This Chapter shall be known as the "New Castle County Unified Development Code" or "UDC," hereinafter referred to as "this Chapter."

(Ord. No. 97-172, § 3(ch. 13, div. 01.000), 12-31-1997; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

The purpose of this Chapter is to establish standards, procedures, and minimum requirements, consistent with the Comprehensive Development Plan, which regulate and control the planning and subdivision of lands; the use, bulk, design, and location of land and buildings; the creation and administration of zoning districts; and the general development of real estate in the unincorporated areas of New Castle County, Delaware.

(Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

This Chapter is intended to protect the interests of both current and future County residents and neighbors from the potential adverse impacts of land uses. At the same time, this Chapter is intended to respect landowners' rights to the beneficial use of their property. The regulations contained in this Chapter were designed to encourage greater flexibility and more development options while minimizing development impact on current property owners and the environment. This Chapter is intended to promote and protect the health, safety, prosperity, convenience, general welfare and quality of life for all present and future citizens of the County. County Council finds that all of the provisions of this Chapter substantially advance and are rationally related to, legitimate government interests (i.e., the protection and preservation of the public health, safety, prosperity, general welfare and quality of life). The legislative intent as expressed in the ordinance adopting this Chapter shall also be considered as part of the purpose and intent of this Chapter.

A.

Land use patterns and community character. This Chapter will preserve life styles of an area, visual aspects, image and historical/cultural area by:

1.

Establishing rational land use and growth patterns and encouraging the most appropriate use of individual pieces of land consistent with the Comprehensive Development Plan;

2.

Dividing the County into districts of distinct community character according to the use of land and buildings, the intensity of such use (including bulk and height), and the surrounding open space;

3.

Prohibiting uses, buildings, or structures that are incompatible with the character of established zoning districts and providing suitable transitions between different community character areas to minimize the amount of incompatible land use and adverse impacts on property value;

4.

Facilitating the creation of a convenient, attractive, functional, and harmonious community;

5.

Regulating the location and use of buildings, structures, and land for trade, industry, residences, and other uses;

6.

Providing protection from noise, glare, odor, or vibration through buffers and other regulations;

7.

Securing adequate natural light, clean air, privacy, convenient and safe access to property, and a safe environment;

8.

Protecting against undue concentration of population and overcrowding of land and/or buildings by regulating and limiting the height, bulk, and scale of buildings;

9.

Encouraging high-quality, attractive, and marketable development for the present and future population and businesses; and

10.

Providing an adequate supply of affordable housing for County residents.

B.

Natural and cultural resources. In an effort to protect the natural resource base of the County and to assure long-term economic viability and welfare of the County, this Chapter is intended to:

1.

Control density, open space, and regulate the disturbance of natural features to:

a.

Protect the watershed and surface water resources for safe and secure drinking water upon which the County's population depends;

b.

Protect life and property by avoiding or lessening the hazards of flooding, stormwater accumulation, runoff, or destabilization of soils by district or performance standards;

c.

Avoid or lessen soil erosion hazards; and

d.

Preserve and protect areas with limited development potential due to topography, hydrology, soils, or other natural conditions as habitats for wildlife.

2.

Preserve agricultural economy and land resources;

3.

Protect against the destruction of, or encroachment upon, archeological, historic, and architectural sites or areas, and ensuring the protection of these resources; and

4.

Prevent the loss of property and life, the creation of health and safety hazards, the disruption of commerce and governmental services, the extraordinary and unnecessary expenditure of public funds for flood protection and relief, the impairment of the tax base, and the destruction or impairment of the important functions of floodplains, all of which adversely affect the public health, safety and general welfare; and to ensure the prospective compliance with Section 60.3(d) of the National Flood Insurance Program.

C.

Economic development. In order to provide for desirable growth and employment opportunities, this Chapter is intended to:

1.

Encourage development of an economically stable and healthy community; and

2.

Encourage and assist in the facilitation, attraction, and retention of economic activities that provide desirable employment, expand the tax base, and serve to meet the goals of the Comprehensive Development Plan.

D.

Public infrastructure. In order to provide and maintain public facilities and services that keep pace with the demands of new development, this Chapter is intended to:

1.

Ensure the provision of adequate public facilities including transportation, public utilities, and public services by providing that development does not exceed the carrying capacity of these facilities or systems, or requiring impact fees to offset the cost of the improvements;

2.

Ensure safe and convenient traffic control and movement including a reduction or prevention of congestion of public streets, convenience of access, multiple modes of transportation, and an interconnected and well planned street system;

3.

