Silver Lake House UPDATE March 23, 2012
Rehoboth won't stop home being built on Silver Lake
Rehoboth board refuses to rehear Silver Lane appeal
Attorney: 'This is far from over'
By Ryan Mavity
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The Rehoboth Beach Board of Adjustment has rejected a request to rehear an appeal of a building permit for a house at Lot 6 Silver Lane.
Voting 4-1, the board found the appellants failed to meet the criteria for a rehearing.
The house at Lot 6, owned by the Levy family, has come under fire from neighbors because the home’s foundation appears to rise out of Silver Lake. Neighbors and lake advocates – Marti Cochran and Silver Nine LLC along with Save Our Lakes Alliance3 and the Rehoboth Beach Homeowners' Association – banded together, hired attorney Gene Lawson and appealed building inspector Terri Sullivan’s decision to grant a building permit for the house.
They contend that the house violates city setback requirements, and Sullivan relied on inaccurate surveying data in granting the permit.
The board first declined to hear the case at a Jan. 30 hearing, stating the appellants failed to file the appeal within 30 days after the building permit was issued.
Lawson, since joined by attorney John Paradee, filed for a rehearing of the case, saying, among other things, that addressing the 30-day issue was not on the agenda at the Jan. 30 hearing, that no members of the public were allowed to speak except the Levys and that the case was not addressed on its merits, which was noticed to the public.
To gain a rehearing, an appellant must prove that there was either a mistake or inadvertent surprise, newly discovered evidence that had not been discovered at the time of the original hearing, or fraud or misrepresentation.
Board member Myrna Kelley said, “I’m having difficulty understanding where a mistake was made.” Lawson should have made an effort to know whether there was a time limit involved, she said.
Chairman Thomas Evans said the appellants made no case supporting any of the criteria necessary for rehearing.
Board member Frank Cooper, the only vote for a rehearing, said, “The mistake, I believe, is ours. Not the appellants.’ I believe we ruled in error, and a mistake was made by the board of
adjustment.”
Board member Clif Hilderley said, “It’s not a mistake that we did what we did; it’s an opinion of the beholder who wanted us to rule the other way. I find that the arguments are totally void of fact.”
While Cooper said the appellants made an elegant argument for rehearing, Hilderley described the argument as a lecture.
Case far from over
For those involved in the case, the board’s ruling will not end the battle over the Silver Lane house.
“It was readily apparent to me that certain members of the board would have denied the motion for rehearing no matter what arguments were presented to them,” Paradee said, “The board had another chance to do the right thing and address this controversy on the merits. The environmental sanctity of Silver Lake is important enough that the board should have allowed the appellants to have their day in court.”
He said Lawson’s submission for rehearing spelled out mistakes made by the board at the Jan. 30 hearing, including its definition of good cause to waive the 30-day rule, the agenda notice and the documentation used in granting the building permit.
“In short, the board has turned the legal standard on its head by refusing to entertain the merits of the appeal absent a showing of ‘unique and compelling’ good cause. That is not the correct legal standard,” he said.
Paradee said the decision not to hear the case was not only legally wrong, but morally wrong.
'The board owes it to the community to hear this controversy on its merits. I felt embarrassed for them,' he said.
Lawson said the minds of most of the board seemed made up before the March 19 meeting even started. He said his clients have options at this point: They could appeal the board’s decision to Superior Court or go to Chancery Court to resolve the property line issues. Lawson said his clients have 30 days to file an appeal in Superior Court.
The board also faces Freedom of Information Act complaints for improper notice of the Jan. 30 meeting.
The appellants have asked the Attorney General’s Office to have work stopped on the house until questions about the lot survey could be cleared up.
“We will look at the alternatives,” Lawson said.
Paradee said, “I'm not sure where we go from here, but my clients are evaluating several options. Suffice it to say that this is far from over.”
Scott Wilcox, attorney for the Levys, said the board made the correct decision and the ruling was appropriate.
He said the Levys have done everything to make sure their home does not harm the environment, which is important to the family.
Wilcox said the Levys are willing to meet with the appellants to discuss any concerns they may have over the house's impact to the environment.
