A.
A Board of Adjustment is hereby created,
which shall hereafter be referred to as the "Board."
B.
The Board shall consist of five members,
whose selection, terms and qualifications shall be as indicated in
9 Del. C. § 6803(c), and any subsequent amendments thereto.
C.
The Board shall select a Chairman from
its membership, shall appoint a Secretary and shall prescribe rules
for the conduct of its affairs. The Chairman or, in his absence, the
Acting Chairman shall have the power to issue subpoenas for the attendance
of witnesses and the production of records and may administer oaths
and take testimony.
D.
For the conduct of any hearing, a quorum
shall not be less than three members, and an affirmative vote of three
members of the Board shall be required to overrule any decision, ruling
or determination of the official charged with enforcement of this
chapter or to approve any special exception or variance.
E.
All meetings of the Board shall be open
to the public.
A.
Applications for special exceptions, interpretations
and variances may be made by any property owner, tenant, government
official, department, board or bureau. Such application shall be made
to the Director in accordance with rules adopted by the Board. The
application and accompanying maps, plans or other information shall
be transmitted promptly to the Secretary of the Board, who shall place
the matter on the docket, advertise a public hearing thereon and give
written notice of such hearing to the parties in interest. The Director
shall also transmit a copy of the application to the Planning and
Zoning Commission, which may send a recommendation to the Board or
appear as a party at the hearing.
B.
An appeal to the Board may be taken by
any person aggrieved or by any officer, department, board or bureau
of the county affected by any decision of the Director. Such appeal
shall be taken within 30 days after the decision appealed from by
filing with the Director a notice of appeal, specifying the grounds
thereof. The Director shall forthwith transmit to the Board all the
papers constituting the record upon which the action appealed from
was taken. An appeal stays all proceedings in furtherance of the action
appealed from unless the Director certifies to the Board that, by
reason of facts stated in the certificate, a stay would, in his opinion,
cause imminent peril to life or property, in which case proceedings
shall not be stayed otherwise than by a restraining order granted
by the Board or by a court of record, on application and on notice
to the Director and on due cause shown.
C.
The Board shall fix a reasonable time for
the hearing of an application or appeal, give public notice thereof
as well as due notice to the parties in interest and decide the same
within 30 days following the hearing. Upon the hearing, any party
may appear in person or by agent or by attorney. Public notice of
a hearing shall consist of publication at least 15 days prior to the
hearing in a newspaper of general circulation in the county, specifying
the time, place and nature of the hearing. In addition, the Board
may cause the date, time, place and nature of the hearing to be posted
conspicuously on the property, in accordance with the rules of the
Board. In exercising its powers, the Board may reverse or affirm,
wholly or partly, or may modify the order, requirement, decision or
determination as ought to be made and, to that end, shall have all
the powers of the Director.
D.
The Board shall keep minutes of its proceedings
and other official actions, showing the vote of each member upon each
question or, if absent or failing to vote, indicating such fact and
shall keep records of its examinations and other official actions,
all of which shall be filed in the office of the Board and shall be
a public record.
E.
The Chairman of the Board or, in his absence,
the Acting Chairman may administer oaths and compel the attendance
of witnesses.
F.
An application or appeal to the Board may
not be withdrawn within two business days prior to the day of the
holding of the public hearing before the Board; provided, however,
that an application or appeal may be withdrawn thereafter for good
cause shown if a majority of the members of the Board shall vote to
allow such withdrawal.
[Added 11-26-1991 by Ord. No. 804]
G.
Any applicant or appellant to the Board who fails to appear, or appear by agent, for a hearing before the Board shall be considered to have withdrawn its application or appeal. Whenever an applicant or appellant fails to withdraw an application or appeal as provided in Subsection F hereof or fails to appear, or appear by agent, for a hearing before the Board, an application or appeal substantially similar shall not be reconsidered sooner than one year after the previous failure to withdraw or failure to appear.
[Added 11-26-1991 by Ord. No. 804]
The Board of Adjustment shall have
the following powers:
A.
To hear and decide appeals where it is
alleged that there is an error in any order, requirement, decision
or determination made by an administrative official in the administration
or enforcement of this chapter.
B.
