Covington v. The Board of Adjustment of the City of Rehoboth Beach, Delaware, S16A-05-002 RFS

Rehoboth Beach Commissioners adopted Ordinance No. 0715-01 (zoning amendments) after a July 17, 2015 public hearing; ordinance provoked petitions and a referendum set for Nov. 7, 2015.
Petitioners invoked the Charter §41A referendum procedure; the City posted that the ordinance was “suspended and under review” pending the referendum.
Appellants Covington filed a building-permit application on Oct. 30, 2015 to construct a house and pool that did not comply with the new ordinance.
The Building Inspector denied the permit on Dec. 10, 2015 as noncompliant with Ordinance 0715-01; the BOA affirmed that denial on appeal.
Appellants appealed the BOA decision to Superior Court, which considered (1) the BOA’s motion to dismiss for failure to join the City and (2) whether the pending-ordinance doctrine made the ordinance effective as of when it became pending, thereby justifying denial of the permit.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appeal must be dismissed because the City is an indispensable party	Covington: BOA’s presence (and BOA counsel) is sufficient; City’s absence is not fatal	BOA: City is indispensable and joinder is non-amendable; dismissal required	Court denied dismissal — City not indispensable; BOA adequately represents public/municipal interest and City is constructively before the Court
Whether the pending-ordinance doctrine barred issuance of the permit filed Oct. 30, 2015	Covington: Ordinance was “suspended” during the referendum under Charter §41A, so it was not effective against their application	BOA/City: Ordinance was pending (public hearing held and ordinance adopted before referendum) and thus applied retroactively to the date it became pending	Court held the pending-ordinance doctrine applied; ordinance was pending before Oct. 30, 2015 and, once approved by referendum, applied retroactively to bar the permit; BOA decision affirmed

Janaman v. New Castle County Bd. of Adjustment, 364 A.2d 1241 (Del. Super. Ct.) (standard of review: Board decisions sustained if supported by substantial evidence)
Mellow v. Bd. of Adjustment of New Castle County, 565 A.2d 947 (Del. Super. Ct.) (appellate deference to BOA findings supported by substantial evidence)
State Personnel Comm’n v. Howard, 420 A.2d 135 (Del. 1980) (modern trend favors deciding appeals on the merits over technical dismissal for joinder defects)
Hackett v. Bd. of Adjustment of City of Rehoboth Beach, 794 A.2d 596 (Del. 2002) (distinguishable; joinder of private property owners may be required where their interests differ)
Chicago Title & Trust Co. v. Village of Palatine, 160 N.E.2d 697 (Ill. App.) (explains rationale for treating a zoning ordinance as effective while pending to prevent circumvention by last-minute permit applications)
Boron Oil Co. v. Kimple, 284 A.2d 744 (Pa.) (definition and timing of when an ordinance is considered pending)