Attorneys for the city of Rehoboth Beach are seeking to dismiss an appeal brought by the developer of a proposed 63-unit condominium development at the Rehoboth Beach Plaza shopping center.

However, attorneys for developer Ocean Bay Mart say the city’s attempts to dismiss the case are baseless and the appeal should be heard by Delaware Superior Court.

The Bay Mart case dates back to the summer of 2015, when property owner Keith Monigle filed plans to redevelop the Rehoboth Beach Plaza as a development called BeachWalk, which would consist of 58 single-family homes and a five-unit apartment complex.

The proposed development caused controversy immediately, as neighbors objected to the number of homes, narrow drive aisles and lack of sidewalks. City police and fire officials and state legislators opposed the proposal to cut off access to the property directly from Route 1, causing emergency vehicles to instead make a U-turn to access the development.

Building inspector Dam Molina denied BeachWalk a building permit when he ruled that BeachWalk could not have more than one building on a lot. BeachWalk appealed that ruling to the Board of Adjustment where it was overturned. Later, the city commissioners passed an ordinance stating that only one dwelling unit can be built on a lot.

The case then went to the Planning Commission, which determined that BeachWalk was a major subdivision. When Monigle declined to file an application as a major subdivision, the planners took no further action. Monigle appealed that decision to the city commissioners, who upheld the planning commission’s ruling. BeachWalk then appealed to the Delaware Superior Court.

The city moved to dismiss the case, citing the ordinance that mandated only one dwelling unit could be built on a lot. City attorney Max Walton said there is no vested right that allows a developer to proceed under land-use laws in effect at the time an application is filed. Walton said pending land-use applications are subject to subsequently enacted ordinances. He argues the case should be dismissed because the Superior Court lacks jurisdiction.

Attorney Richard Forsten, representing BeachWalk, said in his response brief, filed May 23, that the city is raising this argument for the first time. He said the city cannot retroactively apply the ordinance to the BeachWalk project, which had been applied for more than a year before the ordinance was passed.

“Although the ordinance was adopted in response to the Board of Adjustment’s decision concerning the BeachWalk project, no commissioner indicated that the ordinance was intended to apply to the BeachWalk project, and indeed, the limited record indicates neither the mayor nor the town solicitor thought the ordinance would apply,” Forsten said.