To hear and decide on applications for
special exceptions upon which the Board is specifically authorized
to pass under this chapter.
C.
To authorize upon appeal in specific cases
such variance from the terms of this chapter as will not be contrary
to the public interest where, owing to special conditions, the enforcement
of the provisions of this chapter will result in unwarranted hardship
and injustice, but which will most nearly accomplish the purpose and
intent of this chapter.
D.
To hear and decide applications for interpretation
of the Zoning District Map where there is any uncertainty as to the
location of a district boundary.
In order to provide for adjustments
in the relative location of uses and buildings, to promote the usefulness
of these regulations and to supply the necessary elasticity to their
efficient operation, special use exceptions, limited as to locations
described in this Article, and special yard and height, exceptions
are permitted by the terms of these regulations. The following buildings
and uses are permitted as special exceptions if the Board finds that,
in its opinion, as a matter of fact, such exceptions will not substantially
affect adversely the uses of adjacent and neighboring property:
A.
Special use exceptions:
(1)
Temporary and conditional permits for a
period not to exceed five years, such period to be determined by the
Board, for the following uses, which are specified in each district:
[Amended 10-12-1999 by Ord. No. 1346; 10-12-2010 by Ord. No.
2152; 9-13-2011 by Ord. No. 2213; 10-22-2019 by Ord. No. 2684]
|
Archery ranges
| |
|
Asphalt batching plants or concrete
batching plants
| |
|
Commercial dog kennels
| |
|
Miniature golf courses or driving
ranges
| |
|
Nonaccessory tents for special purposes
| |
|
Outdoor display or promotional activities
at shopping centers or elsewhere
| |
|
Pony rings
| |
|
Raising for sale of birds, bees,
rabbits and other small animals, fish and other creatures
| |
|
Riding academies, public stables
or private stables
| |
|
Rifle or pistol ranges, trap or skeet
shooting
| |
|
Sawmills for cutting timber grown
on the premises
| |
|
Temporary buildings for use as a
sales or rental office for an approved real estate development or
subdivision
| |
|
Use of a manufactured home as a single-family
dwelling in any district to meet an emergency or hardship situation
when not approved administratively by the Director or his or her designee,
such permit not to exceed two years. The Director may, without requiring
an application for a special use exception, grant an extension for
an emergency or hardship situation previously approved by the County
Board of Adjustment upon receipt of an affidavit from a doctor stating
that the emergency or hardship situation still exists. Such extension
may be granted annually as long as the emergency or hardship still
exists.
| |
|
Use of a manufactured-home-type structure
for any business, commercial or industrial use when not approved administratively
by the Director or his or her designee
|
(2)
Exceptions to parking and loading requirements
as follows:
(a)
Off-street parking areas, adjacent to or at a reasonable distance from the premises on which parking areas are required by the parking regulations of Article XXII, where practical difficulties, including the acquisition of property, or undue hardships are encountered in locating such parking areas on the premises and where the purpose of these regulations to relieve congestion in the streets would best be served by permitting such parking off the premises.
(b)
Waiver or reduction of the parking
and loading requirements in any district whenever the character or
use of the buildings is such as to make unnecessary the full provision
of parking or loading facilities.
(c)
Waiver or reduction of loading space
requirements where adequate community loading facilities are provided.
(d)
Waiver or reduction of loading space
requirements for uses which contain less than 10,000 square feet of
floor area where construction of existing buildings, problems of access
or size of lot make impractical the provision of required loading
space.
(e)
Waiver of or reduction in interior
drive width.
(3)
Other special use exceptions as follows,
which are specified in each district:
(a)
Private garages for more than four
automobiles and with floor area of more than 900 square feet in a
residential district.
(b)
Cemeteries for pets.
(c)
Commercial greenhouses, wholesale
or retail.
(d)
Convalescent homes, nursing homes
or homes for the aged.
(e)
Day nurseries or child-care centers.
(g)
Nurseries for growing of plants,
trees and shrubs, including a building for sale of products produced
on the premises.
(h)
In any HI-1 Heavy Industrial District, those heavy industrial uses upon which the Board is required to pass under Article XV.
(i)
[2]Telephone central offices, in any AR, MR, GR, HR, UR, RPC
and VRP Districts, provided that all storage of materials, all repair
facilities and all housing of repair crews are within a completely
enclosed building.
