A.
Recognizing that certain uses, activities and structures
are necessary to service the needs and convenience of the Town of
Elsmere and, at the same time, recognizing that such uses may be or
become inimical to the public health, safety and general welfare if
located and operated without proper consideration being given to the
existing conditions and character of the surrounding area, such uses
are hereby designated as special exception uses. In addition to other
powers conferred by this chapter and applicable statutes, the Board
of Adjustment shall have exclusive jurisdiction and powers to grant
a permit for a special exception use under the terms and conditions
established by this chapter, under the following stipulations and
guiding principles:
(1)
The use for which application is being made is specifically authorized as a special exception use in Article III of this chapter for the zone in which located.
(2)
The design, arrangement and nature of the particular
use is such that the public health, safety and welfare will be protected,
and reasonable consideration is afforded to the:
(a)
Character of the neighborhood.
(b)
Conservation of property values.
(c)
Health and safety of residents and workers on
adjacent properties and in the surrounding neighborhood.
(d)
Potential congestion of vehicle traffic or creation
of undue hazard.
(e)
Stated principles and objectives of this chapter
and the Comprehensive Plan of the Town of Elsmere.
Special exception uses include the following:
A.
Public utility uses, such as water filtration plants,
sewage disposal plants, pumping stations, high-voltage transmission
lines and towers, electric substations, telephone exchanges and repeater
stations, but no service or storage yards, subject to the following:
(1)
Proof is furnished that the proposed installation
in the specific location is necessary for the proficiency of the public
utility system and the satisfactory and convenient provision of service
to the neighborhood or area in which the facility is to be located.
(2)
The design of any building or structure required for
such use conforms to the general character of the area in which it
is located.
(3)
Adequate fencing and landscaping will be provided
and periodically maintained.
(4)
The lot on which located is sufficient in size to
adequately accommodate the proposed facilities, together with any
parking space required to serve the facility, together with any of
the structural portions of the use or parking facilities being closer
than 25 feet to adjacent properties.
B.
Churches and similar places of worship and rectories
or parish houses or convents of religious groups on the same tract,
subject to the following:
(1)
In addition to the material required for the application as specified in § 225-29, the application shall be accompanied by the existing or proposed charter and bylaws of the organization and such other material to guarantee to the satisfaction of the Board of Adjustment the following:
(a)
The organization is or will be a bona fide nonprofit
religious group organized purely for the benefit of its membership
and such other activities normally carried on by religious groups.
(b)
The organization will not engage in sales of
products or materials to the general public or otherwise engage in
activities normally carried on as a business or commercial activity,
except that the premises may be made available on a rental basis for
groups, private social functions and the like.
(2)
The area of the lot on which the proposed use is to
be located shall have a minimum area of two acres and a minimum width
of 150 feet.
(3)
The coverage of the lot by structures will not exceed
20%.
(4)
No building will be located within 60 feet of a street
line nor within 50 feet of a side or rear property line.
(5)
Off-street parking space shall be provided at a rate
of one space for each six seats in the church building and one for
each four seats in any other form of meeting room space. Such parking
space shall not be located within the front yard area nor within 30
feet of a property line and shall otherwise comply with all general
requirements of this chapter concerning parking areas. In addition,
landscape plantings shall be provided in sufficient quantity and locations
to preclude the transmission of headlight glare or other lighting
to adjacent properties and to preclude view of the parking area from
a public street.
C.
Public schools and private schools and institutions
of higher learning operated by charitable, religious or eleemosynary
organizations which are not conducted as a business, subject to the
following:
(1)
The site area is five acres plus one additional acre
for every 100 pupils or portion thereof of maximum capacity.
(2)
The lot coverage does not exceed 15%.
(3)
No structure is located within 100 feet of a street
or property line.
(4)
Sufficient off-street parking space shall be provided
to ensure that the use will not cause parking in a public street during
the course of normal educational programs.
D.
Motor vehicle service stations.
