Clear Space appeal hearing slated for June 30

City commissioners to hear second appeal of planning board’s site-plan approval
June 29, 2021

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

Following two delays at the request of appellants, an appeal hearing on the Rehoboth Beach Planning Commission’s site-plan approval of Clear Space Theatre Company’s two-building complex on Rehoboth Avenue is scheduled for Wednesday, June 30.

Currently located on Baltimore Avenue, Clear Space has proposed a new venue at 413, 415 and 417 Rehoboth Ave. The theater company first introduced the project in October 2018 as a 25,600-square-foot building that took up all three lots. After much public outcry, Clear Space modified its plans to the current two-building proposal – a 14,968-square-foot, 256-seat traditional theater and a 9,979-square-foot rehearsal theater.

The planning commission approved the site plan for the two-building proposal in August 2020, but it was appealed. City commissioners, who heard the appeal, 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, and approved the site plan in late February.

The June 30 hearing, being held to determine if the appellants’ case warrants an appeal hearing, had been scheduled for April 8, but appellants requested a later date to have time to prepare. The commissioners set a date of June 14.

In mid-May, the appellants again requested a delay to allow their recently retained lawyer, Luke Mette, time to write an opening brief. The appellants asked for a 30-day extension, and commissioners compromised with the 16-day extension.

Mette submitted his opening brief to the city June 9. He said the central issue before the commissioners is whether the planning commission acted arbitrarily and capriciously in approving site-plan review applications for a single project comprising two buildings over three lots.

“Among other improper actions, the [planning commission] approved site-plan applications that do not comply with the city code’s off-street parking requirements; refused to make certain necessary and independent findings and conclusions, thereby precluding effective appellate review; and permitted the integrity of the proceedings below to be impaired by violations of basic due process principles,” said Mette.

City Solicitor Glenn Mandalas will be representing the planning commission during the hearing. Attorney Max Walton, who oversaw the first appeal hearing, will also oversee the second appeal hearing.

In his written submission in opposition to the appeal, Mandalas said the main thrust of the appeal is that the appellants disagree with the decision, not that the analysis and decision were arbitrary or capricious. The decision reached by the planning commission was the result of a lengthy process, where much evidence was presented, considered, argued and debated. 

“Each [Rehoboth Beach Planning Commission] member then provided a detailed explanation of the bases behind their votes. This demonstrates an orderly and logical review of the evidence with an appropriate review and interpretation of the city code,” said Mandalas.

Attorney Richard Forsten will be representing Clear Space during the hearing. In his written submission in opposition to the appeal, Forsten said for the purposes of this appeal, the standard of review is whether the planning commission acted in an arbitrary and capricious manner. It did not, he said.

“It listened to all who came before it. It imposed numerous conditions to lessen any adverse impacts. The statements and written approvals demonstrate careful consideration of everything that was said or presented,” said Forsten. “The appellants have failed to prove that the commission acted in an arbitrary and capricious manner when it approved the plans not once, but twice; the commission’s decisions on the two plans should be upheld.”

Clear Space Executive Director Wesley Paulson said he is looking for the project to move forward.

“It has been almost three years since we started the approval process for plans for Clear Space Theatre and Rehoboth Spotlight,” said Paulson, in an email June 24. “Now it is time to bring down the curtain on the appeal process and break ground on a new theatre.”

The hearing is slated to begin at 10 a.m. In the event commissioners don’t make a decision June 30, Mayor Stan Mills has already blocked off time Thursday, July 1, to continue commissioner deliberations. That meeting is also slated for a 10 a.m. start time.

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