Reduce the danger and congestion of traffic on roads and highways by limiting both the number of friction points, such as intersections and driveways, and minimizing other hazards;

4.

Protect residential streets from degradation by nonresidential traffic;

5.

Establish and regulate building or set back lines along streets, roads, boulevards, avenues, lanes, alleys, other rights-of-way, property lines and drainage facilities to ensure adequate and safe facilities;

6.

Promote economy in governmental expenditures;

7.

Promote and encourage basic public utilities and services which meet the needs of the County's citizens and provide for public safety and services that ensure the health of residents and businesses;

8.

Provide adequate infrastructure to accommodate existing, committed and future development;

9.

Provide open spaces for a healthy community, conservation, and recreation, including regional parks, playgrounds and athletic fields and facilities; and

10.

Expedite the provision of adequate police, fire protection, disaster evacuation, civil defense and emergency management, schools, airports, and other public requirements.

E.

Growth management. In order to provide and plan for orderly growth and development, this Chapter is intended to:

1.

Discourage haphazard, premature, uneconomical, or scattered land development and promote the best utilization of land;

2.

Ensure that the citizens and taxpayers of the County will not have to bear the cost resulting from premature, uneconomical, or inefficient development or use of land; and

3.

Encourage the cost effective provision of utilities by regulating or phasing development to prevent premature development that creates land use, health, or economic problems for the County.

F.

Affordable housing. This Chapter is intended to:

1.

Ensure that there is adequate affordable housing;

2.

Provide options for special housing types that provide affordable housing that are consistent with the character of the area; and

3.

Provide for bonuses to developers willing to provide affordable housing.

G.

Justifiable expectations. The enactment of this Chapter is intended to:

1.

Protect and enhance the value of land and buildings for landowners and the public tax base;

2.

Balance the impact of the regulations contained in this Chapter by permitting clustering and a greater variety of uses to offset restrictions;

3.

Require that land be developed only with the installation of adequate and necessary physical improvements;

4.

Protect landowners from adverse impacts of adjoining developments and abating nuisances by regulating the compatibility of proximate uses using quantifiable performance standards;

5.

Protect and respect the justifiable reliance of existing residents and businesses on the continuation of existing, established, and planned land use patterns; and

6.

Maintain a desirable quality of life for residents.

(Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

Except as provided in Section 40.01.120 and 9 Del. C. § 2610 (b) and (c) (Nonconforming uses of land or buildings), all development within the County and all land use applications made to the County shall comply with the provisions of this Chapter.

(Ord. No. 97-172, § 3(ch. 13, div. 01.100), 12-31-1997; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

A.

The use of any building, structure, land, or water. Every use shall comply with this Chapter. Every new or expanded use shall require a zoning permit and certificate of occupancy for the construction, modification, use, or occupancy of any lot, parcel, building, or structure as specified in this Chapter.

B.

Any disturbance of land, soil, vegetation, or waterways. Altering land for development or other purposes shall conform to the standards contained in this Chapter and shall require a permit prior to commencing any work.

C.

Any division of land or land development whether for sale or lease. Whether by metes and bounds, subdivision, or land development, all development designs and layouts shall comply with all regulations contained in this Chapter.

(Ord. No. 97-172, § 3(ch. 13, § 01.110), 12-31-1997; Ord. No. 98-080, § 1(ch. 13, § 01.110), 9-22-1998)

Unless otherwise provided in an Article of this Chapter, the following land uses and land use applications shall be exempt from the application of this Chapter and shall be processed and reviewed under all applicable former Code provisions.

A.

Any land use application submitted to the Department on or before July 1, 1997 (or for which a hardship exception was granted as provided for in Ordinance 97-064) and that has not expired, and any land use application not subject to Ordinance 97-064 submitted to the Department prior to the adoption of this Chapter that has not expired, except as follows:

1.

The payment of any impact fee provided for in this Chapter shall be imposed at the time of certificate of occupancy unless a vested rights exception was granted by the Department or the Board of Adjustment.

2.

The sunsetting provisions of Section 40.01.130 shall apply to all major subdivision and major land development plans; except that:

a.

Any major subdivision or major land development plan that was unbuildable immediately prior to the adoption of this Chapter for any reason, (including, without limitation, zoning changes after plan approval and the expiration of any period of protection under former Code provisions); and,

b.

Any resubdivision plan and any minor subdivision or minor land development plan that was approved in reliance upon a major subdivision or major land development plan that was unbuildable immediately prior to the adoption of this Chapter, shall remain unbuildable and shall remain exempt from the application of this Chapter.

3.

