Rehoboth Beach officials have proposed an ordinance that would establish a 10-foot no-build buffer around Silver Lake and Lake Gerar.
Recommended by the planning commission, the ordinance is a permanent measure to replace a 15-foot, no-build moratorium around Silver Lake that expires Friday, Feb. 15.
Mayor Sam Cooper said, “The state now says they own the lake, but they are not yet ready to take administration of it. So that leaves us in a little bit of a limbo."
In addition to an ordinance establishing the 10-foot, no-build ordinance, the city will also hold a public hearing on an ordinance to require site-plan review for any proposed structure within 25 feet of the lake’s edge.
DNREC officials say the state owns Silver Lake and the lake bed, but the department has not resolved ownership issues with lakefront property owners, some of whom claim ownership of land into the lake. Deputy Secretary David Small has said DNREC intends to conduct more research and gather public input on the issue.
A search of property records ordered by the General Assembly in 1978 established Delaware owns the lake, but DNREC did not assert authority over the lake until recent issues – such as dredging at the west end of Silver Lake, the house built at Lot 6 Silver Lane and the dock built by Rehoboth resident Frank Cooper – forced the agency to reexamine the ownership question.
Michael Globetti, spokesman for DNREC, said the department declined further comment.
Cooper said ownership of the lake remains a wild card, but the proposed Rehoboth ordinance would keep all land within 10 feet of the ordinary high water mark of Silver Lake and Lake Gerar as natural area.
Still under discussion is whether riprap could be part of the natural area and whether fences will be permitted. Building inspector Terri Sullivan said the city’s current position is that riprap is not permitted in the natural area.
Asked whether anyone could build a dock on the lake, city solicitor Glenn Mandalas said Rehoboth’s ordinance regulates only land use, not water rights.
Mandalas questioned whether anyone has riparian rights to the lake.
“I’m not sure those deeds granting riparian have any merit to them,” he said.
Save Our Lakes Alliance3 attorney Gene Lawson reviewed ownership rights of Silver Lake. According to Lawson’s research, which went all the way back to the days of William Penn, the state has always owned the lake and riparian rights have never been conveyed to anyone, making the state the rightful owner.
“The state of Delaware’s pre-Revolution title to the subaqueous bed of Silver Lake has been unchallenged. No person can claim title or interest in real property belonging to the state unless such title has been acquired by deed or conveyance executed by a duly authorized official of the state,” Lawson wrote.
Lawson said he has not gotten any response from DNREC on his findings. He said he also sent his research to the city, which has also asked state officials for a response.
Lawson’s research was conducted, in part, during preparation for his case against the building permit for Lot 6 Silver Lane, when property owners claimed ownership into the lake when it sought a building permit. The city’s board of adjustment declined to hear the case because Lawson's appeal was not filed within 30 days of the permit's issue.
Lawson said property owners around the lake claimed property into the lake in part because the state has never told them they are wrong. He said court and state records have shown that no riparian rights have ever been granted by the state.
“The goal was for the city or the state to take this and either tell us we’re wrong or do something about it,” Lawson said.