More delays for Clear Space’s Rehoboth Avenue project

A Rehoboth Beach commissioner hearing set to determine if an appeal challenging the planning commission’s site plan approval for Clear Space’s Rehoboth Avenue project has been pushed back two weeks.

City commissioners approved the extension during a special meeting May 19. The hearing had been scheduled for Monday, June 14. It’s now scheduled for Wednesday, June 30. Appellants asked for the extension to allow the group’s recently retained lawyer, Luke Mette, time to write an opening brief, which would have been due Monday, May 24, because city code requires submission by both sides 21 days prior to the hearing. The appellants had originally agreed with attorney Jeff Goddess to help with the case, but he was busy with another case through mid-April, and then had emergency heart surgery the last week of April.

“We would hope that your attorney as well as the attorneys for Clear Space and the planning commission would support this request both as a professional courtesy, and to avoid the unexpected and unfair consequences of leaving the 63 appellants without experienced Delaware counsel,” wrote Wyn Achenbaum, on behalf of the appellants to the commissioners in a letter May 10.

The appellants asked for a 30-day extension. Commissioners compromised with the 16-day extension.

This is the second time this hearing has been delayed. The planning commission approved the site plan in late February. This hearing, being held to determine if the appellants’ case warrants an appeal hearing, had been scheduled for April 8, but appellants requested a later date to have time to prepare. Ultimately, commissioners agreed. The problem was the city’s attorney, Max Walton, had conflicts because he was already scheduled to be in court. The June 14 date was his next earliest availability. 

One of the reasons commissioners agreed to the extension was a delay by the planning commission in approving the minutes from the special meetings held earlier this year. The late February meeting they approved the site plan was the last meeting the group held before a meeting May 14.  The planning commission was scheduled to approve three sets of special meeting minutes, but that didn’t happen. The group scheduled a special meeting for May 18 to approve the minutes, and while they were approved, they were approved pending final edits, which had not been submitted in time for the city commissioner meeting.

City commissioners generally agreed meeting videos have been available since the meetings were complete, giving both parties ample time to watch. However, they also agreed the official minutes are a part of the record, and that it would be good to have them done.

Commissioner Richard Byrne suggested the compromised time frame. He said he recognized the reason for the appellants’ request. However, he continued, for the greater good of the community as a whole, a timely resolution was necessary.

Commissioner Susan Gay said she voted against the extension because she was in favor of the full 30-day request. At this point, she said, it would only be another two weeks beyond what was approved. and she didn’t want there to be any reason for the appellants to challenge the commissioner decision in the future.

This is also the second time the planning commission’s approval of the two-building site plan for 413, 415 and 417 Rehoboth Ave. has been appealed. An August 2019 approval was appealed to city commissioners, who sent the issue back to the planning commission after finding there were procedural issues related to the public hearing process. The planning commission conducted a second round of hearings and deliberations in January and February.

There was no public comment allowed during the meeting. Afterward, representatives from the involved parties didn’t have much to say.

Clear Space Executive Director Wesley Paulson said Clear Space is thankful for the decision to defer the June 14 hearing by only 16 days. Clear Space looks forward to a decision in its favor, supported by the record, at that time, he said.

Luke Mette, the attorney representing the appellants, said he had no comment. He declined to answer if the compromised extension would be enough time to file the opening brief or whether it laid the groundwork for a future appeal.