A.
Purpose: provide a mechanism for appeal where an error is alleged
in any interpretation, order, requirement, decision, or determination
made by the Administrative Official or designee in the administration
of this chapter.
B.
Who may appeal. An appeal to the Board of Adjustment may be taken
by any person aggrieved or by any officer, department, board or bureau
of the Town affected by any decision of the Administrative Official
or designee.
C.
Procedure.
(1)
Submittal. An aggrieved person or entity appealing a decision
of the Administrative Official shall be required to submit the appeal
within 30 days of the decision, along with an appeal fee required
by the Code.
(2)
Required information. The appeal filed shall state the specific
grounds for the appeal and the specific grounds for the error by the
Administrative Official or designee.
(3)
Public hearing. The Board of Adjustment shall schedule a hearing
within 45 days of the filing of the appeal. At the hearing, the appellant
shall bear the burden of proof that the decision of the Administrative
Official or designee was factually erroneous and/or contrary to law.
D.
Stay of proceedings. An appeal stays all proceedings in furtherance
of the action appealed from unless the Administrative Official or
designee 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. A "beneficial use appeal" is a process by which the Town
of Ocean View evaluates an allegation that no beneficial use remains
in a property and determines that some level of relief from this chapter
is warranted.
B.
Who may apply. A landowner who alleges that the application of this
chapter denies all, or substantially all, economically viable use
of property may apply for relief after exhausting all other available
avenues of appeal (including variance requests) to the Board of Adjustment.
C.
Application submission.
(1)
Filing. Applications shall be filed with the Administrative
Official in the Office of the Board of Adjustment. The Board or the
Administrative Official may provide forms to facilitate application
processing.
(2)
Fee. The Town Council shall establish a fee schedule in an amount
significant enough to cover all publication and other administrative
costs.
(3)
Content. Applications shall be made in writing and shall provide
the following information.
(a)
Information about the owner and applicant.
(b)
Documentation of the purchase date and price of the property;
(c)
A description of the physical features of the property, total
acreage, and present use, the use of the property at the time of the
adoption of this chapter or amendment thereto, and any known prior
uses;
(d)
A description of the specific portions of this chapter that
allegedly eliminate all or substantially all economically viable use
of the property, together with all appraisals, studies, any other
supporting evidence, and any actions taken by the Town related to
the property;
(e)
A description of the use that the landowner believes represents
the minimum beneficial use of the property and all documentation,
studies, and other evidence supporting that position;
(f)
If the property has been listed for sale since the adoption
of this chapter or amendment thereto, originals or copies of all bids,
offers to purchase, and other correspondence regarding the sale of
such property; and
(g)
Plans or drawings that support or clarify the relief or permission
requested.
(h)
Other information requested by the Board of Adjustment, including,
but not limited to, survey information.
D.
Burden of proof on applicant. Every applicant shall have the burden
of presenting the information needed by the Board of Adjustment to
make a beneficial determination use.
E.
Board of Adjustment hearing.
(1)
Scheduling. The Board of Adjustment shall schedule a public
hearing.
(2)
Public notice.
(a)
Newspaper notice. The Town shall advertise the public hearing
in a newspaper of general circulation. The notice shall appear at
least 15 calendar days prior to the public hearing date and shall
contain the following information:
[1]
The type of application;
[2]
A short description of the proposed action;
[3]
A description of the parcel and the approximate street location
or address;
[4]
The location, date, and time of the public hearing; and
[5]
Information on where full details of the application may be
obtained, including the hours of availability and phone number.
(b)
Notice to owner/applicant. The Town shall notify by mail the
owner and/or applicant of the time and place of the hearing.
(3)
Public hearing. The hearing shall take place no fewer than 15
days following publication of the legal notice.
F.
Deprivation standards. In determining if a landowner has been deprived
of the beneficial use of property, the Board of Adjustment shall take
into account the following factors:
(1)
Diminution in value. The property value, prior to the adoption
of this chapter, shall be compared to the property value with the
regulations as applied. A mere decrease in value does not deprive
the landowner of all or substantially all beneficial use of property.
The diminution in value must be such that it effectively deprives
the landowner of all or substantially all viable use or enjoyment
of the property;
(2)
Common land uses. A use common to the Town 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
Town or adjoining areas, but which uses still provide for occupation
and living by the landowner;
(3)
Subsidy. A minimum beneficial use of the land 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
on a valuation basis. The cumulative public costs of a subsidy should
be considered payment to the landowner for the restriction on the
property if the annual subsidy enhances the economic return of the
existing use to the landowner. The value of the proposed use shall
be adjusted to reflect the degree to which a subsidy enhances the
property value by determining the value of the use without the subsidy;
(4)
Adverse impacts. The extent to which this chapter 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 chapter, constitute a denial
of all or substantially all economic viable use of the property;
(5)
Expectations. Expectations shall, in general, not be considered.
Only expectations backed by reasonable investments made prior to the
adoption date of the regulations in question may be considered;
(6)
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
(7)
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 a property has been denied a landowner who has made a takings claim
pursuant to the Federal or State Constitution.
