The board of adjustment of Delaware City shall consist of five members who shall be residents of Delaware City and who shall have knowledge of the problems of urban and rural development and who, at the time of appointment and throughout the term of office, shall not be candidates nor members of the legislative body nor employees of the city. The mayor shall appoint such members of the board of adjustment, and all such appointments shall be confirmed by a majority vote of the members of city council.

Each member of the board of adjustment shall be appointed for a period of three years, except that one of the initial members shall be appointed for a one year term, one of the initial members shall be appointed for a two year term, and one of the initial members shall be appointed for a three year term. All subsequent appointments to the board of adjustment shall be for a period of three years unless such appointments increase the number of members of board of adjustment. In the event subsequent appointments to the board of adjustment increase the number of members of the board of adjustment, the length of such members' terms shall be determined and established in such a way that no more than two members' terms expire in any given year.

A vacancy occurring other 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 so selected shall elect from among its own members a chairperson and a secretary.

Any member of the board of adjustment may be removed from office by the city council for cause after a hearing by a majority vote of all the city council.

(Ord. No. 13-0225-01, 3-18-2013; Ord. No. 19-0916-03, 10-21-2019)

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 scheduled as needed. The chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. A quorum shall consist of two members. 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 such 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.

Appeals to the board of adjustment concerning interpretations or administration of this chapter may be taken by any persons aggrieved or by any officer, department, board, bureau of the governing body of Delaware City or affected by any decision relating to zoning, subdivision, building or other construction. Such appeals shall be submitted by the 20th day of each month for hearing the following month, subject to meeting requirements, by filing a notice of appeal specifying the grounds thereof, with the city manager acting for the board of adjustment. The officer from whom the appeal is taken shall forthwith transmit to the board all papers constituting a record upon which the action appealed from was taken. The board of adjustment shall designate a reasonable time for the hearing of the appeal, give public notice thereof as well as due notice to the parties in interest. At the hearing, any party may appear in person or by agent or attorney.

An appeal stays all legal proceedings in furtherance of the action appealed from, unless the city manager certifies to the board of adjustment after the notice of appeal shall have been filed with him that, by reason of facts stated in the certificate, a stay would in his opinion cause imminent peril to life or property, in such case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of adjustment or by court of record on application, or notice to the city manager on due cause shown.

On all appeals, application and other matters brought before the board of adjustment, said board shall inform, in writing, all the parties involved in its decision and other reasons therefore.

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 an error in any order, requirement, decision or determination, or notice of violation made by an administrative official of the city in the enforcement or application of this Chapter, Chapter 8, Article II, or Chapter 31 of the Code of the City of Delaware City, or any chapters or sections supplement thereto or amendatory thereof.

(b)

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 this chapter, or to deny special exceptions when not be granted by the board of adjustment unless and until:

(1)

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.

(2)

A public hearing shall be held. Notice of such a hearing shall be posted on the property for which the special exception is sought, at City Hall, and in one other public place at least 15 days prior to the public hearing. The owner of the property for which the special exception is sought or his agent shall be notified by certified mail.

(c)

Original jurisdiction. the board of adjustment, after public hearing, upon determining (1) that a proposed use on a specific lot or parcel is reasonably necessary for the convenience and/or welfare of the public and (2) that the proposed use on the lot or parcel involved is not detrimental or injurious to the neighborhood or the city may grant a special exception, subject to such conditions as the board of adjustments deems necessary to protect the health, safety and welfare of the neighborhood and the city, to permit any of the following uses in the designated districts as provided in the preceding articles of this chapter as follows.

(1)

In an R-1, R-2, R-3 or C-1 District, the conversion of a one family dwelling into dwelling units for two or more families subject to the special procedures and requirements of article V, section 46-16, paragraph (s).

(2)

In an R-1, R-2, R-3, C-1 or C-2 District, water towers, water storage tanks, water reservoirs, water pumping stations and water treatment plants per article V, section 46-16, paragraph (g).

(3)

In an R-1, R-2, R-3, C-1 or C-2 District, a sub-station electric and gas and telephone central office subject to the special requirements of article V, section 46-16, paragraph (h).

(4)

In an R-1, R-2, R-3, C-1 or C-2 District, day care centers, kindergartens, preschools, day nursery schools and orphanages, subject to the requirements of article V, section 46-16, paragraph (i).

(5)

In an R-1, R-2, R-3 or C-1 District, a nursing home, rest home or home for the aged, subject to the special requirements of article V, section 46-16, paragraph (j).