The landowner provides a written waiver to the Department requesting that the provisions of this Chapter be applied; except as noted in Subsection 40.01.120.A.2.

B.

Land disturbances of less than one thousand (1,000) square feet and not involving any building or structure, bufferyard, resource, or conservation area, are exempt from the regulations contained in this Chapter.

C.

Nonconforming situations resulting from the adoption of this Chapter as may be exempted pursuant to Article 8 or 9 Del. C. § 2601(b) and (c) (Exempting agricultural uses).

(Ord. No. 97-172, § 3(ch. 13, § 01.120), 12-31-1997; Ord. No. 98-062, § 1(ch. 13, § 01.120), 9-22-1998; Ord. No. 01-085, § 1, 11-13-2001; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

Editor's note— Ord. No. 01-112, § 1(Exh. A), adopted March 12, 2002, repealed § 40.01.121 in its entirety. Formerly, said section pertained to impact fees and vested rights and derived from Ord. No. 97-172, § 3(ch. 13, § 01.120), adopted Dec. 31, 1997; as amended. See the Unified Development Code Comparative Table for a detailed analysis of amendments.

A.

Plans recorded after adoption of these regulations. Construction of development or improvements shown on a recorded major land development plan shall commence within five (5) years of the date of recordation of the original record plan for the land development.

B.

Plans recorded before the adoption of these regulations. Construction of development or improvements shown on a recorded major land development plan shall commence within five (5) years from December 31, 1997; except that, as provided in Section 40.01.120, any approved record plan for:

1.

Any major land development plan that was unbuildable immediately prior to the adoption of this Chapter for any reason (including, without limitation, zoning changes after plan approval and the expiration of any period of protection under former Code provisions); and,

2.

Any resubdivision plan and any minor subdivision or minor land development plan that was approved in reliance upon a major subdivision or major land development plan that was unbuildable immediately prior to the adoption of this Chapter, shall remain unbuildable and shall remain exempt from, and not eligible for protection under, this sunsetting provision.

C.

The applicant shall bear the burden of providing evidence to the Department establishing that construction had commenced within the five (5) year period.

D.

If construction has not commenced within five (5) years, the record plan shall be resubmitted and reviewed by the Department to determine if the conditions of approval of the original record major land development plan have changed or have been altered by the subsequent adoption of, or amendments to, this Chapter. The resubmission must occur prior to the five (5)-year deadline for commencement of construction. Plans recorded prior to July 1, 2014 shall have until July 1, 2019 to resubmit for review. Plans not resubmitted in the required timeframe will expire and any subsequent plan for the subject property must comply with the zoning and subdivision regulations in effect at the time of application. The Department shall either:

1.

Reapprove the record plan, and give written notice to the owner of reapproval. Such approval shall allow the issuance of building permits subject to the provisions of the original record major subdivision or land development plan and/or any recorded resubdivision plans. The owner shall then have five (5) years from the date of such notice of reapproval to obtain building permits and commence construction. If construction has not commenced within five (5) years, the record plan shall expire.

2.

Disapprove the record plan and give written notice to the owner of the specific areas of noncompliance. The modifications necessary to bring the plan into compliance with this Chapter shall be incorporated into a revised exploratory plan and resubmitted. Upon approval of a revised exploratory plan, a new major land development plan may be submitted for approval. The new plan approved and recorded pursuant to this Section shall have the effect of superseding the original record major land development plan. The owner shall then have five (5) years from the date of notice made pursuant to this subsection to obtain building permits and commence construction. If construction has not commenced within five (5) years, the record plan shall expire.

3.

If a rezoning of the property occurred simultaneously with the approval of the preliminary or exploratory plan and the Department has determined that a new revised exploratory plan is required, the zoning of the property shall revert to the previous zoning district. The processing of the revised exploratory plan shall require full compliance with the then-current rezoning procedures. Exception: Historic overlay rezoning shall not revert to the previous zoning designation and shall remain in place notwithstanding the sunsetting provisions of this Section.

(Ord. No. 97-172, § 3(ch. 13, § 01.130), 12-31-1997; Ord. No. 98-080, § 1(ch. 13, § 01.130), 9-22-1998; Ord. No. 01-85, § 2, 11-13-2001; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 09-066, § 1, 10-13-2009; Ord. No. 18-020, § 1, 7-10-2018; Ord. No. 20-071, § 4, 10-27-2020)

Editor's note— Ord. No. 01-112, § 1(Exh. A), adopted March 12, 2002, repealed § 40.01.140 in its entirety. Formerly, said section pertained to vested rights determinations as adopted by Ord. No. 97-172, § 3(ch. 13, § 01.140), adopted Dec. 31, 1997; as amended. See the Unified Development Code Comparative Table for a detailed analysis of amendments.