No reason to rehear case, board rules
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The News Journal
REHOBOTH BEACH -- A controversial home construction project along the shore of Silver Lake in Rehoboth Beach won't be reconsidered, the city's Board of Adjustment ruled Monday.
In a 4-1 vote, the board rejected a request by attorney Eugene Lawson on behalf of the Rehoboth Beach Homeowners Association, Save our Lakes Alliance 3 and several individuals to reconsider their decision of Jan. 30. They found that Lawson did not meet the standards for a rehearing -- that a mistake had been made, that new evidence had come to light or that there was fraud.
Board member Frank Cooper, the only member who voted in favor of a rehearing, said there was a mistake made in the Jan. 30 decision that allowed construction of the home at 6 Silver Lane to proceed.
The property, owned by the Joseph & Veda Levy Trust, is along the southwest shore of Silver Lake.
One side of the home, which is currently under construction, is built at the edge of the lake -- one of Delaware's few natural freshwater lakes.
The 45-acre lake is owned by the state, but according to tax-mapping records, the Levy Trust land extends beyond the high ground and into the lake itself.
City officials granted a building permit for the home last fall, but once construction started, neighbors and the two civic organizations appealed to the Board of Adjustment.
At the January hearing, the board declined to hear the case, saying the individuals and civic groups failed to make their request within 30 days of the issuance of the building permit. Carter said the board did make an error in failing to hear the case back in January.
"To my knowledge, there has never been anything like this before in Rehoboth," he said. "This is a very different situation."
The controversy has prompted the city's planning commission to look at the possibility of requiring buffers around lakes within the city.
Contact Molly Murray at 463-3334 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it. .
Rehoboth board to decide on rehearing
Cape Gazette, March 13
The Rehoboth Beach Board of Adjustment will decide whether it will rehear an appeal of the building permit for the house at Lot 6 Silver Lane at 7 p.m., Monday, March 19, in the city commissioners’ room.
The house has raised the ire of neighbors and Silver Lake advocates because its concrete foundation appears to rise out of the lake. However, the board refused to hear the case on Jan. 30 because the opponents of the house failed to file their appeal within 30 days as required by board rules.
The board will be deciding only whether to rehear the case. The motion for reargument has been requested by attorney Gene Lawson on behalf of Silver Nine LLC, neighbor Marti Cochran, Save Our Lakes Alliance3 and the Rehoboth Beach Homeowners’ Association. The Joseph and Veda Levy Trust owns Lot 6 Silver Lane.
In addition, the board will hear a request for two variances for property at 232 Country Club Drive.
Owners Neal Zimmerman, Beverly Zimmerman and Sharyn Santel are requesting a variance to allow Country Club Drive to be the front of the property and a variance to allow a one-and-halffoot variance from the six-foot side-yard setback requirement for a pre-existing structure and to allow the existing garage to remain in place.
Should the second variance not be allowed, the owners are requesting an alternative variance to allow a five-and-a halffoot variance from the required 10-foot rear-yard setback and allow the garage to remain in the front yard.
Attorney Daniel Myers II has requested the variances on behalf of the owners.
Opponents of Silver Lake house gear up
Petition presented to Rehoboth commissioners
Rehoboth Beach — Opponents of a house under construction on Silver lake in Rehoboth Beach have added firepower to their legal team, hiring Dover attorney John Paradee. In addition, two local groups presented a petition with 140 signatures to the Rehoboth Beach commissioners March 5, asking them to stop construction and resolve inconsistencies among surveys of the property.
The house at 6 Silver Lane, being built for the Levy family, has been an ongoing source of controversy since the home's cinder block exterior appeared to rise out of the lake.
Opponents, including neighbors, Save Our Lakes Alliance3 and the Rehoboth Beach Homeowners' Association, hired attorney Gene Lawson and attempted to work with city officials on a resolution to resolve their concerns, centering on set back violations and inaccurate property lines. When nothing could be worked out, Lawson filed an appeal of the building permit with the board of adjustment.
However, at its Jan. 30 meeting, the board declined to hear the case, saying the appellants failed to file the appeal within 30 days of the issuance of the building permit.
