[1]
Editor's Note: Ordinance No. 215, adopted
6-1-1976, as it amends this chapter, provided as follows:
1. Whenever in the Zoning Ordinance as amended,
revised and reenacted a date is mentioned pertaining to nonconforming
uses, structures, land or lots of records said date shall be and mean
January 1, 1975.
2. Any person, corporation, partnership or other entity wishing to take advantage of this change in dates shall make application to the Administrative Official for a certificate of nonconforming use within three months of the effective date of this ordinance as provided for in Article VI of the Zoning Ordinance.
3. Should any section or provision of this
Ordinance be declared by the courts to be unconstitutional or invalid,
such decision shall not affect the validity as a whole, or any part
thereof other than the part so declared to be unconstitutional or
invalid.
4. The effective date of this ordinance shall
be June 8, 1976.
Within the districts established by this chapter
or amendments that may later be adopted there exist lots, structures
and uses of land and structures which were lawful before this chapter
was passed or amended, but which would be prohibited, regulated or
restricted under the terms of this chapter or future amendment.
A.
It is the intent of this chapter not to encourage the survival of nonconformities and to gradually eliminate those nonconformities which are incompatible with permitted uses within the district in which they are located. No structural alteration resulting in an enlargement or extension of said structure, other than one required by law, shall be made to a building devoted to a nonconforming use, except after approval of the Board of Adjustment as provided in § 230-57.
[Amended 12-3-1991 by Ord. No. 336]
B.
A nonconforming use of a structure, a nonconforming
use of land or a nonconforming use of a structure and land shall not
be extended or enlarged after passage of this chapter by attachment
on a building or premises of additional signs intended to be seen
from off the premises or by the addition of other uses of a nature
which would be prohibited in the district involved.
C.
To avoid undue hardship, nothing in this chapter shall
be deemed to require a change in the plans, construction or designated
use of any building on which actual construction was lawfully begun
prior to the effective date of adoption or amendment of this chapter
and upon which actual building construction has been diligently carried
on. "Actual construction" is hereby defined to include the placing
of construction materials in permanent position and fastened in a
permanent manner; except that where demolition or removal of an existing
building has been substantially begun preparatory to rebuilding, such
demolition or removal shall be deemed to be actual construction, provided
that work shall be diligently carried on until completion of the building
involved.
In any district in which single-family dwellings
are permitted, notwithstanding limitations imposed by other provisions
of this chapter, a single-family dwelling and customary accessory
buildings may be erected on any single lot of record at the effective
date of adoption or amendment of this chapter. Such lot must be in
separate ownership and not of continuous frontage with other lots
in the same ownership. This provision shall apply even though such
lot fails to meet the requirements for area or width, or both, that
are generally applicable in the district, provided that yard dimensions
shall conform to the regulations for the district in which such lot
is located. Any variance of yard requirements shall be obtained only
through action of the Board of Adjustment. If two or more lots or
combinations of lots and portions of lots with continuous frontage
in single ownership are of record at the time of passage or amendment
of this chapter, and if all or part of the lots do not meet the requirements
for lot width and area as established by this chapter, the lands involved
shall be considered to be an undivided parcel for the purposes of
this chapter, and no portion of said parcel shall be used or sold
which does not meet lot width and area requirements established by
this chapter, nor shall any division of the parcel be made which leaves
remaining any lot with width or area below the requirements stated
in this chapter.
[Added 10-11-2011 by Ord. No. 483]
Notwithstanding any provision of the Municipal Code of the City
of New Castle to the contrary, residential redevelopment shall be
permitted subject to the following criteria:
A.
Application procedure. An applicant may apply to the City Council
to have the redevelopment conditions of this section applied to a
tract or contiguous tracts of residentially zoned properties in the
applicant's control subject to the following provisions:
(1)
Said tract(s) shall not be greater than 10,000 square feet in
size in the aggregate.
(3)
(a)
Presence of one or more unoccupied structures that have been
tax delinquent for a period of two years or more.
(b)
Physical condition that has rendered the site a public nuisance
in accordance with City building codes.
(c)
Presence of a fire hazard or other safety hazard to persons
or property.
(e)
Any structure that due to dilapidation, sanitation, vermin,
lack of facilities or safety has been designated by the City of New
Castle as unfit for human habitation.
(f)
The presence of one or more structures from which the utilities,
plumbing, heating, sewerage or other facilities have been disconnected,
destroyed, removed or rendered ineffective so that the property is
unfit for its intended use.
(g)
A vacant or unimproved tract in a predominantly built-up area,
which by reason of neglect or lack of maintenance, has become a place
for accumulation of trash and debris or a haven for rodents or vermin.
(h)
A property that has environmentally hazardous conditions, solid
waste pollution or contamination in a building or land.
(4)
For tracts that include multiple parcels, a majority of the
units of property, representing a majority of the total land area,
must meet the criteria.
(5)
The proposed use must be permitted by the underlying zoning
district in question.
(6)
After review and recommendation by the Planning Commission,
the City Council may, in its sole discretion, decide whether the proposed
tract is suitable for residential redevelopment according to the provisions
of this section, with or without conditions.
