[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]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
(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]
[3]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
(4) 
Public hearing for variance request. A public hearing shall be held after public notice has been provided as required by § 425-107.
[Amended 1-15-1988 by Ord. No. 197]
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]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
(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]
[2]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
E. 
Cost of public notice. The cost of providing public notice under this section shall be borne by the appellant or applicant and shall be included in the fees established by the Town Council in the Bethany Beach fee schedule.[3]
[3]
Editor's Note: Said schedule is on file in the Town Office.