[Amended 10-16-1987 by Ord. No. 195; 2-18-2011 by Ord. No.
459]
A.
The Board of Adjustment of Bethany Beach shall consist
of five members appointed by the Mayor and confirmed by a majority
vote of the Town Council. All members shall be residents of the Town
[as construed by the Superior Court of the State of Delaware in Miller
v. Board of Adjustment of the Town of Dewey Beach, 1995 LEXIS 313
(1995), to include persons who own a residence in a resort community
and reside there at least part of the year], who have knowledge of
the problems of urban and rural development, and who, at the time
of appointment and throughout their term of office, shall not be candidates
for, nor members of, the Town Council, nor employees of the Town.
B.
At least three members shall be permanent residents
of the Town. For purposes hereof, a “permanent resident”
shall mean a person who, for at least six months prior to the date
of his/her appointment, has physically resided within the Town, on
a continuing basis, with the intention of making that residence his/her
permanent legal residence, and who certifies his/her intention to
maintain such permanent legal residence indefinitely. Any permanent
resident who ceases to maintain permanent legal residence in the Town
but continues to own a residence and reside there for at least part
of the year shall be deemed to continue as a permanent resident member
of the Board for the remainder of his/her term of office; otherwise,
any member who, during his/her term of office, fails to meet the qualifications
to serve shall be deemed to have vacated his/her office.
C.
All appointments
shall be for a period of three years, provided that the terms of the
original members shall be established in such a manner that the term
of at least one member shall expire each year and the successor shall
be appointed for a term of three years. The Board so selected shall
elect from among its own number a chairperson and a secretary.
D.
Any member
of the Board may be removed from office by the Town Council for cause
after a hearing by a majority vote of all members of Council. A vacancy
occurring otherwise than by the expiration of term shall be filled
for the remainder of the unexpired term in the same manner as an original
appointment.
[Amended 10-16-1987 by Ord. No. 195]
A.
The Board of Adjustment shall adopt rules necessary
to conduct its affairs and in keeping with the provisions of this
chapter. The Board shall select from among themselves a Chairman and
Secretary, provided that, if the Mayor serves on the Board of Adjustment,
he or she shall act as Chairman. Meetings shall be held at the call
of the Chairman, with reasonable notice to the other members, and
at such other times as the Board may determine, and the presence of
two members shall constitute a quorum. The Chairman or, in his or
her absence, the Acting Chairman may administer oaths and compel the
attendance of witnesses. All meetings shall be open to the public.
B.
The Board of Adjustment shall keep minutes of its
proceedings, 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 public record and be filed immediately in the Board of Adjustment
files which are maintained by the office of the Building Inspector
in the Town Hall.
[Amended 2-18-2011 by Ord. No. 460]
C.
The Building
Inspector shall be responsible for maintaining the original files
in accordance with standards provided by the Board of Adjustment.
The Town may keep copies of those files in a separate location, consistent
with the directions and standards of the Town's administration.
[Added 2-18-2011 by Ord. No. 460]
[Amended 1-15-1988 by Ord. No. 197; 8-19-1988 by Ord. No.
203; 8-19-1988 by Ord. No. 204]
A.
Appeals to the Board of Adjustment concerning interpretation or administration of this chapter may be taken by any persons directly aggrieved thereby. Such appeals shall be taken within 30 days from the date of the decision by filing with the Board of Adjustment, through the Building Inspector, a notice of appeal specifying the grounds thereof. The Building Inspector shall forthwith transmit to the Board of Adjustment members all papers constituting the record upon which the action appealed from was taken; provided, however, that nothing in this section shall prohibit the governing body of Bethany Beach or any Town official from taking an appeal to the Board of Adjustment concerning interpretation or administration of this chapter, if such appeal is taken within 60 days from the date of such decision by filing with the Board of Adjustment, through the Building Inspector, a notice of appeal specifying the grounds thereof. The Board of Adjustment shall set a reasonable time for the hearing of the appeal in accordance with the notice requirements of § 425-107.
B.
