The Board of Adjustment shall consist of three
to five members who shall be residents of the Town and who shall have
knowledge of the problems of urban and rural development and who,
at the time of appointment and throughout the term of office shall
not be candidates nor members of Town Council nor employees of the
Town. The Mayor of the Town of Dagsboro shall appoint such members
of the Board of Adjustment and all such appointments shall be confirmed
by a majority vote of the Town Council. 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 of Adjustment so selected
shall elect from their own number a chairman and a secretary. Any
member of the Board of Adjustment may be removed from office by the
Town Council for cause after a hearing by a majority vote of all the
elected members of the Town Council. A vacancy occurring otherwise
than by the expiration of a term shall be filled for the remainder
of the unexpired term in the same manner as an original appointment.
A.Â
Meetings of the Board of Adjustment shall be held
at the call of the Chairman and at such other times as the Board may
determine. The Chairman, or in his absence, the acting Chairman, may
administer oaths and compel the attendance of witnesses and the production
of records. All meetings of the Board shall be open to the public.
Minutes shall be kept of all meetings by the Secretary. These shall
show the vote of each member upon each question, or if absent or failing
to vote, indicating such fact. The Board shall also keep records of
its examinations and other official actions, all of which shall be
immediately filed in the office of the Board and shall be a public
record.
B.Â
The Board shall adopt such rules and regulations as
may be necessary to carry into effect the provisions and purposes
of this chapter.
C.Â
Appeals to the Board of Adjustment may be taken by
any person aggrieved or by any officer, department, board or bureau
of the municipality affected by any decisions of the Zoning Commission.
Such appeal shall be taken within a reasonable time as provided by
the rules of the Board by filing with the officer from whom the appeal
is taken and with the Board a notice of appeal specifying the grounds
thereof. The officer from whom the appeal is taken shall forthwith
transmit to the Board all the papers constituting the record upon
which the action appealed from was taken.
D.Â
An appeal stays all proceedings in furtherance of
the action appealed from, unless the officer from whom the appeal
is taken certifies to the Board of Adjustment after the notice of
appeal has been filed with him that, by reason of facts stated in
the certificate, a stay would in his opinion cause imminent peril
to life or property. In such case proceedings shall not be stayed
otherwise than by a restraining order which may be granted by the
Board or by a court jurisdiction on application on notice to the officer
from whom the appeal is taken and on due cause shown.
E.Â
The Board of Adjustment shall fix a reasonable time
for hearing of the appeal, give public notice thereof, as well as
due notice to the parties in interest, and decide the same within
a reasonable time. Upon the hearing, any party may appear in person,
by agent, or by attorney. The Board of Adjustment shall notify, by
certified mail with return receipt requested, the property owners,
certified by the applicant in its application to the Board of Adjustment,
within 100 feet of the boundaries of the property which is the subject
matter of the application, of the time and date of the hearing by
sending such property owners a copy of notice as published in a newspaper
of general circulation; such notice to property owners shall be sent
at least 15 days prior to the time and date of the hearing. Said notice
shall also be posted at least 15 days prior to the time and date of
the hearing on the premises for which a variance has been requested
or an appeal to the Board of Adjustment has been made.
[Amended 7-26-2004]
A.Â
The Board of Adjustment may:
(1)Â
Hear and decide appeals where it is alleged there
is error in any order, requirement, decision or determination made
by an administrative official in the enforcement of this chapter or
of any ordinance adopted pursuant thereto;
(2)Â
Hear and decide special exceptions to the terms of
the ordinance upon which the Board is required to pass under such
ordinance;
(3)Â
Authorize, upon appeal in specific cases, such variance
from the Zoning Chapter that will not be contrary to the public interest,
where, owing to special conditions or exceptional situations, the
literal interpretation of the Zoning Chapter will result in unnecessary
hardship or exceptional practical difficulties to the owner of property,
so that the spirit of the chapter shall be observed and substantial
justice done, provided such relief may be granted without substantial
detriment to the public good and without substantially impairing the
intent and purpose of the Zoning Chapter or Zoning Map.
[Amended 4-28-2003]
(4)Â
Whether a nonconforming use exists shall be a question
of fact and shall be decided by the Board of Adjustment after public
notice and hearing and in accordance with the rules of the Board.
[Added 11-20-2006]
B.Â
In exercising the powers provided in Subsection A of this section the Board may, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.
A.Â
Any person or persons, jointly or severally aggrieved
by any decision of the Board of Adjustment, or any taxpayer, or any
officer, department, board, or bureau of the Town, may present to
the Superior Court a petition, duly verified, setting forth that such
decision is illegal, in whole or in part, specifying the grounds of
the illegality. Such petition shall be presented to the Court within
30 days after the filing of the decision in the office of the Board.
B.Â
Upon the presentation of the petition, the Court may
allow a writ of certiorari directed to the Board to review such decision
of the Board and shall prescribe therein the time within which a return
thereto must be made and served upon the attorney, which shall not
be less than 10 days and may be extended by the Court. The allowance
of the writ shall not stay proceedings upon the decision appealed
from, but the Court may, on application, on notice to the Board and
on due cause shown, grant a restraining order.
C.Â
The Court may reverse or affirm, wholly or partly,
or may modify the decision brought up for review.
In the granting or recommending of variances under § 275-52, a time limit of one year from the date of approval shall be set within which time the owner shall secure a building permit from the Code Enforcement Officer and must commence construction which shall be diligently pursued to completion, otherwise the variance granted shall become null and void. No relief shall be granted or action taken by the Board of Adjustment unless such relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of this chapter.
