A.
Applicability. The provisions of this section apply to applications
for administrative reviews, appeals of administrative decisions and
determinations, variances, and special exceptions.
B.
Application submission.
(1)
Applications shall be filed in the office of the Board of Adjustment.
The Building Official may provide forms to facilitate application
processing.
(2)
Applications shall be made in writing and shall provide the following
information:
C.
Burden of proof on applicant. Every applicant shall have the burden
of presenting the information needed by the Board of Adjustment to
make a determination.
D.
Board of Adjustment hearing.
(1)
Scheduling. The Board of Adjustment shall schedule a public hearing.
(2)
Public notice.
(a)
Contents. The public notice shall specify the time, place, and
nature of the hearing.
(b)
How given. At least 15 days prior to the public hearing, the
following notices shall be in place:
[1]
Publication. A legal notice shall be published in a newspaper
of general circulation.
[2]
Property posting. For an application concerning a specific property,
a sufficiently large sign shall be posted on the subject property
in a visible location.
[3]
City Hall. Notice shall be posted at City Hall.
(3)
Public hearing.
(a)
The hearing shall take place no less than 15 days following
publication of the legal notice.
(b)
The Board of Adjustment's hearing shall be conducted, and applications shall be acted on as specified in § 197-19 of this chapter.
(c)
The Board of Adjustment may attach conditions to approvals of
applications.
E.
Relationship to ordinances, standards, approvals, and review procedures.
(1)
Approval of an application by the Board of Adjustment does not supersede
or obviate the need for complying with any applicable ordinances,
standards, approvals, or review procedures.
(2)
The Board of Adjustment may condition approvals on satisfactory compliance
with applicable ordinances, standards, approvals, or review procedures.
(3)
The Board of Adjustment may also impose additional conditions.
F.
Duration; revocation; extension.
(1)
Duration. The duration of an approved application is one year following
its approval date.
(2)
Revocation. If an applicant fails to make substantial progress in
developing or construction on the property within one year of the
approval date, the approval is automatically revoked.
(3)
Extensions. The Board of Adjustment may grant one twelve-month extension
for good cause, especially when an applicant can demonstrate that
delays were beyond his/her control.
G.
Reapplications; appeals.
(1)
Limitation on reapplications. The Board of Adjustment shall not hear
or accept an application requesting the same relief or permission
for the same property for a period of 12 months from the date that
the Board of Adjustment took action on the application.
(2)
Appeals to Superior Court. Appeals from the Board of Adjustment's
decisions shall be made to the Superior Court as provided for in 22
Del. C. §§ 328 to 332.
[Amended 2-14-2022]
A.
Purpose. Provide a mechanism for appeal where an error is alleged
in any interpretation, order, requirement, decision, or determination
made by the City Planner, Building Official, or designee, in the administration
of this chapter.
B.
Who may appeal. Pursuant to 22 Del. C. § 324, an appeal
to the Board of Adjustment may be taken by any person aggrieved or
by any officer, department, board or bureau of the City affected by
any decision of the City Planner or Building Official.
C.
Procedure. In order for the Board of Adjustment to conduct an administrative
review:
(1)
The City Planner or Building Official shall issue a written interpretation,
requirement, decision, or determination. The City Planner or Building
Official's written product shall include information about the applicant's/property
owner's situation, request, inquiry, etc., and references to pertinent
sections of this chapter to support the interpretation, requirement,
decision, or determination.
(2)
The City Planner or Building Official shall make every effort to
present the written product to the applicant, including, but not limited
to, return-receipt mailing.
(3)
The applicant shall file a written request for administrative review
within 30 days after receiving written notice of the City Planner
or Building Official's action in the office of the Board of Adjustment.
D.
Stay of proceedings. Pursuant to 22 Del. C. § 325, an appeal
stays all proceedings in furtherance of the action appealed from unless
the City Planner or Building Official certifies to the Board of Adjustment
that a stay would cause imminent peril to life or property. In such
a case, proceedings shall be stayed only by a restraining order granted
by the Board of Adjustment or a court having jurisdiction.
