The size and massing of houses can be a contentious issue in beach communities. In Rehoboth Beach, Delaware, that controversy has pushed several home construction projects into a legal limbo, with builders believing their projects should be permitted, but town officials maintaining that permits should be denied. The situation is murky because of a peculiarity of the local legislative process: a zoning ordinance limiting the size of new houses was voted into effect by town commissioners, then challenged by a grass-roots petition calling for a voter referendum on the matter. Now, the News Journal reports, there's a dispute over whether the "suspended" ordinance should still be enforced while the process unfolds (see: "Suspended Rehoboth law is still enforced by city," by James Fisher).
"Can an ordinance keep the force of law even after it’s been 'suspended' by an ongoing petition effort to repeal it?" the paper asks. "The Rehoboth government’s attorney says yes; a lawyer for some landowners says no; and hundreds of thousands of dollars of property investments hang in the balance. The city and the landowners’ attorney are contesting just what it means when an ordinance is passed by the Rehoboth Beach commissioners — but then temporarily suspended after hundreds of people sign a petition to force a revote or voter referendum on it."
The story started in July, when city commissioners passed a new ordinance intended to moderate the impact of large homes in Rehoboth that cater to vacation rental traffic. The News Journal has that story (see: "Rehoboth cinches large homes with tightened zoning law," by James Fisher. "The Rehoboth Beach Commissioners had put two ordinances up for discussion in a Friday public hearing," the paper explains. "One increased the number of required parking spaces off the street for homes designed with more than three toilets; a five-toilet home, for example, would need to shoehorn four parking spaces onto its lot. The commissioners chose to delay a vote on that toilet-parking nexus until August at the earliest. The second ordinance contained a laundry list of tweaks to the zoning code to increase rear-yard setbacks, require more green space in front yards and cap the size of residential homes at 6,000 square feet in some zones and 4,500 square feet in others. That ordinance passed in a 6-1 vote, with Commissioner Kathy McGuiness voting no."
"Mayor Sam Cooper and some other commissioners say they have been implored to act by residents concerned about large groups of renters, noise around outdoor pools, and parking crunches," the paper reports. But some homeowners say the new rule is forcing them to throw away money they've already sunk on designs for new houses that won't be allowed under the new caps.
Hundreds of people signed the petition to put the new policies to a popular vote. That means the July ordinance is now "suspended" pending a verification of the signatures, and, if the petition proves legitimate, a vote by the people. But does that mean homeowners should now get permits for the big houses they were hoping to build before the new rules passed? Well, that's still unclear, reports the Cape Gazette (see: "Zoning ordinance debate continues in Rehoboth," by Ryan Mavity.
"City Manager Sharon Lynn said while the ordinance is suspended, it has not been repealed and is still considered pending legislation," the paper reported. The difference between "pending" and "suspended" is a fine point, and a tricky distinction to grasp. "The problem with that position is that there is no pending ordinance. An ordinance was passed – negating the pending ordinance – after which it was suspended from taking effect,” said attorney Gene Lawson, who represents the homeowners who organized the petition drive. If legislation that changes permit rules is "pending" — awaiting its effective date — then permits under the old rules aren't granted during the interim period. But if the legislation is "suspended," Lawson argues, it has no effect, and the old rules should be applied. But in fact, for now, permits that don't meet the guidelines from the July ordinance have not been granted, town officials told the paper.