Attorneys for the Rehoboth Beach board of adjustment filed an opening brief in Delaware Supreme Court in an effort to overturn a Superior Court decision allowing Stingray Sushi Bar and Asian Latino Grill to build an outdoor patio.

The city’s attorney, Dan Griffith, has argued that Superior Court Judge E. Scott Bradley erred in his decision to overturn the board’s ruling against a variance request for Stingray to build an outdoor patio.

The city and the restaurant have been at odds over whether the 28-seat, 720-square foot outdoor patio is an extension of Stingray’s existing restaurant, which already exceeds Rehoboth’s 5,000-square foot building limitation.

Stingray enjoys grandfathered status under the city code, but any expansion of the existing restaurant requires it to comply with zoning regulations.

In the brief, Griffith said Stingray’s request for a variance was correctly denied because the restaurant did not show a substantial hardship, one of the requirements for a variance. Stingray has argued, and Bradley agreed, that the board applied the wrong standard in considering the variance.

“Stingray was seeking permission to allow the property to be used as a large-scale restaurant despite such large-scale restaurants being prohibited in the zone,” Griffith wrote.

Stingray’s answering brief is due Wednesday, July 10. Oral arguments have not yet been scheduled.