The Board of Adjustment of Bethany Beach shall consist of five members appointed by the Mayor and confirmed by a majority vote of the Town Council. All members shall be residents of the Town [as construed by the Superior Court of the State of Delaware in Miller v. Board of Adjustment of the Town of Dewey Beach, 1995 LEXIS 313 (1995), to include persons who own a residence in a resort community and reside there at least part of the year], who have knowledge of the problems of urban and rural development, and who, at the time of appointment and throughout their term of office, shall not be candidates for, nor members of, the Town Council, nor employees of the Town.

At least three members shall be permanent residents of the Town. For purposes hereof, a “permanent resident” shall mean a person who, for at least six months prior to the date of his/her appointment, has physically resided within the Town, on a continuing basis, with the intention of making that residence his/her permanent legal residence, and who certifies his/her intention to maintain such permanent legal residence indefinitely. Any permanent resident who ceases to maintain permanent legal residence in the Town but continues to own a residence and reside there for at least part of the year shall be deemed to continue as a permanent resident member of the Board for the remainder of his/her term of office; otherwise, any member who, during his/her term of office, fails to meet the qualifications to serve shall be deemed to have vacated his/her office.

All appointments shall be for a period of three years, provided that the terms of the original members shall be established in such a manner that the term of at least one member shall expire each year and the successor shall be appointed for a term of three years. The Board so selected shall elect from among its own number a chairperson and a secretary.

Any member of the Board may be removed from office by the Town Council for cause after a hearing by a majority vote of all members of Council. A vacancy occurring otherwise than by the expiration of term shall be filled for the remainder of the unexpired term in the same manner as an original appointment.

The Board of Adjustment shall adopt rules necessary to conduct its affairs and in keeping with the provisions of this chapter. The Board shall select from among themselves a Chairman and Secretary, provided that, if the Mayor serves on the Board of Adjustment, he or she shall act as Chairman. Meetings shall be held at the call of the Chairman, with reasonable notice to the other members, and at such other times as the Board may determine, and the presence of two members shall constitute a quorum. The Chairman or, in his or her absence, the Acting Chairman may administer oaths and compel the attendance of witnesses. All meetings shall be open to the public.

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 public record and be filed immediately in the Board of Adjustment files which are maintained by the office of the Building Inspector in the Town Hall.

The Building Inspector shall be responsible for maintaining the original files in accordance with standards provided by the Board of Adjustment. The Town may keep copies of those files in a separate location, consistent with the directions and standards of the Town's administration.

Appeals to the Board of Adjustment concerning interpretation or administration of this chapter may be taken by any persons directly aggrieved thereby. Such appeals shall be taken within 30 days from the date of the decision by filing with the Board of Adjustment, through the Building Inspector, a notice of appeal specifying the grounds thereof. The Building Inspector shall forthwith transmit to the Board of Adjustment members all papers constituting the record upon which the action appealed from was taken; provided, however, that nothing in this section shall prohibit the governing body of Bethany Beach or any Town official from taking an appeal to the Board of Adjustment concerning interpretation or administration of this chapter, if such appeal is taken within 60 days from the date of such decision by filing with the Board of Adjustment, through the Building Inspector, a notice of appeal specifying the grounds thereof. The Board of Adjustment shall set a reasonable time for the hearing of the appeal in accordance with the notice requirements of § 425-107.

Any person whose building permit is revoked or made subject to a stop-work order under § 425-98 may appeal such decision to the Board of Adjustment by filing a written notice of appeal in the Town Office within 72 hours of the decision issuing the stop-work order or revoking the building permit. The Town Board of Adjustment shall meet to hear and decide such appeal in a de novo proceeding to be held within 15 days of the date such written appeal is filed. Notice of such Board of Adjustment hearing, stating the date, time, place and nature of the appeal, shall be given as required by § 425-107; provided however, that the time periods for all required forms of notice (posting of public notices, publication of newspaper notice and posting of property) shall be shortened to not less than seven days prior to the hearing date.

Administrative review. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by a Town official in the enforcement of this chapter or of any ordinance supplemental hereto or amendatory thereof.

Applicant's responsibilities.

Special exceptions. To hear and decide only such special exceptions as the Board of Adjustment is specifically authorized to pass on by the terms of this chapter and to grant special exceptions with such additional conditions and safeguards as are appropriate under the general intent of this chapter or to deny special exceptions when the particular use cannot be accommodated to a particular site without violating the intent of this chapter. A special exception shall not be granted by the Board of Adjustment unless and until:

Variances.

Administrative variance. Bethany Beach Building Inspector may grant the following variance administratively: a variance (of 12 inches or less) for existing conditions from building or property setback requirements set forth in the Town of Bethany Beach’s Zoning Code when he/she finds the request for the variance meets the necessary requirements set forth in § 425-105.

Notice by posting.

Notice by publication. The Town Manager shall cause to be published in one issue of at least one newspaper of general circulation in the Town of Bethany Beach a notice containing the information required to be posted on the property of this section.

Notice by mail. Upon filing an application, the applicant or appellant shall provide a notarized list of property owners and addresses for all property owners within 200 feet of the site of the proposed action. The Town Manager or his or her designee shall send, by first class mail addressed to the listed property owners, a copy of the information required to be posted on the property under this section. Property owners will be determined by the Sussex County Assessment Office property maps.

Time of notice. Notices by mail shall be placed in the mail at least 30 days before the hearing date. At least one notice by publication shall be published at least 30 days before the hearing date. Notice shall be posted on the property at least 30 days before the hearing date and shall remain until the day of the hearing. Notice shall be posted in five public places in the Town at least 30 days before the hearing date and shall remain until the day of the hearing.[2]

Cost of public notice. The cost of providing public notice under this section shall be borne by the appellant or applicant and shall be included in the fees established by the Town Council in the Bethany Beach fee schedule.[3]