(6)

In an R-3 District, hospital or sanitariums, hospitals for contagious diseases, correctional institutions, sanatoriums or hospitals treating epileptic, drug or alcoholic patients, and asylums for the mentally ill, in each case subject to the special requirements of article V, section 46-18, paragraph d.

(7)

In R-1, R-2, R-3 or C-1L District a bed and breakfast, subject to the special requirements in article V, section 46-16(r) and 46-23(c) respectively, provided, however, that the board shall ensure that one parking space for each guest room, the resident manager and all full time employees is provided in the following order of preference: (a) off-street on-site where feasible and in the public interest; (b) improved on-street parking; (c) improved off-street off-site parking within 600 feet of the proposed bed and breakfast or some combination of the above and the board may impose such operating and other conditions on the applicant as it deems in the public interest.

(8)

In R-2, R-3 or C-1 a row house per article V, section 46-17, paragraph (c).

(9)

In an OS-BA District (Open Space and Buffer Area), pumping stations, treatment facilities and disposal structures for materials and substances other than waste water, only on specific approval of each substance or material and only after receipt and consideration of a report from the Delaware City Planning Commission, and the Delaware State Planning Office.

(10)

In a C-1 District, the conversion of an existing storefront for residential use.

(11)

In any zoning district in the city, the wholesale or retail sale of beer, wine and/or other alcoholic beverages, whether such sales are made at a package store, tavern, taproom, bar, restaurant, bed and breakfast, private club, social hall, public or private event or otherwise. Notwithstanding the foregoing, no special exception may be granted by the board of adjustment if the underlying use proposed for the lot or parcel in question is not otherwise permitted in the zoning district where such lot or parcel is located or is otherwise not permitted as a matter of law. By way of example, if a property owner desires to sell alcoholic beverages in conjunction with the operation of a bed and breakfast operation, and a bed and breakfast operation is not permitted in the zoning district in question, then the Board shall have no authority to grant a special exception to permit the sale of alcoholic beverages on such property.

(12)

In an R-1 zone, one family, semi-detached dwellings per article V, section 46-16(t).

(13)

In a C-1 zone, condominium units used for residential, office, business or commercial purposes per article V, section 46-20(t) and section 46-20(u).

(14)

In any zoning district in the city, an abutting property owner may seek a special exception to permit the property owner to add landscaping, which could include plantings or hardscaping improvements unrelated to parking, to city property. Any special exception issued under this section is subject to revocation by the city at any time at the city's sole discretion. Upon revocation, the property owner shall remove any improvements within 30 days of written notice of revocation.

(d)

Variances. To hear and decide in specific cases such variances from the provisions of any zoning ordinance, code or regulations that will not be contrary to the public interest, where, owing to special conditions or exceptional situations, a literal interpretation of the provisions of any zoning ordinance, code or regulation will result in unnecessary hardship or exceptional practical difficulties to the owner of property so that the spirit of the ordinance, code or regulation shall be observed and substantial justice done, provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of any zoning ordinance, code, regulation or map.

(e)

Procedures for requesting a variance. Requests for variances shall be submitted in writing with the city manager acting for the board of adjustment. The city manager shall, subject to applicable noticing requirements, cause the variance request to be placed on the agenda for the next regularly scheduled meeting of the planning commission. At the same time, the city manager shall cause a hearing before the board of adjustment to be scheduled and any applicable notifications to be given. Upon receipt, the city manager shall forward the minutes of the planning commission meeting to the board of adjustment.

(Ord. No. 05-0321-01, 4-11-2005; Ord. No. 05-0815-01, 10-17-2005; Ord. No. 08-0507-01, 6-16-2008; Ord. No. 24-1021-01, § 1, 11-18-2024)

Any person or persons, or any board or bureau of Delaware City aggrieved by any decision of the board of adjustment, may present to the Superior Court a petition, duly verified, setting forth that such a decision is illegal, and specifying the grounds of the illegality. Such petition shall be presented to the court within 30 days after filing of the decision of the board. Upon the presentation of the petition, the court may allow a writ of certiorari directed to the board to review such decision of the Board and shall prescribe therein the time within which a return thereto must be made and served upon the realtor's attorney, which shall not be less than ten days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a restraining order.

The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. Costs shall not be allowed against the board of adjustment, unless it appears to the court that it acted with gross negligence, in bad faith, or with malice in making the decision appealed from.

In addition to the aforementioned requirements regarding notice and posting, the board of adjustment shall adhere to the requirements of article XII, interpretation and administration, section of the zoning chapter of the City of Delaware City.