Kent County, DE Supplementary Regulations

The purpose and intent of these supplemental regulations are to:

Protect the public health, safety and welfare from the potential for aircraft accidents associated with proximity to airport operations, the adverse impacts associated with excessive noise from flight operations at the Dover Air Force Base (DAFB) and top reserve DAFB mission integrity; and

Ensure that the construction of buildings or portions thereof, which are located within those areas of Kent County that are likely to be affected by aircraft noise associated with flight operations at DAFB, provides for appropriate sound reduction to minimize the impact of such noise on occupants; and

(c)

Ensure that purchasers or lessees of property within airport noise zones are aware of the associated noise levels and the hazards which may endanger the lives and property of the occupants of such property.

The Airport Environs Zoning Overlay (AE) is hereby created with the following purposes: to protect the public health, safety and welfare by regulating development and land use within surrounding land uses; and to protect the DAFB from incompatible encroachment. Airport hazards arc hereby declared a public nuisance.

BUILDING REGULATIONS/CODES

The Airport Environs Zoning Overlay (AE) shall serve as an overlay that applies additional standards and requirements to properties located within those AE areas. In case of conflicting standards and requirements. the more stringent standards and requirements shall apply.

Definitions. The following words and terms used in this regulation shall have the following meanings unless the context clearly indicates otherwise:

AIRPORT ENVIRONS

The geographic area that is affected by airport air traffic operations and defined on the basis of those areas immediately impacted by the 65 db and greater noise exposure areas as delineated by the current and approved DAFB Air Compatibility Use Zone Study. This area is represented as the Airport Environs Zoning Overlay (AE).

AIRPORT HAZARD

Any structure or object of natural growth or use of land within an airport hazard area which obstructs the air space required for the flight of aircraft in landing or taking off at any airport or is otherwise hazardous to such landing or taking off.

AIRPORT HAZARD AREA

Any area of land adjacent to an airport which has been declared to be an "airport hazard area" by the federal, state and/or local aviation authorities, in connection with any airport approach plan recommended by such authorities.

BUILDING OFFICIAL

The Building Code Administrator of the Department of Inspections and Enforcement or his/her agent.

Residential and other building definitions are found in the BOCA (Building Officials and Code Administrators) National Building Code of 1996, the Kent County Supplement to the BOCA National Building Code of 1996[1] and the Kent County Building Code Supplement to the 1995 CABO One- and Two-Family Dwelling Code, May 26, 1998,[2] and subsequent building regulations and codes that may be adopted by Kent County Levy Court.

DAY-NIGHT AVERAGE SOUND LEVEL (DNL)

A cumulative aircraft noise index which estimates the exposure to aircraft noise and relates the estimated exposure to an expected community response; a twenty-four-hour energy average sound level expressed in decibels (db) with a ten-decibel penalty applied to noise occurring between 10:00 p.m. and 7:00 a.m.

DEPARTMENT OF INSPECTIONS AND ENFORCEMENT

The division of permits and inspections of Kent County government.

DNL Contour

A line linking together a series of points of equal cumulative noise exposure based on Ldn metric. Such contours are developed based on aircraft flight patterns, number of daily aircraft operations by type of aircraft and time of day, noise characteristics of each aircraft and typical runway usage patterns.

RESIDENTIAL USE GROUP BUILDING

All buildings and structures classified in the BOCA and regulations listed in the definition of "building regulations/codes" below, classified as Use Group R.

SOUND TRANSMISSION CLASS (STC) RATING

A single number rating characterizing the sound reduction performance of a material tested in accordance with ASTM E 90-90, "Laboratory Measurement of Airborne Sound Transmission Loss of Building Partitions."

STRUCTURE

Any object, whether permanent or temporary, including, but not limited to, a building, tower, crane, smokestack, earth formation, transmission line, flagpole, ship mast or mobile objects.

Editor's Note: See Ch. 105, Building Construction, Art. I, BOCA Building Code.

[2]

Editor's Note: See Ch. 105, Building Construction, Art. II, CABO One- and Two-Family Dwellings.

Sub-overlay zone (DAFB noise zones and boundaries)

Purpose.

