Town of Selbyville, DE IP Industrial Park District

Each site is allowed to generate noise at no greater than 8 decibels (d8) above the local ambient (which is established to be 40 DBA at the interior walls of the structure within the property) measured at five feet from the exterior perimeter wall(s) of any building. Air discharges at any venting pipes, venting stacks or windows shall contain no air containments which would require a permit for discharge under 7 Del. C. § 6003. The permitted light manufacturing use shall require that, per month, at least 50% of the nonexecutive man hours of employees, for a given site, shall be devoted exclusively to manufacture or assembly of goods. In no event shall the nonexecutive man hours, in any site, devoted to the sale of goods on site, be greater than 25% of the total nonexecutive man hours of that site, per month.

No use will be made of any site or any portion thereof or any building or structure or improvement thereon at any time, nor shall any materials or products be manufactured, processed or stored thereon or therein, which will cause or which will constitute a nuisance or cause the emission of noxious odors or gases or smoke, or cause noises or other conditions which might violate the purpose and intent of these Covenants or which will violate the specific criteria governing environmental performance standards, as follows.

No operation or uses shall be permitted or maintained which causes or produces any of the following effects discernible outside enclosed buildings on any site or affecting any adjacent site, or real property adjacent to the property.

Noise or sound that is objectionable because of its volume, duration, frequency or shrillness;

Smoke;

Noxious, toxic or corrosive fumes or gases;

(d)

Noxious or toxic odors or obnoxious odors;

(e)

Dust, dirt or fly ash;

(f)

Unusual fire or explosive hazards; or

(g)

Excavation. Only excavation undertaken in connection with construction of an improvement shall be authorized and then only when proper protection is afforded to it, adjoining sites or real property adjoining the property and upon completion thereof, exposed openings shall be backfilled and disturbed ground shall be graded and stabilized.

Prohibited land use. The following operations and uses shall not be permitted on any of the properties subject to these Covenants:

Residential uses of all sorts, single-family or multifamily;

Trailers, being a housing unit or other structure which moves to its location on wheels attached to its undercarriage;

Fertilizer or composting facilities;

Junkyards; junkyards shall include recycling operations;

Commercial excavation of soils;

(6)

Dumping, disposal, incineration or reduction of garbage, sewage, offal, dead animals or refuse or collection and recycling of the same;

(7)

Fat rendering;

(8)

Slaughtering of animals;

(9)

Refining of petroleum or of its products;

(10)

Smelting of iron, tin, zinc or other ores;

(11)

Raising of pets or livestock or other animals;

(12)

Tourist homes, hotels, motels and motor lodges;

(13)

Used car sales and storage lots;

(14)

New car sales and storage lots;

(15)

Car wash or automobile laundry;

(16)

Restaurants, drive-in or otherwise;

(17)

Service shops, such as, by illustration, barber shops and beauty shops; or

(18)

Uses authorized in any zoning district as established in the Zoning Ordinance of the Town of Selbyville, and which have been authorized in conformance with Subsection C.

[Amended 5-4-1998; 1-4-1999; 7-2-2001]

Authorization of uses. Operations and uses which are not specifically authorized by these Covenants on all sites may be authorized under these Covenants on a case-by-case basis for each site under operational plans and specifications which are submitted to and approved in writing by the developer. Such operational uses are also subject to other applicable ordinances and codes of the developer. Approval or disapproval of such operational plans and specifications shall be based on the effect of such operations or uses on the real property outside the property described in Plot Book 46, page 197, known as the "Industrial Park" and based upon the effect of such operations or uses on the property subject to these restrictions, on sites in the property and upon the occupants thereof.

