[Amended 3-14-1995 by Ord. No. 95-05; 6-23-2009 by Ord. No. 09-13]
The Levy Court may, from time to time, amend, supplement, change
or modify, by ordinance, the number, shape, area or boundaries of
the districts or the regulations herein established. Such an amendment
may be initiated by resolution of the Levy Court, by motion of the
Planning Commission or by petition of any property owner addressed
to the Levy Court. Petitions for change or amendment shall be on forms
and filed in a manner prescribed by the Planning Commission.
Amendments, supplements, changes or modifications of the regulations
shall be considered a "text amendment" and not a "zoning change" as
described in 9 Del. C. § 4924 or § 4926 nor a
"rezoning" as that term is used within 9 Del. C. § 4925.
Text amendments shall only be initiated at the direction of Levy Court
or upon the request of any Levy Court Commissioner. Text amendments
shall conform to the following procedures.
A.
Review process.
(1)
Levy Court introduction. At least 15 days prior to the Regional
Planning Commission public hearing, the Levy Court shall introduce
the ordinance for the proposed text amendment.
(2)
Administrative review and recommendation. The Department of
Planning Services staff shall provide a written analysis of the amendment
relative to its purpose and intent as well as compliance with the
Comprehensive Plan of the County and any other adopted plans of the
County. Staff's analysis as well as any state agency comments shall
be provided to the Regional Planning Commission in advance of its
public hearing.
(3)
Regional Planning Commission review and recommendation.
(a)
A public hearing on the proposed text amendment shall be conducted
at a regular meeting of the Commission as soon as practicable after
the filing deadline for that application.
(b)
The Planning Commission shall hold a public hearing on any proposed
text amendment before submitting its report and recommendation to
the Levy Court. Public notice of the hearing shall be accomplished
as detailed below.
(c)
The Commission may recommend amendments to the proposed text
amendment as part of its report to the Levy Court.
(d)
Unless the Commission shall have transmitted its report within
45 days after submission of a finalized application thereof to it,
the Levy Court shall be free to proceed to act on said change without
further awaiting the receipt of the report of the Commission.
(4)
Levy Court review and determination.
(a)
Before taking action on any proposed text amendment, the Levy
Court shall conduct a public hearing thereon. Public notice of the
hearing shall take place as detailed below.
(b)
At the conclusion of the public hearing on the proposed amendment,
the Levy Court may proceed to vote on the proposed ordinance, defer
action to a subsequent meeting, or take other action consistent with
its usual rules of procedure.
(c)
The Levy Court may consider amendments to the proposed ordinance
in keeping with the Regional Planning Commission recommendation. Such
amendments shall be considered and voted upon prior to action on the
original text amendment.
(d)
The Levy Court should include with its decision a statement
regarding the consistency of the request with adopted County plans
and policies.
B.
Public notice.
(1)
Notice to the general public of the Regional Planning Commission
hearing shall be accomplished by publishing the date, time, place,
and nature of the hearing in a newspaper of general circulation in
the County. The published notice shall also include the title of the
proposed text amendment and contain reference to the times and place(s)
within the County where the proposed amendment may be examined. The
notice shall be published at least 15 days prior to the hearing.
(2)
Notice to the general public of the Levy Court hearing shall
be accomplished by publishing the date, time, place, and nature of
the hearing in a newspaper of general circulation in the County. The
published notice shall also include the title of the proposed text
amendment and contain reference to the times and place(s) within the
County where the proposed amendment may be examined. The notice shall
be published at least 15 days prior to the hearing.
Amendments, supplements, changes or modifications of the number, shape, area or boundaries of the districts shall be considered a "map amendment" and "rezoning" as that term is use within 9 Del. C. § 4925 or a "zoning change" as that phrase is used within 9 Del. C. § 4924 and § 4926. Kent County can only effect a "rezoning" or "zoning change" under Chapter 205 of the County Code and 9 Del. C. Ch. 49 through a "map amendment." A map amendment may be initiated by either the landowner seeking a rezoning or zoning change, or by any Levy Court Commissioner. Map amendments shall conform to the following procedures.
A.
Review process.
(1)
Preapplication meeting. The applicant or Levy Court Commissioner
seeking a rezoning or zoning change shall meet with the Planning Services
Director or designee for a determination of whether a map amendment
authorized under this section is appropriate for the property and
consistent with the current Kent County Comprehensive Plan Update.
A Support Facilities Report from DelDOT shall be requested by the
Department of Planning Services to determine if a Traffic Impact Study
is required prior to application.
(2)
Application submittal. If a landowner is seeking the rezoning
or zoning change, a map amendment application form and fee shall be
submitted by the applicant. Applications shall also contain a survey
of the boundary of the subject property and a statement regarding
the consistency of the request with adopted County plans and the surrounding
areas. Results of a State Preliminary Land Use Service review shall
also be submitted if applicable. Map amendments proposed by a Levy
Court Commissioner shall contain the tax parcel identification number(s)
and legal description(s), as filed in the office of the Recorder of
Deeds, of the property that is the subject of the proposed map amendment.
Deadlines for submission of applications shall be established annually
by the Planning Department and shall be at least 60 days prior to
the meeting of the Regional Planning Commission. Application submittal
procedures shall not apply if the applicant is the County or an agent
of the County.
(3)
Levy Court introduction. At least 15 days prior to the Regional
Planning Commission public hearing, the Levy Court shall introduce
the ordinance for the proposed map amendment.
(4)
Administrative review and recommendation. The Commission's staff
shall review the application or Levy Court Commissioner's request
for a rezoning or zoning change to determine compliance with pertinent
features of this chapter, the Comprehensive Plan of the County, and
any other adopted plans of the County. The Department of Planning
Services staff shall provide a written review and recommendation to
the Regional Planning Commission in advance of its public hearing.
