Two prominent Rehoboth Beach property owners are pursuing lawsuits against the city’s board of adjustment, claiming the board erred when it ruled to uphold the city building inspector’s interpretation of gross floor area.

Attorney Vince Robertson, on behalf of Gene Lankford and Lankford Properties, filed his lawsuit in December, while attorney David Hutt, on behalf of Jack Lingo Asset Management, filed his lawsuit in May. Both submitted opening briefs March 29 in Delaware Superior Court. In an email April 8, Robertson said the two cases have been consolidated because the issues are basically the same – they both deal with the definition of gross floor area, which in turn affects code-mandated zoning requirements. Hutt, in an email April 12, added that both lawsuits deal with the basic question of what is the exterior face of an exterior wall.

Both issues have multi-year histories.

Lankford, who also owns the Atlantic Sands Hotel and Breakers Hotel in downtown Rehoboth, introduced the proposed Atlantic Crown Hotel and Retreat during a planning commission meeting in July 2018. The hotel is planned to occupy three lots – 17, 19, and 21 Baltimore Ave.

The property has been before the board multiple times and had variances approved – the allowance of five floors, so long as the total height did not break the city’s 42-foot height limit, and not counting an 8,000-square-foot underground parking garage against the building’s floor-to-area ratio.

The issue at hand with this property concerns the balconies of the hotel rooms facing Baltimore Avenue. The city’s building inspector at the time, Damalier Molina, said the balconies should be included in the gross floor area. As calculated, the interpretation adds approximately 2,500 square feet of floor area to the equation related to floor-to-area ratio.

Robertson argues the city has never counted external areas such as decks, balconies, porches, stoops and steps toward FAR.

There are 22 years’ worth of buildings approved without including balconies, decks, porches and patios in the gross floor area, said Robertson in his brief. The city did not dispute this information and explicitly acknowledged that this interpretation occurred, he said.

The Lingo issue originated in August 2019, when the board unanimously upheld Molina’s decision that a parking space would be required after a deck at 240 Rehoboth Ave. increased the gross floor area. At the time, Molina said deck railings constituted exterior walls and the space should be considered in the calculation of gross floor area.

In his brief, Hutt said the city’s building and licensing department undertook a tortuous review of this language and the zoning code, and manufactured a description of an exterior wall.

“This dispute arises out of the definition of an ‘exterior wall’ – something that children appreciate from the time they are told not to go ‘outside,’” said Hutt in his brief.

Board attorney Fred Townsend said he had no comment on the two lawsuits.