The next battle over a proposed 63-unit condominium project in Rehoboth Beach is set to take place Friday, Jan. 26

That’s when city commissioners will hear an appeal brought by the developer of BeachWalk, planned on 7.75 acres now known as Rehoboth Beach Plaza shopping center, off Route 1.

BeachWalk developer Keith Monigle and attorney Dennis Schrader are appealing the planning commission’s decision that BeachWalk must be submitted as a major subdivision application. When Monigle and Schrader refused to submit the required documents, the commission let the matter die without taking a vote.

In a Jan. 5 letter to the commissioners, Schrader said the planning commission erred by refusing to consider the application as submitted: a single-parcel condominium, not a subdivision. He said in May 2016, the board of adjustment ruled that more than one building could be built on the lot and that the planning commission is bound by that ruling. Schrader said the planning commission stepped outside its authority and was re-litigating the board of adjustment’s decision.

Schrader said condominiums and subdivisions are two different things, with different rules; a subdivision has far more stringent regulations including street widths and setbacks. He said during its deliberations, members of the planning commission acknowledged several times that even though BeachWalk looked like a subdivision, it was not. Schrader said the commission again stepped outside its authority by requiring Beach Walk to submit legal briefs and respond to arguments made by opponents of the project, of which there are many.

Schrader also argued the commission violated city code by drawing out the preliminary review process, and not holding a public hearing on the plans as submitted, which Schrader said is required by code.

“In short, the planning commission refused to move the matter to a full public hearing and denied the application by inaction,” he said.

Schrader requested the city commissioners remand the matter back to the planning commission for a full hearing on the merits of the application.

Representing the planning commission, City Solicitor Glenn Mandalas said condo projects are still required to go through the city’s subdivision process.

“There is no relevant difference between what the appellant has proposed and a more typical subdivision,” he said. “Creating a condominium scheme from a single parcel of real estate constitutes a subdivision.”

Mandalas said the board of adjustment’s ruling does not prohibit the planning commission from requiring a subdivision plan. He said the board ruling, on a very narrow section of the code, does not alter the planning commission’s authority over features of the development such as the distance between buildings, front and rear setbacks, and street placement.

Citizens group forms in opposition

While lawyers fight out the legal issues, Rehoboth citizens have established an organization to oppose the project as submitted.

Pam Cranston and Sandy Neverett live on Terrace Road, near the proposed development. They have started the citizens group Rehoboth Citizens for Responsible Growth, which now has about 100 participants. Cranston said about 400 signatures have been gathered on a petition opposing BeachWalk as submitted. Opponents say while they welcome redevelopment of the shopping center, they oppose the plan’s design, especially the extremely high number of units, the developer’s proposed traffic flow and the proposal’s extremely narrow “aisles,” Monigle’s word for narrow lanes that replace streets within the development.

Members of the group were at first disturbed because almost all of the 58 planned single-family homes are expected to have five to six bedrooms and five to six bathrooms.

“These are designed for adult living. You’re not going to have one or two cars. They’re designed for the rental market,” Neverett said, noting the units offer two parking places, but the “aisles” are not wide enough to provide street parking.

Cranston and Neverett also say Monigle, Schrader and BeachWalk engineers Pennoni Associates pressured state regulators to approve aspects of the plan before they obtained approval from the city’s planning commission.

Using a Freedom of Information Act request to obtain communications between BeachWalk representatives and Delaware Department of Natural Resources and Environmental Control and Delaware Department of Transportation, Cranston and Neverett say the communications show BeachWalk was pressuring DNREC for two things: approval of the development’s sediment and stormwater plan through Sussex Conservation District without the approval of the city, and an extension of a hardship variance BeachWalk had been granted in January 2016.

DNREC had granted the variance in light of revised state sediment and stormwater regulations. Originally, BeachWalk was grandfathered under the old regulations and was given 18 months to get the project approved by the city. When that 18 months came and went, BeachWalk obtained a 60-day extension, and when that ran out, the project was granted a hardship variance that expired after one year. All of those extensions have now expired. DNREC spokesman Michael Globetti said Jan. 11 that BeachWalk would now have to comply with current, updated regulations.

In their correspondence and in meetings with the city, Monigle has stated the city delayed the site-plan review process. The August meeting was intended as a preliminary review, but BeachWalk was not given time to make a formal presentation. The process was slowed further as the planners considered whether BeachWalk is a major subdivision.

Cranston and Neverett said the documents also show BeachWalk representatives tried to persuade DelDOT to change an earlier ruling that BeachWalk must be accessed by a traffic signal. When BeachWalk first went before the planning commission in August 2016 for a preliminary review, the plans called for closing access from a traffic signal on Route 1. They proposed that the property be accessed from Terrace Road, a plan that requires southbound traffic to make a U-turn from Route 1.

That plan received negative marks from state legislators Rep. Pete Schwartzkopf, D-Rehoboth Beach, and Sen. Ernie Lopez, R-Lewes, and from the chiefs of the Rehoboth Beach Police Department and Rehoboth Beach Volunteer Fire Company. Fire Chief Chatham Marsch said in August it would be exceedingly difficult for fire engines to make a u-turn on Route 1, especially in the summer. Marsch also cautioned the proposed “aisles” are not wide enough for fire trucks to operate properly.

Also at the August meeting, BeachWalk officials said the access plan was changed to prevent vehicles from cutting through Beach Walk to get to Terrace Road.

“Keith was not forthright with the city about the fact that he never got approval from DelDOT,” Neverett said.

In one of the documents obtained by Cranston and Neverett, Monigle tells DNREC officials he has no plans to change Beach Walk plans and that he expects his side will prevail.

“Their argument was, ‘We’ve spent a lot of money on this. Can you just give us this one?’ Cranston said. “It’s a repeated demonstration of his inability to hear the word, ‘No.’”

“We support development,” Neverett said. “But have it be responsible, that has a density that’s consistent with the rest of the neighborhood. You wouldn’t say that with what he’s proposed.”