A.

It is the purpose of this Article to provide for the regulation of lawfully nonconforming situations and to specify those circumstances and conditions under which such nonconforming situations shall be permitted to continue.

B.

The zoning regulations established by this Chapter control the future use of land by encouraging appropriate groupings of compatible and related uses. The regulations of this Article permit nonconforming situations that result from the adoption of this Chapter to continue under certain circumstances. While this Article permits nonconformities, it restricts further investments which would tend to make a nonconforming situation more permanent.

(Ord. No. 97-172, § 3(ch. 13, div. 08.000), 12-31-1997)

This Article shall apply to legal land uses that became nonconforming following the adoption of this Chapter. This Article shall also apply to nonconforming situations that were legal nonconformities under any previously applicable ordinances or resolutions and that remain nonconforming under this Chapter.

(Ord. No. 97-172, § 3(ch. 13, § 08.010), 12-31-1997)

Except as otherwise specifically provided in this Article, any nonconforming situation may continue to remain as the same nonconforming situation.

(Ord. No. 97-172, § 3(ch. 13, § 08.020), 12-31-1997)

The burden shall be on the landowner to establish entitlement to continuation of nonconforming situations or completion of nonconforming projects.

(Ord. No. 97-172, § 3(ch. 13, § 08.030), 12-31-1997)

Any change of title or of right to possession shall not affect the continuation of a nonconforming situation, provided the change in ownership does not result in a change of use that is inconsistent with any of the provisions in this Chapter.

(Ord. No. 97-172, § 3(ch. 13, § 08.040), 12-31-1997)

Any manufactured home or mobile home sited and used for residential purposes in the County on an individual parcel or lot outside of a mobile home park or mobile home subdivision as of January 1, 1992, shall be considered a nonconforming use which may continue to be used for the same nonconforming purpose, provided that the manufactured home or the mobile home constitutes the only residential dwelling on the parcel or lot as of that date. The replacement of an existing nonconforming manufactured home or mobile home on a lot outside a mobile home park or mobile home subdivision shall comply with all applicable requirements of this Chapter.

(Ord. No. 97-172, § 3(ch. 13, § 08.050), 12-31-1997)

(Ord. No. 97-172, § 3(ch. 13, div. 08.100), 12-31-1997; Ord. No. 98-062, § 1(ch. 13, § 08.100), 9-22-1998)

A nonconforming use shall not be changed to any other nonconforming use. Any change in use must be in compliance with the use provisions of this Chapter.

(Ord. No. 97-172, § 3(ch. 13, § 08.110), 12-31-1997)

Whenever a nonconforming use is discontinued for a period of six (6) months, irrespective of the reasons therefor, such use shall not thereafter be reestablished, and any future use shall be in accordance with this Chapter.

(Ord. No. 97-172, § 3(ch. 13, § 08.120), 12-31-1997)

A.

Nonconforming use. Nonconforming use of a building or structure or lot shall not be extended or enlarged. A nonconforming use terminates when the building, structure or other improvement is destroyed in excess of fifty (50) percent of the assessed value of such building, structure or other improvement.

1.

Exception. In Villages of Arden, Ardentown and Ardencroft, two (2) or more single family residential dwellings on one (1) lot that has been certified a legally nonconforming use may continue to be used and occupied as residential dwellings without the need for any special use permit or other Board of Adjustment variance. The dwelling(s) may be rebuilt in the same footprint if partially or wholly destroyed, provided there is no additional gross floor area added and no new nonconformities are created.

B.

Nonconforming building, structure, or situation. A nonconforming building, structure or situation other than a nonconforming use may be enlarged, extended or replaced only as provided below:

1.

Extension or enlargement. Any new extension or enlargement must comply with this Chapter. For any new extension or enlargement five thousand (5,000) square feet GFA or greater in the OR, BP, I, or HI zoning districts or one thousand (1,000) square feet GFA or greater in all other zoning districts, the existing nonconformities must be brought into compliance proportional to the increase in the proposed development, provided the total site development complies with the site capacity requirements of Article 5, and further provided that:

a.

Improvements must be made to design elements such as, but not limited to, parking, buffers, landscaping, access, stormwater management, impervious cover, off-site transportation improvements/capacity, and mitigation of damage to, or enhanced protection for existing natural/environmental resources.

b.

