Ruling adds fuel to Rehoboth Beach pool fight

Barry Covington just wanted to be able to take his grandchildren into the backyard of his retirement home and teach them to swim.

That was what started Covington's legal battle with the city of Rehoboth Beach two years ago. It ended this week when the Delaware Supreme Court upheld a decision by the state's Superior Court not to issue permits to build Covington's dream house and pool.

In July 2015, Rehoboth Beach commissioners passed the ordinance intending to make new houses smaller, especially those with swimming pools. Neighbors had complained about a trend in very large homes with pools that attracted a lot of guests and created a lot of noise, often late into the night.

The Covingtons contended that the ordinance would negatively impact the building of their retirement home on St. Lawrence Street in Rehoboth Beach, which led them to initially take their case to the city's Board of Adjustment for appeal.

The city's governing body denied their request to overturn the building inspector’s decision not to issue permits, saying the application did not meet zoning code requirements under the ordinance.

"We aren't renters, and our home is not a mini hotel like people around here like to say," Covington said. "We are residents, and we have three adult kids and five grandchildren, so we wanted our retirement home here to have a pool and to be a place the entire family could enjoy during the summer."

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Covington said he used to rent a place three weeks each August for 10 years but decided with his large family, he would buy a home in Rehoboth Beach. The home he bought was in such disrepair that he decided to raze it and build a new home that would accommodate everyone. That turned out to be a six-bedroom house.

"We could have put a pool in when we first built two years ago, but we decided to wait," he said. "Two months later, the code changed. We thought we could prevail down the road, but that didn't happen."

The city denial led the Covingtons to state Superior Court, which upheld the city's decision. Covington and his attorney, Gene Lawson, appealed to Delaware's highest court.

Lawson argued that the city charter says when the ordinance went to referendum, it was suspended. He believed that since the Covingtons filed for a building permit for a pool in October 2015, the application should have been reviewed under the old zoning ordinance, which would have allowed it.

The court agreed with the city that the ordinance was pending legislation and that even while suspended, it was still in effect. 

In the Superior Court decision, Judge Richard F. Stokes wrote that under the pending ordinance doctrine, which has been adopted in Delaware, "a property owner is not entitled to obtain a building permit where the proposed construction would be prohibited under the terms of pending ordinance. Thus, once a zoning ordinance is pending, it goes into effect, even though it has not been officially made law."

Stokes went on to say that the purpose behind the doctrine is to ensure that property owners are not able to bypass soon-to-be-enacted ordinances by filing building applications immediately before the law goes into effect.

Covington said he was disappointed, but not surprised, by the Supreme Court's decision. The 70-year-old retired attorney who lives in Potomac, Maryland, with his wife, Sharon, said he feels as though he and his family have been singled out because of others.

"The city has taken a stricter approach when it could have taken a softer one," Covington said. "Limiting families wanting pools isn't the way of going about it. You can control noise with other ordinances." 

The restrictions triggered an outcry among Rehoboth Beach residents and led to a debate within the community. In August 2015, dissatisfied residents presented a petition to the commissioners requesting they reconsider the ordinance or take it to a referendum.

While the first petition did not have enough signatures, additional petitions were presented a month later to request a repeal of the ordinance.

The commissioners did not repeal the ordinance, but rather set a referendum date of Nov. 7, 2015. Voters chose to uphold the ordinance, 785-697.

"Commissioners at the time, with public sentiment behind them, made a good decision," said Rehoboth Beach Mayor Sam Cooper. "Voters upheld the ordinance in referendum, giving it their stamp of approval. It's a great day for the city and a great day for city ordinances."

The lone dissenting vote on the commission was Kathy McGuiness, who thought by changing the codes, those who had filed applications in good faith would be punished.

"We changed the code and that put them in a waiting game," she said. "When you are dealing with a person's personal property, their 401(k) and their livelihood, those things should be taken into consideration. Now what are they supposed to do?"

McGuiness said there are six similar appeals with the Board of Adjustment pending action. 

The battle for Rehoboth

The Covingtons' denial is the latest salvo in a battle between Rehoboth Beach residents who long to keep the city a small, residential, quiet beach town and those who see a different future.

A month before the ordinance was passed, the city's board of commissioners gave serious thought to denying renters of vacation homes the ability to swim in pools at the houses they rent.

Background:Rehoboth torpedoes plan to keep renters out of pools

The reason? Ever-larger houses with pools, some people said, are causing far too much noise and rowdiness in residential neighborhoods.

The owners of those properties were upset, saying such a move would not only cost them income, but could drive renters away from a resort that depends on their summer spending to function.

Supporters of the proposed pool rules, who also support suggested restrictions on home sizes and occupancy limits for rented properties, countered by saying real estate trends toward super-sized homes are putting the resort's character at risk.

In an interview in June 2015, Cooper said residents have experienced a degradation in their quality of life because of new houses. 

"They've had rentals around them and it's no problem," he said. "But it's the introduction of these pools that has really tipped the balance."

Cooper said that he worried about what Rehoboth Beach would become if waves of visitors, staying in ever-larger houses, come to overwhelm the number of permanent residents.

Pool owners say the mayor is way off base. They say they're being blamed for quality-of-life complaints that, in many cases, have nothing to do with pools.

Cooper's controversial amendment failed nearly two weeks later.

Instead, the board voted to enact an ordinance requiring property owners with built-in pools to obtain a license.

Several commissioners at the time said their votes on the renters-shall-not-swim amendment were swayed by the intense public campaign urging them to vote no. A nonprofit called Save Our Nation's Summer Capital was formed to combat both pool ordinances.

McGuiness said that with Cooper – who has been mayor in Rehoboth Beach for 27 years – leaving office Sept. 15 after he lost the mayoral race in August to former commissioner Paul Kuhns, she would be the old guard in Rehoboth government. 

She looks forward to having more people engaged in city government on boards and commissions. She believes this is a perfect time for a reset and a recharge. McGuiness said the time is now to figure out what Rehoboth's vision is and what it wants to be.

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"This is not the same quiet beach town I grew up in," said the six-term commissioner. "We are not the sleepy town we once were. That ship has sailed."

On Wednesday, Cooper said the Supreme Court ruling vindicates the city's decision on the ordinance matter. He said it will be a defining case now in Delaware.

"It's a concept in law that did not have a lot of precedent," he said. "It was the city's initial decision that was at stake. 

Solicitor Glenn Mandalas said the Supreme Court 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," he said.

Covington hopes with a newly elected mayor and a new commissioner, the issue can be revisited.

McGuiness said that could be a possibility, especially if residents step up and want to be a part of a new committee to discuss it.

"I really hope they will have more of an open mind this time," Covington said.

Reach Jerry Smith at jsmith17@delawareonline.com. Follow him on Twitter at @JerrySmithTNJ.