The purpose of the sub-overlay zones is to divide the AE zoning overlay into zones that correspond to the most current version AICUZ study for DAFB. There are specific sound-attenuating requirements for new development and land use within these "sub-zones."

The boundaries of DAFB noise zones shall be shown on the Zoning Map as adopted and amended by the Levy Court.

For purposes of administering and enforcing the provisions of this section, there shall be three accident-potential zones (APZ):

Clear Zone: The Clear Zone (CZ) (which is also identified as the first accident-potential zone) for each runway starts at the end of the runway and extends outward 3,000 feet and is 3,000 feet wide (1,500 feet to either side of runway center line):

APZ I: extends from the CZ an additional 5,000 feet.

(c)

APZ II: extends from the outer end of APZ I an additional 7,000 feet.

Noise zones.

For the purposes of administering and enforcing the provisions of this section, there shall be four noise zones: A, B, C and D:

Sub-overlay Zone A: DNL 65 to 69 dB.

[2]

Sub-overlay Zone B: DNL 70 to 74 dB.

[3]

Sub-overlay Zone C: DNL 75 to 79 dB.

[4]

Sub-overlay Zone D: DNL 80 or more dB.

Note: The DAFB AICUZ study utilizes four noise contour zones. Kent County will utilize the accident potential zones and the noise zones for zoning overlay purposes.

The purpose of the establishment of the three accident-potential zones and four noise zones is to distinguish between the severity of the level of safety and noise impacts so that appropriate safety and acoustical performance standards can be employed to mitigate the adverse impacts of aircraft noise. Each of the three accident-potential zones and four noise zones shall be designated on the zoning map as adopted and amended by the Levy Court as the sub-overlay zones in the Airport Environs Zoning Overlay (AE).

(5)

The boundaries of the Airport Environs Zoning Overlay (AE) and its sub-overlay zones, as adopted herein, shall be reviewed and amended when appropriate by Levy Court. It shall be the responsibility of DAFB to notify Kent County of any such updates or amendments and to provide a copy of same to Kent County Planning Office. Copies of the noise contour maps and AICUZ study shall be on file and open to public inspection in the offices of DAFB planning and public affairs.

(6)

The current AE Zoning Overlay, including sub-overlay zones, must be shown on any subdivision plan (major and/or minor) and any site plan, including those required for conditional uses within the various zoning districts which are subject to approval by the County.

Acoustical performance standards.

Except as otherwise provided, any building or portion thereof constructed or placed within the Airport Environs Zoning Overlay (AE) after 120 days from the adoption of this section, shall be constructed to provide acoustical treatment measures compatible with acoustical treatments for the following sub-overlay noise zones:

Sub-district A: certified statement from an architect/engineer accredited in the State of Delaware stipulating that building materials used will result in an exterior-to-interior noise level reduction by 25 db.

Sub-district B: certified statement from an architect/engineer accredited in the State of Delaware stipulating building materials used will result in an exterior-to-interior noise level reduction by 30 db.

(c)

Sub-district C: certified statement from an architect/engineer accredited in the State of Delaware stipulating that building materials used will result in an exterior-to-interior noise level reduction by 35 db.

(d)

Sub-district D: certified statement from an architect/engineer accredited in the State of Delaware stipulating that building materials used will result in an exterior to interior noise level reduction by 40 db.

The builder shall provide the County a list that specifies the building material used in the calculations of noise reduction and the location of said building material. Each specified building material annotated in the noise-reduction calculations must be clearly stamped with the sound transmission class (STC) number and visible to the Building Inspector before any certification of occupancy is granted.

Nonconforming buildings and structures. Any building which lawfully existed on the effective date of this regulation and which is not in conformity with any one or more of the provisions of this regulation, and any building which lawfully existed on the date of adoption of any amendment to this regulation and which is not in conformity with such amendment, shall be deemed legal nonconforming property.

Exemptions. This section will not apply to any construction within a major or minor subdivision or construction based on a site plan approval which has been approved before the effective date of this section, nor will it apply to construction in any major or minor subdivision or construction based on site plan approval for which application for approval was filed in the Kent County Planning Office before the effective date of this section.

