State officials said this week the state of Delaware owns the water and the lake bed beneath Rehoboth's Silver Lake.
That finding is based on public land surveys commissioned by the General Assembly in the late 1970s, Department of Natural Resources and Environmental Control officials say.
Still, some issues remain ambiguous.
Deputy Secretary David Small said public land surveys completed in 1978 were primarily focused on the boundaries of oceanfront lots, not lakefront lots. As issues with Silver Lake have arisen in recent years, state officials took another look at the surveys and determined that the lake and lake bed are public land.
The department is still sorting through the rights of property owners around the lake, some of whom claim property into the lake. Small said DNREC is still assessing property rights that may have been conveyed to surrounding landowners through the years. Because the public lands survey show only the shoreline and not boundary lines, Small said DNREC must examine the deeds of lakefront property owners to determine who owns what.
Small said he does not know how many Silver Lake property owners have deeds showing their property extends into the lake.
Lakefront property owners have claimed land into the lake twice in the past two years, both times drawing the ire of lake advocates and city officials.
The first instance was the house at Lot 6 Silver Lane, which was granted a building permit because it met city setback requirements, partly by claiming the property line lies in the lake. Citizens from Save Our Lakes Alliance3 and the Rehoboth Beach Homeowner’s Association banded together with neighbors to appeal the building permit, but the city’s board of adjustment declined to hear the case because the appeal was not filed within 30 days of the date the building permit was issued.
Ironically, a member of the board, the only one to vote yes on hearing the appeal, is now at the center of the second lake-building controversy.
Frank Cooper began building a dock and gazebo at his new house on East Lake Drive after the city passed a moratorium banning building within 15 feet of the lake. Cooper’s dock does not touch the land, and city officials have said the dock is in the lake, which is not within the city’s jurisdiction.
Cooper, who said his agreement to buy the house included riparian rights, contacted DNREC before building the dock, which Small confirmed. Small said Cooper inquired about a subaqueous lands permit to build the dock. However, Small said it is DNREC's position that the Delaware Subaqueous Lands Act does not apply to Silver Lake because it does not connect to another state-owned body of water. Asked who has the jurisdiction to grant permits for building in Silver Lake, Small said he did not know.
Mayor Sam Cooper said he can not understand the state’s position because DNREC says the state owns Silver Lake, yet the lake's subaqueous land is not regulated by the Subaqueous Lands Act.
Small said the situation with Cooper’s dock highlights the need for DNREC to be consistent and equitable to lakefront property owners in establishing its ownership over the lake. He said the department would prefer to conduct more research, go through some kind of public process and then take action that has legal standing.
While there is no timetable for this, Small said, “We need to do it sooner rather than later.” He said the public process would not only have to include the public, but also Rehoboth, Dewey Beach and Sussex County, whose jurisdictions the lake lies in.
Meanwhile, Rehoboth officials are pushing forward with two measures included in the planning commission’s report on improving the health of the lakes: a 10-foot no-build zone for lakefront properties and site-plan review for any new construction within 25 feet of the lake’s edge.
Mayor Sam Cooper said other than those two measures, there’s not much more the city can do until DNREC makes it clear what its responsibilities for the lake will be. Cooper said the commissioners should discuss the 10-foot no-build zone ordinance because the city’s moratorium is due to expire Friday, Feb. 15.
“We need to discuss and decide to either extend it, let it die or have an ordinance,” he said.
Cooper said the city is also forging ahead with the proposed ordinances because city officials and not the state regulate zoning.
Still, Cooper said there is work to be done to coordinate with DNREC officials so city departments, such as building and licensing, can enforce city code. Cooper said issues that must be worked out include gazebos and docks.
“Will they be allowed? Will the ones that are there have to be taken out? Will there be sunsetting?” Cooper asked.
Small said DNREC has taken ownership of other bodies of water in the state, mostly ponds, that already had docks built on them, and that in those situations, existing docks were allowed to stay but no new docks were permitted.
Commissioners to meet Feb. 4
The commissioners will discuss a draft ordinance of the 10-foot no-build zone at their 9 a.m., Monday, Feb. 4 workshop, while a public hearing will be held Friday, Feb. 15, on the site-plan review ordinance.
Besides the 10-foot no-build zone, the Rehoboth commissioners will also discuss the information technology department with new director Max Hamby.
The commissioners will discuss a draft emergency operations plan, Boardwalk amenities and an update on state requirements for commercial recycling.
Finally, the commissioners will discuss the 2013-14 budget and will hear committee reports from the Communications Committee and the Streets and Transportation Committee.