(1)
A minimum lot area of 15,000 square feet shall be
provided, together with a minimum lot width of 100 feet. In addition,
if the Board of Adjustment finds that the nature of the particular
use proposed, either by virtue of scale, intensity of use, potential
hazard or other such considerations, is such that a larger site is
in the public interest, then it shall impose such additional requirement.
(2)
Such lot shall be located within the following limitations:
(4)
All fuel tanks or other such containers for the storage
of flammable materials, either liquid or solid, shall be installed
underground at sufficient depth to ensure against hazard of fire or
explosion.
(5)
Parking facilities shall be maintained as follows:
(a)
Two square feet of space for each square foot
of floor area in the primary building.
(b)
Where such parking areas abut a residential
zone, they shall be screened by a buffer area not less than 10 feet
in width composed of densely planted evergreen shrubbery, solid fencing
or a combination of both which, in the opinion of the Board of Adjustment,
will be adequate to prevent the transmission of headlight glare across
the zone boundary line. Such buffer screen shall have a minimum height
of five feet above finished grade at the highest point of the parking
area. The materials used shall be in keeping with the character of
the adjacent residential area.
(c)
Driveways to parking areas shall be limited
to two for each 100 feet of frontage. Such driveways shall not be
less than 12 feet nor more than 25 feet in width.
(d)
No area on the lot which is required for the
movement of vehicles in and about the buildings and facilities shall
be used for complying with the parking requirements of this section.
(6)
Accessory goods for sale may be displayed out-of-doors
on the pump island and building island only and shall be stored in
a suitable rack or container.
E.
Clubs or lodges for fraternal or social purposes operated
by chartered membership organizations for the benefit of their members,
and not for profit, may be permitted in the R-1, R-2 or R-GA District,
subject to the following:
(1)
In addition to the material required for the application as specified in § 225-29, the application shall be accompanied by the existing or proposed certificate of incorporation and bylaws of the organization. Such material shall guaranty to the satisfaction of the Board of Adjustment the following:
(a)
The organization is or will be a bona fide nonprofit
group organized solely for the benefit and enjoyment of its members.
(b)
The organization will not engage in sales of
materials to the general public or otherwise engage in activities
normally carried on as a business or commercial activity, except that
the premises may be made available on a rental basis for meetings
or other groups, private social functions and the like. The maximum
membership and guest limit of the organization is fixed at a level
which is commensurate with the scale of facilities to be provided.
No further membership expansion will take place without prior approval
of the Board of Adjustment.
(c)
The hours of use are fixed in a manner in which
the property rights of nearby property owners will not be adversely
affected.
(d)
All activities of the organization will be carried
on within an enclosed building.
(2)
The proposed use is located on a primary street or
secondary street as established by the Comprehensive Plan.
(3)
The area of the lot on which the use is proposed shall
have a minimum of two acres and is not less than 100 feet wide.
(4)
The coverage of the lot by structures will not exceed
20%.
(5)
No building will be located within 30 feet of any
property or street line.
(6)
Off-street parking space shall be provided, at a rate
of one for each four memberships over the age of 17 permitted. Such
parking space shall not be located within 30 feet of a property or
street line and shall otherwise comply with general requirements of
this chapter concerning parking areas. In addition, landscape plantings
shall be provided in sufficient quantity and locations to preclude
the transmission of headlight glare or other lighting to adjacent
property.
F.
Planned unit developments in the R-1 or R-2 District,
subject to the following:
(1)
Site requirements.
(a)
The minimum required land area for a planned
unit development shall be 40 contiguous acres.
(b)
The tract shall be serviced by a system of sanitary
sewers, water mains, fire hydrants, storm sewers, easements and rights-of-way
for utilities, shade trees, streetlighting and public utilities placed
underground, all of which shall be constructed so as to conform with
the applicable statutes, ordinances and regulations of the State of
Delaware and the Town of Elsmere.
(2)
Applicability of Comprehensive Master Plan. Any planned
unit development shall be based on and interpreted in relation to
the Comprehensive Plan for the development of the Town of Elsmere.