Lawson then filed for a rehearing of the case, saying the board violated the Freedom of Information Act by not properly noticing the hearing and allowing no members of the public to speak, except for the Levys. The board could vote to rehear the case at its Monday, March 19 meeting.
Paradee said he agreed to take the case because it presents an interesting property rights issue, with questions such as how do citizens ensure that local governmental officials properly enforce legal standards imposed under local building codes.
Paradee sent a letter to City Solicitor Glenn Mandalas, repeating opponents’ assertion that the house encroaches on the side-yard setbacks and that the building permit was issued based on faulty information.
Paradee has asked building inspector Terri Sullivan to revoke the building permit or issue an immediate stop-work order to preserve the status quo until the controversy has been settled. “That would be in the best interest of all concerned – the city, the neighbors and the Levys,” he said.
Lawson wrote a letter to City Manager Greg Ferrese asking Sullivan to suspend or revoke the building permit. If she is unwilling to do that, Lawson said his clients request Sullivan recuse herself from the case or that she be removed from the case.
“It is becoming increasingly obvious that the inspector has taken this controversy too personally and is not fulfilling her obligation and duty to correct an error by withdrawing the permit until the underlying issue regarding the property line can be clarified,” Lawson wrote.
Neighbor Marti Cochran, whose home on Scarborough Avenue Extended is next to 6 Silver Lane, has amended Lawson’s complaint with the Department of Justice to request the department look into communications between Sullivan and board Chairman Thomas Evans. Cochran says Evans was strongly influenced by private conversations with Sullivan before the Jan. 30 meeting.
Cochran said she did not believe Evans intentionally set out to violate public right-to-know laws, but his conduct undermined confidence in the fairness of the hearing.
Evans could not be reached for comment.
Silver Lake resident Libby Stiff, who has signed the petition presented to the commissioners, said she would like to see a building barrier established around Silver Lake, as called for in the city’s comprehensive development plan.
“I believe that the board’s ruling was in error and that the matter should have been heard,” she said.
The house has inspired passion on all sides, including an incident with a surveyor in Silver Lake Feb. 14. Joe Filipek, a neighbors who opposes the Levys house, was having his property surveyed near the lake’s edge when the Levys daughter, Andrea, took exception to the surveyor working there and asked him to leave.
Rehoboth Police Chief Keith Banks said the surveyor, Dominic Agresta of Vista Design Inc., wanted to make sure he wasn’t in any trouble, and notified officers of the incident. Banks said there were no violations and no charges were filed.
When the asked by members of the Levy family to leave the property, Agresta did so, Banks said.
Scott Wilcox, attorney for the Levys, said his clients’ position is that there is no merit to any of the claims made against them. He said his clients followed the city code and have done everything appropriately.
Wilcox said he is waiting for the rehearing, and the Levys are looking forward to moving forward with completing their house, possibly by this summer.
Silver Lake saga: no good ending can come
Cape Gazette Editorial, Feb 24, 2012
As each day passes, the new house rising on the edge of Silver Lake becomes an ever-larger monument to a serious lapse in common sense in Rehoboth Beach. Not only is the rising structure a negative symbol for a city typically sensitive to the natural environment, it also represents a potentially expensive financial risk for the city that grows greater each day.
No amount of legal wrangling can excuse the blatant fact that by all measures of building and environmental sensibilities, the house being constructed - almost in the water - is too close to the lake. Even by Sussex County’s liberal building and setback standards, the construction is way too close. Any remotely sensible person looking at the situation would reasonably conclude that some kind of mistake was made when the building permit was issued. It’s hard to imagine a clearer situation for applying the phrase that we hear so frequently in these times: “What were they thinking?!?”
Silver Lake is one of Rehoboth’s most distinctive natural treasures, along with Lake Comegys, Lake Gerar, the ocean and the beach. If anything, it deserves unique consideration when it comes to building projects. Many jurisdictions apply special overlay zoning to such ecosystems using terms like critical area and environmentally sensitive zones. Given that Silver Lake - one of the few naturally occurring freshwater lakes this close to the ocean on the East Coast - is already environmentally degraded, special consideration is even more appropriate.