[Amended 5-4-1998; 1-4-1999; 7-2-2001]

Neither developer nor its successors or assigns shall be liable in damages or subject to any suit from anyone submitting operational plans and specifications to them for approval, or to any owner or lessee of land affected by this declaration by reason of mistake in judgment, negligence or approval or disapproval or failure to approve any such operational plans and specifications. Every person who submits operational plans and specifications to developer for approval agrees, by submission of such plans and specifications, and every owner and lessee of any of the property agrees, by acquiring title thereto or interest therein, that he is required to submit such plans for approval or disapproval to the developer, and the approval or disapproval of such plans by the developer is within the developers delegated zoning powers and all decisions made by the developer with respect to such plans shall be presumed to be for the benefit of the general health safety, welfare and morals of the inhabitants of the Town of Selbyville and that all such decisions are legislative in nature, and are presumably correct.

§ 200-94 Space allocations and dimensional standards.

Building-to-land ratio. The ratio of building coverage (building structure, including parking areas) on any given site plan will be subject to approval of the developer, but in no case may the total building and parking coverage exceed 70% of a given site, and in no case may the total building coverage be less than 25% of a given site.

Setbacks.

No structure or improvement of any kind and no part thereof shall be placed on any site closer to the property line than 25 feet on lots less than 199 feet deep and 30 feet on lots 200 feet deep or more.

Front yard: In the front setback area the only permitted improvement, other than landscaping, shall be a paved driveway, the front yard open space shall be landscaped in accordance with the approved site plan.

Side yard: For any site within the property which adjoins real property not declared subject to these conditions, a side setback of 20 feet shall be required.

Rear yard: For any site within the property which adjoins real property not declared subject to these conditions, a rear setback of 20 feet shall be required.

Interior site side and rear yards: Any activity conducted to the side and rear of any enclosed structure permitted under any site plan shall be screened from view from the interior service drive serving sites within the property in accordance with the site plan.

(6)

Setback for lots fronting Church Street: Notwithstanding any other provision, no structures of any type shall be located within 75 feet of any residential lots fronting on Church Street in the Town of Selbyville.

Exceptions to setback limitations.

Paving and associated curbing in the required front yard shall be the only improvement in the front yard.

Landscaping of the front yard as authorized in the approved site plan shall be permitted.

Off-street parking areas.

No parking shall be permitted on the interior streets or drive established for the property; and no parking shall be allowed in the front yard required for each site. Each site owner shall provide adequate off-street parking to accommodate all parking needs for employees, visitors and company vehicles on his site, with time parking areas to be approved in conjunction with the site plan pursuant to § 200-95. Required parking areas shall be screened from the internal streets of the property with appropriate screening materials.

No parking shall be permitted on the driveway leading through the front yard of each site.

Parking areas and off loading areas on each site shall, at a minimum, comply with the following requirements:

The total amount of any site devoted for parking and off loading areas shall be limited to 40% of the total site.

All off loading areas and areas for parking of trucks shall be totally screened from view from the service road or drive serving the property; but shall not be required to be screened from view from any internal truck service road provided for the property.

For all parking areas not screened from the view from the service drive or road by the buildings authorized by the site plan, those parking areas must be screened from view with materials, either fencing (chain link fencing) or landscaping (hedging, trees, etc.), which actually prohibit views of such parking areas from the street surface level; provided, however, that no screening materials other than live planting shall exceed the height of any building.

(d)

All fence screening materials shall be limited in height to 15 feet.

(e)

All parking and driveway areas serving the site shall be paved according to the following schedule:

[1]

The main driveway from the street to the required employee parking areas for each site and the required employee parking area shall be fully paved, before an occupancy permit can be obtained in accordance with the following minimum paving requirements; paving shall consist of select base (or equivalent) two courses of crusher run and two courses of bituminous asphalt.

[2]

In all other parking and loading areas the following shall be required:

[a]

Within two years of occupancy, the following minimum parking area and driveway paving requirements shall be met: select base (or its equivalent) two courses of crusher run; and

[b]

Within three years of occupancy, the same area must have a select base (or its equivalent) two courses of crusher run and one course of tar and chip.

(f)

Areas designated for automobile use shall not be used for trucks, commercial vehicles and/or material storage.

(g)

Service vehicles, heavy trucks and equipment shall be parked and stored in a screened area. Service vehicles and trucks shall not use the main perimeter drive, if a truck service drive is provided.