Nonconforming building setbacks are not subject to this proportional improvement requirement.

c.

The Department will consider improvements to the development where they are most needed, are appropriate, and can be physically accommodated.

2.

Alteration. Alteration of a building within an existing footprint is permitted, provided that the alteration does not increase the degree of nonconformity.

3.

Restoration. Restoration of a building or structure destroyed less than fifty (50) percent of its replacement market value, as established by an appraisal prepared by a professional appraiser qualified to do business in the State of Delaware shall be permitted, provided that the restoration commences within twelve (12) months from the date of destruction. The commencement of restoration shall mean the acquisition of a building permit and commencement of construction within twelve (12) months from the date of destruction. This time frame may be extended with the consent of the Department for circumstances beyond the control of the applicant.

4.

Replacement or repair. The replacement or repair of portions of a building or structure declared by the County to be a hazard or unsafe shall be permitted provided the repairs or replacement do not increase the gross floor area of the building or increase the degree of nonconformity with the setback requirements and further provided that the portions declared unsafe do not exceed fifty (50) percent of the replacement market value of the whole structure, as established by an appraisal prepared by a professional appraiser qualified to do business in the State of Delaware.

5.

Reconstruction. Any nonconforming building or structure destroyed more than fifty (50) percent of its gross floor area (GFA) or replacement market value may be reconstructed in accordance with the redevelopment standards in this Section or full compliance with this Chapter. In addition, any site that is certified as a Brownfield, regardless of any percentage of loss or destroyed replacement market value of any structure, may be developed in accordance with the redevelopment standards in this section. For purposes of reconstruction pursuant to the redevelopment standards of [Subsection] B.6, commencement of construction shall begin with the acquisition of a building permit no later than ten (10) years from the date of destruction.

6.

Redevelopment and Brownfields.

a.

Purpose. Redevelopment is intended to facilitate and encourage the continued viability of previously developed land by granting a credit for extractive use sites, Brownfields, and nonconforming nonresidential sites. The rehabilitation or restoration of existing structures is highly recommended. Redevelopment is also intended to facilitate and encourage the improvement of former or existing extractive use or Brownfield sites that may lack any current or prior GFA.

b.

Applicability. Redevelopment of nonresidential uses and sites is subject to the following:

i.

The site and all buildings on the site must be first evaluated for historical significance under Article 15.

ii.

The applicant is permitted to utilize all legally established []GFA for the site if the GFA is existing or has existed on the site. Unbuilt GFA may not be utilized.

iii.

Except as otherwise provided in Subsection B.6.b.iv below, for Commercial Neighborhood (CN) and Office Neighborhood (ON) zoned sites, at least fifteen (15) percent of built GFA that is not determined to be historically significant must be demolished. For all other zoning districts, at least fifty (50) percent built GFA that is not determined to be historically significant must be demolished.

iv.

Legally existing GFA on extractive use, Brownfield, or nonresidential sites identified by the Comprehensive Plan as either a Community Development Area or Type 1 Commercial Corridor Development Area need not be demolished for the site to be eligible for redevelopment.

v.

For nonresidential zoned sites that are currently used for residential purposes and abut residentially zoned property, the applicant must provide the entire required buffer against the residential land.

vi.

The redevelopment of a site under Subsection 40.08.130.B.6. permits the continuation of certain nonconforming situations, but prohibits the creation of any new nonconformity or the expansion of an existing nonconformity. In the event a plan proposes development that does not otherwise comply with this Chapter, the applicant may submit a variance application, if the plan includes elements of building design, site design and amenities identified in the applicable Character Area set forth in Appendix 7.

vii.

Levels of proportional compliance are required to meet or exceed the provisions provided for in Subsection B.6.e. In lieu of this section, an applicant may choose to redevelop the site in full compliance with the UDC.

viii.

For sites requiring fifty (50) or more parking spaces, the maximum parking permitted for a redevelopment plan is one hundred fifteen (115) percent of the minimum parking required by this Chapter.

ix.

For land identified by the Comprehensive Development Plan as a Corridor Area, the property owner must include elements of building design, site design and amenities identified in the applicable Character Area set forth in Appendix 7.

x.

