Dewey Beach City Zoning Code
ARTICLE X
Board of Adjustment
§ 185-64 Creation, appointment and organization; removal of members; vacancies.
A.
A Board of Adjustment is hereby created. The Board of Adjustment shall consist of five members whose selection, terms, and qualifications shall be as indicated in 22 Del. C. § 322 and any subsequent amendments thereto. The Board of Adjustment shall select a Chairman from its membership, shall appoint a Secretary and shall prescribe rules for the conduct of its affairs. The Chairman, or in his absence the Acting Chairman, shall have the power to issue subpoenas for the attendance of witnesses and the production of records and may administer oaths and take testimony. For the conduct of any hearing, a quorum shall not be less than three members, and an affirmative vote of a majority of the members of the Board of Adjustment present, but not less than two, shall be required to overrule any decision, ruling or determination of any official charged with enforcement of this chapter, or to approve any special exception or variance. All meetings of the Board of Adjustment shall be open to the public.
B.
Any member of the Board of Adjustment may be removed from office by the Town Commissioners for cause after a hearing, duly noticed, by a majority vote of all the elected members of the Town Commission. 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.
§ 185-65 Procedure.
A.
Applications for special exceptions, interpretations, and variances may be made by any property owner, tenant, government official, department, board or bureau. Such applications shall be made to the Board of Adjustment in accordance with rules adopted by the Board of Adjustment. The application and accompanying maps, plans or other information shall be transmitted promptly to the Secretary of the Board of Adjustment, who shall place the matter on the docket, advertise a public hearing thereon, and give written notice of such hearing to the parties in interest.
B.
An appeal to the Board of Adjustment may be taken by any person aggrieved or by any officer, department, board or bureau. Such appeal shall be taken within 30 days after the decision appealed from by filing with the Board of Adjustment a notice of appeal specifying the grounds therefor in accordance with rules made by the Board of Adjustment. An appeal does not stay proceedings in furtherance of the action appealed from, otherwise than by a restraining order granted by the Board of Adjustment or by a court of record, on application and on notice to the Board of Adjustment and on good cause shown. Any work done shall be at the owner's risk that the appeal will be granted, in which case such work shall not be the basis for a variance.
C.
The Board of Adjustment shall fix a reasonable time for the hearing of an application or appeal, give public notice thereof as well as due notice to the parties in interest and decide the same within 30 days following the hearing. Upon the hearing, any person may appear in person or by agent or by attorney. Public notice of hearing shall consist of publication at least 15 days prior to the hearing. In addition, the Board of Adjustment may cause the date, time, place and nature of the hearing to be posted conspicuously on the property and the Town website in accordance with the rules of the Board of Adjustment. In exercising its powers, the Board of Adjustment may reverse or affirm, wholly or partly, or may modify any order, requirement, decision, or determination as ought to be made.
D.
The Board of Adjustment shall keep minutes of its proceedings and other official actions, 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 filed in the office of the Board of Adjustment and shall be a public record. The Chairman of the Board of Adjustment, or in his absence the Acting Chairman, may administer oaths and compel the attendance of witnesses.
§ 185-66 Powers.
The Board of Adjustment shall have the following powers:
A.
To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the administration or enforcement of this chapter.
B.
To hear and decide applications for special exceptions upon which the Board of Adjustment is specifically authorized to pass under this chapter.
C.
Variances.
(1)
To authorize in specific case such variances from any zoning ordinance, code or regulation, unless prohibited by the Town Charter, that will not be contrary to the public interest, where, owing to special conditions or exceptional situations, a literal interpretation 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 release 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.
(2)
In exercising the powers provided in Subsection C(1) of this section, the Board of Adjustment may, in conformity with this article, revise or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.
D.
To hear and decide applications for interpretation of the Official Zoning Map where there is any uncertainty as to the location of a district boundary.
§ 185-67 Special exceptions.
A.
In order to provide for adjustments in the relative location of uses and buildings, to promote the usefulness of these regulations and to supply the necessary elasticity to their efficient operation, special use exceptions and, limited as to locations described in this article, special yard and height exceptions are permitted by the terms of these regulations. The following buildings and uses are permitted as special exceptions if the Board of Adjustment finds that, in its opinion, as a matter of fact, such exceptions will not substantially affect adversely the uses of adjacent and neighboring property.
B.
Special use exceptions.
(2)
Exceptions to parking requirements are as follows:
(a)
Off-street parking areas, adjacent to or at a reasonable distance from the premises on which parking areas are required by the parking regulations of Article VI, where practical difficulties or undue hardships are encountered in locating such parking areas on the premises and where the purpose of these regulations to relieve congestion in the streets would best be served by permitting such parking off the premises.