Every application for approval of a planned unit development shall
be based on and interpreted in relation to such Comprehensive Plan.
(3)
Permitted uses.
(a)
Single-family detached dwellings.
(b)
Townhouses.
(c)
Apartment houses.
(d)
Common, public or private open space, park or
recreation areas, including playgrounds, woodland, conservation areas,
walkways, trails, stream crossing and drainage control areas, golf
courses, swimming pools, tennis courts, ice-skating rinks and other
similar recreational uses, but which may not include any such uses
or activities which produce noise, glare, odor, air pollution, fire
hazard or other safety hazards, smoke, fumes or any use or activity
which is operated for a profit or other things detrimental to existing
or prospective adjacent structures or to existing prospective development
of the neighborhood.
(e)
Municipal, church or philanthropic use.
(f)
Educational use.
(g)
Model home exhibits, temporary sales and construction
office and uses accessory thereto for use solely in conjunction with
planned unit development in the Town of Elsmere.
(h)
Neighborhood retail sales and service facilities.
(4)
Area design standards.
(a)
Area limitations for various uses. Within a
planned unit development, the following percentage of the total land
area shall be devoted to the specific uses:
[1]
A maximum of 80% for the residential uses and other uses permitted in Subsection F(3) above, excluding the open space and recreation uses in Subsection F(3)(d), and the space devoted to streets and parking within and exclusively servicing such open space or recreation use. Said maximum shall include all of the recreational, playground and athletic activity areas which are part of a school site.
[2]
A minimum of 20% for common or public open space and recreational uses as defined in Subsection F(3)(d) above. This area shall include space devoted to streets and parking, provided that such facilities are within and service exclusively an open space or recreation area.
[3]
A maximum of 5% for neighborhood retail sales
and service facilities, but in no event to exceed 10 acres. Said maximum
shall include the parking and service areas exclusively servicing
such facilities.
(b)
Design standards. The following minimum requirements
shall apply:
[2]
Additional requirements that apply to townhouses:
[a]
There shall be no continuous group
of townhouses consisting of more than eight dwelling units.
[b]
For the purpose of avoiding developments
resembling what have been customarily referred to as "row houses,"
there shall be within any continuous group of townhouses at least
three different architectural plans having substantially different
designs, building materials and exterior elevations. In addition,
no more than three continuous townhouses shall have the same front
setback, and the variations in front setbacks shall be at least four
feet.
[c]
Notwithstanding the requirements of Subsection F(4)(b)[1] above, no group of townhouses shall be closer than 60 feet as to facing walls and 30 feet as to end walls, from any other group of such dwellings, nor closer than 60 feet to any boundary line of a designated townhouse area of which the group is a part.
[d]
The minimum width of any side yard
abutting a street, driveway or parking area within the townhouse area
shall not be less than 30 feet.
[3]
Additional requirements that apply to apartment
houses:
[a]
Notwithstanding the requirements of Subsection F(4)(b)[1] above, no apartment house shall be closer than 60 feet to any other apartment house, nor closer than 80 feet to any boundary line of the designated apartment house area of which the apartment house is a part.
[4]
Off-street parking requirements. Adequate parking
areas shall be provided for townhouses and apartment houses within
the areas designated for the same, and there shall be at least two
parking spaces, each 10 feet by 20 feet minimum in size, per dwelling
unit, in addition to the driveways, roadways, and turning and access
areas within the designated housing area.
[5]
Location of structures. The proposed location
and arrangement of structures shall not be detrimental to existing
or prospective development of the neighborhood.
[6]
Protection of open spaces. All recreation areas
designated on the development plan shall be improved and equipped
initially by the developer in accordance with plans approved by the
Planning Commission and shall be protected by adequate covenants running
with the land or by conveyances or dedications of same to the Town
of Elsmere as the Town Council shall determine.
[7]
Open space and recreation areas shall be designed
to be primarily for the benefit of the residents of the planned unit
development, and to this end the developer shall have as many dwelling
units (all types) as is feasible abut or be near an open space area.
