City of Lewes, DE Chapter 64 Beneficial Use Appeals

[HISTORY: Adopted by the City Council of the City of Lewes 7-13-2020. Amendments noted where applicable.]

§ 64-1 Definitions.

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.

§ 64-2 Who may apply.

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).

§ 64-3 Application submission.

A. Filing. Applications shall be filed with the City Manager. The City Manager may provide forms to facilitate application processing.

B. Fee. The City Council shall establish a fee schedule in an amount large enough to cover all publication and administrative costs.

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

(1) Information about the owner and applicant;

(2) If applicable, documentation of the purchase date and price of the property;

(3) If involving real property, 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 the land use regulation, amendment thereto, or determination that is in question, and any known prior uses;

(4) A description of the specific portions of this Code or any determination that allegedly eliminates all or substantially all economically viable use of the property, whether on its face or as applied by the City, together with all appraisals, studies, any other supporting evidence, and any actions taken by the City related to the property;

(5) A description of the use that the property owner believes represents the minimum beneficial use of the property and all documentation, studies, and other evidence supporting that position;

(6) If the property has been listed for sale since the adoption of the regulation, amendment thereto, or determination in question, originals or copies of all bids, offers to purchase, and other correspondence regarding the sale of such property;

(7) If applicable, plans or drawings that support or clarify the relief or permission requested; and

(8) Other information requested by the Board of Adjustment and, in a case involving real property, the Building Official, including, but not limited to, survey information.

D. Incomplete applications.

(1) No application is complete until all required items are received.

(2) Incomplete applications may be rejected.

§ 64-4 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 of use. The applicant shall have the burden of proof to demonstrate that relief from the regulation or determination is warranted.

§ 64-5 Board of Adjustment hearing.

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

B. Public notice.

(1) Newspaper notice. The City 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:

(a) The type of application;

(b) A short description of the proposed action;

(c) If involving real property, a description of the parcel and the approximate street location or address;

(d) The location, date, and time of the public hearing; and

(e) Information on where full details of the application may be obtained, including the hours of availability and phone number.

(2) Notice to owner/applicant. The City shall notify the owner and/or applicant by mail or other means reasonably calculated to give actual notice of the time and place of the hearing.

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

§ 64-6 Deprivation standards.

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.

§ 64-7 Granting relief.

A. If the finding is that a property owner 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 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.

B. Minimum increase. In granting relief, the property owner shall be given the minimum increase in use intensity or other possible concessions from the regulation or determination to permit a beneficial use of the land. The following guidelines shall be used to determine the minimum beneficial use of the property:

(1) For real property, the reality of limited development potential, given the natural condition of the property, shall not be attributed to the regulation or determination applied to the property.

(2) The potential for damages to either future residents or property shall be assessed in determining a beneficial use. Conditions shall be placed on property where damage from hazardous conditions is likely. The conditions may include location restrictions, size limitations, increased standards, and other pertinent factors.