Fenwick Island City Zoning Code
§ 160-5
Commercial Zone.
A.
Use regulations. Unless herein provided, no building or premises shall be used or any building or structure be hereafter erected, altered or repaired in the Commercial Zone except for one or more of the following uses:
[Amended 1-27-1995; 7-26-1996; 4-28-2000; 10-20-2000; 11-15-2002; 5-23-2003; 9-23-2005; 6-23-2006; 7-27-2007; 5-20-2011; 7-22-2011; 2-22-2013]
(1)
Any use permitted in the Residential Zone.
(2)
Retail store or personal services shop (not including activities requiring outdoor use of power tools or animal veterinary treatment and/or sale).
[Amended 8-24-2018]
(3)
Professional offices and banks.
(4)
Motels/hotels.
(5)
Utility buildings.
(6)
Educational, religious and fraternal/service organizations.
(7)
Vehicle filling or service station, subject to the following requirements:
(a)
When such use abuts the side and/or rear line of a lot in any Residential Zone, a solid wall or substantial, solid fence seven feet in height shall be constructed and maintained along said lot line.
(b)
When such use occupies a corner lot, the ingress or egress driveways shall be located at least 20 feet from the intersection of the front and side street intersection of the front and side street lines of the lot, and such driveways shall not exceed 25 feet in width.
(c)
Gasoline pumps or other service appliances shall be located on the lot at least 10 feet behind the building limit line; and all service, storage or similar activities in connection with such use shall be conducted entirely within the premises.
(d)
A lot shall not be used for a vehicle filling station if it is within 300 feet of a public park or playground or a hospital.
(8)
Farmers' market.
(a) FARMERS' MARKET FENWICK ISLAND FARMERS' MARKET RULES AND REGULATIONS OF THE FENWICK ISLAND FARMERS' MARKET VENDORS[1] [2] [3] [4] [5]
Definitions. As used in this subsection, the following terms shall have the meanings indicated:
An open outdoor market setting whereat fresh agricultural items, horticultural items, baked goods, seafood and/or other fresh food items that have been locally grown, produced or processed by vendors who are members of the Fenwick Island Farmers' Market may be sold.
The nonprofit organization consisting of community volunteers and local growers, which has been sanctioned by the Town Council of the Town of Fenwick Island and the Delaware Department of Agriculture.
The rules and regulations imposed by the Fenwick Island Farmers' Market nonprofit organization.
Persons or entities selling only agricultural, horticultural, baked goods, seafood and/or other fresh food items that they themselves have grown, produced or processed.
Individual vendors operating outside the established hours of the Fenwick Island Farmers' Market will be permitted to sell local items purchased from members of the Fenwick Island Farmers' Market.
All vendors must be members of the Fenwick Island Farmers' Market.
All vendors must also receive a business license from the Town of Fenwick Island to operate individually outside the established hours of the Fenwick Island Farmers' Market.
Proof of membership in the Fenwick Island Farmers' Market must be submitted at the time of application for a business license.
No license fee shall be charged for members of the Fenwick Island Farmers' Market.
(b)
Permitted locations. Farmers' markets will be permitted on vacant or improved lots, which shall be at least 100 feet by 100 feet in size (either individually or combined), in the Commercial Zone in Town.
[Amended 3-28-2014]
(c)
Regulations.
[1]
If a vendor is not the record owner of the vacant or improved lot where the farmers' market will be located, the vendor must submit to the Town Manager at the time of licensing written proof that the record owner consents to the operation of a farmers' market on the vacant or improved lot in question. If a vendor is the record owner of the vacant or improved lot in question, then proof of ownership must be submitted to the Town Manager at the time of licensing.
[Amended 3-28-2014]
[2]
Vendors shall comply with all local, county, state and other health laws, rules or regulations pertaining to their operation.
[3]
Vendors must provide for the removal of all waste generated by or in connection with the operation of the farmers' market. Such waste removal shall include, but not be limited to, the removal of all recyclable materials for the designated purpose of recycling .
[4]
Farmers' markets shall be operated on a seasonal basis only, from May 1 through October 31 of any calendar year.
[5]
All meat, seafood, dairy and baked products sold at a farmers' market must meet the safety and quality control requirements of the rules and regulations of the Fenwick Island Farmers' Market.
[6]
No live animals of any kind, except seafood, may be sold, kept or slaughtered at a farmers' market.
(9)
Restaurant or eatery as herein defined, subject to the following requirements:
(a) BAR BAR AREA EATERY OUTSIDE SERVICE AREA PATRON AREA PERMANENT SEATED DINING AREA RESTAURANT
Definitions. As used in this subsection, the following terms shall have the meanings indicated:
A commercial establishment, not part of a restaurant, whose primary activity is the sale of alcoholic beverages to be consumed on the premises.