[2]
Editor’s Note: Former Subsection A(3)(i),
which listed a determination, in cases of uncertainty, of the district
classification of any use not specifically named, was repealed 4-16-2019
by Ord. No. 2644. Ordinance No. 2644 also redesignated former Subsection
A(3)(j) through (r) as Subsection A(3)(i) through (q), respectively.
(l)
The alteration, extension or replacement of a nonconforming manufactured home, subject to the provisions of § 115-196.
[Amended 10-12-2010 by Ord. No. 2152]
(m)
More than one manufactured home may be permitted on a farm of 10 acres or more pursuant to § 115-21A(5), provided that all manufactured homes or dwellings on the property are the primary place of residence for persons employed on the premises or immediate members of the family owning or operating the farm, and provided that the granting of this exception will not adversely affect the values or uses of adjacent properties.
[Amended 3-25-1997 by Ord. No. 1131; 10-12-2010 by Ord. No.
2152]
(n)
Tourist home (also referred to as
"bed-and-breakfast inns") in any AR, MR, GR, UR and B-1 Districts.
[Added 5-16-1989 by Ord. No. 585]
(o)
In any C-1 General Commercial District,
off-premises signs, not exceeding 600 square feet total, subject to
the provisions of § 115-81A(2).[4]
[Added 12-14-1993 by Ord. No. 945]
[4]
Editor's Note: Former Subsection A(3)(p) and
(q), regarding manufactured homes, which immediately followed, were
repealed 10-8-2019 by Ord. No. 2682.
(p)
Garage/studio apartments, when not
approved administratively by the Director or his or her designee,
provided that at least one parking space for the exclusive use of
the tenant is included on the premises.
[Added 10-22-2019 by Ord. No. 2684]
B.
Special yard exceptions:
(1)
An exception in the yard regulations on
a lot where, on the adjacent lot, there is a front, side or rear yard
that does not conform to such yard regulations in a way similar to
the exception applied for.
(2)
An exception in the depth of a rear yard
on a lot in a block where there are nonconforming rear yards.
(3)
An exception where there are irregularities
in depths of existing front yards on a street frontage on the side
of a street between two intersecting streets, so that any one of the
existing depths shall, for a building hereafter constructed or extended,
be the required minimum front yard depth.
C.
Special height exceptions:
(1)
An exception to the height regulations
in the LI-1 and LI-2 Districts.
(2)
An exception to the height limit of 150
feet for a radio or television broadcasting station or tower, provided
that construction and safety features are approved by the Director
in accord with applicable regulations, and provided that no hazard
is created in an airport approach zone.
A.
Subject to the provisions of § 115-209, the Board shall have the power to grant the following variances:
(1)
A variation in the yard requirements in
any district so as to relieve practical difficulties or particular
hardships in cases when and where, by reason of exceptional narrowness,
shallowness or other unusual characteristic of size or shape of a
specific piece of property at the time of the enactment of such regulation
or restriction or by reason of exceptional topographical conditions
or other extraordinary situation or condition of such piece of property
or by reason of the use or development of property immediately adjacent
thereto, the strict application of each regulation or restriction
would result in peculiar and exceptional practical difficulties to
or exceptional hardship upon the owner of such property. Such granting
of variance shall comply, as nearly as possible, in every respect
with the spirit, intent and purpose of this chapter, it being the
purpose of this provision to authorize the granting of variation only
for reasons of demonstrable and exceptional hardship as distinguished
from variations sought by applicants for purposes or reasons of convenience,
profit or caprice.
B.
No such variance shall be authorized by
the Board unless it finds:
(1)
That there are unique physical circumstances
or conditions, including irregularity, narrowness or shallowness of
lot size or shape, or exceptional topographical or other physical
conditions peculiar to the particular property and that the unnecessary
hardship is due to such conditions and not to circumstances or conditions
generally created by the provisions of the Zoning Ordinance or code
in the neighborhood or district in which the property is located.
(2)
That, because of such physical circumstances
or conditions, there is no possibility that the property can be developed
in strict conformity with the provisions of the Zoning Ordinance or
code and that the authorization of a variance is therefore necessary
to enable the reasonable use of the property.