[8]
Roads and parking areas. The dimensions and
construction of roads and parking areas within the development, whether
or not dedication of them to the Town of Elsmere is contemplated,
shall conform with all applicable Town ordinances and regulations.
(5)
Creation of an organization to own and maintain a
common open space and recreation area within a planned unit development.
(a)
The developer and landowner of every planned
unit development shall prepare and present at the time of submission
of the final development plan for the approval of the Town Council
of the Town of Elsmere documents creating and governing a property
owner's organization and containing the declarations of covenants,
restrictions, easements, charges and liens deemed necessary to own
and maintain the common open space and recreation areas within the
planned unit development.
(b)
In addition to the foregoing, these documents
shall contain the following minimum essential provisions with respect
to such organization:
[1]
Powers and duties in maintaining and administering
open space and recreation facilities, administering and enforcing
all covenants and restrictions and in the levying, collecting and
disbursing of assessments and charges.
[2]
Membership and voting rights.
[3]
Rights and duties of the Town of Elsmere, members
of the organization and residents of the planned unit development
in the event of a breach of the covenants and restrictions.
[4]
Establishment of bond in the amount of 120%
of the estimated construction with surety to guarantee the construction
and installation of all recreation facilities within the common open
space and recreation areas initially.
[5]
If such organization is abandoned or abolished
or if such organization proposes to dispose of the common open space
and recreation areas, said open space and recreation areas shall be
first offered for dedication to the Town of Elsmere before it is otherwise
disposed of.
G.
Cluster residential development.
(1)
Tract requirements.
(a)
A tract under single ownership of an area and
of dimensions not less than those prescribed by the appropriate district
schedule shall be required for a cluster development. The tract may
be divided by an existing public street, which may be retained as
a part of the plan for the development or relocated in accordance
with an approved site plan. The minimum yard requirements of the schedule
shall apply only to the periphery of the tract.[2]
[2]
Editor's Note: See the Schedule of Lot, Yard
and Building Requirements included at the end of this chapter.
(b)
There shall be no access from the tract to existing
public roads other than by interior streets at minimum intervals of
400 feet, and no dwelling unit shall front upon a collector or arterial
street incorporated into or created within a planned residential development.
(c)
Every dwelling unit shall be connected to and
properly served by public water and public sanitary sewer and by a
storm drainage system.
(e)
The gross density of the project shall not exceed
the maximum units per acre permitted by the appropriate district schedule.
(2)
Only single-family detached dwellings shall be permitted
within a cluster development.
(a)
All accessory uses permitted with single-family
dwellings by the appropriate district schedule shall be permitted
with single-family detached dwellings within a cluster development.
(3)
Lot area and dimensions for single-family detached
units.[4]
|
District R-1 or R-2
| |||
|---|---|---|---|
|
Minimum lot area
|
5,000 square feet
| ||
|
Minimum average lot area
|
6,000 square feet
| ||
|
Minimum lot width
|
50 feet
| ||
|
Minimum average lot width
|
60 feet
| ||
|
Minimum lot depth
|
80 feet
| ||
|
Minimum front yard
|
20 feet
| ||
|
Minimum side yard:
| |||
|
One
|
5 feet
| ||
|
Both
|
10 feet
| ||
|
Minimum rear yard
|
30 feet
| ||
|
Maximum lot coverage
|
20%
| ||
(4)
Open space. All land not included within lots to be
conveyed or utilized for required improvements shall be deeded to
the Town or shall be reserved by a covenant in favor of the municipality
or by grant of easement providing that it shall be set aside in perpetuity
for the use of residents of the development or it shall be deeded
to a homeowners' association, as the Council shall elect, by written
instrument to be approved by them. If the Town Council elects to approve
a conveyance to a homeowners' association, the landowner shall so
organize it that it may not be dissolved, nor may the association
dispose of the open space by sale or otherwise (except to an organization
conceived and established to own and maintain it) without first offering
to dedicate it to the Town. Such organization shall be subject to
the approval of the Council.
