Clear Space appeal hearing pushed back two months

Conflict with city code requirements, attorney schedule reasons for delay to June 14
March 19, 2021

Story Location:
Clear Space Theatre Company
415 Rehoboth Avenue
Rehoboth Beach, DE 19971
United States

An appeal hearing related to the Rehoboth Beach Planning Commission’s recent site-plan approval of Clear Space Theatre Company’s new Rehoboth Avenue home has been delayed more than two months.

During a special meeting March 18, Rehoboth Beach commissioners voted 4-2 to move the appeal hearing from April 8 to 10 a.m., Monday, June 14. Commissioner Edward Chrzanowski was absent.

This is the second time the planning commission’s approval of the two-building site plan for 413, 415 and 417 Rehoboth Ave. has been appealed. An August approval was appealed to city commissioners, who sent the issue back to the planning commission after finding there were procedural issues related to the public hearing process. The planning commission conducted a second round of hearings and deliberations in January and February. Again, the planning group approved the site plan. Again, the decision was appealed.

The second appeal was filed after 4 p.m., March 12. Less than 30 minutes later, commissioners voted 6-0-1 in favor of conducting the second appeal hearing April 8. Commissioner Susan Gay abstained because none of the commissioners had seen the appeal prior to the meeting.

A combination of city code requirements and the availability of attorney Max Walton were the reasons for the original timeline. Code says briefs need to be filed 21 days prior to an appeal hearing. The April hearing date meant all parties had to file their briefs with the commissioners by the end of the day March 18 – four business days after the appeal was filed. Due to scheduling, Walton, who is not the city’s usual attorney but did oversee the previous appeal hearing, was available April 8 or June 14. All parties still have to have their briefs filed 21 days in advance of the new date, but the delay now means there will be roughly nine weeks to prepare.

During the March 12 meeting, Mayor Stan Mills presented commissioners with only the April date, because, he explained at the meeting a week later, he thought the sooner the better. However, he said, after thinking about it, he believed he was wrong. Mills then presented commissioners with three options – do nothing, change the date to June, or hire another attorney to try and get the hearing set sometime in May. Ultimately, commissioners decided that Walton’s institutional knowledge of the situation outweighed conducting the hearing a few weeks earlier.

Commissioners Richard Byrne and Pat Coluzzi were the no votes regarding the delay.

Byrne said more delays would be harmful for everyone involved, including the majority of city residents who aren’t a part of the appellant group. Delays cost the city more money and create divisiveness in the community, he said.

City Solicitor Glenn Mandalas represents the planning commission and will do so during the appeal hearing. Neither Mandalas nor planning Chair Jeff Trunzo had a comment about the new hearing date. Mandalas did say the planning commission was prepared to proceed on the original schedule.

Clear Space Executive Director Wesley Paulson said the theater is disappointed by the decision to delay the appeal hearing. He also said they were prepared to file a brief on the original schedule.

“Time is money, and Clear Space has already suffered substantial damages as a result of the delay already caused, including lost grant monies, lost revenue and substantially greater construction costs,” said Paulson, in an email shortly after the vote. “Both the city building inspector and the planning commission approved the current plans and found them compliant, and Clear Space is confident that the mayor and council will come to the same conclusion on June 14.”

Appellant Harvey Shulman, one of 63, said the commission majority did the right thing.

“This important appeal requires careful briefing and review,” said Shulman, in an email March 18. “No person should be expected file a high-quality legal memo in three business days or prepare adequately for a quick hearing. Haste would have made waste here, but fortunately now all parties and the commissioners have time to do their best.”

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