At the first preliminary site plan review held on August 12, 2016, Planning Commission (PC) members, city staff and residents raised concerns related to pedestrian safety, emergency access, water and sewer capacity, traffic and parking. A key legal question was also brought up: is the project really a subdivision under the law, which means it would have to comply with applicable City zoning regulations?
To help answer this question, the PC asked for legal briefs to be submitted by anyone with knowledge of this topic. Those briefs can be found on the City's website here. There are also supporting briefs prepared by a number of citizens addressing many of the other concerns raised in the August meeting. We have collected those here on our Legal Analysis page. The legal briefs addressed the subdivision issue by presenting extensive evidence that a single parcel cannot be a condominium as the developer proposed. A condominium is a form of ownership (as a common interest community in which portions of the real estate are designated for separate ownership). It does not invalidate any provision of a building code, zoning, subdivision, or regulation governing the use of real estate.
As a result of the legal analyses presented and discussions held with its counsel, the PC ruled in their next meeting (October 21st) that Beach Walk is a major subdivision and, therefore, must comply with the City's laws, which regulate the size of streets, mandates sidewalks, and has setback requirements, among other regulations.
At that time, the PC gave the developer 30 days to decide how he would like to proceed. He could refile the application, amend the current application so that site plan and major subdivision applications could be reviewed simultaneously, or he could withdraw the application altogether.
The developer did not communicate his intentions back to the PC within the prescribed 30 day time period. However, at the PC meeting on December 9, the developer came without his attorney and announced that he had no plans to file a subdivision application and would like to continue with Site Plan Review of current application.
No further action was taken at the December 9th Planning Commission meeting. The matter was discussed again at the Friday, January 13, 2017 meeting and, at that time, the Planning Commission voted to formally notify the developer that he had 60 days to file a Major Subdivision Application. This 60 day time line gave the developer until approximately the March 10, 2017 meeting to take action on this request. No Major Subdivision application was received by the City by the March 10th date and, on March 21st, the attorney for the developer filed an Appeal of the Planning Commission's ruling to the City Commissioners.
The Planning Commission then submitted a Motion to Dismiss the appeal to the City Commissioners. This was later denied and the appeal hearing was held January 26, 2018.
On that day, the Rehoboth Beach Commissioners denied BeachWalk's appeal and upheld the Planning Commission decision that this development project must meet subdivision code.