More than 700 people have signed a petition opposing BeachWalk, a proposed 63-unit housing development at Rehoboth Beach Plaza shopping center, known as Baymart.

BeachWalk is the subject of an appeal hearing before Rehoboth Beach commissioners 9 a.m., Friday, Jan. 26. The petition, hosted by change.org, advocates for the commissioners to support the city planning commission, which has required BeachWalk to submit plans that meet major subdivision standards.

“Failure to do so presents undue risk to the safety and welfare of local residents, imposes unnecessary burdens on the community and threatens the future of Rehoboth Beach by setting a negative precedence for other development within the city,” says the petition, sponsored by Rehoboth Citizens for Responsible Growth.

Pam Cranston, one of the founders of Rehoboth Citizens for Responsible Growth, said she hopes the city commissioners back up the planning commission and ask BeachWalk to resubmit as a major subdivision.

“We’re not surprised. People are incredulous that this is even being considered,” Cranston said.

Sallie Forman, president of Save Our Lakes Alliance3 and also part of Rehoboth Citizens for Responsible Growth, said, “The community overall would like to see something happen on that property, but what is being proposed does not meet the regulations as established by the state, and it certainly doesn’t meet the subdivision regulations that are required by the city of Rehoboth.”

BeachWalk developer Keith Monigle says the project is a condominium, with 58 single-family units and five multifamily units on a single 7.75-acre parcel; BeachWalk attorney Dennis Schrader has argued BeachWalk is not a subdivision but a condominium built on one parcel, so it is not required to comply with subdivision regulations. Schrader acknowledges the project is unpopular but he does not think anyone would be happy with any plan presented for the land. He said he expects a marathon hearing on Jan. 26 that will go on all day long.

The BeachWalk case is so complex, other attorneys are reluctant to weigh in.

Attorney Jim Fuqua, who represented nearby Rehoboth Elementary School during its site-plan review process, said, “It’s a really complicated issue ... The applicant has an opinion about it, and the city has an opinion about it, and that’s going to get answered by a judge.”

As the appeal hearing draws closer, citizens groups say the stakes for the appeal are high.

“The precedent that this would set for anyone that goes to the planning commission and doesn’t like the way they are being treated or what the process is, they say, ‘Well, gosh, we’ll go to the city commissioners and leap past the planning commission,’” Forman said.

Carol Tello, who lives on Terrace Road, said the city commissioners should not even hear the case, since no final action was taken by the planning commission at a public hearing.

“A court can say, ‘City commissioners, you have no jurisdiction over this, your decision is null and void,’” she said.

Tello said the commissioners should send the matter back to the planning commission for a final decision.

“To say, ‘Well, an inaction is an action,’ is not correct,” she said.

Tello, herself a lawyer, said the problem with Schrader’s argument is that a condominium is a form of ownership where a person owns an individual unit. Tello said the city land-use laws have nothing to do with forms of ownership. She said as soon as a condo unit is sold in BeachWalk, it becomes a subdivision. Tello said state law states that condominium ownership does not supersede local subdivision laws.

Sandy Neverett, who lives on Terrace Road, said the density of the project allows 305 bedrooms, meaning that over 700 people can be there if all the houses are occupied.

“That is half of the year-round population of Rehoboth,” she said. “This is on a parcel that is a little over 1 percent of Rehoboth’s land mass.”

Neverett estimated that based on subdivision regulations, Monigle could get about 40 houses on the lot.

Cranston said the narrow “drive aisles” Monigle has proposed do not allow for adequate or safe parking and are not wide enough to accommodate emergency vehicles.

Monigle has also proposed closing off access to the property from an existing Route 1 traffic signal. As currently designed, from that entrance, only the five multifamily units would be accessible. Southbound Route 1 traffic would have to go beyond the existing light, make a U-turn at Robinson Drive and then turn right onto Terrace Road to access single-family units. Tello said that presents a safety issue as there have already been accidents at that intersection, including a fatality.

At the planning commission’s preliminary review, the city’s fire chief, Chatham Marsch, said it would be very difficult to swing a ladder truck through the proposed U-turn, especially in summer traffic. DelDOT has told BeachWalk representatives the property must be accessible from a signaled intersection, but plans for the development have not been changed.

A position paper presented by Rehoboth Citizens for Responsible Growth states the close proximity of the houses could allow fire to spread from house to house. Subdivision rules in Rehoboth require at least 16-foot total side-yard setbacks, with no less than 6 feet on each side.

