By code, a buildable lot must be 5,000 square feet. The proposed ordinance, which is still in its first draft, would allow a minimum lot size of 4,500 square feet with four conditions:

• The newly created lot is one or more lots shown on a subdivision plat previously approved by the city where a lot or lots have merged with one or more lots

• All new lot lines are unchanged from those shown on the original subdivision plat

• Any remaining portion of the merged parcel, from which the new lot is created, meets the minimum requirements for the creation of a new lot

• No lot that is adjacent to a 5,500-square-foot lot can be 4,500 square feet.

The city began examining minimum lot size after a case involving property at 84 Park Ave. The property owners wished to partition their lot into two separate lots, thinking they had two 5,000 square foot lots. However, building and licensing officials discovered the two lots did not contain 10,000 square feet. The owners first went for a variance from the board of adjustment but were denied. They then asked to buy a sliver of land in the city right-of-way but were again turned down.

City solicitor Glenn Mandalas said city officials were sympathetic to the Park Avenue owners and set out to create an ordinance that would solve the problem and accommodate other property owners who may be in a similar situation – without being detrimental to the city.

“The owners on Park Avenue highlighted a situation that could occur there and several other places around the city,” he said.

The matter was referred to the planning commission, which weighed in on the issue at its Friday, Sept. 11 meeting.

Commissioner Harvey Shulman said, “This is a lawyer’s dream. Someone is going to come in and say ‘I have this proof that this happened,’ and then we may disagree or we may disagree with the city commissioners. We’ve had this even with things that were not as opaque as this.”

Shulman suggested looking at the recent court decision involving the Rehoboth Art League and Henlopen Acres before moving forward with the ordinance. In that ruling the Delaware Superior Court determined the art league property was one lot, after the town’s board of adjustment had deemed it two lots.

Shulman said, “It [the court decision] might say something that is really important. I really don’t think we should get too deep with this. It’s a very complicated issue.”

Commissioner Patrick Gossett said of the ordinance, “It seems like a Band-Aid to me. It’s creating greater density. And basing it on when the community was established 130, 150 years ago, density has a whole different meaning. This is moving backwards, in my opinion.”

Commissioner Jan Konesey said, “I don’t understand what the goal is here. It goes against everything we’ve been trying to do, not just the planning commission, but the city as a whole.”

Chairman Preston Littleton said, “I think we all think we could be opening Pandora’s box.”