Excluding parking structures, Commercial Regional (CR) zoned land within one thousand (1,000) feet of a parcel with a passenger rail station can only be redeveloped as a permitted or limited use.

xi.

The record plan must indicate that the plan has been reviewed and approved according to the redevelopment standards in this section with improvements to design elements noted on plan.

c.

Redevelopment plans. Redevelopment plans shall be reviewed as minor or major land development plans as defined in Article 33 unless the following criteria apply:

i.

Minor redevelopment land development.

(a)

The plan proposes GFA that does not exceed legally established GFA on the site. The credit for legally established GFA may exceed the permitted floor area ratio (FAR) in Table 40.04.110.

(b)

The plan proposes credit for legally established GFA plus new additional GFA not exceeding fifty thousand (50,000) square feet provided the site does not exceed the permitted FAR in Table 40.04.110.

(c)

The creation of a business park or industrial park regardless of the number of lots or square footage.

ii.

Major redevelopment land development—With net increase.

The plan proposes credit for legally established GFA plus additional new GFA of greater than fifty thousand (50,000) square feet but not to exceed the permitted FAR in Table 40.04.110 and provided no special studies are needed.

d.

Review process. All major redevelopment plans, including sites that qualify as a Brownfield and any plan that is also requesting a rezoning as part of the submission shall follow the review procedures of Article 31. All minor redevelopment plans shall be approved by the General Manager of the Department pursuant to Subsection 40.31.114.B. All major redevelopment plans shall be required to obtain County Council approval as part of the record plan review pursuant to Subsection 40.31.114.C.

e.

Design element improvements. Improvements toward further code compliance shall be made to design elements such as, but not limited to, parking, buffers, landscaping, access, setbacks, stormwater management, impervious cover, off-site transportation improvements/capacity, or mitigation of damage to or enhanced protection for existing natural/environmental resources. Improvements may also be proposed to the architecture of the structure. Emphasis shall be placed on improved landscaping and buffers particularly around parking lots and abutting conflicting land uses. In recognition of existing site conditions, the Department may require specific improvements to the development where they are most needed, are appropriate, and can be physically accommodated. These specific improvements may result in a total aggregate percent improvement greater than the minimum required.

i.

The exploratory sketch plan must identify and quantify all of the existing nonconformities on a property. The property owner must propose improvements in selected design elements listed above, such that in totaling the individual design element improvements, the aggregate shall be equal to or greater than a four hundred (400) percent improvement. The applicant shall use Table 40.08.130.B to calculate the percent improvements proposed. Unless specific deficiencies are identified that warrant attention, a variety of improvements should be proposed throughout the site. Improvements that have only a limited effect may not be counted in the final aggregate improvement total.

ii.

The Department may require other site design improvements to the site that are not listed in Table 40.08.130.B and subsequently do not provide a direct comparison to this Chapter's numerical requirements. These include, but are not limited to, circulation design and access management, multi-story construction, cross-access agreements, architectural changes, forward location or build-to line for the new structure, etc. The Department will assign percent improvement values based upon the extent of the improvement and using sound and accepted planning principles.

iii.

For a Brownfield site, the applicant must provide documentation from DNREC identifying and confirming the status of the site as part of the exploratory plan submission.

iv.

The redevelopment of a Brownfield site in a floodplain must comply with Subsection 40.10.313.E.

v.

Impact fees are only required for GFA that exceeds existing legally established GFA on the site (see Article 14).

vi.

An operational analysis or a traffic impact study is required if requested by DelDOT or the Department. Proposed development that exceeds the legally approved GFA is subject to DelDOT transportation impact standards, and the County may limit or restrict development to less GFA if that is recommended by DelDOT. As a result, DelDOT may require transportation improvements as a condition of its letter of no objection. For major plans or rezonings, if an existing Level of Service (LOS) is A, B, C, or D, the proposed development may not cause that LOS to become E or F. If the existing LOS is E, the proposed development may not cause that LOS to become F.

vii.

The redevelopment of a site within six hundred sixty (660) feet of the right-of-way of a designated byway must be designed in accordance with Article 18.

f.

