Attorneys for Stingray Sushi Bar and Asian Latino Grill will get their day in court Tuesday, Feb. 19.
The restaurant's appeal of a ruling by Rehoboth Beach Board of Adjustment will be heard by Delaware Superior Court Judge E. Scott Bradley.
John Paradee, attorney for Stingray, and Daniel Griffith, attorney for the city, said Bradley had dismissed the case because there was no written record of the board’s decision to deny Stingray a variance. Paradee then filed a motion for reconsideration, and during a Feb. 6 conference call, Paradee and Griffith convinced Bradley to hear the case.
The Stingray appeal began nearly three years ago, when the restaurant went to the city commissioners for a permit of compliance in May 2010. It was denied.
Stingray argued that the restaurant does not need a permit of compliance as a prerequisite to obtaining a permit for a 750-square-foot outdoor patio. Stingray enjoys grandfathered status because it was built before the city zoning code was enacted in 1991, however, any modifications of the restaurant require a variance or permit of compliance. Stingray has maintained that the patio is not a modification of the restaurant; both the city commissioners and the board argue it is a modification and required Stingray to conform to the current zoning code.
Stingray owner Darius Mansoory twice went before the board of adjustment for a variance to exceed the city’s 5,000-square-foot building regulation, but his requests were denied. In July 2011, Stingray filed an appeal in Superior Court. The case has taken time to wind its way through the court system because Paradee had included federal due process claims as part of its appeal, kicking the case up to federal court. Paradee dropped those claims, moving the case back to Sussex County.
Among other things, Stingray arguing that the board’s decision denying Stingray a variance was erroneous, arbitrary and capricious. In his briefs to the court, Paradee argued the board has granted variances to other large restaurants, such as The Greene Turtle, Grotto Pizza and The Cultured Pearl, but denied Stingray.
In his answering brief Griffith, and fellow attorney Jarret Hitchings, said Stingray was trying to circumvent the zoning code and relitigate an application that has been denied three times already.
In response to the city, Paradee wrote that Stingray’s application is not a zoning application, but a request for an administrative permit in line with its permitted use. He wrote the board applied the wrong standard in denying Stingray’s variance.
Paradee said it is difficult to predict what will happen in the case. Bradley could rule that Stingray is grandfathered from securing a permit of compliance before obtaining a patio permit, he said. Another possibility, Paradee said, is that the court determines Stingray is not grandfathered and must obtain a variance, but Stingray's variance application was wrongfully denied.
Griffith said because the case has been out so long, he does not expect Bradley to take long in issuing a ruling, possibly 30 to 45 days. He speculated that if Bradley rules in favor of the city, the case would probably be over. If the judge rules in Stingray's favor, Griffith said, it is possible the case could go on if the restaurant chose to proceed on its previous due process claims.