[Amended 3-8-2022 by Ord. No. 534]
A.
A Board of Adjustment is hereby established which shall consist of
the Mayor and four individuals who have been residents of the City
of New Castle for at least one year appointed by City Council. The
Mayor shall act as Chairperson and permanent member of the Board of
Adjustment. Of the remaining four members, the first new appointee
to the Board of Adjustment shall serve for a term of one year. The
second new appointee shall serve for a term of two years. The third
and fourth new appointees shall serve for a term of three years. After
the expiration of the initial terms of such newly appointed members
of the Board of Adjustment, all subsequent appointments shall be for
three-year terms.
B.
The City Council shall have the power and duty to fill all vacancies
in the Board of Adjustment by appointment. Any such appointment to
replace a member whose position becomes vacant for any reason prior
to the expiration of that member's term shall be filled only for the
remainder of that member's term.
C.
The City Solicitor shall attend all meetings, hearings, and proceedings
of the Board of Adjustment, including when sitting as the Board of
Building Appeals, to ensure compliance with applicable law, respond
to legal questions posed by the Board, and to review, address, and
provide recommendations regarding any legal and administrative issues
which may arise or otherwise present themselves at such meetings.
D.
The City Planner or City Engineer shall attend all meetings, hearings,
and proceedings of the Board of Adjustment. The City Planner or City
Engineer shall review the application involved and such other materials
and information as they deem appropriate. Prior to rendering any decision,
the City Planner or City Engineer shall provide the Board of Adjustment
with a recommendation as to the disposition of each matter presented
for decision to the Board off Adjustment. Such review and recommendations
shall not be binding on the Board of Adjustment and shall not apply
to decisions of the Board of Building Appeals unless expressly required
by law or requested by the Board.
A.
The Board of Adjustment shall adopt rules necessary
to the conduct of its affairs and in keeping with the provisions of
this chapter. Meetings 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. All meetings shall be open to the public.
B.
The Board of Adjustment shall keep minutes of its
proceedings, showing the vote of each member upon each question, or
if absent or failing to vote indicating such fact and shall keep records
of its examinations and other official actions, all of which shall
be a public record and be immediately filed in the office of the Board.
A.
Appeals to the Board of Adjustment concerning the
interpretation or administration of this chapter may be taken by any
person aggrieved or by any officer or bureau of the governing body
of the City affected by any decision of the administrative official.
Such appeals shall be taken within a reasonable time, not to exceed
20 days, by filing with the administrative official and with the Board
of Adjustment a notice of appeal specifying the grounds thereof. The
administrative official shall forthwith transmit to the Board all
papers constituting the record upon which the action appealed from
was taken.
B.
The Board of Adjustment shall fix a reasonable time for the hearing of appeal, giving public notice as required by § 230-62 of this chapter, and hold the public hearing within 30 days from the date of filing of the notice of appeal. At the hearing, any party may appear in person or by agent or attorney. The Board shall then decide the appeal within 45 days from the time of the hearing.
An appeal stays all proceedings in furtherance
of the action appealed from, unless the administrative official from
whom the appeal is taken certifies to the Board of Adjustment, after
the notice of appeal is filed with him/her, that by reason of facts
stated in the certificate a stay would, in his/her opinion, cause
imminent peril to life and property. In such case, proceedings shall
not be stayed other than by a restraining order which may be granted
by the Board of Adjustment or by a court having jurisdiction on application
on notice to the administrative official from whom the appeal is taken
and on due cause shown.
The Board of Adjustment shall have the following
powers and duties:
A.
Administrative review. To hear and decide appeals
where it is alleged there is error in any order, requirement, decision
or determination made by the administrative official in the enforcement
of this chapter.
B.
Special exceptions; conditions governing applications;
procedures.