The floor space in any restaurant that is used primarily for the service or consumption of alcoholic beverages for patrons waiting to be seated in the permanent seated dining area. It shall include, but not be limited to, any bar counter and the contiguous floor and seating area where alcoholic beverages are dispensed or consumed, together with all other portions of the patron area except the permanent seated dining area, whether contiguous to the bar or not. A counter in a "bar area" where food is served is not considered part of the permanent seated dining area.
A commercial establishment where food is prepared and served to the public.
A porch, patio, deck or area of land or buildings which is not enclosed on all sides with permanent structural walls and roofing and which has a floor level no higher than three feet above ground level, is not more than 700 square feet in area and which is used for seated dining only in conjunction with a restaurant or eatery. No part of any outside service area may be located in any setback area and may not eliminate parking spaces to achieve sufficient space for outside service area.
The area of a restaurant open to the public as patrons and exclusive of kitchen, storage areas and restrooms.
The floor space in any restaurant where tables and chairs and/or booths are provided for serving complete meals to seated patrons. The floor space of any outside service area shall not be included as part of a restaurant's permanent seated dining area.
A commercial establishment with a patron area of less than 4,000 square feet and which is regularly used and kept open for the purpose of serving complete meals, as referred to in the Delaware Code, to patrons for consideration and which has seating and tables for dining and suitable kitchen facilities connected therewith under the charge of a chef or cook. The service of only such foods as snacks, sandwiches, salads, pizza, hamburgers, etc., at anytime in the evening are not considered complete meals.
(b)
Requirements.
[1]
No bar, as defined, shall be allowed in Fenwick Island.
[2]
No bar area, as defined, shall be allowed in any outside service area.
[3]
In-car or drive-through service may not be provided by a restaurant.
[4]
A restaurant may have a bar area as defined where stand-up consumption of alcoholic beverages for patrons waiting to be seated is allowed, provided that the number of patrons in the bar area does not exceed the Fire Marshal's occupancy limit for that area and such bar area is located on the same floor level as the permanent seated dining area.
[5]
Stand-up consumption of alcoholic beverages is not allowed in the permanent seated dining area, including any outside service area.
[6]
All tables and chairs in the permanent seated dining area of a restaurant shall be maintained and located in an accessible and usable configuration at all times and may not be temporarily moved so as to increase any bar area.
[7]
Music or entertainment, live or recorded, shall not be allowed in any outside service area except for occasions approved by the Town Council.
[8]
All windows and doors of any restaurant or bar area shall remain closed except for the passage of patrons when music is being played.
[9]
A minimum of 85% of the patron area must be dedicated as a permanent seated dining area.
[10]
A restaurant may not serve alcoholic beverages in the morning before 9:00 a.m. or in the evening later than 1:00 a.m., or later than the time when the offering of complete meals in the permanent seated dining area ends, whichever is earlier. Hours of operations for any restaurant or eatery outside service area shall be no earlier than 8:00 a.m. and no later than 11:00 p.m., including set-up and final clean-up. In the case of a restaurant that includes outside service area, such outside service may be suspended or revoked if there have been three or more cases during a calendar year of violations of any Town ordinances. Oral and written notice of each such violation will be given to the licensed restaurant owner. Such revocation may be immediate, deferred to the entire season for the following year, or both.
(c)
Certificates of compliance for restaurants or eateries.
[1]
No establishment license will be issued for a restaurant or eatery as defined in Chapter 160, Zoning, unless it first receives a valid certificate of compliance from the Building Official indicating compliance with all applicable Town codes. The procedures related to a certificate of compliance will be the same as described for an establishment license in § 100-4 through § 100-16 of Chapter 100, Licensing, except for the following:
[a]
The words "Building Official" will be substituted for the words "Town Manager."
[b]
The words "certificate of compliance" will be substituted for the word "license."
[c]
In addition to the information required in § 100-9A(1) through (8), the applicant for a certificate of compliance will provide the following:
[i]
A floor plan showing the dimensions, square footage and location of the patron area, permanent seated dining area, outside service area and bar area as defined in § 160-5A(9).
[ii]
The number of patrons that can be seated in the permanent seated dining area and the outside service area.
[iii]
The hours in which complete meals will be offered as described in § 160-5A(9)(b)[12].
[iv]
Copies of existing Delaware Alcoholic Beverage Control Commission licenses and applications therefor and Fire Marshal permits.