(h)

Parking and vehicular storage for trucks and other commercial vehicles and off loading requirements shall comply with the Operational Site Development Plan requirements.

(i)

One parking space for every employee of the design capacity of the largest shift of the site will be required.

Off-street loading areas.

Loading areas shall not encroach into setback areas unless specifically approved by the developer in writing under an approved site plan authorizing a use plan.

Loading areas located to the side of any main structure shall be set back 25 feet from the front yard. Loading doors and docks shall not be closer than 100 feet to the center line of the perimeter service drive or road unless specifically approved by the developer in writing.

All loading areas shall be screened from the interior perimeter drive or road in accordance with the approved site plan.

Railway siding.

Any railway siding to be located on any part of the property shall be located in an area approved by developer.

§ 200-95 Architectural and site occupational use standards.

Landscaping.

Every site plan for every site on which improvements shall be authorized shall be landscaped according to site plan approval, as specified herein and maintained thereafter in a sightly and well kept condition.

Each site shall have landscaped the unpaved areas not used for building structures, parking or off loading. Each site owner shall maintain and keep landscaped the front yard, in which the only improvement authorized, other than landscaping, shall be a ground level driveway crossing the required open area.

Landscaping as approved by the developer on any site plan shall be installed within 90 days of the date any certificate of occupancy is issued for any building which is erected under an approved site plan, unless prohibited by weather.

The owner, lessee or occupant of any site shall at all times keep the landscaping in good order and condition. Should the owner, lessee or occupant of any site fail to remedy any deficiency in the installation or maintenance of the required landscaping within 20 days after written notification, developer hereby expressly reserves the right, privilege and license to make any and all corrections in landscape maintenance or installation at the expense of the site owner; and the site owner shall reimburse the developer its actual cost, plus 50% for the developer's administrative overhead; and any suit maintained to collect such landscaping costs incurred by developer shall award to developer interest and reasonable attorneys fees.

Exterior construction, permitted materials, prohibited materials, approved construction methods, design. Any building or structure erected on a site shall conform to the following minimum construction requirements:

Exterior front and side walls must be finished on the exterior with the following:

Architectural masonry units (excluding concrete or cinder block);

Natural stone;

Precast concrete with prior approval by developer;

Steel;

Aluminum;

Glass materials; or

Their equivalent as approved by developer.

Rear exterior walls may be masonry block (i.e., concrete or cinder block). Exterior walls on the front of any building shall require a minimum of one square foot of glass per each 20 square feet of solid materials, whether the glass be fixed windows or openable windows.

Minimum standards shall require that 20% of the front building exterior be approved masonry finish and side building walls shall also have a minimum of 20% approved masonry finish. Masonry block walls (i.e., concrete or cinder block) may be used for the rear building wall only. These requirements apply to any main building and any accessory building. Finish building materials shall be applied to all sides of a building which are visible to the general public or visible from the interior service drive. Colors shall be harmonious and compatible with colors of the natural surroundings and other adjacent buildings. The developer reserves the sole right to approve or disapprove building materials.

Temporary improvements. No temporary buildings or other improvements of a temporary nature, including trailers, incomplete buildings, tents or shacks shall be permitted on the property or on any site. Temporary improvements used solely in connection with the construction of permanent improvements may be permitted, provided their location and duration of placement on a site shall be approved by the developer in the site plan.

Signs. Plans and specifications for the construction, installation or alterations of all outdoor signs, including traffic or directional signs, shall be approved in writing by the developer. The following signs shall be permitted:

Those offering sites for sale or lease by the developer.

Those necessary to identify the location of a project during construction. Any lender, builder or engineer may identify, by signs, involvement in a site improvement until a certificate of occupancy is issued.

Permanent signs identifying the name of the person or firm occupying a site subject to the following criteria:

All signs mounted on a building must identify the primary company name. Generally an identifying sign may be mounted on the front or either side wall.

Sign dimension and height requirements shall be approved in the site plan. The total area of all permitted signs shall not exceed 10% of the area of wall surface on which the sign is mounted, including window and door areas.

