A.
A Board of Adjustment is hereby created. The Board of Adjustment
shall consist of five members whose selection, terms, and qualifications
shall be as indicated in 22 Del. C. § 322 and any subsequent
amendments thereto. The Board of Adjustment 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. For the conduct of any hearing, a quorum
shall not be less than three members, and an affirmative vote of a
majority of the members of the Board of Adjustment present, but not
less than two, shall be required to overrule any decision, ruling
or determination of any official charged with enforcement of this
chapter, or to approve any special exception or variance. All meetings
of the Board of Adjustment shall be open to the public.
B.
Any member
of the Board of Adjustment may be removed from office by the Town
Commissioners for cause after a hearing, duly noticed, by a majority
vote of all the elected members of the Town Commission. 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.
A.
Applications for special exceptions, interpretations, and variances
may be made by any property owner, tenant, government official, department,
board or bureau. Such applications shall be made to the Board of Adjustment
in accordance with rules adopted by the Board of Adjustment. The application
and accompanying maps, plans or other information shall be transmitted
promptly to the Secretary of the Board of Adjustment, 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.
B.
An appeal to the Board of Adjustment may be taken by any person aggrieved
or by any officer, department, board or bureau. Such appeal shall
be taken within 30 days after the decision appealed from by filing
with the Board of Adjustment a notice of appeal specifying the grounds
therefor in accordance with rules made by the Board of Adjustment.
An appeal does not stay proceedings in furtherance of the action appealed
from, otherwise than by a restraining order granted by the Board of
Adjustment or by a court of record, on application and on notice to
the Board of Adjustment and on good cause shown. Any work done shall
be at the owner's risk that the appeal will be granted, in which case
such work shall not be the basis for a variance.
C.
The Board of Adjustment 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 person may appear
in person or by agent or by attorney. Public notice of hearing shall
consist of publication at least 15 days prior to the hearing. In addition,
the Board of Adjustment may cause the date, time, place and nature
of the hearing to be posted conspicuously on the property and the
Town website in accordance with the rules of the Board of Adjustment.
In exercising its powers, the Board of Adjustment may reverse or affirm,
wholly or partly, or may modify any order, requirement, decision,
or determination as ought to be made.
D.
The Board of Adjustment 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 of Adjustment
and shall be a public record. The Chairman of the Board of Adjustment,
or in his absence the Acting Chairman, may administer oaths and compel
the attendance of witnesses.
The Board of Adjustment shall have the following powers:
A.
To hear and decide appeals where it is alleged there is 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 applications for special exceptions upon which
the Board of Adjustment is specifically authorized to pass under this
chapter.
C.
Variances.
(1)
To authorize in specific case such variances from any zoning ordinance,
code or regulation, unless prohibited by the Town Charter, that will
not be contrary to the public interest, where, owing to special conditions
or exceptional situations, a literal interpretation of any zoning
ordinance, code or regulation will result in unnecessary hardship
or exceptional practical difficulties to the owner of property so
that the spirit of the ordinance, code or regulation shall be observed
and substantial justice done, provided such release may be granted
without substantial detriment to the public good and without substantially
impairing the intent and purpose of any zoning ordinance, code regulation
or map.
(2)
In exercising the powers provided in Subsection C(1) of this section, the Board of Adjustment may, in conformity with this article, revise or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.
D.
To hear and decide applications for interpretation of the Official
Zoning Map where there is any uncertainty as to the location of a
district boundary.
A.
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 and, limited as to locations described in this article,
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 of Adjustment finds that, in its opinion,
as a matter of fact, such exceptions will not substantially affect
adversely the uses of adjacent and neighboring property.
B.
Special use exceptions.
(2)
Exceptions to parking requirements are 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 VI, where practical difficulties 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 requirements in any district
whenever the character or use of the buildings is such as to make
unnecessary the full provision of parking facilities.
(c)
Waiver or reduction in interior drive width.
(3)
Other special use exceptions as follows which are specified in each
district as follows:
(a)
A determination, in cases of uncertainty, of the district classification
of any use not specifically named in these regulations; provided,
however, such use shall be in keeping with uses specifically permitted
in the districts in which such use is to be classified.
C.
Special yard exceptions may be granted by the Board of Adjustment
to allow, in special circumstances, the installation of pergolas,
gazebos, swimming pool auxiliary buildings and similar incidental
structures in the yard setback area in any district, but not closer
than three feet to a property line.
A.
Subject to the provisions of § 185-66, the Board of Adjustment shall have the power to grant the following variances:
(1)
A variation in the yard requirement in any district so as to relieve
unnecessary hardships and exceptional practical difficulties 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 unnecessary hardship and exceptional practical difficulties 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 unnecessary hardship and exceptional practical difficulties as
distinguished from variations sought by applicants for purposes or
reasons of convenience, profit, or caprice.
B.
No use variance shall be authorized by the Board of Adjustment 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 this chapter 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 this chapter 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
or his predecessor in title;
(4)
That the variance, if authorized, will not alter the essential character
of the neighborhood or district in which the property is located,
nor substantially or permanently impair the appropriate use or development
of adjacent property, nor be detrimental to the public welfare; and
(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.
Where, in these regulations, special exceptions are permitted,
provided they are approved by the Board of Adjustment, and where the
Board of Adjustment is authorized to decide appeals or approve certain
uses, and where the Board of Adjustment 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 structure except professional or
directional signs.
B.
Limitation of signs as to size, type, color, location or illuminations.
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 caused
by operations, or such other conditions as the Board of Adjustment
may specify.
O.
Implementation of architectural standards.
P.
Streetscaping as deemed appropriate, including a mixture of materials,
patterns and styles.
Q.
Such other conditions as are necessary.
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 one year unless construction
is completed or the use has taken place in accordance with the plans
for which such special exception or variance was granted, or if the
Board of Adjustment does not specify some longer period than one year
for good cause shown, and the provisions of these regulations shall
thereafter govern.
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 Town Building Code Official determines the change to
be minor relative to the original approval, he may transmit the same
to the Board of Adjustment with the original record without requiring
that a new application be filed.
Appeals to courts from a decision of the Board of Adjustment
may be filed in the manner prescribed by law.