(a)
The area to be dedicated for public use shall
be so located and of such a shape to be acceptable to the Town Council.
In determining the acceptability of proposed open space, the Town
shall consider future Town needs and may require a portion of open
space to be designated as the site of a potential future public use,
provided that not more than 25% of all available open space shall
be taken for public buildings.
(b)
All open space area shall be graded and seeded
by the developer during the course of construction unless the Town
Council approves or directs the maintaining of all improvements, in
which case it will be disturbed only as necessary to make the specified
improvements.
(c)
Streets or off-street parking areas. The Town
Council may require all streets within the tract which do not directly
implement the proposals of the Comprehensive Plan or Official Map
and do not provide a direct connection between existing streets outside
the tract to be transferred to the ownership of the homeowners' association
for maintenance and repairs. Wherever reverse planting strips, medial
grass strips or other landscaped areas are proposed which will be
visible to the general public within the development, covenants and/or
agreements shall provide for the maintenance of such areas by the
homeowners' association even though they may be upon land subdivided
into lots.
(d)
No single area of less than three acres in size
shall be dedicated for public use, unless, due to special conditions
that are peculiar to the particular parcel of land or to the public
purpose for which the land is to be used, dedication of a smaller
area is authorized by the Town Council.
(e)
Open space areas may be used as park, playground
or recreation areas, including golf courses, swimming pools, equestrian
trails and centers, tennis courts, shuffleboard courts, basketball
courts and similar facilities; woodland or stream conservation areas;
pedestrian walkways, stream-course or drainage control areas; children's
nurseries or day-care centers; or any similar use of benefit to the
residents of the development if in the ownership of a homeowners'
association or the Town if dedicated to and accepted by the Town and
deemed appropriate by the Town Council.
H.
Motels, motor courts or hotels may be permitted in
the HD District, provided:
(1)
The area to be occupied for such use shall be not
less than three acres, and no rental structure or part thereof shall
be placed closer to a street line than 100 feet or closer to any property
line than 50 feet.
(2)
Wherever located, a motel, motor court or hotel shall
conform to the following additional requirements:
(a)
Each rental structure shall contain not fewer
than 20 rental units.
(b)
One off-street parking space per rental unit shall be provided, and the automobile parking lot shall conform with § 225-10C; no part thereof shall be closer to any street line than 70 feet.
(c)
Each rental unit shall be supplied with a toilet
and hot running water.
(d)
Sanitary facilities and water supply shall be
approved by the State Division of Environmental Protection and any
other appropriate governmental agency.
I.
Convalescent homes.
(1)
Off-street parking shall be in other than the required
front yard area and shall be not closer than 25 feet to a property
line other than a street line. Parking areas shall be provided with
illumination. All outdoor illumination shall be so arranged, shielded
or otherwise restricted to protect adjacent properties from glare
or reflection.
(2)
Any outdoor storage of trash, laundry, oxygen tanks
or other waste supplies shall be fully enclosed by a fence or wall
at least six feet in height.
(3)
One externally illuminated identification wall sign
may be erected on one facade of the building, provided that the sign
shall not exceed an area equal to 10% of the area of the facade upon
which it is created; and either one comparable identification wall
sign, subject to the same regulations, may be erected on each of up
to three additional facades of the building, whether or not such facades
face a public thoroughfare; or one externally illuminated identification
projecting sign which does not exceed 20 square feet in area on either
side may be erected on one side of the building. Additionally, one
externally illuminated ground directional sign may be erected at each
driveway. Such signs shall not exceed four square feet in area or
two feet in height above ground level, and shall not be closer than
15 feet to a property line or more than five feet from a driveway.
Such signs shall be limited to directions to parking, marking entrances
or exits, denoting restricted parking areas or marking emergency entrances.
(4)
Driveways shall not be closer than 20 feet to any
property line other than a street line and shall not be wider than
30 feet at the street line. Two driveways shall be not closer to each
other than 75 feet.
A.
Any person seeking a permit for any special exception use shall first make application in the form described by Subsection D to the Building Official for a special use permit.