At this point there can be no good ending to this unfortunate Silver Lake saga. It’s too late to say city officials should have stopped the project dead in its tracks when they first saw how close it would be to the lake. They did not, despite the wildly whipping red flags. City officials can, however, keep things from getting even worse. They can admit the obvious, that something is seriously wrong, halt construction and work with the homeowners for a resolution that includes taking down what’s already built and moving the structure back from Silver Lake by a reasonable distance.
Let’s stop the hemorrhaging of legal fees and save those dollars for a settlement that will make the city, the homeowners and Silver Lake whole again.
Cape Gazette editorials are considered and written by members of the Cape Gazette editorial board which includes Dennis Forney, publisher; Trish Vernon, editor; Dave Frederick, sports editor; Laura Ritter, news editor; and Jen Ellingsworth, arts and entertainment editor.
Rehearing sought for Silver Lake house
Neighbors ask attorney general to halt work
Rehoboth Beach — The controversy over a house on Silver Lane in Rehoboth Beach is heating up again as opponents have asked for a rehearing on the case.
The Rehoboth Board of Adjustment refused to hear the case Jan. 30, saying the complainants waited too long to seek a hearing. Save Our Lakes Alliance3, the Rehoboth Beach Homeowners' Association, neighbor Marti Cochran and Silver Nine LLC have asked the board to consider the case on its merits.
The house at 6 Silver Lane, being built for the Levy family, raised the ire of neighbors when they saw the home’s block foundation appear to rise up out of Silver Lake.
Cochran and other neighbors, SOLA3 and the homeowners' association hired attorney Gene Lawson to represent them. After first meeting with city officials in an effort to present information, in late November, the group appealed building inspector Terri Sullivan’s decision to grant a building permit for the house, saying Sullivan relied on inaccurate surveys.
However, by a 3-1 vote, the board refused to hear the case because the appellants did not file their appeal until well after a 30-day limit for appeals.
Now, the appellants are asking for a rehearing, saying the board violated its own rules in its decision not to hear the case.
At the Jan. 30 hearing, board Chairman Thomas Evans told the audience the board would address the 30-day filing issue first, and if the board agreed good cause was shown for filing the appeal beyond the 30-day limit, the board would move on to a hearing on the merits of the case.
In his request for a rehearing, Lawson said the board violated the Freedom of Information Act by not noticing the two-pronged procedure in its agenda. He said while Evans did tell the attorneys involved and the audience at the beginning of the hearing what the procedure would be, those who packed the city commissioners’ room were expecting a hearing at which the public would be heard.
The appellants say they were unaware of the 30-day filing deadline, because the board’s rules are not available to the public. Evans said the board’s rules are available to the public at the building and licensing office.
Before filing the appeal, Lawson had worked on behalf of his clients with city officials, including Mayor Sam Cooper, City Solicitor Glenn Mandalas and City Manager Greg Ferrese, presenting them information showing the house was encroaching into setbacks. However, the city failed to take action on the information, which left the appellants hopping mad.
Cochran said, “We rely on public officials to protect us, and we assume that what they tell us is accurate. We waited to make a formal filing only after they failed to act when presented with hard evidence,” she said.
Forman said, “The fact that city officials would not even consider new evidence – provided by qualified professionals that shows code violations – is an outrage. They speak of protecting Silver Lake, but in practice fail to do so.”
No public comment
Other than the attorneys for the various sides – Lawson for the appellants, Scott Wilcox for the Levys and Mandalas for the city – Evans did not permit public comment, except for a brief moment when a member of the Levy family was allowed to speak about the costs of the house and the hardship caused when work on the house was suspended due to the appeal.
Lawson said this was also a violation of FOIA.
“The board is permitted to control its agenda and set reasonable ground rules for public participation, but it must treat the public fairly and even-handedly. Once a forum is open, the government may not pick and choose those views which may or may not be expressed,” he said.
The inability of the public to speak also hindered the appellants’ ability to show good cause.
“Other appellants and citizens were prepared to speak to the issue of good cause for an extension of time but no opportunity was provided,” Lawson said.
Speaking on behalf of SOLA3, President Sallie Forman said the board’s rules do not require members of the public from being barred from speaking on the issue of good cause.
