For the second time in roughly eight months, Rehoboth Beach commissioners have voted the planning commission erred when approving the preliminary site plan for Clear Space Theatre Company’s proposed home on Rehoboth Avenue.

By a 4-3 vote, during an appeal hearing June 30, commissioners voted that the planning commission was arbitrary and capricious when approving Clear Space’s two-building design on three Rehoboth Avenue lots near the traffic circle. Mayor Stan Mills, Commissioner Patrick Gossett, Commissioner Susan Gay and Commissioner Jay Lagree voted to reverse the planning commission’s February decision. Commissioner Richard Byrne, Commissioner Pat Coluzzi and Commissioner Edward Chrzanowski voted against the reversal.

The first time the commissioners reversed the planning commission’s approval was in fall 2020. The planning commission approved the site plan for the two-building proposal in August 2020. Commissioners 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 for a second time in late February.

This time around, the commissioners who voted in favor of reversing the approval did so based on three main issues – the planning commission’s approval of the site plan without actually reviewing a code-compliant set of drawings for the project; the planning commission’s lack of discussion on the educational component for the project; and the planning commission’s misinterpretation of code-mandated parking requirements related to the project’s square footage.

This process has been far from transparent from the beginning, said Gossett.

The planning commission not reviewing a code-compliant site plan drew the most discussion among the commissioners. During the hearing, it was explained that Clear Space officials and city officials had exchanged emails detailing changes made to the site plan to make the project code compliant. However, Clear Space failed to include an updated set of drawings during the second site-plan review.

“All they had to do was submit the final plans,” said Gay.

Chrzanowski said the plans were submitted in good faith, and then changes were made at the suggestion of the city’s building official.

Following the final vote, Mills said he’s not placing blame, but he wants to be protective of the planning approval process. At times, the planning commission acted arbitrarily and capriciously, he said.

Coluzzi apologized to the planning commissioners, saying they spent many, many hours deliberating the site plan. If she were a planning commissioner, she’d be ready to resign, she said.

City Solicitor Glenn Mandalas represented the planning commission during the hearing, which meant attorney Max Walton oversaw the proceedings. Walton said the reversal won’t be official until commissioners approve the written record from the hearing, which he expected to take a couple of weeks for him to produce. Once the record is approved by the commissioners, then Clear Space officials can decide if they want to pursue further legal action, said Walton.

Another option, said Walton, would be for Clear Space to resubmit its application to the city and start the planning commission process again.

In a statement July 1, Clear Space Executive Director Wesley Paulson said Clear Space remains committed to providing live theater and performing arts education at the beach.

“The decision by the mayor and three commissioners to reverse site-plan approval by two planning commissions and two building inspectors is viewed by us as arbitrary and capricious,” said Paulson. “It is especially disappointing that during the hearing on the planning commission decision, several commissioners referred to us as setting a precedent for review of other projects that have been announced.”

Paulson said Clear Space is looking forward to clarification from the mayor on a path forward with the planning commission. Meanwhile, he said, the theater’s board will consider its next steps in regard to the long-term vision for a new theater and rehearsal space.

Planning commission Chair Jeffrey Trunzo didn’t offer an opinion on the reversal, but he reiterated his desire for the city to hire a city planner and to update city code.

“The mayor and [board of commissioners] recognized at the conclusion of the hearing that there are structural and procedural impediments to conducting a comprehensive site plan review,” said Trunzo, in an email July 1. “There is broad agreement that there is an urgent need for a city planner and a comprehensive update to the city code. I have championed those priorities while chair, and if the city acts quickly to invest in these tools and people, then the resident’s faith in site plan review will be restored.”

During the argument phase of the hearing, attorney Luke Mett, representing the appellants, revealed the city had issued a building permit for the project a few weeks ago.

After the hearing ended, City Building Inspector Matt Janis said the building permit will be revoked and all fees paid will be returned to Clear Space.

Editor’s note: This story has been updated with more information from the meeting and additional comments.