A copy of the staff's report shall also be provided to the applicant.
(5)
Regional Planning Commission review and recommendation.
(a)
The Planning Commission shall hold a public hearing on any proposed
map amendment before submitting its report and recommendation to the
Levy Court. Public notice of the hearing shall be accomplished as
detailed below.
(b)
The Commission may recommend amendments to the proposed map amendment as part of its report to the Levy Court; provided, however, that no additional land may be rezoned or be made subject to a zoning change as defined herein to a different classification than was contained in the public notice without an additional public hearing after notice as required in Subsection C below.
(c)
Unless the Commission shall have transmitted its report within
45 days after submission of a finalized application thereof to it,
the Levy Court shall be free to proceed to act on said change without
further awaiting the receipt of the report of the Commission.
(6)
Levy Court review and determination.
(a)
Before taking action on any proposed map amendment, the Levy
Court shall conduct a public hearing thereon. Public notice of the
hearing shall take place as detailed below.
(b)
At the conclusion of the public hearing on the proposed map
amendment, the Levy Court may proceed to vote on the proposed rezoning
or zoning change, defer action to a subsequent meeting, or take other
action consistent with its usual rules of procedure.
(c)
The Levy Court may consider amendments to the proposed rezoning or zoning change; provided, however, that no additional land may be rezoned or be made subject to a zoning change as defined herein to a different classification than was contained in the public notice without an additional public hearing after notice as required in Subsection C below.
(d)
The Levy Court should include with its decision a statement
regarding the consistency of the request with adopted County plans
and policies.
(7)
Burden of proof. The applicant for a map amendment has the burden
of proof, including the burden of going forward with the evidence
and the burden of persuasion, with respect to any question of fact.
B.
Standard of review. Map amendments shall be granted or denied in
accordance with appropriate zoning regulations, but a rezoning or
zoning change as defined herein may not be granted except on the basis
of an affirmative finding that:
(1)
There was a mistake in the Zoning Map, or the character of the
neighborhood has changed to such an extent that the Zoning Map should
be changed.
(2)
The proposed zoning change results in consistency between the zoning classification to which the property is subject under Chapter 205 and the Comprehensive Plan for Kent County in relation to land use, number of dwelling units or type and intensity of nonresidential buildings and location.
(3)
Transportation facilities, water and sewerage systems, storm
drainage systems, schools and fire suppression facilities adequate
to serve the proposed uses for the rezoning or zoning change are either
in existence or programmed for construction.
C.
Public notice.
(1)
No hearing shall be held by the Commission until notice of time
and place thereof has been provided to the applicant, property owners
within 200 feet of the subject property, and to such other interested
parties as may be determined by the Commission at least 15 days before
the date of said hearing. Notice shall be provided as follows:
(a)
The applicant shall notify by certified mail all property owners
within 200 feet of the extreme limits of the subject property as their
names appear in the County tax record at least 15 days prior to the
hearing. The applicant shall provide the Department with a copy of
the notice sent to property owners and post office receipts on or
before the public hearing date. If the map amendment is proposed by
a Levy Court Commissioner, the Department shall notify by certified
mail all property owners within 200 feet of the extreme limits of
the subject property as their names appear in the County tax record
at least 15 days prior to the hearing and a copy of the notice sent
to the property owners and post office receipts shall be retained
within the project file.
(b)
The Department shall provide notice to the general public of
the public hearing before the Commission by publishing the date, time,
place, and nature of the hearing at least 15 days before the hearing
in a newspaper of general circulation in the County.
(c)
The Commission's staff will also post a notice outlining the
date, time, place, and nature of the hearing in a conspicuous location
on the property.
(2)
The published and posted notices shall contain reference to
the time and place or places within the County where the proposed
map amendment is available for review.
(3)
Notice of the Levy Court public hearing shall be accomplished
by the Department providing notice to the general public of the public
hearing before the Levy Court by publishing the date, time, place,
and nature of the hearing at least 15 days before the hearing in a
newspaper of general circulation in the County.
(4)
When any proposed zoning change lies within 500 feet of a County
or municipal boundary, notice of the proposal, together with the date,
time and place of the public hearing thereon, shall be forwarded to
the Planning Commission or the governing body of the adjacent county
or municipality in order to give such jurisdiction an opportunity
to appear at the hearing or express its opinion on the effect of said
zoning change.
Whenever a petition requesting an amendment, supplement or change
has been denied by the Levy Court, such petition, or one substantially
similar, shall not be reconsidered within 365 days after denial.
A.
Reconsideration. In all cases where the Levy Court shall approve
an amendment to the Zoning Map, whereby the map amendment is not in
compliance with the Comprehensive Plan, the Regional Planning Commission
and the Levy Court shall reconsider the rezoning classification if
the following have not been satisfied within 18 months of the Levy
Court approval:
(1)
New construction is started on the rezoned land according to
the request for amendment, and such construction is proceeding in
a normal and reasonable manner toward completion;
(2)
The Director of Planning Services is given a satisfactory explanation
for the failure to commence construction and reasonable assurance
that the construction will commence soon after the passage of the
eighteen-month period and will proceed in a normal and reasonable
manner toward completion;
(3)
The existing structure is being utilized for the activity requested
at the time of the rezoning request; or
(4)
Applications for subdivisions, conditional uses or other applications
shall be submitted to the Department of Planning Services, Division
of Planning, for processing.
B.
The map amendment to rezone the land to its prior classification
shall be automatically placed on the agenda by the Director of Planning
Services if the above conditions have not been satisfied within the
eighteen-month period.