A.
Definition. Relief from the strict application of the provisions
of this chapter when, owing to special conditions or exceptional situations,
a literal interpretation of this chapter will result in exceptional
practical difficulties to the property owner.
B.
Required findings. Pursuant to 22 Del. C. § 327(a)(3),
the Board of Adjustment shall determine whether each variance application
meets the following criteria:
(1)
The variance relates to a specific parcel of land, and the hardship
is not shared generally by other properties in the same zoning district
and vicinity.
(2)
The variance can be granted without substantial detriment to the
public good.
(3)
The benefits from granting the variance would substantially outweigh
any detriment.
(4)
Approval of the variance would not substantially impair the intent
and purposes of the Comprehensive Plan or this chapter.
C.
Additional considerations. The Board of Adjustment shall also consider
the following factors in reaching its decision on each variance application:
D.
Additional standards.
(1)
Use variances not authorized. These provisions governing variances
shall not be construed to permit the Board of Adjustment, under the
guise of a variance, to authorize a use of land not otherwise permitted
in this chapter.
(2)
Nonconforming situations not grounds for variance. Nonconforming
lots, structures, uses, or signs shall not be considered grounds for
granting variances.
A.
Definition. Uses that are generally desirable for the general convenience
and welfare but, because of their nature, require additional review
to assess their impact on neighboring properties and the entire City.
B.
Required findings. The Board of Adjustment shall determine whether
each special exception application meets the following conditions:
(1)
Is in harmony with the purposes and intent of the Comprehensive Plan.
(2)
Will be in harmony with the general character of its neighborhood
considering density, design, bulk, and scale of proposed new structures.
(3)
Will not be detrimental to the use, peaceful enjoyment, economic
value, or development of surrounding properties.
(4)
Will not cause objectionable noise, vibrations, fumes, odors, dust,
glare, or physical activity.
(5)
Will have no detrimental effect on vehicular or pedestrian traffic.
(6)
Will not adversely affect the health, safety, security, or general
welfare of residents, visitors, or workers in the area.
(7)
Complies with all other applicable standards, laws, and regulations
in addition to the provisions of this chapter.
(8)
Meets all other additional requirements for certain special exceptions.
C.
Additional requirements for certain special exceptions. The following requirements are in addition to the required findings in § 197-93B for the special exceptions listed below:
(1)
Bed-and-breakfast inn.
(a)
The bed-and-breakfast inn shall be an incidental use to the
principal use of the building as a single-family dwelling.
(b)
The maximum accommodations shall be eight-guests in four guest
rooms, including children, with not more than two adults occupying
any guest room.
(c)
The dwelling shall have a minimum of habitable space, excluding
porches, garages, closets, basements and cellars, of 2,250 square
feet, but in no event shall more than 40% of the total living area
in a single-family dwelling be used for bed-and-breakfast sleeping
rooms.
(d)
Off-street parking shall be provided as required by Article VII. The Board of Adjustment may add to, but not reduce, the number of required parking spaces.
(e)
Adequate and appropriate screening or planter area or a combination
thereof as determined by the Board of Adjustment to be necessary to
protect and preserve the property values of abutting and adjoining
properties.
(f)
The design and dimensions of any sign shall be subject to the provisions of Article VIII, Signs and Billboards.
(g)
The property shall be the principal residence of the owner-operator
of the bed-and-breakfast inn.
(h)
There shall be no cooking facilities of any nature in any guest
room used.
(i)
The appropriate business license has been paid.
(j)
No guests shall remain for more than eight consecutive nights
in any sixty-day period.
(k)
At the time the application for a special exception is submitted,
it shall be accompanied by a site plan, drawn to scale by a resident
surveyor or a professional engineer, showing:
[1]
The location of all structures located on the premises;
[2]
The design, dimension and location of any proposed sign;
[3]
The location of all entrances and exits to the proposed property;
[4]
The location of all off-street parking spaces;
[5]
The location of all lot lines and the names of adjoining property
owners;
[6]
The location and type of any proposed fencing, screening or
planting area and the location of any security lighting.