(1)
To hear and decide only such special exception as
the Board of Adjustment is specifically authorized to pass on by the
terms of this chapter; to decide such questions as are involved in
determining whether special exceptions should be granted; and to grant
special exceptions with such conditions and safeguards as are appropriate
under this chapter or to deny special exceptions when not in harmony
with the purpose and intent of this chapter. A special exception shall
not be granted by the Board of Adjustment unless and until:
(a)
A written application for a special exception
is submitted indicating the section of this chapter under which the
special exception is sought and stating the grounds on which it is
requested, the application to include a plan for the proposed development
showing the location of buildings, parking areas, traffic access,
open spaces and any other pertinent information necessary to determine
if the proposal meets the requirements of this chapter.
(b)
The Planning Commission or the Historic Area
Commission has reviewed the application and forwarded a favorable
recommendation to the Board where such review is required under this
chapter.
(d)
The public hearing shall be held. Any party
may appear in person or by agent or attorney.
(e)
The Board of Adjustment shall make a finding
that it is empowered under the section of this chapter described in
the application to grant the special exception and that the granting
of the special exception will not adversely affect the public interest.
(2)
In considering any special exception application, the Board of Adjustment
shall:
[Amended 3-8-2022 by Ord.
No. 534]
(a)
Consider the suitability of the property for the use desired.
Assure itself that the proposal is consistent with the spirit, purpose,
and intent of this chapter, the Comprehensive Plan, and other relevant
plans.
(b)
Determine that the proposal will not substantially injure or
detract from the use of neighboring property or from the character
of the neighborhood and that the use of the adjacent property is adequately
safeguarded.
(c)
Determine that the proposal will serve the best interests of
the City, the convenience of the community, and benefit the public
welfare.
(d)
Consider the effect of the proposal upon the public services
and facilities, such as public water, sewers, police and fire protection,
and public schools.
(e)
Consider the probable effects upon highway traffic and pedestrian
movements, and assure adequate access and circulation arrangements
in order to protect major roads from undue congestion and hazard.
(f)
Be guided in its decision by sound standards of subdivision
and land development practice where applicable.
(g)
Prescribe conditions and safeguards in addition to those otherwise
required by the City Code as are necessary to assure that the intent
of this chapter is complied with, which conditions may include (but
are not limited to) harmonious design of buildings, planting and its
maintenance as a sight and sound screen, the minimizing of noxious,
offensive or hazardous elements, and adequate standards of parking,
loading and sanitation.
(3)
Violation of conditions and safeguards, when made a part of the decision by which the special exception is granted, shall be deemed a violation of this chapter and punishable under §§ 230-57F and 230-65F of this chapter. The Board of Adjustment shall prescribe a time limit within which the action for which the special exception is required shall be begun or completed, or both. Failure to begin or complete, or both, such action within the time limit set shall void the special exception.
[Added 3-8-2022 by Ord.
No. 534]
C.
Variances; conditions governing applications; procedures.
(1)
A variance shall authorize upon appeal in specific
cases such variance from the terms of this chapter as will not be
contrary to the public interest where, owing to special conditions,
a literal enforcement of the provisions of this chapter would result
in unnecessary hardship. A variance from the terms of this chapter
shall not be granted by the Board of Adjustment unless and until:
(a)
A written application for a variance is submitted
demonstrating:
[1]
That special conditions and circumstances exist
which are peculiar to the land, structure or buildings involved and
which are not applicable to other lands, structures or buildings in
the same district.
[2]
That literal interpretation of the provisions
of this chapter would deprive the applicant of rights commonly enjoyed
by other properties in the same district under the terms of this chapter.
[3]
That the special conditions and circumstances
do not result from the actions of the applicant.
[4]
That granting the variance requested will not
convey on the applicant any special privilege that is denied by this
chapter to other lands, structures or buildings in the same district.
(b)
No nonconforming use of neighboring lands, structures
or buildings in the same district and no permitted use of lands, structures
or buildings in other districts shall be considered grounds for the
issuance of a variance.
