A Delaware Superior Court judge has overturned the Rehoboth Beach board of adjustment's denial of a variance for an outdoor patio at Stingray Sushi Bar and Asian Latino Gril.
Delaware Superior Court Judge E. Scott Bradley reversed the Rehoboth board of adjustment’s ruling denying a variance for the restaurant to build a 720-square foot patio. Bradley agreed with Stingray attorneys that the patio was not an extension of the premises, and that the board applied the wrong legal standard in denying a variance.
After Bradley's original decision on Feb. 28, city of Rehoboth attorney Dan Griffith filed a motion to reargue the case.
The city maintained all along that the patio is an extension of the restaurant. In his decision, Bradley said as defined in the city code, modifications and extensions are limited to the portion of the structure used as a restaurant.
“In order for Stingray to have to obtain a certificate of compliance, the addition of a patio would have to cause an enlargement of the structure that Stingray uses for restaurant purposes,” he wrote.
Continuing, Bradley wrote, “The addition of a patio will not require an enlargement of the structure that Stingray uses for restaurant purposes. Thus, Stingray does not need to obtain a certificate of compliance.”
Bradley wrote that city code defines a patio as a deck or porch used in connection with the restaurant, although not necessarily attached. He said if the patio is not necessarily attached, then it is not part of the restaurant, and the addition of a patio is not an extension of the restaurant.
Bradley also found that the board applied the wrong standard in denying Stingray’s variance. The board grants variances based on whether the applicant can prove a hardship or exceptional practical difficulty if the variance is not granted. While the board asked 11 times about hardship, Bradley said, not once did it ask about an exceptional practical difficulty, which is the standard the board should have applied. He said in this case, an inability to improve one’s business in the face of area limitations qualifies as a legitimate exceptional practical difficulty.
In his response, Griffith wrote Bradley misapplied the law.
Griffith said Stingray, in its own words on its permit of compliance application, referred to the patio as an expansion.
“The plain and ordinary meaning of those words made clear that a patio was, in fact, an extension of the restaurant’s premises,” he wrote.
Griffith said Stingray, 59 Lake Ave., began by filing for a permit of compliance, which would only be necessary if Stingray knew it was seeking an expansion. He wrote that Stingray’s variance request related to the use of the property and should be held to the standard requiring the restaurant prove a substantial hardship.
John Paradee, attorney for Stingray, said seeking a permit of compliance was not an acknowledgment that the patio was an expansion. He said Stingray was forced to seek the permit at the insistence of the city’s building and licensing department. Paradee said Bradley’s decision was correct, and the city’s reargument should not be heard.
Bradley agreed, and denied the city's motion for reargument, reaffirming his original decision.
Stingray originally went to the city in April 2010 to get a permit to operate an outdoor patio; the city commissioners denied the request. A year later, Stingray went before the board of adjustment for a variance, which was needed before a permit of compliance could be granted. The restaurant's area is more than 5,000 square feet, but was grandfathered since it was built before the zoning code was adopted in 1991, making it a legally nonconforming use. When the board denied the variance, Stingray went to court.