Rehoboth denies appeal of $13,000 fee in lieu of mitigation

42 months after issued, property owners argue they waited until all facts settled
July 31, 2019

Story Location:
103 Lake Drive
Rehoboth Beach, DE 19971
United States

Rehoboth allows citizens to appeal decisions made by the city’s Park and Shade Tree Commission. However, city code is silent on how soon after a decision an appeal must be filed.

During a special meeting June 21, city commissioners decided three and a half years was too long for Sander Bieber and Linda Rosenzweig, owners of 103 Lake Drive, to appeal a $13,000 fee in lieu of mitigation issued by the committee in November 2015. The appeal was filed in April.

By a 4-2 vote, commissioners affirmed a Parks and Shade Tree Commission decision to dismiss an April 22 appeal of the three-year-old fee.

Wilmington-based attorney Max Walton conducted the meeting on behalf of the city. He said the only thing commissioners were at the meeting to do was to decide on the timeliness of the appeal.

Representing the city’s commission was city Solicitor Glenn Mandalas, who argued that Bieber and Rosenzweig paid the fee the day it was issued, and only appealed the fee after they received a certificate of occupancy from the city.

Mandalas said if reasonableness wasn’t applied, anyone could appeal anything after any amount of time.

“A lot of time has passed. Frankly, too much time has passed,” said Mandalas.

Mandalas estimated there have been $20,000 to $30,000 in fees in lieu of mitigation since the commission was created about 10 years ago. He said the only appeal of a fee he could remember recently was the $3,500 fee issued for the silver maple on Country Club Drive.

Bieber said that because of many delays by the city, they only received their certificate of occupancy in April 2018. He said they wanted to wait to appeal the fee until after all the facts were set and arguments could be made in full. 

Bieber said the city miscalculated the number of trees required as mitigation when it decided they had to plant 90 trees on their property. He said the tree-planting plan was modified in 2017, after the house was built and, Bieber said, they could see how much more space they had.

Bieber said in 2015 he was upset with the fee, but he thought it was best to pay the fee, move forward and then go back for a refund later.

Bieber said the city arborist has up to 12 months to come back and check on trees after the certificate of occupancy is issued, which means he and Rosenzweig are still in the process of mitigation. He said when a statute is silent on the time period for an appeal, the city must read the code as it is written.

“There is no time period. You don’t read it as you might imagine how it could be written,” said Bieber.

Bieber said if the commissioners aren’t happy with the appeal provision in the tree code, then they should change it. The law says what it says, he said.

Mayor Paul Kuhns said there is a flaw in the tree code, describing it as embarrassing for the city, but right off the top it looks like an extended period of time. He said allowing the appeal would set a precedent.

“If we were to step forward and say it was reasonable, all of a sudden we’d get many people saying the same thing,” said Kuhns, adding that he thought the commission had issued much more than $30,000 in fees.

In an interview July 9, city Arborist Liz Lingo confirmed the property owners were required to plant 90 three-inch trees. She was not the city arborist at the time of the first hearing, but referring to minutes from that meeting, she said the property had a total of 270 inches of caliper, which city code defines as the diameter of a tree trunk measured one foot above the ground. Additionally, she said, two trees were cut down without a permit, and there has to be an inch-for-inch replacement of those trees. It’s a large lot, said Lingo, and they removed a ton of trees.

She estimated the amount of fees and fines issued by the committee over the years to be roughly $80,000.

Commissioner Steve Scheffer said if he were in the same situation, he would have paid the fee to continue to move the process forward, but he said he would have also said he was unhappy and was planning to file an appeal. Commissioners Toni Sharp and Pat Coluzzi also voted in favor of dismissing the appeal.

Commissioners Lisa Schlosser and Richard Byrne voted in favor of allowing the property owners to go through the appeal process.

Schlosser said given the circumstances of the case, the process was still ongoing since the arborist could still stop by the house and check on the mitigation.

Byrne described the whole case as muddled, and because it’s not clear, he was in favor of giving the benefit to the homeowner on an appeal.

Commissioner Stan Mills did not attend the meeting, recusing himself because his wife is on the Parks and Shade Tree Commission.

Walton said the final decision will be made following his written decision.

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