Twice now, Clear Space Theatre Company has had its site plan for a proposed Rehoboth Avenue complex approved by the planning commission, only to have it reversed by city commissioners. In response, and with few other options, the theater has filed a lawsuit against the city seeking to reverse the city commissioners’ reversal.

In the suit, filed Aug. 13 in Delaware Superior Court, Clear Space attorney Shawn Tucker argues city commissioners ignored city code, which, according to Tucker, grants jurisdiction and legal authority for the planning commission to approve Clear Space’s site plan.

“The mayor and city commissioner’s decision erroneously conflates the applications’ site plans, which were before the planning commission for approval, with the applications’ building plans, which were not,” said Tucker, in his filing. He goes on to say the proper authority to review errors in the building inspector’s interpretation of the city’s zoning code is the city's board of adjustment.

In the past 12 months, the planning commission has twice approved the site plan for Clear Space’s proposed two-building project at 413, 415 and 417 Rehoboth Ave. For now, those plans include a 256-seat traditional theater and a rehearsal theater.

The first time the planning commission approved the site plan was August 2020. That decision was appealed, and city commissioners sent the issue back to the planning commission after finding there were procedural issues related to the public hearing process.

After conducting a second round of hearings, the planning commission again approved the site plan in February. Again, approval was appealed. Again, city commissioners reversed the planning commission’s approval, this time saying the planning commission was arbitrary and capricious when approving the site plan.

In a prepared statement announcing the lawsuit, Clear Space Theatre Executive Director Wesley Pauslon said the theater has worked patiently and respectfully through an arduous process for the past several years to obtain permits to construct two new buildings on Rehoboth Avenue. The project is broadly supported by residents and the local business community, he said.

“Unfortunately, the fervent effort of a few individuals to prevent the beloved theater from building in Rehoboth has continued. We, along with the community and supporters, are passionate about keeping the theater in Rehoboth. We were left with no choice but to file a petition with the courts. We are simply asking the city to follow the law and allow us to build a new theater at our property just down the street,” said Paulson.

City Manager Sharon Lynn declined to comment, other than to say the city typically does not comment on ongoing legal matters.

Attorney Max Walton helped the commissioners navigate through both appeals because City Solicitor Glenn Mandalas was representing the planning commission. Walton is expected to represent the city through this lawsuit, too. In an email Aug. 18, he said he didn’t know the deadline for the city to respond to the lawsuit because the city had not formally been served.