UPDATE: BeachWalk appeal shot down in Rehoboth

Planning commission decision upheld in 4-2 vote
January 30, 2018

The Rehoboth Beach commissioners, by a 4-2 vote, denied an appeal of the BeachWalk project, upholding a planning commission decision that found the development must meet the subdivision code.

When Commissioner Patrick Gossett offered the deciding fourth vote, assuring the planning commission decision would prevail, a sustained cheer erupted from the audience, which had slightly thinned over the nearly five-hour meeting. When the meeting started at 9 a.m., close to 80 people crowded the city commissioner room. Many who stayed through until the final vote at nearly 3 p.m. said it was well worth it.

Carol Tello, 38165 Terrace Road, has been one of the most passionate opponents of BeachWalk. Her house would have bordered the BeachWalk entrance and would have backed up to two BeachWalk houses.

“Obviously, we’re very pleased,” she said. “While we all are very opposed to this particular proposal, we look forward to a development that meets the Rehoboth subdivision and zoning requirements. I believe that many speakers today made that point.”

Pam Cranston, founder of the citizens group Rehoboth Citizens for Responsible Growth, said, “The city commissioners did the right thing. Their planning commission unanimously decided it was a subdivision; they [the city commissioners] decided it was a subdivision. It is a subdivision. They need to file the right application. Period,” she said.

Going forward, developer Keith Monigle has several options: he can file a major subdivision application; he can take the case to court; or he can file another plan entirely.

What Monigle earlier proposed was a 63-unit condominium development with 58 single-family homes and five apartment-style units. To access the single-family homes, he proposed two 20-foot-wide drive aisles. Monigle also proposed 13-foot setbacks between homes, most proposed as five to six bedrooms with five to six bathrooms. The complex also included a pool and fitness center.

Monigle insisted that because he was building his development on a single parcel of land, instead of dividing the land into lots, he was not required to meet subdivision building standards.

The proposal was opposed by neighbors from the start. They criticized the narrow “aisles,” the number of homes, the lack of green space and parking, among other issues.

First submitted in June 2015, the project’s first hurdle was a decision by building inspector Dam Molina that BeachWalk could not have more than one building on the lot. Monigle’s attorney, Dennis Schrader, appealed Molina’s decision, and the board of adjustment ruled in BeachWalk’s favor on that issue.

The project then went for site-plan review by the planning commission, which determined that BeachWalk must meet major subdivision regulations and asked Monigle to apply as such. When he refused, the planners declined to continue the review. Schrader appealed to the city commissioners, leading to the Jan. 26 hearing.

The case for subdivision

At issue for the city commissioners was determining whether the planning commission had the authority to impose subdivision requirements on BeachWalk.

Schrader argued the planners should have been bound by the board of adjustment decision and had no basis for forcing BeachWalk to file a major subdivision application. He said the planners overstepped their authority, and their ruling was arbitrary and capricious.

City Solicitor Glenn Mandalas, representing the planning commission, said the planning commission acted in good faith, starting their hearings as a site-plan review of a condominium project. But, Mandalas said, during their deliberations, the planners found that while BeachWalk may have filed as a condominium, it had all the features of a major subdivision. He said the planning commission wanted to hear the site plan review and major subdivision cases concurrently, but Monigle refused, and the planners let the case die.

Mandalas said state law defines condominiums as a way of dividing a property into separate pieces of real estate. He said that the board of adjustment decision was narrow, allowing more than one building on the parcel, and had no bearing on the site-plan review process.

Schrader said the planning commission had been asking for changes to the project before holding a single meeting. He said he was never permitted to make a presentation laying out his case, other than an eight-minute overview. Schrader said a condominium is a form of ownership and that BeachWalk was not subdividing but was instead creating a common ownership where homeowners would have a home on a single lot. He said the planning commission could examine issues of density and street size during its site-plan review.

Commissioners Jay Lagree, Gossett, Lisa Schlosser and Toni Sharp agreed with that the planning commission that BeachWalk had all the characteristics of a subdivision and that the planners had the authority to ask Monigle to file as such.

“They are dividing up the property,” Schlosser said.

Commissioners Stan Mills and Kathy McGuiness disagreed; they said they did not think the land was being divided and questioned whether the planning commission was applying the law correctly. Mills admitted that there were deficiencies in the city code regarding condominiums that should be fixed, but that he did not think BeachWalk met the definition of a subdivision.

Mills chaired the hearing as Mayor Paul Kuhns recused himself because of a prior relationship with Schrader.

Neighbors speak out

The room was crowded with opponents, most holding “Stop BeachWalk” fans shaped like stop signs. The commissioners heard 13 speakers who had previously spoken during planning commission deliberations. All were against the project and urged the commissioners to send the matter back to the planning commission to be considered as a major subdivision, each speaking to hearty applause after their presentations.

Tello said a condominium is a form of ownership, but that once lots are sold, BeachWalk becomes a subdivision by definition of city code.

“BeachWalk does everything a major subdivision does,” she said. “It is a subdivision.”

Mabel Granke, 1018 Scarborough Ave. Extended, said BeachWalk should be dealt with as a subdivision for three reasons: the number of bedrooms, safety and drainage.

“This is indeed a subdivision, and the decision of our planning commission must be upheld,” she said.

Granke said the BeachWalk property has been deliberately and maliciously neglected, a point echoed by other speakers. Michael Dukes, 38282 Blackstone Ave.; Larry Shaw, 38174 Terrace Road; and Victoria Jennings, 38205 Terrace Road, all said they welcomed redevelopment of what has become a dilapidated and dangerous area, but the density proposed is unprecedented and presents a safety hazard.

“In the real world, this is a subdivision,” Dukes said.

Larry Richardson, 8 Silver Lane, said BeachWalk was too dense, crowded and not in character with the surrounding neighborhoods. He said the neighborhood surrounding BeachWalk averages 3.56 bedrooms, while BeachWalk has proposed twice that many. Richardson said BeachWalk has three times the allowable occupancy as the surrounding area.

Joe Filipek, also of 8 Silver Lane, said BeachWalk is not a reflection of the surrounding neighborhood. He said the neighborhood is defined by green space, but BeachWalk, as submitted, offers little green space. Filipek said BeachWalk is 63 homes jammed into a small area, 7.75 acres. By comparison, he said, the surrounding neighborhood has 70 homes on 19 acres. Filipek said BeachWalk’s proposed “drive aisles” are 20 feet wide, while the standard for city streets is 40 feet.

“By almost any measure, BeachWalk will be two to three times more dense than the surrounding neighborhood,” he said.

Sandy Neverett, a resident of Terrace Road, said BeachWalk is building high-occupancy homes designed for the adult market. She said the project represented 63 mega-homes, and proposed parking is inadequate. She said the problems with the BeachWalk proposal could be solved by filing as a subdivision. Neverett told the commissioners to do their jobs and support the planning commission ruling.

Jim Tello, Carol’s husband, said the planning commission took a look at the project and found that it met the definition of a subdivision. Paraphrasing famed defense attorney Johnnie Cochran, he said, “If the definition doesn’t fit, you must submit.”