Legal battle continues in Beachwalk case

The legal battle over a controversial condominium project in Rehoboth Beach has taken a new turn.

The fight over the proposed BeachWalk development has been ongoing for nearly three years. Proposed in 2015, the 63-unit project is currently used as the Rehoboth Beach Plaza shopping center, and owner Keith Monigle is trying to redevelop the 7.75-acre parcel as 58 single-family detached homes and five multifamily, apartment-style units. Monigle proposed the project as a condominium, but the city has ruled that he should apply as a major subdivision.

The project ran into trouble almost from the get-go. While it consists mainly of single-family homes, BeachWalk was submitted as a condominium, not a subdivision. The property is all one lot, and does not have to conform with the stricter requirements of a major subdivision. Neighbors raised concerns, among other things, about the project’s density, the size of the houses - all four-to-five bedroom homes - and the effects on traffic. Neighboring property owners Carol and Jim Tello tried to join the legal proceedings, but their attempts to become parties in the case were denied by Judge E. Scott Bradley.

Police and fire officials opposed the project’s plan to cut off access to the property from Route 1, as well as the proposed 20-foot-wide drive aisles, which are half the width of what is required under a major subdivision.

Rehoboth building inspector Dam Molina denied BeachWalk a building permit, stating city code prevented more than one dwelling unit could be built on a lot. That decision was appealed to the board of adjustment in May 2016, which overruled Molina’s decision.

BeachWalk then proceeded to the planning commission for site-plan review. In October 2016, the commission ruled BeachWalk is a major subdivision. Monigle refused to apply as a major subdivision; the commission then declined to take further action on the application, refusing to take a vote.

Monigle then appealed to the city commissioners, and in January, the commissioners upheld the planning commission’s decision. The case was then appealed to Delaware Superior Court, where it has become two cases.

The first case is the appeal of the commissioners’ decision, which the city has tried to have dismissed. The second case, filed by the city, is asking Bradley to apply a city ordinance, passed in November 2016, that allows only one single-family detached dwelling per lot. The city has asked for the two cases to be consolidated; BeachWalk’s attorneys oppose consolidation because, they argue, the city is trying introduce new arguments on appeal. Bradley has not yet ruled on the motion to consolidate.

On Oct. 30, the city filed a second motion to dismiss, on grounds BeachWalk has not stated a claim and for a lack of subject matter jurisdiction.

In its motion, the city argues that the ordinance preventing more than one dwelling unit on a lot should be applied to BeachWalk, even though BeachWalk’s application was filed prior to the ordinance being enacted. The city argues that nothing in the ordinance exempts pending applications such as BeachWalk and that under the old code, BeachWalk was required to submit a major subdivision application.

The city has asked Bradley to dismiss the cases with prejudice. BeachWalk is due to file an answer to the city’s motion by the end of November.