Freestanding signs. Freestanding signs shall be permitted on any particular site if approved under the site plan; or to identify the entire project. Traffic or directional signs shall be permitted by the developer and only such signs approved by the developer in writing shall be permitted.

(d)

Approval of all signs must be obtained from the developer, in writing, and final approval shall be based on reasonable architectural standards and overall balance as same applies to identification displays. The developer shall also be required to approve the manner in which the sign is constructed, lighted and mounted.

(e)

Each owner or occupier agrees that the signs are intended to be permitted; and that the restriction on any signage shall not constitute a deprivation of the site owner or user's freedom of commercial expression.

Outside storage.

Unless specifically approved by a developer in writing, no materials, supplies or equipment (excluding vehicles) and not limited to trash and garbage receptacles, shall be stored in any area on a site except inside a closed building, or behind a visual barrier screening such areas from the view from the perimeter service drive or road, public streets and real property located outside the property described in Exhibit A.

Screening of service containers and waste disposal areas. Garbage and refuse containers and waste disposal areas shall be concealed by means of screening walls constructed of materials similar to and compatible with the building or mature landscaping. These elements shall be integrated and approved in the site plan. Locations for garbage, refuse and waste storage shall be chosen to make same as inconspicuous as possible. The storage of all waste, garbage or refuse shall be governed by the provisions of the regulations governing solid waste disposal and storage and comply with the Delaware Solid Waste Storage and Disposal Act. In the event any site user violates such standards, in addition to the penalties prescribed by state law, any civil penalties authorized by such statutes shall be enforceable by the developer; provided, however, that any civil penalties awarded the developer shall be utilized by the developer to cure any hazard to the property caused by the improper storage of solid waste.

Liquid waste. Liquid waste, sewage, etc., shall be disposed of solely through the waste water disposal facilities serving the site which are operated by the developer. The discharge of any liquid waste not authorized to be discharged in the developer's municipal sewage treatment system, or causing damages to such system or which overburdens such system shall be stored as a solid waste and properly removed and disposed of away from the site by the owner or user of any site.

No trailer shall be used for storage purposes on any site.

Outside storage of raw materials or finished product by the owner or user of any site is strictly prohibited. All storage of raw materials and finished products must be within fully enclosed buildings.

Maintenance requirements, refuse collection and prohibition of junk storage.

Each site owner, lessee or occupant shall at all times keep the site, buildings and improvements thereon and appurtenances in a safe, clean, neat and sanitary condition and shall comply with all laws, ordinances and regulations pertaining to the health, safety and welfare. Each site user shall provide for the removal of trash and rubbish from his site on at least a weekly basis for nonregulated waste. All regulated waste shall be stored and disposed of pursuant to the Delaware regulations governing hazardous waste. A site shall not be used for the storage of any raw materials or finished manufactured products unless such storage is within a fully enclosed buildings as approved by the site plan.

During construction, it shall be the responsibility of each site owner to ensure that construction sites are kept free and clear of unsightly accumulations of rubbish and scrap materials, and the construction materials are keep in a neat and orderly manner.

Utilities placement and design.

Utility service. No lines, wires or other devices for the communication or transmission of electric current or power, including telephone, television and radio signals, and no sewer or water lines shall be constructed, placed or maintained anywhere in or upon the property or any site unless the same shall be contained in conduits or cable, constructed, placed and maintained underground or concealed in, under or on the buildings or other improvements as approved by the site plan; provided, however, that electrical transformers may be permitted if properly screened and approved by the developer. Nothing herein shall be deemed to prohibit the erection and use of temporary electric or telephone services incident to the construction of approved improvements.

Mechanical equipment. All mechanical equipment, including roof mounted or wall mounted machinery, shall be enclosed or screened, and the location or screening of same or enclosing of same shall be approved under the approved site plan.

