BeachWalk is really a subdivision

January 19, 2018

In his Notice of Appeal letter to the mayor and commissioners dated March 21, 2017, BeachWalk's attorney argued five reasons the appellant has been aggrieved. Three of the appellant's five reasons relied on an unsupported assertion that the project is "a single parcel condominium project," and not "a subdivision." But the appellant's site-plan proposal is not for a single parcel or for a condominium.

The appellant's proposal is for a subdivision, and the appellant has failed to file the application necessary for the City of Rehoboth Beach to approve a new major subdivision. The appellant's application for site-plan review should be denied approval, and the appellant should be required to file the correct application(s). More specific reasoning and support follows.

First, the appellant's own survey shows the "single parcel" comprises parcel "A" in the City of Rehoboth Beach, zoned C-1 (Commercial), combined with Parcel "B" located outside the City of Rehoboth Beach, zoned MR (Medium Density Residential). Thus, the "single parcel" is really two parcels from two different jurisdictions pieced together. For parcel A, taxes are paid to the City of Rehoboth Beach and the appellant is entitled to city services (for example, refuse collection and parking permits). This would not be true for the owners or residents of parcel B.

Second, the appellant does not have a condominium because, according to section 81-201 of Title 25 of the Delaware Code, a condominium may only be created by recording a declaration executed in the same manner as a deed, recorded in every county in which any portion of the common interest community is located, and must be indexed in the grantee's index in the name of the common-interest community and the association, and in the grantor's index in the name of each person executing the declaration. No declaration has been recorded.

While the appellant did submit a sample declaration to the planning commission, the appellant's "draft" declaration is so deficient regarding the legal requirements of a declaration that, even if signed and recorded, would be incapable of creating a condominium. For starters, it does not establish whether the foundation, structural walls, and roofs of the 58 single-family dwellings will be unit property or common elements, and it does not include a plat showing the units and the common elements. Contrary to the appellant's assertions, there is no "single parcel condominium."

To the contrary, the appellant has proposed a new development that requires existing parcels A and B to be combined and then subdivided into 63 parcels of real estate.

A "subdivision" is defined in Rehoboth Beach City Code Section 236-3 as the division of a lot, tract or parcel of land into two or more lots, sites or other divisions of land for the purpose, whether immediate or future, of sale or building development. I emphasize (1) parcel, (2) future, (3) sale, (4) building, and (5) development in the definition of "subdivision" because I have described each term in more detail below.

(1) "Parcel." Under Delaware Code section 81-105(b)(1), each condominium unit that has been created, together with its interest in the common elements, constitutes for all purposes a separate parcel of real estate. Note there are some sections of the Rehoboth Beach City Code that treat condominium units as separate "parcels." For example, section 92-263 indicates that parking permits are available for owners/residents of each parcel, and section 227-24 indicates that fees are due for the collection of garbage and refuse from the owner of each parcel.

(2) "Future." According to the Random House College Dictionary, "future" means "pertaining to or connected with time to come."

(3) "Sale." According to Black's Law Dictionary, a "sale" is a transfer of property for consideration either in money or its equivalent.

(4) "Building." According to Rehoboth Beach City Code Section 1-11, a "Building" is any structure intended to have walls and a roof (unlike the more restrictive definition on page 9 of the appellant's declaration, which perplexingly, is limited to "multi-unit buildings").

(5) "Development." According to Rehoboth City Code Section 253-24, "Development" is the act, process or state of the erection or demolition of structures, or adding to existing structures, or subdivision of a lot. The appellant's proposal involves the act, process or state of the erection of 60-plus structures and the demolition of at least three structures. The proposal is for the creation of 63 new parcels of real estate from existing parcels A and B.

The proposal is for a new subdivision. Accordingly, the planning commission should not be required to take any further action until an application for subdivision has been filed.

Jim Lisehora
Rehoboth Beach


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