Permitted uses for Brownfields. The I (Industrial) zoning district office use restriction of Section 40.03.321 shall not apply. General office uses will be permitted without limitation. In the HI district, the applicant may utilize the standards for lot size and setbacks from the I district. All uses permitted in the I district, including office use as enumerated above, shall be permitted in the HI district.

g.

Density bonuses. A redevelopment density bonus in any zoning district not to exceed twenty-five (25) percent of the maximum nonresidential GFA or multifamily dwelling density allowed in Table 40.04.110A or twenty-five (25) percent of the legally established nonresidential GFA or multifamily dwelling density on the site, whichever is greater, is permitted. Any redevelopment project that includes a density bonus as provided for in this Section shall be reviewed and evaluated under Appendix 7, Guiding Principles.

h.

Annual report. The Department shall provide County Council with an annual report on the use and effectiveness of the redevelopment section which shall be discussed at a Council Committee Meeting open to the public. The annual report may also recommend amendments to this Division and this Chapter based upon the success or failure of redevelopment plans to meet stated goals and objectives.

7.

Bridge reconstruction. Any bridge declared unsafe by the County or State may be reconstructed provided there is no increase in the one hundred (100) year flood elevation.

_____

TABLE 40.08.130 B
Work Table to Calculate Value of Individual Design Element Improvements
and Total Aggregate Percent Improvement for Redevelopment Land Development Plans

C.

Resubdivision plans. Resubdivision plans, as defined in Section 40.31.711, based upon major or minor plans recorded in compliance with regulations in effect prior to December 31, 1997, shall be processed under all regulations in effect as of December 31, 1997, provided, however, that the sunsetting provisions and impact fee provisions of this Chapter shall be applicable. Resubdivision plans proposing the reconfiguration of existing or proposed improvements that do not conform with the UDC may maintain the same degree of nonconformity but shall not result in a greater nonconformity. Any new improvements not depicted on the plan to be superseded must comply with the current regulations of this Chapter.

D.

Water resource protection area district. Any expansion or extension of a nonconforming situation located in a water resource protection area district shall be permitted subject to compliance with the standards established in Article 10.

E.

Exception. A structure that becomes nonconforming following destruction of more than fifty (50) percent of the structure may be rebuilt under applicable former Code provisions if the sole reason for the nonconforming situation is the applicability of the floodplain or riparian buffer standards of this Chapter. See also Section 40.10.311.

(Ord. No. 97-172, § 3(ch. 13, § 08.130), 12-31-1997; Ord. No. 98-062, § 1(ch. 13, § 08.130), 9-22-1998; Ord. No. 01-098, § 1(Exh. A), 4-9-2002; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 01-098, § 1(Exh. A), 4-2-2002; Ord. No. 03-069, § 1, 10-28-2003; Ord. No. 04-054, § 1, 7-13-2004; Ord. No. 05-072, § 1, 9-13-2005; Ord. No. 06-007, § 4, 3-28-2006; Ord. No. 06-060, § 1(Exh. A), 9-26-2006; Ord. No. 08-001, § 1, 3-25-2008; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 11-020, § 1, 7-26-2011; Ord. No. 22-072, § 6, 10-11-2022; Ord. No. 23-104, § 6, 1-9-2024; Ord. No. 24-057, § 5, 9-24-2024)

A.

Any lot legally existing at the time of its creation, but which has been substantially made nonconforming as to lot area and/or lot width may be developed or further developed without the need for a lot area or lot width variance from the basic district standards in Section 40.04.110, provided all other applicable requirements of this Chapter are met.

B.

Existing residential uses. Any legally existing residential dwelling which use is rendered nonconforming because of a change in the applicable zoning district designation shall be considered to be permitted by right. As such, the property is subject to the same rights and privileges as other landowners with residential dwellings on conforming lots with regard to rebuilding, remodeling, extensions, expansions and enlargements to the dwelling and accessory structures and uses. The existing lot area and width of an affected lot and the surrounding residential character and zoning, if any shall be the basis for the Department to determine the applicable bulk and area standards from Table 40.04.110 using the zoning district and use category that most closely matches the affected lot.