Existing uses. Uses and/or permits for uses existing on the effective date of this section shall not be required to change in order to comply with these regulations. The nonconforming use requirements of this zoning ordinance (as found in Article V, 1991 Kent County Zoning Ordinance, as amended) shall apply to the future applicability of the standards and requirements contained herein.

Temporary uses: temporary uses, including but not limited to public celebrations and outdoor entertainment events, so long as the period of operations does not exceed five days. A variance may be requested to extend the time period for a temporary use and should be coordinated with the DAFB Base Planning Office at 677-6445 and with the Delaware Office of Aeronautics at 760-2160.

Temporary structures: temporary buildings and structures that are not used for residential purposes and which meet said applicable requirements as contained within this zoning ordinance, so long as such uses and associated structures are constructed incidental to a permitted use, as per the requirements of this zoning ordinance, which should be coordinated with the DAFB Base Planning Office at 677-6445 and with the Delaware Office of Aeronautics at 760-2160.

Agricultural structures: bona fide agricultural buildings, structures, improvements and associated nonresidential developments, which should be coordinated with the DAFB Base Planning Office at 677- 6445 and with the Delaware Office of Aeronautics at 760-2160.

(5)

Accessory uses and structures: accessory uses and structures incidental to a permitted principal structure or use and within the intent, purpose or objectives of these regulations, which should be coordinated with the DAFB Base Planning Office at 677-6445 and with the Delaware Office of Aeronautics at 760-2160.

(6)

Towers: towers for communication, observation, utility, etc., that will exceed 35 feet in height, which should be coordinated with the DAFB Base Planning Office at 677-6445 and with the Delaware Office of Aeronautics at 760-2160.

Construction and development standards.

Proposed uses and structures. Table 1, Land Use Compatibility Standard,[3] contained herein identifies development standards that apply to proposed uses and structures within the Airport Environs Zoning Overlay (AE). All permitted uses and structures must comply with these standards.

[3]

Editor's Note: Table 1 is located at the end of this chapter.

Interior day-night average noise level (DNL). All proposed uses and structures must comply with the noise level reduction (NLR) standards as provided in Table 1.[4] Compliance with NLR requirements shall be evidenced prior to issuance of a certificate of occupancy permit.

[4]

Editor's Note: Table 1 is located at the end of this chapter.

Notice to purchasers required.

Kent County shall provide a notice to all applicants for any construction- and/or development-related permit, informing the applicant that the respective property is located, either partially or entirely, within the Airport Environs Zoning Overlay (AE) and shall be subject to aircraft overflights and noise, and subject to sound-attenuation requirements and standards found within the Kent County Zoning Ordinance and/or Kent County Code during the construction process, as to the degree of noise attenuation required.

The current AE Zoning Overlay, including noise level contours and accident-potential zones, must be indicated on any subdivision and/or site plan filed with the Kent County Planning Office after the effective date of this section if the subject property is so impacted.

In addition, the following note must appear on the above-referenced plans:

"Property shown on this plan is impacted by the current Airport Environs Zoning Overlay. Any building constructed within the impacted area must comply with the acoustical performance standards found within the Kent County Zoning Ordinance and/or Kent County Code during the construction process, as to the degree of noise attenuation required."

This language must appear in all deeds, leases or other transactions dealing with real property containing lands impacted by the Airport Environs Zoning Overlay and subject to sound-attenuation requirements.

Site plan requirements. A construction and development plan as identified herein shall be submitted in addition to the submittal requirements for zoning compliance, and said plan shall include, at a minimum, technical substantiation, maps, plans, drawings and such other information as is necessary to show:

Site DNL contour map. AE Overlay shall be superimposed on a site plan of the development site to show present AE sub-overlay zones. All maps should be drawn to a scale designated by the Planning Office of Kent County.

Location of structures. The placement of all existing and proposed buildings and structures shall be shown located on the site/Ldn contour map.

Specification of uses. Identification of the uses to occur within each structure or activity area shall be designated on the site/Ldn contour map.

Narrative description. A narrative shall be provided describing the location of the site, its total acreage, existing character and use; the concept of the proposed development or use, such as proposed residential density and the relation of the proposed development plan to the adopted Kent County land use for that area.

Site plan review criteria.