(d)
The public hearing shall be held. Any party
may appear in person or by agent or attorney.
(e)
The Board of Adjustment shall make findings
that the requirements of § 230-57C(a) have been met by the
applicant for a variance.
(f)
The Board of Adjustment shall further make a
finding that the reasons set forth in the application justify the
granting of the variance and that the variance is the minimum variance
that will make possible the reasonable use of land, building or structure.
(g)
The Board of Adjustment shall further make a
finding that the granting of the variance will be in harmony with
the general purpose and intent of this chapter and will not be injurious
to the neighborhood or otherwise detrimental to the public welfare.
(2)
In granting any variance, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this chapter. Violation of such conditions and safeguards, when made a part of the decision by which the variance was granted, shall be deemed a violation of this chapter and punishable under §§ 230-57F and 230-65F of this chapter.
[Amended 3-8-2022 by Ord.
No. 534]
(3)
Under no circumstances shall the Board of Adjustment
grant a variance to allow a use not permissible under the terms of
this chapter in the district involved or any use expressly or by implication
prohibited by the terms of this chapter in said district.
D.
Structural alterations resulting in an enlargement
or extension of a nonconforming structure or use.
[Added 12-3-1991 by Ord. No. 336]
(1)
Definitions and interpretations. For purposes of this
subsection the following definitions and interpretations shall apply.
(a)
Reference to structural alteration means a structural
alteration resulting in the extension or enlargement of a structure
subject to a nonconforming use.
(b)
The words "structure" and "building" have the
same meaning.
(c)
The replacement value of the existing building
or structure as determined by the Building Inspector shall be presumed
correct and shall be subject to challenge, if at all, only by submission
of two separate unrelated appraisals, one of which must be an M.A.I.
(2)
Upon satisfaction of certain conditions, the Board
of Adjustment is authorized, upon appeal in specific cases, to approve
the structural alteration by enlargement or extension of a building
devoted to a nonconforming use where such building structure enlargement
or extension will not be contrary to the public interest, where, because
of special conditions, a literal enforcement of the provisions of
this chapter would result in unnecessary hardship and where recognition
of a permitted structural enlargement or extension permits a limited
recognition of the doctrine of natural expansion consistent with the
protection of the public welfare, safety and health. The Board of
Adjustment shall not authorize a structural alteration which results
in the enlargement or extension of a structure subject to a nonconforming
use unless and until:
(a)
The Board receives a written application for
a structural alteration which will result in an enlargement or extension
of a structure subject to a nonconforming use, which application indicates
the section of this chapter under which the structural alteration
is sought and stating the grounds on which it is requested. The application
must include a plan for the proposed construction or alteration showing
location of buildings, parking areas, traffic access, open spaces
and any other pertinent information necessary to determine if the
application meets the requirements of this chapter.
(b)
If a Planning Commission or Historic Area Commission
review is required under this chapter, receipt by the Board of a favorable
recommendation from either or both Commissions, as appropriate.
(c)
Notice shall be given as specified in § 230-62 of this chapter, and a public hearing shall be held to consider the application. Any party may appear in person or by agent or attorney. The Board of Adjustment shall notify, by regular mail, property owners within 300 feet of subject property and shall carefully consider any comments or concerns of these property owners.
(d)
The Board of Adjustment shall further make a
finding that the reasons set forth in the application justify authorizing
the structural alteration and that the structural alteration is the
minimum alteration that will make possible the reasonable use of land,
building or structure consistent with a limited recognition of the
doctrine of natural expansion.
(e)
The Board of Adjustment shall further make a
finding that the granting of approval for the structural alteration
will be in harmony with the general purpose and intent of this chapter
and will not be injurious to the neighborhood or otherwise detrimental
to the public welfare.
(f)
If approved by the Board of Adjustment, a building
devoted to a nonconforming use may be extended, either on the same
lot or on a contiguous lot under the same ownership at the time of
enactment of this chapter, subject to the conditions specified below:
[1]
The extension is for a use which is necessarily
incident to the existing use or for the same use.