Any person whose building permit is revoked or made subject to a stop-work order under § 425-98 may appeal such decision to the Board of Adjustment by filing a written notice of appeal in the Town Office within 72 hours of the decision issuing the stop-work order or revoking the building permit. The Town Board of Adjustment shall meet to hear and decide such appeal in a de novo proceeding to be held within 15 days of the date such written appeal is filed. Notice of such Board of Adjustment hearing, stating the date, time, place and nature of the appeal, shall be given as required by § 425-107; provided however, that the time periods for all required forms of notice (posting of public notices, publication of newspaper notice and posting of property) shall be shortened to not less than seven days prior to the hearing date.
Any appeal stays all proceedings in furtherance
of the action appealed from unless the Mayor of the Town of Bethany
Beach certifies to the Board of Adjustment, the Board of Adjustment
concurring therein, that, by reason of fact stated in the certificate,
a stay would, in his or her opinion, cause imminent peril to life
or property. In such case, proceedings shall not be stayed otherwise
than by a restraining order granted by a court of competent jurisdiction.
On all appeals, applications and other matters
brought before the Board of Adjustment, said Board, through the Building
Inspector, shall inform, in writing, by certified mail, all the parties
involved in its decisions and reasons therefor.
The Board of Adjustment shall, in its activities and decisions, be limited by the wording and intent of § 425-1 of this chapter. Within that scope, the Board of Adjustment shall have the following powers and duties:
A.
Administrative review. To hear and decide appeals
where it is alleged there is error in any order, requirement, decision
or determination made by a Town official in the enforcement of this
chapter or of any ordinance supplemental hereto or amendatory thereof.
B.
Applicant's
responsibilities.
[Added 2-18-2011 by Ord. No. 460[1]]
(1)
No
Board of Adjustment hearing shall be scheduled sooner than 20 days
after a completed application for an appeal, variance, or special
exception is submitted to the Building Inspector. No Board of Adjustment
hearing shall be scheduled until all requirements for applications
under this section are satisfied. If an application is deficient in
any way, the Building Inspector shall promptly notify the applicant
of the deficiency. In the case of appeals from an administrative decision,
the appeal shall be filed no later than 30 days from the date of the
action that is being appealed.
(2)
An
applicant shall be one of the following:
(a)
The owner of record to the property;
(b)
The holder of a valid purchase and sales agreement for the purchase
of the subject property;
(c)
The holder of a valid option for the purchase of the subject property;
or
(d)
Any person entitled to appeal an administrative decision pursuant
to 22 Del. C. § 324.
(3)
All
applications for a variance or special exception shall be signed by
the owner of record to the property and the applicant. Applications
for appeals from an administrative decision shall be signed by the
aggrieved party appealing the decision.
(4)
It
is the obligation of the applicant to submit adequate plans and exhibits
necessary for proper review and consideration of the application for
administrative appeals, variances, and special exceptions.
[1]
Editor's Note: This ordinance also redesignated former Subsections
B and C as Subsections respectively C and D.
C.
Special exceptions. To hear and decide only such special
exceptions as the Board of Adjustment is specifically authorized to
pass on by the terms of this chapter and to grant special exceptions
with such additional conditions and safeguards as are appropriate
under the general intent of this chapter or to deny special exceptions
when the particular use cannot be accommodated to a particular site
without violating the intent of this chapter. A special exception
shall not be granted by the Board of Adjustment unless and until:
(1)
A written application for a special exception
is submitted indicating the section of this chapter under which the
special exception is sought and stating the grounds on which it is
requested; and
(2)
A public hearing is held after public notice has been provided as required by § 425-107.
[Amended 1-15-1988 by Ord. No. 197]
(3)
The Board of Adjustment agrees that the special
exception requested does clearly satisfy the intent of this chapter,
and said Board specifies the conditions which must be followed by
the appellant. A special exception is not a building permit nor shall
any use granted by a special exception be initiated until all terms,
conditions and requirements specified as part of the special exception
are completed.
(4)
The Board of Adjustment shall specify a time
limit within which any special conditions of the special exceptions
shall be completed.
D.
Variances.
