The developer of a proposed condominium project in Rehoboth Beach known as BeachWalk has appealed a decision by the city commissioners that found BeachWalk must file as a major subdivision.
Wilmington-based attorney Richard Forsten filed the appeal in Delaware Superior Court Feb. 16 on behalf of developer Keith Monigle, owner of Ocean Bay Mart, the LLC that owns the 7.75-acre parcel.
In his appeal, Forsten seeks to reverse the decision of the city commissioners and the planning commission and have the planning commission review the BeachWalk project as a condominium, as originally submitted.
The appeal is based on an argument made by Dennis Schrader, Monigle’s attorney through the city review process, who said the planning commission and city commissioners were bound by a board of adjustment decision in BeachWalk’s favor.
In June 2015, BeachWalk submitted its plans for a 63-unit condominium of 58 single-family homes and five multifamily units in an apartment style complex on a single lot. The project was immediately controversial, with neighbors decrying the project’s traffic flow, lack of green space and parking, safety issues and the sheer number of units packed on a small parcel.
Rehoboth building inspector Dam Molina ruled BeachWalk could not move forward with the plans because the proposal violated city code by having more than one building on a single lot. Monigle appealed Molina’s decision to the board, which reversed Molina’s ruling at a May 2016 hearing.
Monigle’s attorneys, first Schrader and now Forsten, argue the board’s decision is that BeachWalk does not have to conform with city subdivision codes, which include mandated street widths and setbacks. BeachWalk has proposed 20-foot “drive aisles,” while in a subdivision, streets would have to be at least 40 feet wide per city code.
Following the board decision, BeachWalk went before the planning commission for site-plan review, where the planners soon ruled that BeachWalk must apply as a subdivision. When Monigle refused, the planning commission refused to consider the application further, leading BeachWalk to appeal to the city commissioners. On Jan. 26, the commissioners, in a 4-2 vote, upheld the planning commission decision.
“Ultimately, the planning commission’s decision refusing to review Ocean Bay Mart’s application, and the commissioners’ decision upholding the planning commission, are wrong because they are contrary to the board of adjustment’s original May 2016 decision,” Forsten wrote in the appeal. “The board - not the planning commission and not the city commissioners - has the final interpretive power concerning the city’s zoning code, and the board held that Ocean Bay Mart may proceed with its original application.”
City Solicitor Glenn Mandalas said the city will have 20 days to respond to the appeal. Following that, he said, briefs will be filed over the next two to four months outlining each side’s position, and after that, there will likely be oral arguments. Mandalas said the process could take eight months to a year before a final decision is made.