Repair of buildings. No building or other improvement shall be permitted to fall into disrepair, and each improvement shall at all times be kept in good condition and repair and adequately painted or otherwise finished. In the event buildings or other improvements on any site approved under any site plan begin to deteriorate and fall into disarray, the developer, at the cost of the site owner, shall undertake improvements or maintenance of the same within 20 days written notice to the owner, upon failure of the owner to comply with the request. All costs and expenses incurred by the developers, for the maintenance or repairs undertaken by the owner and not undertaken by the developer within such 20 days shall be chargeable to the owner at the cost and expense of such repairs to the developer together with a fifty-percent surcharge thereon for administrative expenses. In any suit to enforce this obligation against the owner, the developer shall be granted and awarded costs and reasonable attorneys fees.

§ 200-96 Implementation.

Site use plan review and approval procedure.

Before undertaking any improvements or the construction of any improvements or any alterations to the land, the construction of any buildings, enclosures, fences, parking areas, loading areas, driveway, storage areas or any other permanent improvement on or to any site, the owner of any site shall first submit plans and specifications and landscape plans to the developer for its written approval, as hereinafter provided.

No improvement, as that term is hereinabove defined, shall be erected, placed, altered, maintained or permitted to remain on any site until plans and specifications showing plot layout and all exterior elevations, together with materials, colors, structural designs, signs, landscaping plans, operation and use plans, projected man hours of manufacturing employees, projected man hours of nonmanufacturing employees shall have been submitted to and approved in writing by developer, and a copy of such plans and specifications as finally approved, have been signed by and are on record with the developer. Such plans and specifications (prepared by licensed architects and engineers, if requested by developer) shall be submitted, in writing, signed by the owner of the site or his authorized agent, and shall be accompanied by such owner or agent's request specifying for which part of the plans and specifications approval is sought, and specifying the scheduled construction.

Approval shall be based, among other things, on the adequacy of site dimensions, storm drain considerations, conformity and harmony of external design with neighboring sites, relation of topography, grade and finished ground elevation of the site being improved to neighboring sites, proper facing of structures with respect to the street and conformity of the plans and specifications to the purpose and general plan and intent of these Covenants. Approval shall be based, by way of illustration and not limitation, on the compatibility of the proposed occupational use with the plan of a light industrial park, the compatibility of the impact of such use on the health, safety and welfare, the inhabitants of the property, the inhabitants of the Town of Selbyville who occupy real property outside the property described in Exhibit A, the employment base created for the Town of Selbyville by reason of that use and balanced against the potential harms or threatened harms caused by such use by reason of noise, odors or pollution of any sort or type. All of such considerations and approvals are to be undertaken by the developer in consultation with appropriate referral agencies with whom the developer may consult in conjunction with the plans; such referral agencies by way of illustration and not limitation being the Department of Natural Resources Environmental Control of the State of Delaware, the Soil Conservation Service of the State of Delaware, the Department of Highways of the State of Delaware and outside land planning consultants, as may be engaged by the developer, in the fields of land use and economic development.

Based upon the foregoing, the developer shall have the right to refuse or approve any such plans or specifications or proposed use of the premises for any reason which the developer, within the context of the zoning authority delegated to it, and in consideration of the public health, safety and welfare of the present and future inhabitants of the Town of Selbyville, may deem in the best interest thereof.

Neither the developer nor its successors or assigns shall be liable in damages, or subject to any suit to compel authorization from anyone submitting plans to them for approval, or to any owner or lessee of land affected by this declaration, by reason of mistake in judgment, negligence or nonfeasance arising out of or in connection with the approval or disapproval or failure to approve any such plans. Every person who submits plans and specifications to the developer for approval agrees, by submission of such plans and specifications, and every owner or lessee of any of the property agrees, by acquiring title thereto or interest therein that he is required to submit such plans for approval or disapproval to the developer. The approval or disapproval of such plans by the developer is within the developer's delegated zoning powers, and all decisions made by the developer with respect to such plans shall be presumed to be for the benefit of the general health, safety, welfare and morals of the inhabitants of the Town of Selbyville and, as all such decisions are legislative in nature, shall be permitted correct.

(6)

All buildings must be constructed in accordance with the developer approved site plan. Any modification to the approved plans during construction affecting the intent of these covenants must be approved by the developer before the modification to the building is constructed. Owner shall give written notice of completion of improvements to developer upon completion of said improvements.

