A "beneficial use appeal" is a process by which the City of
Lewes evaluates an allegation that no beneficial use remains in property
and determines that some level of relief from the regulations imposed
by this Code, or a determination made by the City, either on their
face or as applied, is warranted.
A property owner who alleges that the application of the regulations imposed by this Code, including Chapters
70,
170, and
197, or any final determination by the City, denies all, or substantially all, economically viable use of property may apply for relief under this chapter after exhausting all other available avenues of appeal (including, but not limited to, variance requests to the Board of Adjustment, also serving as the Board of Building Code Appeals under Chapter
70).
Every applicant shall have the burden of presenting the information
needed by the Board of Adjustment to make a beneficial determination
of use. The applicant shall have the burden of proof to demonstrate
that relief from the regulation or determination is warranted.
In determining if a property owner has been deprived of the
beneficial use of property, the Board of Adjustment shall take into
account the following factors:
A. Diminution in value. The property value, prior to the adoption of
the regulation, amendment thereto, or determination in question, shall
be compared to the property value with the regulation or determination
as applied. A mere decrease in value does not deprive the property
owner of all or substantially all beneficial use of property. The
diminution in value must be such that it effectively deprives the
property owner of all or substantially all viable use or enjoyment
of the property;
B. Common land uses for real property. A use common to the City and/or
the area of the subject site, although it may not involve further
development of the land, may be considered a beneficial use. Attention
shall also be given to land uses considered to be the lowest intensity
in the City or adjoining areas, but which uses still provide for occupation,
use, or living by the property owner;
C. Subsidy. A minimum beneficial use of the property may be a use where
a governmental subsidy is provided. If such a subsidy exists, its
value should be reflected in the considered minimum beneficial use.
The cumulative public costs of a subsidy should be considered payment
to the property owner for the restriction of the property if the subsidy
enhances the economic return of the existing use to the property owner.
The value of the proposed use shall be adjusted to reflect the degree
to which a subsidy enhances the property value;
D. Adverse impacts. The extent to which the regulation or determination
protects users, future users, or neighbors from threats to health,
safety, or general welfare shall be considered. A use that seriously
threatens the health, safety, or general welfare of current or future
residents or neighbors shall not be considered a use the property
owner is entitled to enjoy and shall not, when restricted by the regulation
or determination, constitute a denial of all or substantially all
economic viable use of the property;
E. Expectations. Expectations shall, in general, not be considered.
Only expectations backed by reasonable investments made prior to the
introduction date of the regulation or determination in question may
be considered;
F. Nuisances. In no case shall a use that is a nuisance per se, or a
use that in that particular location constitutes a nuisance, constitute
grounds for relief; and
G. Other. The Board of Adjustment may also take into account any factors
that have been considered by a federal court or a Delaware court in
determining whether all, or substantially all, economic use of property
has been denied a property owner who has made a takings claim pursuant
to the Federal or State Constitution.