Rehoboth's Stingray goes to court over patio

Owner appeals board's decision as arbitrary

By Ryan Mavity | Mar 22, 2012, Cape Gazette
Photo by: Ryan Mavity Stingray restaurant is awaiting a date in Sussex County Superior Court in its case against the Rehoboth Beach Board of Adjustment. Stingray claims the board acted in an arbitrary and capricious manner in denying the restaurant a variance.

A popular Rehoboth Beach restaurant is headed to court.

Stingray Sushi Bar and Asian Latino Grill, 59 Lake Ave., is awaiting a hearing date in Sussex County Superior Court. Stingray is appealing a ruling by the board of adjustment that denied the restaurant a variance for an outside patio. Stingray says the board's ruling was arbitrary and capricious.

The restaurant is already a nonconforming building, having been grandfathered in after the city’s zoning code was passed in 1991. Stingray’s liquor license was also grandfathered.

Stingray first went to the city commissioners for a permit of compliance in May 2010. At that hearing, Stingray owner Darius Mansoory said the outside patio would be a small, Zen garden that would give Stingray an additional 28 seats. Mansoory argued that the patio was not an expansion or modification of Stingray and that the patio should not be included in the restaurant’s square footage. The commissioners unanimously denied the permit.

A year later, Mansoory, who had no legal representation, went to the board of adjustment for a variance to exceed the city’s 5,000 square foot building regulation but was again denied. In June 2011, Mansoory tried to have the board rehear the case, but he was again rejected.

Mansoory has since hired Dover-base attorney John Paradee, and Stingray filed its appeal in Sussex County Superior Court on July 27. Since then, the case has been wending its way through the court system.

Paradee said the restaurant’s contentions are two-fold: Stingray is grandfathered from the requirement to obtain a certificate of compliance as a prerequisite to securing a patio permit and if a certificate of compliance is required, then the board wrongfully denied Stingray's request for a variance

As part of its case, Stingray had made federal claims, and the city had the case kicked up to U.S. District Court in Wilmington, but Paradee has since dropped those federal claims, moving the case back to Sussex County Superior Court.

“The federal claims were for violations of procedural due process, substantive due process and equal protection,” Paradee said. “Our theory was – and still is – that the city has denied Stingray's application for a patio permit in an arbitrary and capricious manner, particularly so in light of the fact that the city has granted certificates of compliance and patio permits to all other similarly-situated applicants.”

As examples, Paradee cited Nicola’s, The Cultured Pearl, Grotto’s and The Greene Turtle, all restaurants exceeding 5,000 square feet that were granted variances by the board and permits of compliance by the city commissioners.

“What is worse, in every single one of those instances, the degree of exceedance above the 5,000 square feet limit was much greater than in our case. In our case, we exceed the 5,000 square foot limit by a mere 285 feet,” Paradee said.

He said Stingray’s federal claims were dropped in an effort to expedite the case. Paradee said the city’s attempt to take the case to federal court was a maneuver typically designed to drag the case out and force the plaintiff to spend fees litigating the merits of the federal claims first, instead of dealing with the state law claims on the merits.

However, that does not mean Stingray is totally giving up on its federal claims.

“If we prevail on our state law claims, we may decide to reassert our federal claims at a later date,” Paradee said.

City Solicitor Glenn Mandalas said, “Taking it up to the federal court and then taking it back down, that took quite a while.”

He said briefs have been filed, and the court will schedule a hearing sometime within the next three months, and then take another 60 to 90 days to decide the case.

“Our position of course is that the board of adjustment made a decision affirming the building official, so we are hopeful that the court will affirm the board of adjustment,” Mandalas said.

Paradee said, “I like our chances.”