B.
The Building official shall forward the file to the
Board of Adjustment for its consideration. A copy of the file shall
also be forwarded to the Planning Commission of the Town of Elsmere
for a review of the site plan and for an evaluation of the proposed
special exception use and its relationship and conformity to the goals
and objectives and policies established by the Comprehensive Plan.
The Planning Commission shall, within 30 days after receipt of such
application, make a written report to the Board of Adjustment setting
forth its findings and recommendations concerning the application.
In its review, the Planning Commission shall grant the applicant and
other interested parties the right to be heard. In its recommendations,
the Planning Commission may suggest any revisions to the site plan,
landscaping plan or other plans as will, in its opinion, cause the
proposed special use to be in substantial conformance with the Comprehensive
Plan and its principles of land use and development.
C.
The Board of Adjustment shall approve or deny such
application in accordance with the time limits provided by law. In
approving any such applications, the Board of Adjustment may impose
any modifications or conditions it deems necessary to carry out the
intent of this chapter or to protect the health, safety or welfare
of the community. If an application is approved, the Building Official
shall be empowered to issue a building permit upon request of the
applicant in accordance with the terms and conditions of the Board's
approval.
D.
The application and all supporting documents shall
be made in triplicate and shall include the following plans and information:
(1)
The location, use, design, dimensions and height of
each proposed building or structure.
(2)
The location and arrangement of vehicular accessways
and location, size and capacity of all areas to be used for off-street
parking, loading and unloading.
(3)
The location and dimensions of sidewalks, walkways
and all other areas to be devoted to pedestrian use.
(4)
The design and treatment of open areas, recreation
areas, buffer areas and screening devices to be maintained, including
dimensions of all areas devoted to planting lawns, trees or other
landscaping devices.
(5)
Provisions for water supply, storm drainage and sewer
disposal.
(6)
Sufficient data to indicate the effects of the proposed
use development in producing traffic congestion and safety hazards
and sufficient additional data to enable the Board of Adjustment of
the Town of Elsmere to determine compliance with the design requirements
set forth in this and other pertinent sections of this chapter.
A.
The Board of Adjustment shall have original jurisdiction
and powers to recommend to the Town Council the granting of a variance
from the community's floodplain management regulations, provided that
such variance is in harmony with, and preserves the spirit of, the
general purpose and intent of these regulations.
B.
Any person seeking a variance shall first make application in the form described in § 225-11, Permit requirements, to the Building Official. The Building Official shall forward the file to the Board of Adjustment for its consideration. The following procedure shall be followed in considering the granting of variances:
(1)
Variances may be issued for new construction and substantial
improvements to be erected on a lot of 1/2 acre or less in size contiguous
to and surrounded by lots with existing structures constructed below
the base flood level, provided that:
(a)
Variances shall only be issued upon a showing
of good and sufficient cause, a determination that failure to grant
the variance would result in exceptional hardship to the applicant
and a determination that the granting of a variance will not result
in increased flood heights, additional threats to public safety or
extraordinary public expense, create nuisances, cause fraud on or
victimization of the public or conflict with existing local laws or
ordinances;
(b)
Variances shall only be issued upon a determination
that the variance is the minimum necessary, considering the flood
hazard, to afford relief;
(c)
The Building Official shall notify the applicant in writing that the issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 for $100 of the insurance coverage, and such construction below the base flood level increases risks to life and property. Such notification shall be maintained with a record of all variance actions as required in Subsection B(1)(d) below; and
(d)
The Building Official shall maintain a record
of all variance actions, including justification for their issuance,
and report such variances issued in its annual report submitted to
the Federal Insurance Administrator.
(2)
No variance shall be granted for any construction,
development, use or activity within any floodway area that would cause
any increase in the one-hundred-year-flood elevation.
C.
Variances may be issued by the Building Official for
the reconstruction, rehabilitation or restoration of structures listed
on the National Register of Historic Places or a State Inventory of
Historic Places, without regard to the procedures set forth in this
section.