[2]
Such extension or enlargement shall comply in
all respects to this chapter except as to use.
[3]
The estimated cost of any building involved
does not exceed 50% of the replacement value of the building as determined
by the Building Inspector in light of the building's current assessed
value.
(3)
In authorizing any structural alteration under this chapter, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this chapter. Violations of such conditions and safeguards, when made a part of the terms under which the structural alteration is approved, shall be deemed a violation of this chapter and punishable under § 230-65 of this chapter.
E.
Board of Building Appeals matters. The Board of Adjustment shall serve as the Board of Building Appeals and shall be vested with the jurisdiction, powers and duties delegated to the Board of Building Appeals as provided in Chapter 141, Dangerous or Vacant Buildings, of the City Code.
[Added 11-4-2020 by Ord.
No. 531[1]]
[1]
Editor's Note: This ordinance also redesignated former Subsections
E through H as Subsection F through I, respectively.
F.
Decisions of the Board of Adjustment.
[Amended 3-8-2022 by Ord. No. 534]
(1)
In exercising its various powers, the Board of Adjustment may, so
long as such action is in conformity with the terms 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 powers of the administrative official from whom the appeal is
taken.
(2)
The concurring vote of the majority of the members of the Board shall
be necessary to reverse any order, requirement, decision or determination
of the administrative official or to decide in favor of the applicant
on any matter upon which it is required to pass under this chapter
or to effect any variation in the application of the chapter.
(3)
Full compliance with any and all conditions and safeguards prescribed
by the Board of Adjustment in rendering any decision is a prerequisite
to the use or maintenance of the improvements or other variances authorized
by such decision. Failure to abide by and comply with such conditions
and safeguards runs contrary to the interests of the City, the health
and welfare of its residents, administrative economy, and the rule
of law.
(a)
In the event of a violation or other failure to comply with
such conditions and safeguards imposed by the Board of Adjustment,
the Code Official shall send written notice of such violation or failure
to comply via registered or certified US Mail to the legal owner of
the real property involved at the address maintained for such owner
on the real estate tax rolls of the City, and to any tenant or occupant
in possession of such real property at the property address. The written
notice shall specify the corrective action to be taken and shall state
that fines representing a lien on the real estate in question will
be assessed if the violation or other failure to comply with conditions
or safeguards is not corrected within 20 days from the mailing of
such notice.
(b)
The failure to correct such violations or to comply with any conditions or safeguards prescribed by the Board of Adjustment under § 230-57 shall constitute a civil offense, subject to a fine of $100 for each day such failure to correct or comply continues, commencing 20 calendar days after mailing of the notice required by § 230-57F(3)(a). Such fines shall be the joint and several obligations of the legal title holder to the real property in question and any tenant or occupant of such property.
(c)
Any fines assessed by the Code Official under this section shall,
until paid, constitute a civil debt due and owing to the City and
shall further constitute a lien in favor of the City on the subject
real property subject to condition or safeguard prescribed by the
Board of Adjustment. The amount of the lien shall be considered a
tax lien, executable as such via praecipe for monition or otherwise,
and shall include all court costs and legal fees associated with the
enforcement of such line.
(d)
In addition to any other available remedy for violation or failure
to comply with conditions or safeguards prescribed by the Board of
Adjustment, the Code Official may, upon written notice to the legal
title holder to the real property in question and any tenant or occupant
of such property, temporarily or permanently revoke any outstanding
building permit, certificate of occupancy or other certificate, license
or permit issued by the City in connection with the real property
that is the subject of such violation or noncompliance.
(e)
Appeals from the Code Official's assessment of a fine, or revocation of any permit, license or certificate for a violation or other failure to comply with a condition or safeguard imposed by the Board of Adjustment may be taken to the Board of Adjustment in accordance with § 230-55 of this chapter, provided that such appeals are filed with the City within 20 days of such assessment or revocation. An appeal shall not be deemed timely filed until the appropriate filing fee has been paid to the City.