B.
The owner of any eligible residential property shall be entitled
to maintain any preexisting nonconformities related to lot size, building
bulk, impervious cover and/or minimum yard; provided, however, that
any nonconformities related to lot size, building bulk, impervious
cover and/or minimum yard are not expanded beyond existing site conditions.
C.
Building footprints shall be limited to 50% of lot size, except as permitted pursuant to the grandfathering provisions of Subsection B of this section.
D.
In the case of properties legally utilized, in whole or in part,
as multiple dwellings within the ten-year period preceeding the filing
of the redevelopment application, a maximum of two additional dwelling
units may be permitted with Council approval in order to encourage
redevelopment pursuant to this section.
E.
The architecture of a redevelopment project shall adequately protect
surrounding properties, and shall be harmonious with the character
of the neighborhood. In evaluating compatibility with surrounding
development, the Planning Commission and City Council shall consider
the following criteria:
(2)
Building articulation and design.
(a)
Redevelopment shall generally employ building types that are
compatible to the existing architecture of the adjacent neighborhood
in its massing and external treatment.
(b)
Buildings shall be articulated by changes in wall planes, changes
in exterior finishes, variations in fenestration, and additions to
architectural detailing.
(c)
Architectural embellishments that serve a function and add visual
interest to roofs, such as dormers, masonry chimneys, cupolas, towers
and other similar elements, shall be included in the design of buildings.
(3)
In predominantly one-family-dwelling neighborhoods, multiple-dwelling
uses must contain design elements, such as placement of doors, that
create the appearance of a single-family use.
(4)
Commercial uses shall be prohibited as a part of residential
redevelopment as permitted by this section, even where otherwise permitted
in the underlying zoning.
F.
Each dwelling unit approved pursuant to this section may be simultaneously subdivided into individual fee simple lots or otherwise condominiumized pursuant to the Delaware Uniform Common Interest Ownership Act or the Delaware Unit Property Act. All subdivisions hereunder shall be processed in the manner set forth in Chapter 213 of the Code of the City of New Castle.
G.
All residential redevelopment applications shall require Council of New Castle approval, and all redevelopment plans that seek the subdivision of a lot shall be submitted and reviewed in accordance with Chapter 213, the City's Subdivision Code. Once approved by City Council, a residential redevelopment project built in compliance with the City's approval, and any new lots created thereby, shall be considered a conforming use of land in all respects.
Where, at the effective date of adoption or amendment of this chapter, lawful use of land exists that is made no longer permissible under the terms of this chapter as enacted or amended, such use may be continued, subject to the provisions of § 230-11, so long as it remains otherwise lawful, subject to the following provisions:
A.
No such nonconforming use shall be enlarged or increased nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this chapter except after approval of the Board of Adjustment as provided in § 230-57.
[Amended 12-3-1991 by Ord. No. 336]
B.
No such nonconforming use shall be moved in whole
or in part to any other portion of the lot or parcel occupied by such
use at the effective date of adoption or amendment of this chapter.
C.
If any such nonconforming use of land ceases for any
reason for a period of more than 90 days, any subsequent use of such
land shall conform to the regulations specified by this chapter for
the district in which such land is located.
[Amended 12-3-1991 by Ord. No. 336; 12-14-2004 by Ord. No.
429]
Where a lawful structure exists at the effective date of adoption or amendment of this chapter that could not be built under the terms of this chapter by reason of restrictions on area, lot coverage, height, yards or other characteristics of the structure or its location on the lot, such structure may be continued, subject to the provisions of § 230-11, so long as it remains otherwise lawful, subject to the following provisions:
A.
After approval of the Board of Adjustment as provided in § 230-57, any legally existing nonconforming structure may be enlarged, provided no addition shall increase the extent of the nonconforming condition with respect to the height, size, setback, yard, or bulk regulations of this chapter.
B.
Should any structure be destroyed by any means to
an extent of more than 50% of its replacement costs at the time of
destruction, as determined by the Building Inspector, it shall not
be reconstructed, except in conformity with the provisions of this
chapter, unless such reconstruction occurs within 18 months from the
date of destruction of the property unless there are extenuating circumstances
found by the Board of Adjustment, and provided that such reconstruction
does not exceed the original footprint of the structure and is consistent
with the previous use and design.
C.
Should such structure be moved for any reason, for
any distance whatever, it shall thereafter conform to the regulations
for the district in which it is located after it is moved.
D.
This chapter shall not prohibit the rehabilitation
of nonconforming structures.
E.
Any property in an R-1 classification that was legally constructed in accordance with the Zoning Codes in place prior to the 1968 Amended Zoning Code in relation to its front yard setback shall not be considered as a nonconforming structure for purposes of further enlargement, except as said enlargement and/or addition affects, reduces or relates to the front yard setback of said structure, and shall instead comply with the front yard setback in place at the time of its construction. Any enlargement and/or addition shall comply with all other requirements of this Zoning Code, unless otherwise varied by the Board of Adjustment. All other provisions of this § 230-9 shall apply, except as explicitly stated in this subsection.
