The Delaware Supreme Court has dismissed an appeal from the development team of a proposed hotel on the corner of Rehoboth Avenue and State Road in Rehoboth Beach because the appeal was filed too soon.

In an order dated Oct. 1, Supreme Court Justice Gary F. Traynor said a Superior Court’s decision regarding 330 Hospitality Group is not final because that court sent the issue back to city commissioners to conduct a new hearing. Since the appellant did not follow the rules, the case must be dismissed, said the justice.

The property in question, 330 Rehoboth Ave., is about 42,500 square feet, of which about 23,000 square feet along Rehoboth Avenue is zoned C-1 commercial and about 19,500 square feet along State Road is R-1 residential.

A redevelopment project for the property was first proposed in January 2019. Ultimately, the planning commission voted against the rezoning. The developers appealed that decision to city commissioners.

During a hearing in March 2022, commissioners voted against the requested zoning, citing a negative impact on the surrounding residential neighborhood and also being in conflict with Rehoboth Beach’s comprehensive development plan.

Soon after, 330 Hospitality appealed the decision to Chancery Court, but a judge for that court ruled that Superior Court was the appropriate place for the appeal to be heard. In July, Superior Court Judge Robert Robinson Jr. issued a ruling saying commissioners did not provide sufficient explanation for their votes, which meant, “the record is not sufficient for review and the city must conduct a new hearing to provide an adequate record.”

During a commissioner meeting soon after Robinson’s ruling, City Solicitor Alex Burns announced 330 Hospitality had appealed the Superior Court ruling to the Delaware Supreme Court.

Attorney Rick Berl, who represents the 330 Hospitality team, said there are a couple cases currently before the Supreme Court regarding zoning issues and how they are reviewed by the courts. The appeal was to remain in the queue in the event decisions in those other cases might be beneficial, he said.

There was some question as to whether Judge Robinson’s decision was final, said Berl. If so, an appeal had to be filed within 30 days, he said.

“We did so to preserve our rights. Because the Supreme Court did not consider it final, we don’t have to appeal,” said Berl.

Mayor Stan Mills said he is looking at the middle of November for a rehearing date. He said if the board votes against the rezoning again, 330 Hospitality can again appeal to Superior Court.

As for commissioner votes this time around, the same result is not set in stone. More than two years after the original vote, the makeup of the commission is a bit different. Mills, Commissioner Patrick Gossett and Commissioner Edward Chrzanowski are still around, but gone are former Commissioners Jay Lagree, Susan Gay, Toni Sharp and Tim Bennett. Now, the board includes Commissioners Francis “Bunky” Markert, Don Preston, Craig Thier and Suzanne Goode.

Mills, Gossett, Gay, Lagree and Sharp voted against the rezoning, while Chrzanowski and Bennett voted for it.