have the same design.

Fuqua said a Delaware Supreme Court ruling backs up his hardship claim. “Without a variance, the hotel could not be built, which creates a practical difficulty,” he said.

In addition, he said, the project does not have a negative impact on adjacent properties in the commercial zone along the highway.

Shawn Tucker, attorney for Resort Hotel LLC representing Comfort Inn, says his client conformed with the county's 42-foot height limit. Tucker also used a court ruling to back up his claims – the recent Superior Court decision denying an appeal for a height variance at Jungle Jim's waterpark near Rehoboth Beach because it did not meet all five standards.

Tucker said it's incumbent on the applicant to meet all five standards in Sussex County code for a variance to be granted. He said the applicant can't meet four of the factors, including the required hardship. “It's a slippery slope if a third-party private company can dictate what variances are appropriate,” he said. “I don't think hotel chains should or should not trigger variance requirements because they have their own private minimal standards. There is no evidence on the record that another hotel or restaurant could not be built there.”

Variance would be 13 feet

Fuqua said owner Mike Meoli is seeking a maximum 8-foot height variance for the roof and a little more than 13 feet for the HVAC system on top of the roof. If the variance were granted, the maximum height of the hotel would be just under 56 feet, he said.

The attorney said most hotels in the Route 1 area exceed the 42-foot height limit. In addition, he said, a proposed Days Inn along Route 1 recently received a height variance of 5 feet. He said the request is consistent with other variances approved the board.

The 98-room hotel is planned for 2.1 acres at the site of Jake's Seafood House along Route 1.

Fuqua said Tru by Hilton is the newest of 14 Hilton brands, introduced in 2016. Ten will open this year with 75 scheduled to open in 2018.

He said what is most important to the brand is its design and appearance. “People know what to expect because all have the same design,” he said.

The hotel's site plan was approved April 6 by the Sussex County Planning and Zoning Commission.

Tucker said the Tru by Hilton hotel would have about the same number of rooms but be built on an acre less than Comfort Inn, which results in less overhead for the new hotel owner. “That results in 47 percent greater density and provides the Tru by Hilton with a business advantage,” Tucker said.

He also said the Tru by Hilton owner was granted a waiver in the county's parking requirements for fewer spaces. “That could be an adverse impact with overflow parking on my client's property,” he said.

Meoli said the opposite would be true because Comfort Inn employees park in the Jake's parking lot. “But it works because there are different uses now. With two identical uses it would create a parking problem for us,” he said.

Meoli said the trend is to construct four-story hotels. “Comfort Inn was the last three-story hotel built in Sussex County 20 years ago,” he said. “Virtually every hotel is four stories.”

He said new design features and requirements placed on owners by national companies do not make three-story hotels economically viable. He said Hilton officials would not approve a hotel with less than 90 rooms.

The board tabled the application to the Monday, Aug. 7 meeting.