Court upholds Board of Adjustment in zoning decision

On December 14, 2016, Delaware’s Superior Court ruled in favor of the Board of Adjustment of the City of Rehoboth Beach in the Court’s decision of the Covington v. the Board of Adjustment case. On July 17, 2015, the Rehoboth Beach Commissioners adopted Ordinance No. 0715-01 which amended certain provisions of the City’s Zoning Code, relating to natural area, floor area ratio, lot coverage, rear yards and accessory buildings. After the ordinance was adopted, a group of residents presented a petition for reconsideration which led to a referendum held on November 7, 2015. The challenge to the ordinance was defeated in the referendum by a vote of 785 to 697. The Covington’s permit application was filed during this period of time that the new ordinance was being subjected to the referendum process. The City’s position was that even though the City’s Charter “suspended” the new ordinance during the referendum process, the pending ordinance doctrine continued to be applicable to the new ordinance, and therefore the Covington’s permit application could not be approved unless it conformed to the new ordinance. The Board of Adjustment voted 3-2 on April 25, 2016, upholding the City’s building inspector’s decision denying a building permit for the Covington’s St. Lawrence Street property addition of a swimming pool for failure to satisfy the requirements of Ordinance No. 0715-01. The court agreed that the pending ordinance doctrine remained viable during the referendum challenge, and therefore decided the case in favor of the City.

City Solicitor Glenn Mandalas said, “The Court borrowed heavily from the City’s brief to author the most comprehensive case in Delaware on the pending ordinance doctrine. In so doing, it is very likely this will become the seminal case on the pending ordinance doctrine in the state.” There are five other appeals that are currently filed with the Board of Adjustment. Mr. Mandalas said, “Whether these cases are appealed or not, this decision was an extremely relevant decision for municipal governments and zoning regulations. It helped to clarify the pending ordinance doctrine and the reasons Delaware has adopted it.”