Proposed uses. All elements of the proposed development are consistent with Table 1, Land Use Compatibility Standards.[5]

[5]

Editor's Note: Table 1 is located at the end of this chapter.

Siting. Buildings and structures should be located the greatest distance from the noise source, taking maximum advantage of existing topographical features to minimize noise impact, and within zoning district requirements, such as required setbacks. Buildings and structures should be oriented to minimize exposure to the noise source, and building openings, such as windows, should be located away from the noise source.

Design considerations regarding noise. The amount of active or passive outdoor recreational space where individuals would be subject to noticeable or severe levels of noise should be minimized. Landscaping materials should be used to deflect noise.

Activities within the accident potential zones (CZ, APZ I and/or APZ II). Activities prohibited with the accident potential zones of the Airport Environs Zoning Overlay (AE) include, but are not limited to: storage of explosives, hazardous or toxic materials/waste; aboveground transmission lines; uses that release into the air any substance which would impair visibility or otherwise interfere with the operation of military aircraft (dust, smoke, etc.); uses that produce light emissions, direct or indirect, which would interfere with pilot vision; and uses that attract birds or water fowl, such as, but not limited to, landfills, wastewater treatment facilities and associated settling ponds, artificial marshes, dredge spoil material, sand and gravel dredging operations and open fish farming.

Field testing of interior sound levels. Field testing of interior sound levels may occur at the expense of the applicant and/or homeowner.

Disclosure.

Any person marketing property subject to Kent County subdivision regulations for sale or lease within the Airport Environs Zoning Overlay (AE) shall follow Kent County Ordinance 95-22, an ordinance that amended the Kent County Subdivision Ordinance requiring written notice with regards to subdivisions located in the designated Air Compatible Use Zone (AICUZ).

The Department of Planning shall make available information explaining the effects of the designation of the Airport Environs Zoning Overlay (AE) and the sub-overlay zones of the accident-potential zones and noise zones and any applicable building requirements.

Violations and penalties. Violations shall be processed through the procedural requirements of the Kent County Zoning Ordinance and/or Kent County Code, which and whenever appropriate.

§ 205-397.2 Growth Zone Overlay District.

[Added 6-24-2003 by Ord. No. 03-13]

Purpose and intent.

The Growth Zone Overlay District encompasses an area that Kent County has determined new development should be encouraged. To that end, incentives such as area and bulk requirement reductions are provided to encourage development within the zone rather than in the more rural areas of the County.

The Growth Zone Overlay District is an area identified by Kent County where infrastructure such as water, sewer, and transportation facilities exists or is planned to serve development.

Growth Zone boundary. The geographic area of the district is delineated in the Kent County Comprehensive Plan, as well as on the Official Zoning Map, as amended. The districts inside the Growth Zone Overlay District are separate and distinct districts from the districts outside the Growth Zone Overlay District.

[Amended 4-25-2023 by Ord. No. 23-06[1]]

Editor's Note: This ordinance also repealed former Subsection C, Area and bulk regulations inside the Growth Zone, as amended 3-25-2008 by Ord. No. 08-05; 12-15-2009 by Ord. No. 09-33; and 3-25-2014 by Ord. No. 14-04, and Subsection D, Areas partially within the Growth Zone with central sewer and water, added 3-25-2008 by Ord. No. 08-05, as amended 12-15-2009 by Ord. No. 09-33, both of which immediately followed.

§ 205-397.3 (Reserved) [1]

Editor's Note: Former § 205-397.3, Coastal Zone Protection Overlay, added 2-22-2006 by Ord. No. 06-02, was repealed 4-25-2023 by Ord. No. 23-06.

§ 205-397.4 Transfer of Development Rights Overlay.

[Added 8-24-2004 by Ord. No. 04-18]

In recognition of the pressure to develop rural agricultural areas where adequate infrastructure does not exist to support such development and the fact that development of such agricultural, environmentally sensitive, and architecturally and culturally significant lands threatens the character and quality of life that Kent County citizens expect, a Transfer of Development Rights Overlay Zone has been established.

Areas considered to be sending areas for transferred development rights are identified on Attachment A,[1] the Transfer of Development Rights - Sending Areas.