(f)
The provisions of this § 230-57F(3) shall apply to all conditions and safeguards imposed by the Board of Adjustment in connection with any special exception, variance, or other application, whether imposed prior to the adoption hereof or thereafter. Notwithstanding the foregoing, nothing in this § 230-57F(3) is intended to, nor shall, create an ex post facto criminal liability for preexisting violations of this chapter.
G.
Legality issues. Where it is alleged that this chapter
or portion hereof is procedurally or substantively invalid, illegal
or unconstitutional, the Board shall take evidence relating to such
legal issue and shall make, in lieu of a decision on such issue, a
report of its findings of fact, so that such report, upon appeal to
court duly entered, may be filed with the court as part of the record.
H.
The following factors shall be considered when reviewing
cases for variances in the Floodplain District:
[Added 6-7-1977 by Ord. No. 222]
(1)
Variances may be issued by the Board 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, in conformance with the procedures
of Subsection G(2), (3), (4) and (5) of this section.
(2)
Variances shall only be issued by the Board upon 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.
It shall be presumed that a building and/or structure falling within
the floodplain will increase flood heights, and the applicant shall
have the burden of proving that granting the variance shall not increase
flood heights.
(3)
Variances shall only be issued upon determination
that the variance is the minimum necessary, considering the flood
hazard, to afford relief.
(4)
The Board shall notify the applicant, in writing,
over the signature of the Secretary of the Board, that the issuance
of a variance to construct a structure below the base flood level
will result in increased premium rates for flood insurance and such
construction below the base flood level increases the risks to life
and property. Such notification shall be maintained with a record
of all variance actions as required in Subsection G(5) of this section.
(5)
The Board shall maintain a record of all variance
actions, including justification for their issuance, and report such
variances to the City Engineer for his annual report submitted to
the Federal Insurance Administrator.
I.
Warning and disclaimer of liability.
(1)
The degree of flood protection sought by the provisions
of this chapter is considered reasonable for regulatory purposes and
is based on acceptable engineering methods of study. Larger floods
may occur on rare occasions. Flood heights may be increased by man-made
or natural causes, such as ice jams and bridge openings restricted
by debris. This chapter does not imply that areas outside floodplain
districts or that land uses permitted within such districts will be
free from flooding or flood damages.
(2)
This chapter shall not create liability on the part
of The Mayor and Council of New Castle or any officer or employee
thereof for any flood damages that result from reliance on this chapter
or any administrative decision made thereunder. The granting of a
building permit or approval of plan in the Floodplain Zoning District
shall not constitute a representation, guaranty or warranty of any
kind by the municipality or by any official or employee thereof of
the practicality or City of the proposed use.
Any person or persons or any board, taxpayer,
department or bureau of the City aggrieved by any decision of the
Board of Adjustment may seek review by the Superior Court of such
decision, in the manner provided by the laws of Delaware and particularly
by Chapter 3, Title 22, Annotated code of Delaware.
A.
It is the intent of this chapter that all questions
of interpretation and enforcement shall be first presented to the
administrative official and through him/her to the Board of Adjustment
only on appeal from the decision of the administrative official and
that recourse from the decisions of the Board of Adjustment shall
be to the courts as provided by law and particularly by Chapter 3,
Title 22, Annotated Code of Delaware.
B.
It is further the intent of this chapter that the duties of the City Council in connection with this chapter shall not include hearing and deciding questions of interpretation and enforcement that may arise. The procedure for deciding such questions shall be as stated in this section and this chapter. Under this chapter, the City Council shall have only the duties of considering the adopting or rejecting proposed amendments or the repeal of this chapter, as provided by laws, and of establishing a schedule of fees and charges as stated in § 230-58.
