BeachWalk developer challenges Rehoboth ordinance

The developer of BeachWalk in Rehoboth Beach has asked Chancery Court to issue a permanent injunction against the city for retroactively enforcing an ordinance that allows only one building on one lot.

In a complaint filed June 18, Ocean Bay Mart attorney Richard Forsten argues the intent of the city’s ordinance is to prohibit Ocean Bay Mart’s development, which, he said, conformed with the city’s code when the plan was submitted in 2015.

As attorney for property owner Keith Monigle, Forsten has asked for a declaratory judgment confirming the proposed development is not subject to the ordinance or any other ordinance adopted after submission of the plan.

Monigle is seeking to build 63 residential units on a 7.75-acre parcel off Route 1, currently operating as Rehoboth Beach Plaza shopping center. His plans call for 58 single-family homes and five apartment-style units, but lots would not be subdivided; houses would be constructed on a single lot.

During a special meeting in May, city commissioners voted unanimously to enforce an ordinance created in 2017 that applies to all pending and future applications and an ordinance created in 2016 codifying that only one building could be built on a lot.

When the ordinance was passed, commissioners recognized it would likely be challenged, but they decided to move forward, saying it was in the best interest of the city.

“I believe the governmental interest and benefit in supporting the appeal, and in adopting the proposed clarifying ordinance validates pursuing the two paths forward that were supported by the commissioners,” said Commissioner Stan Mills, following the vote.

Forsten said the city has shown it has no intention of treating Monigle fairly and impartially. “The evidence demonstrates the city is prepared to ignore the law and, if the law is not favorable, to change the law, all in an extraordinary effort to stop a project solely on the basis that it is disfavored by a group of residents,” he wrote.

The complaint cites public statements by city officials during public meetings noting the ordinance does not apply to BeachWalk. During an August 2016 meeting, former Mayor Sam Cooper said the proposed changes would not apply to the project because it would be considered grandfathered.

Forsten said Monigle, operating in good faith as the code existed prior to the adoption of ordinance, has incurred $800,000 in costs because of lost income and out-of-pocket expenses.

Forsten wrote that allowing the city to proceed with enforcement of the ordinance represents rule of men, not rule of law.

“Any other result would send a message to local governments and local politicians everywhere that when an unpopular, but conforming development plan is presented to them, they are free to engage in an extended campaign of delay to prevent review and, if necessary, to delay review while they change the applicable laws and regulations so as to prohibit an unpopular proposed project which otherwise is entitled to approval.”

As of the Cape Gazette deadline June 24, the city had not yet filed a response to the complaint. Mills said the city needs to respond to the complaint by Thursday, July 11. Thereafter, the parties will negotiate a schedule and submit it to the court for a resolution of the case, he said.