Enforcement.

These Covenants shall be enforceable by the developer and its successors and assigns and by the site owner and its successors and assigns; provided, however, that only the developer, or its assignees, shall have the right to exercise the discretionary powers herein reserved to the developer. The developer reserves the right to enforce these restrictive Covenants under its zoning powers and to enforce violations of these restrictions as a violation of a Zoning Ordinance.

Violation of any of said Covenants, or breach of any Covenant or agreement herein contained shall give the developer or its assignees, in addition to all other remedies, the right (but not the obligation) to enter upon the land where such violation or breach exists and summarily to abate and remove any structure or correct any condition that may constitute such violation or breach at the expense of the then owner of the land at the cost to the developer, together with 50% thereof, for administrative overhead; provided, however, that no such entry shall be made unless the violation or breach has been noticed in writing to the owner, the owner fails to correct such breach or violation within 20 days of such notice. In any suit to enforce this obligation, the developer shall be awarded costs and reasonable attorneys' fees.

Construction and alteration of all improvements shall be performed in accordance and compliance with the requirements of all applicable governmental authorities.

Fees.

Any expenses incurred by the developer in the review of plans shall be reimbursed by the applicant unless such fees are waived by the developer. Such fees shall be reasonable and documented upon request of the applicant.

Each year, as part of the fiscal year and budget of the Mayor and Council of the Town of Selbyville, the Mayor and Council shall include an estimate of the total amount which it considers necessary to pay the cost of the maintenance, management, operation, repair and replacement of and in the common area and provide for an assessment for fees against each site owner in a proportion to his respective ownership of site to the total number of sites available in the Industrial Park. Said assessments shall be a lien against each site owner's lot as of the first day of the fiscal year to which such budget applies. Such assessments and fees shall be collected with the annual taxes and shall be subject to the same methods and procedures as applied to the collection of taxes in the Town of Selbyville.

[Added 5-4-1998]

Repurchase rights.

[Amended 5-4-1998]

In the event any owner, or its assigns, shall not have occupied and placed into regular use a permanent building upon a site within two years of the date of issuance of the appropriate occupancy permits by developer and any other agency requiring permits, the developer shall have an option to repurchase said site for the original purchase price and enter into possession of said site. This option to repurchase may be exercised in writing after the expiration of the two-year period following the issuance of the appropriate occupancy permits referred to above. Settlement of the repurchase shall take place within 60 days of the exercise of the option to repurchase at a location to be designated by the developer. All costs of recording, transfer taxes, documentary stamps and all other excise taxes arising from said settlement will be paid for by the said owner or assigns. All costs, including but not limited to the following: document preparation, title review, lien search, any and all attorney's fees, recording, transfer tax, documentary stamps and all other excise taxes arising from said settlement, will be paid for by said owner or assigns. No assessments shall be levied against remaining park property owners for contributions toward the purchase price, upon the exercise of the repurchase option by the developer.

Anything in this subsection to the contrary notwithstanding, the developer, its successors and assigns may extend, in its sole discretion, and in writing, the time in which such construction must be completed by owner, upon developer's receipt of a request for extension by owner and upon owner's demonstration of its diligence in pursuing completion of said construction. In addition to the right and option to acquire for failure to build within two years of taking title to a site, in the event the construction is commenced and abandoned under any approved site development plan, the developer shall have the option to treat such failure as a maintenance expense and complete the improvements at the cost and expense of the owner.

In the event any owner, or its assigns, shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangements, composition, readjustment, liquidation, dissolution or similar relief under present or any future federal bankruptcy acts or any other present or future applicable federal, state or other statute or law, or shall seek or consent to or acquiesce in the appointment of any trustees receiver or liquidator or owner, or its assigns, or of all or any substantial part of its assets or of the premises, where said premises shall become part of the estate of an individual owner, the developer shall have an option to repurchase said site under the same terms and conditions of Subsection D(1) above and enter into possession of said site.