G.
Granting relief.
(1)
If the finding is that a landowner has been denied all or substantially
all economic viable use of the property, the Board of Adjustment shall
grant relief. In the alternative, the Board of Adjustment may also
find that some beneficial use of the property remains. The Board of
Adjustment shall grant only that level of relief necessary to provide
for a beneficial use of the property.
(2)
Minimum increase. In granting relief, the landowner shall be
given the minimum increase in use intensity or other possible concessions
from this chapter to permit a beneficial use of the land. The following
guidelines shall be used to determine the minimum beneficial use of
the property:
(a)
The reality of limited development potential, given the natural
condition of the property, shall not be attributed to the regulations
applied to the property.
(b)
The potential for damages to either future residents or property
shall be assessed in determining a beneficial use. Conditions shall
be placed on sites where damage from hazardous conditions is likely.
The conditions may include location restrictions, size limitations,
and increased building standards.
A.
Definition. A "variance" is 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.
Application submission.
(1)
Filing. Applications shall be filed with the Administrative
Official in the Office of the Board of Adjustment. The Board or the
Administrative Official may provide forms to facilitate application
processing.
(2)
Fee. The Town Council shall establish a fee schedule in an amount
significant enough to cover all publication and other administrative
costs.
(3)
Content. Applications shall be made in writing and shall provide
the following information:
(a)
Information about the owner and applicant;
(b)
Statement of the type of relief requested that includes references
to the applicable parts of this chapter from which relief is sought;
(c)
Information about the property for which the application or
review is being made;
(d)
Plans or drawings that support or clarify the relief or permission
requested; and
(e)
Other information requested by the Board of Adjustment, including,
but not limited to, survey information.
C.
Burden of proof on applicant. Every applicant shall have the burden
of proof.
D.
Board of Adjustment hearing.
(1)
Scheduling. The Board of Adjustment shall schedule a public
hearing on the application.
(2)
Public notice.
(a)
Newspaper notice. The Town shall advertise the public hearing
in a newspaper of general circulation. The notice shall appear at
least 15 calendar days prior to the public hearing date and shall
contain the following information:
[1]
The type of application;
[2]
A short description of the proposed action;
[3]
A description of the parcel and the approximate street location
or address; and
[4]
The location, date, and time of the public hearing;
[5]
Information on where full details of the application may be
obtained, including the hours of availability and phone number.
(b)
Notice to owner/applicant. The Town shall notify by mail the
owner and/or applicant of the time and place of the hearing.
(c)
Mailed notice. The Town shall send a copy of the legal notice
to the last known address on file in the Town tax records of all property
owners within a two-hundred-foot radius of the property measured at
each property line no fewer than 15 calendar days prior to the public
hearing.
(d)
Property posted notice. The Town shall erect a public hearing
posted notice sign on all subject properties at least 10 days in advance
of a public hearing.
(e)
Town Hall. Notice shall be posted at Town Hall and shall contain
the same information as required for the newspaper advertisement.
(3)
Public hearing.
(a)
The hearing shall take place no fewer 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 § 140-18 of this chapter.
(c)
The Board of Adjustment may attach conditions to approvals of
applications.
E.
Relationship to ordinances, standards, approvals, and review procedures.
Approval of an application by the Board of Adjustment does not supersede
or obviate the need for complying with any other applicable ordinances,
standards, approvals, or review procedures.
F.
Reapplications and 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 permitted by law.
G.
Required findings. Pursuant to Title 22, Section 327, of the Delaware
Code and applicable law, 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; and
(5)
All requirements for the grant of a variance under Delaware
law.
I.
Additional standards.
(1)
Use variances. Use variances may be granted only when such use
variances strictly comply with the requirements for use variance under
Delaware law. These provisions governing use 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 expanded by variance.
[Added 3-12-2019 by Ord.
No. 357]
A.
Notwithstanding the provisions of Article XVII of this chapter, the Director of Planning, Zoning and Development may administratively grant yard setback, height limit, or building separation, subject to the following:
B.
Administrative variances shall not be granted for standards pertaining
to the number of dwelling units permitted, parking requirements, vision
clearance area, density, or use of property.
C.
Within 30 working days after the administrative variance application
is submitted and accepted, the Director may approve the administrative
variance or advise the applicant requesting the administrative variance
that an application must be submitted to the Board of Adjustment.
D.
In taking any such action, the Director shall be governed by all
the procedures, standards, and limitations of this chapter applicable
to the Board of Adjustment in granting variances, except public hearing
requirements. In approving such a variance under the provisions of
this section, the Director shall allow only a variance necessary to
provide reasonable relief and, as deemed advisable, may prescribe
such conditions, to include landscaping and screening measures, to
assure compliance with the intent of this chapter.
E.
Upon the approval of a variance for a particular building in accordance
with the provisions of this section, the same shall be deemed a lawful
building.
F.
The decision of the Director shall be appealable to the Board of
Adjustment.