(b)
Waiver or reduction of the parking requirements in any district whenever the character or use of the buildings is such as to make unnecessary the full provision of parking facilities.
(c)
Waiver or reduction in interior drive width.
(3)
Other special use exceptions as follows which are specified in each district as follows:
(a)
A determination, in cases of uncertainty, of the district classification of any use not specifically named in these regulations; provided, however, such use shall be in keeping with uses specifically permitted in the districts in which such use is to be classified.
C.
Special yard exceptions may be granted by the Board of Adjustment to allow, in special circumstances, the installation of pergolas, gazebos, swimming pool auxiliary buildings and similar incidental structures in the yard setback area in any district, but not closer than three feet to a property line.
§ 185-68 Variances.
A.
Subject to the provisions of § 185-66, the Board of Adjustment shall have the power to grant the following variances:
(1)
A variation in the yard requirement in any district so as to relieve unnecessary hardships and exceptional practical difficulties in cases when and where by reason of exceptional narrowness, shallowness, or other unusual characteristic of size or shape of a specific piece of property, at the time of the enactment of such regulation or restriction, or by reason of exceptional topographical conditions or other extraordinary situation or condition of such piece of property, or by reason of the use or development of property, immediately adjacent thereto, the strict application of each regulation or restriction would result in unnecessary hardship and exceptional practical difficulties upon the owner of such property. Such granting of variance shall comply, as nearly as possible, in every respect with the spirit, intent, and purpose of this chapter; it being the purpose of this provision to authorize the granting of variation only for reasons of demonstrable and unnecessary hardship and exceptional practical difficulties as distinguished from variations sought by applicants for purposes or reasons of convenience, profit, or caprice.
B.
No use variance shall be authorized by the Board of Adjustment unless it finds:
(1)
That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that the unnecessary hardship is due to such conditions, and not to circumstances or conditions generally created by the provisions of this chapter or code in the neighborhood or district in which the property is located;
(2)
That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of this chapter or code and that the authorization of a variance is, therefore, necessary to enable the reasonable use of the property;
(3)
That such unnecessary hardship has not been created by the appellant or his predecessor in title;
(4)
That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; and
(5)
That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
§ 185-69 Conditions attached to approvals.
Where, in these regulations, special exceptions are permitted, provided they are approved by the Board of Adjustment, and where the Board of Adjustment is authorized to decide appeals or approve certain uses, and where the Board of Adjustment is authorized to approve variances, such approval, decision, or authorization shall be limited by such conditions as the case may require, including the imposition of any of the following specifications:
A.
No outside signs or advertising structure except professional or directional signs.
B.
Limitation of signs as to size, type, color, location or illuminations.
C.
Amount, direction, and location of outdoor lighting.
D.
Amount and location of off-street parking and loading space.
E.
Cleaning or painting.
F.
Gable roof or other type.
G.
Construction and materials.
H.
Connected or disconnected with other buildings.
I.
Exits or entrances, doors, and windows.
J.
Paving, shrubbery, landscaping, or ornamental or screening fences, walls or hedges.
K.
Time of day or night for operating.
L.
No storefronts.
M.
No structural changes.
N.
Control or elimination of smoke, dust, gas, noise, or vibration caused by operations, or such other conditions as the Board of Adjustment may specify.
O.
Implementation of architectural standards.
P.
Streetscaping as deemed appropriate, including a mixture of materials, patterns and styles.
Q.
Such other conditions as are necessary.
§ 185-70 Lapse of special exception or variance.
[Amended 6-16-2023 by Ord. No. 813]
A.
A special exception or variance approved by the Board of Adjustment shall lapse after the expiration of one year unless:
(1)
Construction is completed;
(2)
A building permit has been applied for before the expiration of one year after approval of the special exception or variance;
(3)
The use has taken place in accordance with the plans for which such special exception or variance was granted; or
(4)
The Board of Adjustment has specified a period longer than one year for good cause shown.
B.
The special exception or variance for any project for which a building permit has been obtained shall lapse if construction is not completed within the time frame for which the building permit remains valid. Any special exception or variance that is valid as of June 16, 2023, shall be extended until December 31, 2023.
§ 185-71 Amendment of special exception or variance.
The procedure for amendment of a special exception or variance already approved, or a request for a change of conditions attached to an approval, shall be the same as for a new application, except that where the Town Building Code Official determines the change to be minor relative to the original approval, he may transmit the same to the Board of Adjustment with the original record without requiring that a new application be filed.
§ 185-72 Appeals to courts.
Appeals to courts from a decision of the Board of Adjustment may be filed in the manner prescribed by law.