DE Supreme Court Finds Zoning Code Ambiguous as to Gross Floor Area Calculation

This post was authored by Matthew Loescher, Esq.

Jack Lingo Asset Management sought permission from the City of Rehoboth Beach to build an unroofed, railed walkway extending from the second floor over the flat roof to a stairway leading down to Christian Street. The exit walkway would not be visible from the main thoroughfare. The City denied Lingo’s application, finding that the railings surrounding the walkway would technically expand the Gross Floor Area (or “GFA”) of 240 Rehoboth Avenue under Section 270 of the Code of Rehoboth Beach. This expansion in GFA would require Lingo to provide an additional parking spot, which it had no room to do. Lingo appealed the denial, the Board of Adjustment of the City of Rehoboth Beach affirmed, and the Superior Court agreed.

On appeal, Lingo argued the critical term in this case, “exterior walls”, may be naturally understood to refer to the outer surfaces of a building that connects floors to ceilings. Under this definition, the term did not cover the walkway railing proposed by Lingo. After previously interpreting “exterior walls” similarly to how Lingo does in this appeal, the Board argued that “the plain language of the Zoning Code unambiguously encompassed decks and stairways within the GFA.” The court found that the Zoning Code in effect when Lingo sought its permit did not define “exterior walls,” and Lingo offered common-sense, natural reading of the term that did not cover the railings at issue in its proposal. Because the court resolves zoning ambiguities in favor of the property owner, the Board’s decision was reversed.

Jack Lingo Asset Management, LLC v Board of Adjustment of the City of Rehoboth Beach, 2022 WL 2813781 (DE 7/19/2022)