[Added 3-13-2007 by Ord. No. 444]
If a lawful use of a structure or of a structure and premises in combination exists at the effective date of adoption or amendment of this chapter that would not be allowed in the district under the terms of this chapter, the lawful use may be continued, subject to the provision of § 230-11, so long as it remains otherwise lawful, subject to the following provisions:
A.
No existing structure devoted to a use not permitted by this chapter in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved or structurally altered except in changing the use of the structure to a use permitted in the district in which it is located except after approval of the Board of Adjustment as provided in § 230-57.
[Amended 12-3-1991 by Ord. No. 336]
B.
Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for use at the time of adoption or amendment of this chapter, but no such use shall be extended to occupy any land outside such building except after approval of the Board of Adjustment as provided in § 230-57.
[Amended 12-3-1991 by Ord. No. 336]
C.
If no structural alterations are made, any nonconforming
use of a structure or structure and premises may be changed to another
nonconforming use, provided that the Board of Adjustment, either by
general rule or by making findings in the specific case, shall find
that the proposed use is equally appropriate or more appropriate to
the district than the existing nonconforming use. In permitting such
change, the Board of Adjustment may require appropriate conditions
and safeguards in accord with the provisions of this chapter.
D.
Any structure or structure and land in combination,
in or on which such a nonconforming use is superseded by a permitted
use, shall thereafter conform to the regulations for the district
in which such structure is located, and the nonconforming use may
not thereafter be resumed.
E.
When a nonconforming use of a structure or structure
and premises in combination is abandoned for 12 consecutive months
or for 18 months during any three-year period, the structure or structure
and premises in combination shall not thereafter be used except in
conformance with the regulations of the district in which it is located.
F.
Where nonconforming use status applies to a structure
and premises in combination, removal or destruction of the structure
shall eliminate the nonconforming status of the land.
Certain nonconformities shall be terminated
in accordance with the following provisions:
A.
Lawfully existing uses shall, within three years from the date of adoption or amendment of this chapter, comply with the performance standards of § 230-36 of this chapter.
B.
Within not more than three years from the date of
adoption or amendment of this chapter by which a use becomes nonconforming,
the right to maintain the following nonconformities shall terminate
and such nonconformities shall no longer be operated or maintained:
C.
Screening alternative. Nonconforming uses listed Subsection B(2) above shall have the option to provide an opaque screen between said uses and the public right-of-way and property lines in lieu of terminating said use, provided that installation and maintenance of an opaque screen meets the following requirements:
[Added 9-13-2011 by Ord. No. 485]
(1)
Screening must be installed within three years of the date of the
adoption or amendment of this chapter by which a use becomes nonconforming.
(2)
An opaque screen shall substantially exclude visual contact with
the screened use. It may be composed of:
(a)
A masonry wall.
(b)
Wooden fence.
(c)
Planted vegetation consisting of evergreen vegetation containing
minimum-three-inch caliper evergreen trees on fifteen-foot centers
with a continuous row of minimum-five-gallon evergreen shrubs.
(d)
Existing vegetation, if deemed suitable by the City Tree Commission,
may be used in place of required landscaping.
(e)
A combination of these elements that will meet the purpose of
providing an opaque screen.
(3)
Allowances for breaks in the opaque screen.
(a)
Gaps shall be permitted in the opaque screen to permit access
to driveways and pedestrian ways, provided that the total linear feet
of opaque screen interruption shall not exceed 40 feet on any single
street frontage.
(b)
An opaque screen shall not be required along State Route 9 street frontage, provided that this area is used for display of new or used motor vehicles for sale, and further provided that the total linear feet used for outdoor display of motor vehicles for sale not exceed 65% of the State Route 9 street frontage of the property. Any street frontage along State Route 9 used for storage of materials or vehicles not for sale shall meet the screening requirements described in Subsection C(1) and (2) above.
(4)
Administrative process.
(b)
The City Administrator shall have 45 calendar days to review
said screening plan and may consult with the City Tree Commission
or Planning Commission in that review. If the City Administrator is
not able to complete the review within 45 calendar days, it shall
be assumed that the City Administrator has no comment and the screening
plan shall be deemed approved.
(5)
Maintenance.
(a)
Any plant material used in the landscaping project shall be
maintained in a healthy growing condition. The property owner shall
bear responsibility for maintenance of required landscaping. The City
will work with a property owner in establishing a realistic replanting
plan when landscaping required by this article is lost due to situations
beyond the control of the property owner, such as drought or other
related circumstances.
A.
On any building devoted in whole or in part to any
nonconforming use, work may be done in any period of 12 consecutive
months on ordinary repairs or on repair or replacement of nonbearing
walls, fixtures, wiring or plumbing to an extent not exceeding 10%
of then current replacement value of the building as it existed at
the time of passage or amendment of this chapter and shall not be
increased.
B.
Nothing in this chapter shall be deemed to prevent
the strengthening or restoring to a safe condition of any building
or part thereof declared to be unsafe by any official charged with
protecting the public safety, upon order of such official.