Cranston also said the Newbold Square pumping station would serve all the wastewater for the BeachWalk development. With the project’s density, the number of people using the facilities could overwhelm the station, she said. According to data compiled by Rehoboth Citizens for Responsible Growth, if BeachWalk users were added to existing users, the station would be 49 percent over capacity.

The BeachWalk property sits nearly entirely in Rehoboth, but part of the land lies outside city limits in Sussex County. City Solicitor Glenn Mandalas said the planning commission has not yet dealt with that issue, but the city has jurisdiction to make decisions only concerning the portion of the lot that lies within the city.

The concerns of opponents coincide with a letter written by then-building inspector Terri Sullivan to BeachWalk engineers Pennoni Associates pointing out seven fatal flaws with the plan. Sullivan’s letter, dated July 29, 2015, points out there are no sidewalks, no off-street parking, and no square footage indicated for common areas in the development; the streets are too narrow as proposed; the five multifamily units are planned in too small a space; three trees are required per 5,000 square feet and one tree is required in every front yard; and code requires 40 percent natural area per unit in a commercial zoning district.

“I think what this demonstrates is that this developer is not honest in terms of dealing with the city of Rehoboth, in terms of dealing with the state agencies and has made misrepresentations all along the way. That’s why this is so important for this to come back to the planning commission for review because they know how to delve into the real facts and come up with the right decision on what this property is going to be,” Forman said.

Neverett said, “It’s more than BeachWalk. It’s the next one. By affirming the planning commission’s authority, you are avoiding those downstream problems.”

According to city code, the commissioners have four options at the conclusion of the Jan. 26 meeting. They could affirm the planning commission’s final action; reverse it; remand the matter back to the planning commission for further review or to hold a new hearing with conditions attached; and finally, they could modify the planning commission’s final action with new conditions.

Meeting procedure

The Jan. 26 meeting will feature testimony from people who are not party to the appeal but who provided testimony during the planning commission’s public meetings, followed by public comment only by those who appeared before the planners with written or oral evidence or legal arguments regarding the BeachWalk case.

Those who wish to speak must identify themselves by contacting city secretary Ann Womack at awomack@cityofrehoboth.com by Monday, Jan. 22. Presentations will be limited to 10 minutes or less per speaker as determined by the commissioners. After public testimony, there will be a presentation by qualifying nonparties, then by Schrader and then by City Solicitor Glenn Mandalas, representing the planning commission. There will then be a rebuttal period. The commissioners will then deliberate. While the agenda says the commissioners could vote, Schrader said he did not expect a vote the day of the meeting due to the volume of material the commissioners will have to go through.

BeachWalk timeline

July 2015 - Developer submits BeachWalk plans. Then-building inspector Terri Sullivan issues letter noting seven fatal flaws

December 2015 - Building inspector Dam Molina rules BeachWalk cannot proceed because it does not conform with city code. Molina’s ruling stated BeachWalk could have no more than one building on the lot.

May 2016 - BeachWalk attorney Dennis Schrader appeals Molina’s ruling to the board of adjustment; the board overturns Molina’s decision, and the project proceeds to the planning commission for site-plan review.

August 2016 - The planning commission holds a preliminary review; BeachWalk makes no formal presentation. At the end of the review, the commission questioned whether BeachWalk is a major subdivision and sought legal briefs from attorneys and concerned citizens.

October 2016 - The commission considers BeachWalk a major subdivision and asks the developer to resubmit plans as a subdivision.

December. 2016 - Developer Keith Monigle refuses to submit as a major subdivision and asks for his project to be considered as a condominium.

January 2017 - Schrader reiterates Monigle’s position that BeachWalk will not submit plans as a major subdivision. Chairman David Mellon gives BeachWalk 60 days to file plans, without which the commission would not move forward with the review.

March 2017 - BeachWalk does not submit as a major subdivision; the planning commission declines to continue deliberations.

April 2017 - Schrader appeals the planning commission’s decision to the city commissioners.

July 2017 - The planning commission files a motion to dismiss, asserting the city commissioners do not have jurisdiction over the case because the planners did not make a final decision.

October 2017 - Mayor Paul Kuhns recuses because of a prior relationship with Schrader; Kuhns commissioner seat had not yet been filled. The commissioners, by 3-2 vote, reject the planners’ motion to dismiss and move forward to hear the BeachWalk appeal.

Jan. 26, 2018 - BeachWalk’s appeal will be heard by Rehoboth Beach city commissioners.