[Amended 12-8-1992 by Ord. No. 92-13; 5-9-1995 by Ord. No. 95-12; 1-16-1996 by Ord. No. 96-01; 1-2-2001 by Ord. No. 01-01; 10-24-2017 by Ord. No. 17-20]
A.
The Levy Court shall appoint a Board of Adjustment of seven members.
The members shall be appointed for an undefined term concurrent with
that of the appointing Commissioner, to be served at the pleasure
of a majority of the Levy Court. Each Levy Court Commissioner shall
be entitled to submit the name of a qualified appointee residing in
his district for consideration and confirmation by the Levy Court.
The persons appointed to the Board of Adjustment shall be individuals
with knowledge of and experience in dealing with the problems of urban
and rural development. At the time of appointment, they shall not
be candidates for or in elective office.
B.
Vacancies shall be filled for the unexpired term in the same manner
as in the case of regular appointments.
C.
The Levy Court shall provide compensation for services rendered and
for payment of necessary expenses of the members of the Board in accordance
with the Board's bylaws.
D.
Subject to the approval of the Levy Court, the Board may employ such
secretarial and technical assistance as may be required to perform
its functions properly.
E.
The Board shall adopt rules for the conduct of its business, such
rules to be made available to the public. For the conduct of any hearing,
a quorum shall be not less than four members and an affirmative vote
of four members of the Board shall be required to overrule any decision,
ruling or determination of the official charged with enforcement of
this chapter, or to approve any variance.
The Board of Adjustment shall have the following powers:
A.
To hear and decide appeals where it is alleged by the appellant there
is an error in any order, requirement, decision or refusal made by
an administrative official or agency based on or made in the enforcement
of the zoning regulations.
B.
To hear and decide, in accordance with the provisions of any zoning
regulations, requests for interpretation of the map or for decisions
upon other special questions upon which the Board is authorized by
any zoning regulation to pass.
A.
Appeals.
(1)
Appeals to the Board of Adjustment may be made by any person
refused a building permit or from the decision of any administrative
officer or agency made by the administration or enforcement of the
provisions of this chapter. Appeals to the Board of Adjustment may
also be made by any officer, department, board or bureau of the County
affected by the grant or refusal of a building permit or by other
decision of an administrative officer or agency made by the administration
or enforcement of the provisions of this chapter.
(2)
Such appeal shall be made within 30 days of the administrative
officer's or agency's written decision by filing a notice of appeal,
specifying the grounds for the appeal, with the Secretary to the Board.
An appeal shall stay all proceedings in furtherance of the decisions
being appealed unless the Secretary to the Board certifies that, in
his opinion, by reason of facts stated in the appeal, a stay would
cause imminent peril to life or property. In such instances, case
proceedings shall not be stayed other than through a restricting order
granted by the Board or court of record, upon notice to the Secretary
to the Board.
(3)
In exercising its powers the Board may reverse or affirm, wholly
or partly, or may modify, the order, requirement, decision or determination
being appealed.
B.
Variances.
(1)
Where by reason of exceptional narrowness, shallowness or shape
of a specific piece of property at the time of the enactment of the
regulations, or by reason of exceptional topographic conditions or
other extraordinary and exceptional situation or condition of such
piece of property, the strict application of any regulation adopted
under this article would result in peculiar and exceptional practical
difficulties to, or exceptional and undue hardship, other than financial,
upon such property, a variance from such strict application so as
to relieve such difficulties or hardship, provided that such relief
may be granted without substantially impairing the intent and purpose
of the zoning plan and zoning regulations.
(2)
Variances are to be granted only when the conditions upon which
the request is based are unique to the property for which the variance
is sought and are not applicable generally to other property. The
hardship must be created by the unique physical characteristics of
the property, and not by the real or perceived inconvenience of the
property owner. This section is not to be used to permit more than
one dwelling unit on a property, or to create irregularly shaped (flag
or pipestem) lots.
(3)
The Board of Adjustment shall have the authority to impose any
appropriate condition to the approval of a variance it deems necessary
to protect the health, safety and welfare of the community.
C.
Public notice. No hearing shall be held by the Board until notice
of time and place thereof has been provided to the applicant and property
owners within 200 feet of the subject property at least 15 days before
the date of said hearing. Notice shall be provided as follows:
(1)
Staff shall notify by regular mail all property owners within 200
feet of the extreme limits of the subject property as their names
appear in the County tax record at least 15 days prior to the hearing.
(2)
The Department shall provide notice to the general public of the
public hearing before the Commission by publishing the date, time,
place, and nature of the hearing at least 15 days before the hearing
in a newspaper of general circulation in the County.
(3)
The Commission's staff will also post a notice outlining the date,
time, place, and nature of the hearing in a conspicuous location on
the property.
(4)
The published and posted notices shall contain reference to
the time and place or places within the County where the application
is available for review.
D.
