A Superior Court judge has ruled the Rehoboth Beach Board of Adjustment did not err when it approved a variance request allowing the proposed Belhaven Hotel to exceed the allowable floor-to-area ratio by 50%.

Roughly 10 months ago, in November, the board approved a variance allowing the hotel’s FAR to be 3. City code says the maximum is 2.

In late February, Francis “Bunky” Markert, who was just sworn in as a city commissioner Sept. 16, appealed the board’s ruling to Delaware Superior Court. 

In the lawsuit, Markert argued the board’s decision will negatively impact his health, safety and the general welfare of the community. He said the approved variance will bring increases in vehicle traffic, existing parking problems, trash and noise, as well as higher risk to Markert’s safety as a pedestrian.

Markert also argued that the aesthetic benefit of the iconic Boardwalk will be diminished, saying the proposed hotel and variance violates the city’s comprehensive plan, limits light, overcrowds the land, and diminishes safety from fire, panic and other dangers.

In an order dated Sept. 26, Superior Court Judge Craig Karsnitz, who was Rehoboth's board of adjustment attorney for 32 years, said, “After a thorough review of the record, I am of the view that there is more than sufficient evidence on the record to support the decision of the board.”

Karsnitz said Markert argues that a hotel with a FAR of 3 would overwhelm the surrounding vicinity and the immediate area. However, said the judge, the height, the bulk, and the footprint of the building would be essentially the same under a FAR of 2 or 3.

“To put it succinctly, the harm to applicant if the variance is denied outweighs any harm to appellant – and other neighboring properties – if the variance is granted,” said Karsnitz.

In this case, said Karsnitz, the proposed FAR is not just designed for more or larger rooms, but to allow for underground parking and provide a conference center, amenities and ground-level retail shops. Even so, he said, the overall height and mass will be essentially the same.

Karsnitz began his ruling by outlining the main issue – does the granted variance, which may align with Rehoboth Beach’s future development vision, also pass muster under the city’s zoning code and state law?

“This case reveals the fault lines that sometimes exist between the requirements of an existing municipal zoning code and the evolving vision of the municipality for its future development. The former may not have kept pace with the latter,” said Karsnitz.

The proposed Belhaven Hotel was first introduced by father-and-son owners John and Alex Papajohn in April 2019. The property sits in one of the city’s most coveted commercial areas – the southeast corner of Rehoboth Avenue and the Boardwalk. The project has an address of 2 Rehoboth Ave., but the property fronts the Boardwalk to the south property line of Grotto Pizza, encompasses all the Rehoboth Avenue commercial space west to the property line with Go Fish, and stretches south to Wilmington Avenue.

“Our family is thrilled with the Superior Court’s decision,” said Alex, in an email Sept. 27. “We consider it a victory for everyone who cares about the future of Rehoboth Beach, including locals, visitors and tourists, and the business community. Our family wants to build a beautiful hotel that will make the entire community proud and fits the character of downtown Rehoboth. This ruling will enable us to do that. We look forward to making further progress with our project.”

In a follow-up email Sept. 29, Alex said he and his dad plan to bring the project back to the planning commission for site-plan review as soon as the planning commission will schedule it for review.

In an interview Sept. 29, Markert said he was disappointed with the judge’s decision and that he hadn’t decided what the next move will be. The city is prone to individuals who try to circumvent the rules, he said.

“I’m not disappointed for me, but for the rest of the city,” said Markert.

Editor’s Note: This story was originally published Sept. 27. It was updated with more information Sept. 29.