Supreme Court upholds Board of Adjustment in zoning decision

On August 29, 2017, Delaware’s Supreme 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. This case challenged the City’s application of 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 on July 17, 2015, a group of residents presented a petition for reconsideration which led to a referendum. The referendum was held on November 7, 2015. The challenge to the ordinance was defeated by a vote of 785 to 697. The Covington’s building permit application was filed during the period that the new ordinance was being subjected to the referendum process. The Covington’s took their case to the Board of Adjustment, which denied their request to overturn the building inspector’s decision. On December 14, 2016, Delaware’s Superior Court ruled in favor of the Board of Adjustment and denied the Covington’s appeal. The Supreme Court agreed that the pending ordinance doctrine remained viable during the referendum challenge, and therefore affirmed the decision of the Superior Court, in favor of the City. City Solicitor Glenn Mandalas said, “When the Superior Court decision was issued, this case became the most comprehensive case in Delaware on the pending ordinance doctrine. Now, with the affirmation of the Delaware Supreme Court, the pending ordinance doctrine concepts adopted in the Superior Court decision have even deeper roots.” Mandalas said today’s ruling is an extremely relevant decision for municipal governments because it affirms the ability of a municipal government to observe reasonable restrictions on the submission of land development applications while zoning changes are thoughtfully deliberated and considered. By affirming the Superior Court’s decision, the pending ordinance doctrine and the reasons Delaware has adopted it has been clarified and are now firmly a part of Delaware jurisprudence.