The Board shall designate a secretary to keep minutes of its proceedings
and other official actions which shall be filed in the office of the
Board and shall be public records. The Chairman of the Board or, in
his absence, the Vice Chairman may administer oaths and compel the
attendance of witnesses.
After the Board of Adjustment has granted a variance, the variance
so approved or granted shall lapse after the expiration of one year
after the date of the notice of the decision if no substantial construction
or change of use has taken place in accordance with the plans for
which such variance was granted, or if the Board does not specify
some longer period than one year for good cause shown, and the provisions
of these regulations shall thereafter govern.
The procedure for amendment of a variance already approved or
a request for a change of conditions attached to an approval shall
be the same as for a new application, except that where the Secretary
to the Board determines the change to be minor relative to the original
approval, he may transmit the same to the Board with the original
record without requiring that a new application be filed.
Any person jointly or severally aggrieved by any decision of
the Board of Adjustment may present to the Superior Court in and for
Kent County a petition setting forth that such decision is illegal
in whole or in part, specifying the grounds for the illegality. The
petition shall be presented to the Court within 30 days after the
filing of the decision in the office of the Board (9 Del. C. § 4918).
A.
Notwithstanding any other provision of this chapter, the Director
of Planning Services shall have the authority, as qualified below,
to approve certain adjustments to specific requirements of this chapter.
Such a reduction may be approved by the Director of Planning Services
in accordance with the following provisions:
(1)
Limits for the adjustment are as follows:
(a)
Setbacks: Maximum possible adjustment of 10% of the measurement
that is involved, or five feet, whichever is greater; however, no
structure shall be permitted closer than five feet to a property line.
(b)
Impervious cover: Maximum possible adjustment of 3%.
(c)
Variances are not allowed for standards pertaining to the number
of dwelling units permitted, parking requirements, height of building,
vision clearance area, density, or use of property
(2)
Such reduction will not impair the purpose and intent of this chapter.
(3)
It will not be detrimental to the use and enjoyment of other property
in the immediate vicinity.
(4)
It will not create an unsafe condition with respect to both other
property and public streets.
(5)
If compliance with the minimum requirements would cause unreasonable
hardship upon the owner.
(6)
The reduction will not result in an increase in density from that
permitted by the applicable zoning district regulations.
B.
In taking any such action, the Director of Planning Services shall
be governed by all the procedures, standards, and limitations of this
chapter applicable to the Board of Adjustment in granting variances,
except the public hearing requirements. In approving such a variance
under the provisions of this section, the Director of Planning Services
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.
C.
Upon the approval of a variance for a particular building in accordance
with the provisions of this section, the same shall be deemed to be
a lawful building.
D.
The Director of Planning Services shall have no power to waive or
modify the standards necessary for approval as specified in this section.
E.
Any variance request greater than the limits listed above shall be
referred to the Board of Adjustment in accordance with this chapter.
F.
The Director of Planning Services shall give written notice to property
owners within 200 feet of the subject property and accept written
statements for 10 working days from the date of mailing. If a letter
of objection is received within the 10 working days, the application
shall be denied and the applicant may apply to the Board of Adjustment
for consideration.
G.
If no letter of objection is received, the Director of Planning Services
or designee shall approve, conditionally approve or deny such application
within 15 working days after the application for administrative variance
is submitted and accepted. The Department of Planning Services, Division
of Planning, shall inform the applicant, in writing, of the conditions,
if any, for approval or the reasons for disapproval. Such written
notice shall also describe the process of appeals. A copy of the written
notice shall be kept in the permanent records of the Kent County Department
of Planning Services, Division of Planning.
H.
The decision of the Director of Planning Services shall be appealable to the County Administrator, who may uphold or overturn the decision of the Director after review and consideration. For any such appeal filed with the County Administrator, the County Administrator shall issue a written determination of final administrative decision. Any applicant who may be aggrieved a final administrative decision may appeal such decision to the Board of Adjustment for consideration in accordance with the provisions of § 205-400.
[Amended 9-24-2019 by Ord. No. 19-18]
Applications for a variance shall be submitted to the Department
of Planning Services, Division of Planning. The application shall
be in such form and contain such information and documentation as
shall be prescribed from time to time by the Director of Planning
Services but shall in all instances contain at least the following
information and documentation:
A.
A completed application form with the signatures of legal owners.
B.
A plot plan accurately describing the location of all existing and
proposed structures in relation to the property lines, the location
of the well and septic (if applicable), the lines and distances of
each property line, the location of any easement or rights-of-way
affecting the property, and the location and width of the frontage
street/road.
C.
A statement of the particular requirements of this chapter by citation
and description.
D.
A statement of the minimum variance of the requirements of this chapter
which would be necessary to permit the proposed activity.
E.
A statement of the exceptional or undue hardship which would result
if said particular requirements of this chapter were applied to the
subject property.
F.
Such other and further information and documentation as the Director
of Planning Services or the Board of Adjustment may be deemed necessary
or appropriate to a full and proper consideration and disposition
of the particular application.