Lawson said, there is no definition in the board’s rules for “good cause.” He said the board made up its own standard for good cause, saying the criteria were reasons that are clear, compelling and unique.
Regarding the lateness in filing the appeal, Lawson said, “Even if appellants had reviewed the documents submitted for the permit early in the process, they likely would not have learned of the Levy’s intent to build up to or into the lake because of the inadequate or mistaken content of those documents.”
One more round?
Now that Lawson has asked the board of adjustment to rehear the case, the case gets a little complicated.
The board will hold a hearing on Monday, March 19, to determine if the board will rehear the case, Evans said. He said the board can rehear a matter for three reasons.
• Mistake, inadvertent surprise or excusable neglect
• Newly discovered evidence that could not have been discovered at the original hearing
• Fraud or misrepresentation
If the board decides to rehear the case, a second hearing will be held in April on whether good cause was shown to extend the board’s 30-day rule. If the board determines good cause was shown, another hearing will be held on the merits of the case.
Sullivan said construction on the house will continue unless the board decides to rehear the case on the merits.
Wilcox declined to comment on the rehearing request.
Despite the procedural roadblocks, it certainly appears as if the appellants are ready to get back into the ring as work on the house moves on.
Cochran and other neighbors have filed a FOIA complaint with the Attorney General's Office against the board. She has asked the Attorney General's Office to direct the board to issue a stop work order on the house while the FOIA complaint is considered. Cochran said the board violated FOIA by not noticing that the Jan. 30 hearing would be conducted in two stages and by allowing the Levys to speak but not other members of the public.
Forman said, “The board of adjustment took the easy way out and dismissed a case supported by the community on a technicality. We’re hoping they have the courage and will to address the case on the merits to satisfy the public need to be heard on such an important issue.”
Appeal not filed in timely manner
Rehoboth Beach — The Rehoboth Beach Board of Adjustment voted 3-1 against holding a hearing on whether to suspend a building permit for a house on Silver Lake.
The city commissioners room was standing room only as citizens came out to hear an appeal of building inspector Terri Sullivan's decision to grant a building permit for a house at 6 Silver Lane. The house, being built for the Levy family, raised the ire of neighbors and city advocates because its foundation appeared to be rising out of the lake.
At issue however, was whether the appellants, represented by attorney Gene Lawson, filed the appeal in a timely matter. Board solicitor Craig Karsnitz said per the board's rules, appeals of building permits must be filed within 30 days unless the appellant could show good cause for why an extension is needed.
Board Chairman Thomas Evans said if the board agreed good cause was shown, the board would have heard the case.
Scott Wilcox, attorney for the Levys, said Lawson's clients - the neighboring property owners, Save Our Lakes Alliance3, neighbor Marti Cochran and the Rehoboth Beach Homeowner's Association - had plenty of time to file an appeal, since construction began on the house in July. The appeal was filed in late Novemeber.
City Solicitor Glenn Mandalas said the city agreed with Wilcox's assertion that an appeal was not filed in a timely manner.
The board's decision however did not sit well with the appellants.
"They strung us along," Cochran said.
Rehoboth board refuses to hear Silver Lake appeal
Appellants fail to meet 30-day window
By Ryan Mavity | Jan 30, 2012
Cape Gazette
Rehoboth Beach — Rehoboth Beach Board of Adjustment declined to hear an appeal of a building permit for a controversial house at 6 Silver Lane because the appellants did not file their appeal within a 30-day time limit.
The board’s rules state appeals of building permits must be filed within 30 days, or the appellants must show good cause for not filing within the deadline.
The house at 6 Silver Lane has drawn the ire of neighbors because its foundation appears to rise out of the lake. A building permit for the house was issued in May; the appeal was not filed until Nov. 23, well beyond the 30-day deadline. Construction on the house started in July.
Attorney Gene Lawson, representing appellants including neighbors Joe Filipek and Marti Cochran, Save Our Lakes Alliance3 and the Rehoboth Beach Homeowner’s Association, said his clients were not aware of what was going on until they saw the foundation appearing to rise out of the lake.