(Ord. No. 98-080, § 1(ch. 13, § 08.140), 9-22-1998; Ord No. 00-004, § 1, 5-9-2000; Ord. No. 01-019, § 1, 5-22-2001; Ord. No. 06-060, § 1(Exh. A), 9-26-2006; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

When in the public interest and where loss or damage has occurred to property including land or buildings occupied by a nonconforming situation, and where such loss or damage has occurred through no fault of the owner of such property but by the action of a governmental agency, the Board of Adjustment may approve as a special use the nonconforming situation to continue. The Board of Adjustment may further limit but shall not extend such nonconforming situation to include the size and location of the land of any reconstructed buildings, the modification of existing buildings, and the use of the property either on the same lot or on a contiguous lot under the same ownership at the time of enactment of the 1954 County Zoning Code or a subsequent amendment hereto.

(Ord. No. 97-172, § 3(ch. 13, § 08.220), 12-31-1997; Ord. No. 01-112, § 1(Exh. A), 3-12-2002)

The status of any nonconforming situation may be determined by the Department after public notice or the Board of Adjustment after public hearing. An applicant may choose to apply either to the Board of Adjustment or the Department for a confirmation of nonconforming use. An applicant for Department certification shall submit a written request for the certification of legal nonconforming status, which shall include a fee as set forth in Appendix 2 of this Chapter and the submission of evidence to substantiate the legal existence of the nonconforming situation. The Department shall cause notice of the request to be posted on a web page established for legal notices on the County's website. The notice shall provide that the general public shall have twenty (20) days from the date of posting to submit written comments regarding the existence of the nonconforming situation to the Department. The Department shall also notify by regular mail, adjacent property owners, who shall have twenty (20) days from the date of the notice to submit written comments regarding the existence of the nonconforming situations to the Department. The Department may, at any time during the certification process, determine that the request and evidence submitted in support thereof is not sufficient to permit a finding that the applicant has established an entitlement to a lawful nonconforming situation. When such a finding is made, and upon the payment of the required fee, an applicant may request that the Board of Adjustment consider the nonconforming status issue.

(Ord. No. 97-172, § 3(ch. 13, § 08.310), 12-31-1997; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 22-053, § 3, 10-25-2022)

This Division sets forth provisions for nonconforming uses, structures, or lots and provides procedures for making a nonconformity conform.

(Ord. No. 97-172, § 3(ch. 13, § 08.410), 12-31-1997)

Any nonconforming use or structure may apply for a special use permit to mitigate the nonconforming stature of the use or structure. The owner of property may apply to the Board of Adjustment to mitigate the nonconforming status of that use.

(Ord. No. 97-172, § 3(ch. 13, § 08.420), 12-31-1997)

In addition to the criteria for a special use approval set forth in Article 31, the following requirements shall be met:

A.

The applicant must demonstrate that the use has minimal incompatibilities that have been integrated into the neighborhood's function. Factors to evaluate this criteria include:

1.

That the neighborhood residents patronize or are employed at the location of the use.

2.

That management practices eliminate problems such as noise, waste materials, competition for on-street parking, or similar conflicts.

3.

That the use has no history of verifiable complaints.

4.

That the use has been maintained in good condition or that the nonconformity represents a disincentive for such maintenance.

B.

The Board of Adjustment shall review the application and recommend in writing any conditions relative to the expansion of bufferyards, landscaping, or other site design. The review may also contain use limitations believed necessary to address any concerns that, as a conforming use, it may become a nuisance.

C.

The Department shall submit a list of all the nonconforming conditions of the property to the Board of Adjustment.

D.

The Board of Adjustment shall first determine whether the use is generally integrated into the neighborhood and any adverse impacts. Upon a finding that the use is integrated and has only minimal adverse impacts, the Board of Adjustment may grant the use and attach conditions as it deems necessary to ensure that the use remains an acceptable use.

E.

Sign mitigation shall not be permitted under any circumstance.

(Ord. No. 97-172, § 3(ch. 13, § 08.430), 12-31-1997)

Granting the special use makes the use or structure conform to the specifics of the approval, eliminating the nonconformance.

(Ord. No. 97-172, § 3(ch. 13, § 08.431), 12-31-1997; Ord. No. 01-112, § 1(Exh. A), 3-12-2002)