Article XII Administrative Reviews, Variances, and Special Exceptions

Applications shall be filed in the office of the Board of Adjustment. The Building Official may provide forms to facilitate application processing.

Applications shall be made in writing and shall provide the following information:

Name(s) and address(es) of applicant(s) and property owner(s).

Statement of the type of relief, permission, or review requested.

Information to support the application.

Information about the property for which the application or review is requested; or

[2]

Identification of the provisions of this chapter with which the application must comply, and statements as to how the application complies with those provisions.

(d)

Plans or drawings that support or clarify the relief or permission requested.

(e)

Other information requested by the Board of Adjustment.

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.

Board of Adjustment hearing.

Scheduling. The Board of Adjustment shall schedule a public hearing.

Public notice.

Contents. The public notice shall specify the time, place, and nature of the hearing.

How given. At least 15 days prior to the public hearing, the following notices shall be in place:

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.

[4]

Neighboring properties. Notice shall be mailed by the applicant, via certified mail, return receipt requested, to the owners of all adjacent properties. Adjacent properties shall include all properties that would otherwise be immediately adjacent if not for a street, alleyway, or other right-of-way separating that property from the subject property.

[Added 8-14-2023]

Public hearing.

The hearing shall take place no less than 15 days following publication of the legal notice.

The Board of Adjustment's hearing shall be conducted, and applications shall be acted on as specified in § 197-19 of this chapter.

The Board of Adjustment may attach conditions to approvals of applications.

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 applicable ordinances, standards, approvals, or review procedures.

The Board of Adjustment may condition approvals on satisfactory compliance with applicable ordinances, standards, approvals, or review procedures.

The Board of Adjustment may also impose additional conditions.

Duration; revocation; extension.

Duration. The duration of an approved application is one year following its approval date.

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.

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.

Reapplications; appeals.

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.

§ 197-91 Administrative review; appeal of administrative decisions and determinations.

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]

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, or HPARC in the administration of this chapter.

[Amended 8-14-2023]

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, Building Official or HPARC.

[Amended 8-14-2023]

Procedure. In order for the Board of Adjustment to conduct an administrative review:

[Amended 8-14-2023]

The City Planner, Building Official, or HPARC shall issue a written interpretation, requirement, decision, or determination. The City Planner, Building Official or HPARC'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.

The City Planner, Building Official or HPARC shall make every effort to present the written product to the applicant, including, but not limited to, return-receipt mailing.

The applicant shall file a written request for administrative review within 30 days after receiving written notice of the City Planner, Building Official or HPARC's action in the office of the Board of Adjustment.

When the decision of HPARC is being appealed, at least 30 days prior to the Board of Adjustment meeting to review the matter, a transcript of the meeting before the HPARC and/or a recording of HPARC's meeting, along with all documents entered into the record, shall be transmitted to the Board of Adjustment for a review based on the record before HPARC, subject to the procedural rules of the Board of Adjustment. At least 10 days prior to the meeting of the Board, the parties to the appeal shall simultaneously submit a legal memorandum not to exceed 5,500 words outlining the parties' positions as to why the underlying decision of the HPARC shall be upheld or overturned, which memorandum shall be based on the evidence and arguments presented before HPARC. The Board shall meet to discuss the memorandum and hear arguments from both sides, but the Board shall not hear any new testimony. After hearing and considering the arguments presented, the Board shall determine whether to uphold or overturn the decision of HPARC. Anything herein to the contrary notwithstanding, if the Board determines that additional testimony is necessary for the Board to render a decision, the Board may vote to allow additional testimony.

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.

§ 197-92 Variances.

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.

Required findings. Pursuant to 22 Del. C. § 327(a)(3), the Board of Adjustment shall determine whether each variance application meets the following criteria:

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.

The variance can be granted without substantial detriment to the public good.

The benefits from granting the variance would substantially outweigh any detriment.

Approval of the variance would not substantially impair the intent and purposes of the Comprehensive Plan or this chapter.

Additional considerations. The Board of Adjustment shall also consider the following factors in reaching its decision on each variance application:

Nature of the zone where the property lies.

Character of the immediate vicinity.

Whether the restrictions, if lifted, would affect neighboring properties and uses.

Whether the restriction would tend to create a hardship on the owner in relation to normal improvements.

Additional standards.

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.

Nonconforming situations not grounds for variance. Nonconforming lots, structures, uses, or signs shall not be considered grounds for granting variances.

§ 197-93 Special exceptions.

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.

Required findings. The Board of Adjustment shall determine whether each special exception application meets the following conditions:

Is in harmony with the purposes and intent of the Comprehensive Plan.

Will be in harmony with the general character of its neighborhood considering density, design, bulk, and scale of proposed new structures.

Will not be detrimental to the use, peaceful enjoyment, economic value, or development of surrounding properties.

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.

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:

Bed-and-breakfast inn.

The bed-and-breakfast inn shall be an incidental use to the principal use of the building as a single-family dwelling.

The maximum accommodations shall be eight-guests in four guest rooms, including children, with not more than two adults occupying any guest room.

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:

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.

Gasoline stations; gasoline stations and convenience centers.

A site plan of the gasoline station or gasoline station and convenience center shall be submitted to the Planning Commission.

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.

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.

(q)

Off-street parking and loading: see Article VII.

(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]