(3)
That such unnecessary hardship has not
been created by the appellant.
(4)
That the variance, if authorized, will
not alter the essential character of the neighborhood or district
in which the property is located and not substantially or permanently
impair the appropriate use or development of adjacent property nor
be detrimental to the public welfare.
(5)
That the variance, if authorized, will
represent the minimum variance that will afford relief and will represent
the least modification possible of the regulation in issue.
C.
Variances to the provisions of § 115-189G
and H of Article 10 shall only be issued in conformance with the following
criteria:
(1)
A showing of good and sufficient cause.
(2)
A determination that failure to grant the
appeal would result in exceptional hardship to the applicant.
(3)
A determination that the granting of an
appeal will not result in increased flood heights, additional threats
to public safety or extraordinary public expense, create nuisances,
cause fraud on or victimization of the public or conflict with existing
local laws or ordinances.
(4)
A determination that the variance is the
minimum necessary, considering the flood hazard, to afford relief.
D.
The Secretary of the Board shall notify
the applicant, in writing, that the issuance of a decision to allow
construction of a structure below the one-hundred-year flood level
will result in increased premium rates for flood insurance and that
such construction below the one-hundred-year flood level increases
risks to life and property. Such notification shall be maintained
along with a record of all decisions, including justification for
their issuance. A report of such decisions shall be submitted in the
annual report to the Federal Insurance Administrator.
E.
F.
No variance shall be authorized unless
the Board finds that the condition or situation of the property concerned
or the intended use of the property is not of so general or recurring
a nature as to make reasonably practicable the formulation of a general
regulation to be adopted as an amendment to the chapter.
G.
No variance shall be granted for any construction,
development, use or activity within any Floodway Area that would cause
any increase in the one-hundred-year flood elevation.
[Added 12-27-1983 by Ord. No. 163]
H.
In a manufactured home park, if an adjoining
site received a variance for building separation from Sussex County,
no variance for building separation caused by the adjoining site’s
variance shall be required for the replacement of an existing accessory
structure previously approved by Sussex County, as long as setback
requirements are met and the replacement structure is of the same
size and on the same footprint.
[Added 12-14-2010 by Ord. No. 2168]
Where, in these regulations, special
exceptions are permitted, provided that they are approved by the Board,
and where the Board is authorized to decide appeals or approve certain
uses and where the Board is authorized to approve variances, such
approval, decision or authorization shall be limited by such conditions
as the case may require, including the imposition of any of the following
specifications:
A.
No outside signs or advertising structures
except professional or directional signs.
B.
Limitations of signs as to size, type,
color, location or illumination.
C.
Amount, direction and location of outdoor
lighting.
D.
Amount and location of off-street parking
and loading space.
E.
Cleaning or painting.
F.
Gable roof or other type.
G.
Construction and materials.
H.
Connected or disconnected with other buildings.
I.
Exits or entrances, doors and windows.
J.
Paving, shrubbery, landscaping or ornamental
or screening fences, walls or hedges.
K.
Time of day or night for operating.
L.
No storefronts.
M.
No structural changes.
N.
Control or elimination of smoke, dust,
gas, noise or vibration by operations.
O.
Requirements for termination of a use based
on lapse of time or such other conditions as the Board may specify.
P.
Such other conditions as are necessary.
[Amended 3-20-2018 by Ord. No. 2563]
After the Board of Adjustment has
approved a special exception or granted a variance, the special exception
or variance so approved or granted shall lapse after the expiration
of two years if no substantial construction or change of use has taken
place in accordance with the plans for which such special exception
or variance was granted. The Board of Adjustment may extend the expiration
date of the special use exception or variance for a period not to
exceed one year upon a showing of good cause; provided, however, that
the extension request is submitted prior to the expiration of the
existing approval. If a decision of the Board is appealed, the two
years shall not begin until the decision on appeal becomes final.
The procedure for amendment of a
special exception or variance already approved or a request for a
change of conditions attached to an approval shall be the same as
for a new application, except that, where the Director determines
the change to be minor relative to the original approval, he may transmit
the same to the Board with the original record without requiring that
a new application be filed.
Appeals to courts from a decision
of the Board may be filed in a manner prescribed by law.