(l)
No exterior alterations shall be permitted in order to qualify
a single-family dwelling as a bed-and-breakfast or to enlarge an existing
dwelling to accommodate a bed-and-breakfast inn.
(m)
A permanent record shall be maintained by the proprietor of
guests, which said permanent record shall indicate the name and address
of each guest, the date of arrival and the date of departure of each
guest, the number of guests in any party and the number of rooms occupied.
Such record shall be maintained for a period of three years and shall
be available for inspection by the City Manager or a designated representative
of the City Manager.
(n)
The Board of Adjustment may impose additional conditions to
preserve the residential character of the neighborhood.
(2)
Gasoline stations; gasoline stations and convenience centers.
(a)
A site plan of the gasoline station or gasoline station and
convenience center shall be submitted to the Planning Commission.
(b)
Minimum design standards for driveways, curb cuts and other
design features relative to access to public roads shall be those
of the Delaware Department of Transportation.
(c)
Minimum lot size shall be 12,000 square feet.
(d)
Minimum lot depth shall be 100 feet.
(e)
Minimum lot width shall be 120 feet.
(f)
Maximum lot coverage shall be 40%.
(g)
Minimum setback line from all street lines shall be 50 feet.
(h)
Minimum distance between any buildings and any lot zoned for
residential use shall be 50 feet.
(i)
Minimum distance between any access driveway or curb cut and
any lot zoned for residential uses shall be 50 feet.
(j)
Minimum distance between gasoline pumps or pump islands, compressed
air equipment, tire racks and similar equipment and facilities and
any street lines shall be 25 feet.
(k)
Hydraulic hoists, service pits and all lubrication, greasing,
repair and washing equipment must be entirely enclosed within buildings.
(l)
A compact evergreen screen or a fence either solid or with narrow
openings not more than one inch for each 10 inches of length and not
less than six feet in height shall be placed along all property lines
separating the gasoline station from any lot in an adjoining residential
district.
(m)
Except for permitted curb cuts, a solid raised curb at least
six inches high must be provided along all street lines and all lot
lines.
(n)
Exterior lighting must be located, designed and shielded so
that it will not cause glare hazardous to passing motorists and annoying
to adjacent properties.
(o)
Junked or stripped vehicles in an inoperative condition are
prohibited on the premises.
(p)
All waste petroleum products must be stored in underground tanks
meeting the approval of the National Fire Protection Association.
(r)
No vehicles shall be parked or equipment placed, goods displayed
or sign or lights erected within the street right-of-way.
(s)
The entire service area and all access driveways and parking
places must be paved with a weatherproof material and graded to direct
all water away from adjoining lots.
(t)
The minimum distance between any gasoline station and any school,
day nursery, hospital, nursing home, library or similar use must be
200 feet, measured along the same street line in the same block from
the nearest property line of the gasoline station.
(u)
Where the storage and sale of liquefied petroleum gases is carried
on as an accessory use to a gasoline station, the required service
station site plan must clearly show the number, locations and capacities
of liquefied petroleum gas storage tanks. No tank shall be installed
and no truck carrying tanks shall be parked closer than 25 feet to
the street line or any property line.
(v)
Where the rental of utility trailers and/or small trucks is
carried on as an accessory use to a gasoline station, the required
site plan must clearly show the location and dimensions of the parking
area for these vehicles. No more than 15% of the total area may be
devoted to parking for rental utility trailers and trucks, and no
trailer or truck may be parked closer to any street line than the
setback distance required for gasoline pump islands. Parking areas
for rental utility trailers and trucks must be clearly marked on the
ground and must be located to avoid interference with normal customer
traffic flow onto, within and from the service station lot and with
traffic visibility at road intersections.[1]
[1]
Editor's Note: Former Subsection C(3), regarding dimensional
regulations for special exception uses and structures in the Marine
Commercial Zone, which was added 5-20-2013 and immediately followed
this subsection, was repealed 8-14-2017.