Approved site plan to be included in Clear Space appeal

In the ongoing legal case between Clear Space Theatre Company and Rehoboth Beach, a Superior Court judge has ruled a site plan twice approved by the planning commission will be included as part of a lawsuit filed by Clear Space, saying city commissioners ignored city code when they reversed planning commission approval.

It’s been almost four years since Clear Space first introduced the concept of a new theater at 413, 415 and 417 Rehoboth Ave. Originally, the proposal was for a one-story structure on the three lots, but Clear Space revised its plans to a two-building complex after considerable pushback from neighbors and residents.

Clear Space had its site plan for the theater complex approved by the planning commission twice last year. After twice being appealed by a group of concerned citizens, the planning commission’s decision was reversed by city commissioners both times. In response, the theater filed a lawsuit in August 2021 against the city, seeking to overturn the city commissioners’ reversal.

The case has been in a holding pattern since then while Superior Court Judge Robert Robinson decided what constitutes the record for the appeals. Clear Space basically wants everything – the approved site plan, and their and the planning commission’s responses to city commissioners in advance of the city appeal hearings. Rehoboth argued the record should not include the site plan or the responses. A hearing was held in early December on the issue.

In an order issued May 24, Robinson said since the city’s decision denying Clear Space’s application was based upon its review of the site plan, it follows that the inclusion of the site plan is appropriate. The city’s decision denying approval of the site plan cannot be separated from the site plan itself, because the city’s decision references the site plan and draws conclusions from it, he said.

However, Robinson said, the city is correct that the court’s review for the case is limited, which is why Clear Space’s and the planning commission’s responses to the appeal are not properly part of the record. Clear Space will have the opportunity to raise those issues in the appeal, he said.

Clear Space Executive Director Wesley Paulson said Clear Space is pleased the court ruled the site plan is part of the record. Clear Space will consult with its legal counsel on the next steps, he said in an email May 25.

The city accepts the ruling and looks forward to presenting its case in briefing and subsequent proceedings, said Mayor Stan Mills in an email May. 25.