A Rehoboth Beach restaurant's effort to build an outdoor patio is headed for the state Supreme Court.
Rehoboth attorneys have appealed Delaware Superior Court Judge E. Scott Bradley’s decision reversing the board of adjustment’s denial of a variance for Stingray Sushi Bar and Asian Latino Grill to build a 720-square-foot patio.
A briefing schedule has not yet been set; transcripts are due to be filed by Wednesday, May 8.
City attorney Dan Griffith filed the appeal March 26, after Bradley reversed the board’s ruling and then denied Griffith’s motion to reargue.
Griffith did not return requests for comment.
Stingray attorney John Paradee said the appeal came as somewhat of a surprise. He said the board's ruling was capricious and discriminatory, since variances for restaurants in similar situations such as Grotto Pizza and The Greene Turtle were granted.
"The city simply does not like Stingray, and will spare no expense to deny Stingray a level playing field. The city should be embarrassed about the bad-faith treatment Stingray has suffered, and city taxpayers should be outraged," Paradee said.
He said the city moved for a stay of Bradley's ruling to prevent Stingray from operating a patio for the 2013 summer, but Bradley denied the motion. Paradee said Stingray plans to move forward with its patio.
Stingray has been seeking to build the patio for nearly three years. The restaurant first sought a permit of compliance from the city commissioners, arguing then, as it has all along, that the restaurant was grandfathered from the zoning code and the patio was not an expansion of the restaurant.
Stingray is a grandfathered nonconforming structure that exceeds the zoning code's 5,000-square-foot limit, but the restaurant was built before the current zoning code was enacted in 1991. Any expansion of the property would require a variance from the board of adjustment. After being denied a permit of compliance, Stingray went before the board in May 2011 and was denied a variance. A motion for rehearing was denied in July, and shortly after that the restaurant appealed to Superior Court.