No prior restrictive covenants that have been entered into in which New Castle County is a beneficiary shall be altered by the provisions of this Chapter. Where such covenants restrict the type of uses under former New Castle County zoning districts, those uses shall remain restricted regardless of the rezoning of the district.

(Ord. No. 98-080, § 1(ch. 13, div. 01.150), 9-22-1998)

The Department may accept for processing, at its discretion, any subdivision or land development plan that conflicts with this Chapter when such conflict is related to the provisions of a restrictive covenant, the covenant is not more than five (5) years old, the covenant was a condition of a rezoning adopted before December 31, 1997, and New Castle County was a beneficiary. In addition, this Section is limited to situations where the style or type of dwelling unit that will be built was the subject of the restrictive covenant, and where the overall design and appearance of the development was the subject of the restrictive covenant. Lastly, the Department must be satisfied that under the circumstances enforcement of the covenant would be in the best interests of the citizens of the County.

(Ord. No. 98-080, § 1(ch. 13, § 01.160), 9-22-1998; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

A land use applicant shall always bear the burden of proof unless this Chapter specifically provides otherwise, and that burden of proof shall be proof by a preponderance of the evidence.

(Ord. No. 98-080, § 1(ch. 13, § 01.170), 9-22-1998)

Employees or agents of the Department who are acting in the official performance of their duties, pursuant to a land use application or any other complaint or violation, shall have the right to enter, go upon, and inspect at reasonable times any land, either public or private, outside of any municipality, and to make surveys and place and maintain necessary monuments and markers on the land, provided that any such entry shall be made with due care and regard for the protection and preservation of property.

(Ord. No. 97-172, § 3(ch. 13, § 01.210), 12-31-1997; Ord. No. 01-112, § 1(Exh. A), 3-12-2002)

Any person who obstructs, hinders, prevents or threatens or attempts to obstruct, hinder or prevent the entry or inspection of land as provided in Section 40.01.210 shall be guilty of a misdemeanor and upon conviction thereof shall be punished as provided in Section 1.01.009.

(Ord. No. 97-172, § 3(ch. 13, § 01.220), 12-31-1997; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

A.

In the event of conflict between the provisions of this Chapter and any other provisions of this Code, the provisions of this Chapter shall prevail to the extent necessary to permit the County to carry out the policies as declared herein.

B.

The provisions of this Chapter shall be severable. If any provision of this Chapter is found by any court of competent jurisdiction to be unconstitutional or void, the remaining provisions of this Chapter shall remain valid, unless the court finds that the valid provisions of this Chapter are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed that County Council would have enacted the remaining valid provisions without the void one; or unless the court finds that the remaining valid provisions, standing alone, are incomplete and incapable of being executed in accordance with County Council's intent. If severability is not possible, all former applicable ordinances and resolutions, including all former New Castle County zoning maps, shall become applicable to the property or use at issue.

C.

Continuation of existing ordinances and resolutions. The sections appearing in this Chapter, so far as they are in substance the same as those of all ordinances and resolutions adopted and included in this Chapter, shall be considered as continuations thereof and not as new enactments.

D.

Continuation of existing institutions, rights and liabilities.

1.

The repeal of prior ordinances, resolutions, rules and regulations, provided for in the ordinance adopting this Chapter, shall not affect any act done, or any cause of action accruing or accrued or established, or any suit or proceeding had or commenced in any civil action, nor any plea, defense, bar or matter subsisting before the time when such repeal shall take effect; but the proceedings in every such case shall conform with this Chapter.

2.

All the provisions of ordinances, resolutions, rules and regulations repealed by the ordinance adopting this Chapter shall be deemed to have remained in force from the time when they began to take effect, so far as they may continue to apply to any department, agency, office or trust, land use, or any transaction or event or any limitation or any right or obligation or the construction of any contract already affected by such ordinances, resolutions, rules and regulations, notwithstanding the repeal of such provisions.

3.

No offense committed and no penalty or forfeiture incurred, under any of the ordinances, resolutions, rules and regulations repealed by the ordinance adopting this Chapter and, before the time when such repeal shall take effect, shall be affected by such repeal.

4.

No action or prosecution, pending on the effective date of the repeal provided in the ordinance adopting this Chapter, for any offense committed or for the recovery of any penalty or forfeiture incurred under any of the ordinances, resolutions, rules and regulations repealed by such section shall be abated or affected by such repeal, except that the proceedings in such action or prosecution shall conform with this Chapter.

(Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)