Lawson said the appellants attempted to talk with city officials about what could be done to halt construction of the house. The talks with the city eventually broke down with no resolution; Lawson’s clients then filed the appeal.
“These citizens should not be punished for their continuing interaction with government officials,” Lawson said.
He said the next window for an appeal is when the property’s owners, the Levy family, go for a certificate of occupancy, but by then the house will be finished.
Timing key
Board Solicitor Craig Karsnitz said to Lawson, “Clearly, your clients knew about this issue, were well-versed in it and had hired you by early October. It was more than 30 days after that time that you filed this appeal. I understand you saying you were pursing other avenues to try to resolve this; there was nothing that would have prevented you from also filing an appeal at that time to preserve that position.”
Speaking on behalf of the city and building inspector Terri Sullivan, City Solicitor Glenn Mandalas said, “It was not timely filed within the strict reading of the code and your rules of procedure. The notion that the building inspector’s decisions can be appealed months after she makes them is objectionable to the city.”
Representing the Levys, Wilmington attorney Scott Wilcox said the appellants were more than aware of what was going on at the house, considering in June, 12 dump trucks were brought in to dig a big hole in the middle of the property.
“Work in that area would be noticeable. They weren’t there for one day, they weren’t there for two days, they were there for four days,” Wilcox said. “The neighbors who lived in this area surely could see what was going on.”
In August when the footers were being put in, construction crews accidentally knocked out the power in the area, Wilcox said.
“Surely the neighbors would have known they don’t have power in the middle of August,” Wilcox said. “The suggestion that the appellants did not have a reason to file an appeal at this time is unsupported by the facts.”
Wilcox said the appellants still could have filed an appeal in October when Lawson was hired and chose not to do so.
The board agreed, 3-1, with Wilcox and Mandalas that the appeal filing was not timely, meaning the board would not hold a hearing on the appeal.
Board upholds its rules
Board Chairman Tom Evans said, “I was hoping for more of a unique and compelling reason. I would love to hear the facts of the case. I am troubled constantly by the delay, intentional or not, to drag this out so long. No one made a very good case on the part of the appellants why they didn’t put in their appeal at any given time.”
Board member Clif Hilderley said, “We are bound by our own rules. I just cannot reach a conclusion that good cause has been shown, why our rules should be set aside.”
Hilderley said if the board just starts letting people appeal the building inspector’s decisions for any reason, there would be utter chaos.
“Rules are for a purpose. Civilized people, civilized organizations have rules that they live by,” he said.
While Hilderley said he agreed with some of the merits of the appellants’ case, the issue is whether the appeal was filed in a timely matter.
“They had all the chance in the world. Should have known. Now they are excited about an ugly building being built, and they want us to hear it when they were negligent,” he said.
Board member Frank Cooper, the only one to vote for going to a hearing, said, “In my opinion this is a very unique set of circumstances. I would venture a guess that there is seldom a case where the Rehoboth Beach Homeowner’s Association brings a case before this board. In that sense, since this is literally a community action, this is not an aggrieved person. Rather, this is the case of a public outcry that culminates in hiring an attorney and taking legal action.”
Citizens not permitted to speak
The city commissioners’ room was packed for the hearing, but members of the public were not allowed to speak. Evans said the hearing was a procedural question not open to questions from the audience. Only counsel for the city, the Levys and the appellants were allowed to speak, he said.
One recourse for the appellants is to file suit in Superior Court. After the meeting, Lawson said, “I think the organizations that are represented are certainly not going to give up on saving the lake. I’m not sure which direction we’re going to go in, but we certainly want to save the lake.”
Cochran, a neighbor on Scarborough Avenue Extended, said she felt strung along by city officials, who said they would look into seeing what could be done about 6 Silver Lane’s surveys and property boundaries, as well as the house’s proximity to Silver Lake – but then did nothing about it.
She said Mayor Sam Cooper and City Manager Greg Ferrese told her they would not have approved the building permit and see what could be done about it.
“To me, the city officials really let down the community as a whole,” she said.
She said it was stunning that the board would not let the public speak or to hear the case on its merits.
“It is disheartening they would not let citizens who filed the case speak,” Cochran said.