(1)
To authorize upon appeal in specific cases such
variances from the dimensional terms of this chapter as will not be
contrary to the real intent where, owing to special conditions, a
literal enforcement of the provisions of this chapter would result
in an unnecessary hardship or exceptional practical difficulties.[2]
(a)
A variance from the dimensional terms of this
chapter shall be granted only upon a finding by the Board of Adjustment
that:
[1]
There are extraordinary and exceptional conditions
pertaining to the particular lot or structure in question because
of its size, shape or topography;
[2]
The application of this chapter to this particular
lot or structure would create an unnecessary hardship or exceptional
practical difficulties;
[3]
Such conditions are peculiar to the particular
piece of property involved; and
[4]
A variance, if granted, would not cause substantial
detriment to the public good or impair the purpose and intent of this
chapter.
(b)
A variance is not a building permit and, when
granted for the erection, construction or alteration of a building
or structure or portion thereof, shall become a part and requirement
of the building permit for that particular building or structure.
(2)
Use variance prohibited. A variance shall not
be given which would permit uses which are not permitted generally
or by special exception in any given district.
(3)
Procedures for requesting a variance. Requests
for a variance shall be filed, in writing, with the Building Inspector
and shall specify the peculiar physical conditions of the property
on which the request is based and the section of this chapter requiring
a variance. Within 10 business days after receiving a request for
a variance, the Building Inspector shall send the request, together
with all available documentation, including any relevant comments
of the Building Inspector, to the members of the Board of Adjustment.[3]
E.
Administrative variance. Bethany Beach Building Inspector may grant the following variance administratively: a variance (of 12 inches or less) for existing conditions from building or property setback requirements set forth in the Town of Bethany Beach’s Zoning Code when he/she finds the request for the variance meets the necessary requirements set forth in § 425-105.
[Added 3-17-2017 by Ord.
No. 531]
[Amended 1-19-1980 by Ord. No. 91; 4-15-1983 by Ord. No.
114; 8-19-1988 by Ord. No. 205]
Any person or persons or any board of Bethany
Beach aggrieved by any decision of the Board of Adjustment may present
to the Superior Court a petition, duly verified, setting forth that
such decision is illegal and specifying the grounds of the illegality.
Such petition shall be presented to the court within 30 days after
the filing of the written decision of the Board of Adjustment in the
Town Office.
[Amended 1-15-1988 by Ord. No. 197; 8-15-1997 by Ord. No.
315]
Public notice of appeals and applications to
the Board of Adjustment is required as provided in this section.
A.
Notice by posting.
(1)
The Town Manager shall cause to be posted at
two or more prominent and easily visible places on the property, on
cardboard 18 inches by 24 inches in size, a public notice setting
forth the date and place at which the Board of Adjustment has scheduled
a hearing on the appeal or application; the name of the appellant
or applicant; a description and size of the property involved; and
a statement, in plain language, of the matter involved. The notice
shall also state that, at the hearing, parties and interested persons
may appear in person or by agent or attorney. It shall be the responsibility
of the appellant or applicant to maintain the notices in good condition
during the posting period.[1]
(2)
In addition, the Town Manager shall cause to
be posted at five or more public places in the Town a public notice
setting forth the information required to be posted on the property;
provided, however, that the temporary destruction or removal of any
posted notice from the property or from any place of public posting
shall not invalidate the hearing unless the Board of Adjustment first
concludes that such temporary destruction or removal resulted in a
material deprivation of public notice.
B.
Notice by publication. The Town Manager shall cause
to be published in one issue of at least one newspaper of general
circulation in the Town of Bethany Beach a notice containing the information
required to be posted on the property of this section.
C.
Notice by mail. Upon filing an application, the applicant
or appellant shall provide a notarized list of property owners and
addresses for all property owners within 200 feet of the site of the
proposed action. The Town Manager or his or her designee shall send,
by first class mail addressed to the listed property owners, a copy
of the information required to be posted on the property under this
section. Property owners will be determined by the Sussex County Assessment
Office property maps.
D.
Time of notice. Notices by mail shall be placed in
the mail at least 30 days before the hearing date. At least one notice
by publication shall be published at least 30 days before the hearing
date. Notice shall be posted on the property at least 30 days before
the hearing date and shall remain until the day of the hearing. Notice
shall be posted in five public places in the Town at least 30 days
before the hearing date and shall remain until the day of the hearing.[2]
