The mayor and city council shall establish a schedule of fees, charges and expenses and a collection procedure for appeals and other matters pertaining to this chapter. The schedule of fees listed below shall be posted in the City Hall, and may be altered or amended by the mayor and city council by resolution. Delaware City building permit fees established by the mayor and council shall be doubled if a building permit is not acquired prior to the start of any construction.

(Ord. No. 12-0716-03, 8-20-2012)

No permit, special exception, variance, hookup, review, or approval shall be issued unless or until such costs, charges, fees or expenses listed below have been paid in full, nor shall any action be taken by the applicable official, the applicable board, the city, or the mayor and council, until required charges and fees have been paid in full.

Payable to New Castle County

Such fees, charges, costs, or expenses as may be due under New Castle County laws or regulations.

Payable to the City of Delaware City

(Ord. No. 15-0420-01, 5-18-2015; Ord. No. 20-0817-01, 10-19-2020; Ord. No. 21-0315-01, § 5, 8-5-2021)

(a)

Definition. A "beneficial use appeal" is a process by which the City of Delaware City evaluates an allegation that no beneficial use remains in a property and determines that some level of relief from the provisions of the Delaware City Code is warranted.

(b)

Who may apply. A landowner who alleges that the application of this chapter or any provision of the Delaware City Code denies all, or substantially all, economically viable use of property may apply for relief after exhausting all other available avenues of appeal (including variance requests) to the board of adjustment.

(c)

Application submission.

(1)

Filing. Applications shall be filed with the administrative official or the city manager in the office of the board of adjustment. the board, the city manager, or the administrative official may provide forms to facilitate application processing.

(2)

Fee. The city council shall establish a fee schedule in an amount significant enough to cover all publication and other administrative costs, as set forth in section 46-147.

(3)

Content. Applications shall be made in writing and shall provide the following information:

a.

Information about the owner and applicant;

b.

Documentation of the purchase date and price of the property;

c.

A description of the physical features of the property, total acreage, and present use, the use of the property and any known prior uses;

d.

A description of the specific portions of the Delaware City Code that allegedly eliminate all or substantially all economically viable use of the property, together with all appraisals, studies, any other supporting evidence, and any actions taken by the city related to the property;

e.

A description of the use that the landowner believes represents the minimum beneficial use of the property and all documentation, studies, and other evidence supporting that position;

f.

If the property has been listed for sale, originals or copies of all bids, offers to purchase, and other correspondence regarding the sale of such property;

g.

Plans or drawings that support or clarify the relief or permission requested; and

h.

Other information requested by the board of adjustment, including, but not limited to, survey information.

(4)

Incomplete applications.

a.

No application is complete until all required items are received.

b.

Incomplete applications may be rejected.

(d)

Burden of proof on applicant. Every applicant shall have the burden of presenting the information needed by the board of adjustment to make a beneficial determination use.

(e)

Board of adjustment hearing.

(1)

Scheduling. The board of adjustment shall schedule a public hearing.

(2)

Public notice.

a.

Newspaper notice. The city shall advertise the public hearing in a newspaper of general circulation. The notice shall appear at least 15 calendar days prior to the public hearing date and shall contain the following information:

1.

The type of application;

2.

A short description of the proposed action;

3.

A description of the parcel and the approximate street location or address;

4.

The location, date, and time of the public hearing; and

5.

Information on where full details of the application may be obtained, including the hours of availability and phone number.

b.

Notice to owner/applicant. The city shall notify by mail the owner and/or applicant of the time and place of the hearing.

(3)

Public hearing. The hearing shall take place no fewer than 15 days following publication of the legal notice.

(f)

Deprivation standards. In determining if a landowner has been deprived of the beneficial use of property, the Board of Adjustment shall take into account the following factors:

(1)

Diminution in value. The property value shall be compared to the property value with the regulations as applied. A mere decrease in value does not deprive the landowner of all or substantially all beneficial use of property. The diminution in value must be such that it effectively deprives the landowner of all or substantially all viable use or enjoyment of the property;

(2)

Common land uses. A use common to the city and/or the area of the subject site, although it may not involve further development of the land, may be considered a beneficial use. Attention shall also be given to land uses considered to be the lowest intensity in the city or adjoining areas, but which uses still provide for occupation and living by the landowner;

(3)

Subsidy. A minimum beneficial use of the land may be a use where a governmental subsidy is provided. If such a subsidy exists, its value should be reflected in the considered minimum beneficial use on a valuation basis. The cumulative public costs of a subsidy should be considered payment to the landowner for the restriction on the property if the annual subsidy enhances the economic return of the existing use to the landowner. The value of the proposed use shall be adjusted to reflect the degree to which a subsidy enhances the property value by determining the value of the use without the subsidy;

(4)

Adverse impacts. The extent to which this code protects users, future users, or neighbors from threats to health, safety or general welfare shall be considered. A use that seriously threatens the health, safety or general welfare of current or future residents or neighbors shall not be considered a use the property owner is entitled to enjoy and shall not, when restricted by this code, constitutes a denial of all or substantially all economic viable use of the property;

(5)

Expectations. Expectations shall, in general, not be considered. Only expectations backed by reasonable investments made prior to the adoption date of the regulations in question may be considered;

(6)

Nuisances. In no case shall a use that is a nuisance per se, or a use that in that particular location constitutes a nuisance, constitute grounds for relief; and

(7)

Other. The board of adjustment may also take into account any factors that have been considered by a federal court or a Delaware court in determining whether all, or substantially all, economic use of a property has been denied a landowner who has made a takings claim pursuant to the Federal or State Constitution.

(g)

Granting relief.

(1)

If the finding is that a landowner has been denied all or substantially all economic viable use of the property, the board of adjustment shall grant relief. In the alternative, the board of adjustment may also find that some beneficial use of the property remains. The board of adjustment shall grant only that level of relief necessary to provide for a beneficial use of the property.

(2)

Minimum increase. In granting relief, the landowner shall be given the minimum increase in use intensity or other possible concessions to permit a beneficial use of the land. The following guidelines shall be used to determine the minimum beneficial use of the property:

a.

The reality of limited development potential, given the natural condition of the property, shall not be attributed to the regulations applied to the property; and

b.

The potential for damages to either future residents or property shall be assessed in determining a beneficial use. Conditions shall be placed on sites where damage from hazardous conditions is likely. The conditions may include location restrictions, size limitations, and increased building standards.

(Ord. No. 14-0915-02, 3-4-2015)

(a)

No land use application, subdivision, zoning, building or other approvals shall be granted by any board, official, department, manager, or the city council if any of the following parties, having an interest in the application or the property the application is filed for, are not in good standing with Delaware City:

(1)

Applicant;

(2)

Property owner;

(3)

Equitable owner;

(4)

Permit holder; and

(5)

Any individual with a controlling interest in the property (controlling interest means the acquisition of sufficient dominance to determine the operational and financial policies, including disposition of its assets, of any legal entity that is a party listed subsections (1) through (4), but excluding mortgage holders).

(b)

Not in good standing means that at the time of the request, any of the above enumerated parties are delinquent in the payment of monies owed to the city or have been found to be in violation of the City Code or have failed to pay taxes and/or fees owed after notice and an opportunity to be heard. If a board, official, department, manager, or the city council denies an application or approval based upon the fact that a party/parties is not in good standing, such decision must be sent to the party/parties in writing outlining the basis for the conclusion within ten days. Such decision may be appealed to the board of adjustment within 30 days of the written conclusion.

(Ord. No. 14-0915-02, 3-4-2015)