[2]
All existing restaurants and eateries must apply for a certificate of compliance on or before September 1, 1996, or at the time of application for a building permit under Chapter 61, whichever comes sooner. Authorization by the Town Council of the issuance of a certificate of compliance to a restaurant conducting business as of June 21, 1996, which does not conform to the requirements of Chapter 160, Zoning, will be based on conditions existing as of June 21, 1996. Such authorization will document the specific type(s) and degree(s) of nonconformance allowed (i.e., grandfathered) to existing and future owners of such restaurants and eateries.
[3]
Any modifications to the floor plan described in § 160-5A(9)(c) must be submitted to the Building Official prior to implementation to determine whether a new certificate of compliance and/or building permit is required.
[4]
A certificate of compliance must be renewed each year and/or whenever there is a change in the ownership of a restaurant or eatery.
(10)
Townhouses.
(a)
The average minimum lot area per dwelling unit shall be 5,000 square feet.
(b)
Lot frontage, measured at the front building limit line, for individual dwelling units of a townhouse may be reduced to not less than 16 feet.
(c)
For the purpose of the side yard regulations, a townhouse building shall be considered as one building on one lot and shall have minimum side yards of seven feet. Any side yard adjacent to the line of a lot in a single-family Residential District shall not be less than 10 feet. Any side yard adjacent to a street shall be not less than 15 feet.
(d)
There shall be a front setback of not less than 25 feet and a rear setback of not less than 10 feet for all construction including decks and steps. For a townhouse building, the maximum floor area ratio shall be 70%.
(e)
Detached garages or carports shall not be permitted.
(f)
Unless otherwise restricted by district regulations, not more than four dwelling units shall be included in any one townhouse building, with no overall outside wall dimensions of more than 85 feet.
(g)
Required off-street parking space of two spaces per family dwelling unit shall be provided on the lot of each dwelling unit or within an on-site parking area within the common area with approval subject to site plan review.
(h)
No family unit shall be so designed or constructed that would locate any part of one family unit above another family unit.
(j)
Commercial buildings and townhouses, as defined herein, may be constructed so as to extend over more than one lot area in which event the side yard requirements shall apply only to the perimeter of the building or the nearest building of the cluster to the adjacent side property line.
(k)
A townhouse is defined as a single-family dwelling and may not be used for any other use which is not permitted in the Residential Zone.
(11)
Auctions.
(a) AUCTION HOUSE PROFESSIONAL AUCTIONEER REAL ESTATE AUCTION
Definitions. As used in this subsection, the following terms shall have the meanings indicated:
Any premises within the Commercial Zone where personal or real property is sold by auction to the highest bidder by a professional auctioneer.
Every person engaged in the business of crying sales of real or personal property on behalf of other persons for profit. A professional auctioneer must be licensed as an auctioneer by the State of Delaware and the Town of Fenwick Island. All professional auctioneers must be insured to the extent required by the State of Delaware and Delaware law.
An auction whereat any real property within the Town of Fenwick Island is sold to the highest, qualified bidder. Real estate auctions must be conducted by a professional auctioneer and may be, but are not required to be, held on the real property being sold at auction.
(b)
Regulations for auction houses and real estate auctions:
[1]
Auctions must adhere to all federal and state laws and regulations.
[2]
All auctions must be conducted by a professional auctioneer licensed by the State of Delaware and the Town of Fenwick Island.
[3]
Any and all personal property being sold at auction must be stored and displayed inside the auction house. No such personal property may be stored or displayed outside of the auction house.
[4]
No signs or devices which produce noise or sound, or which emit visible smoke, vapor, particles or odor shall be used for advertising purposes or to attract attention.
[5]
A register of all buyers and sellers participating in an auction must be maintained at all times by the professional auctioneer responsible for conducting the auction. As part of said register, the professional auctioneer must also maintain an accurate list of all real and/or personal property bought and sold, together with a description of said real and/or personal property.
[6]
All auctions must be completed by 9:30 p.m.
[7]
No auctions of livestock or domestic, foreign and/or exotic animals are permitted.
(c)
A license issued by the Town of Fenwick Island to a professional auctioneer may be suspended and/or revoked for any violation of the regulations for auction houses and real estate auctions set forth above. Such a suspension and/or revocation may also occur for reasons that include, but are not limited, to the following:
[1]
Misleading or untruthful advertising.
[2]
Flagrant misrepresentation of the quality or existence of the personal or real property being sold at auction.
[3]
Knowingly using false bidders.
[4]
Absent a good faith, bona fide dispute, failure to remit payment to the seller of any real or personal property sold at auction and/or failure to transfer any real or personal property sold at auction to the ultimate purchaser thereof.
(d)
Inspection of auction houses. Town officials shall have the power to inspect, during reasonable business hours, any auction house for the purpose of determining compliance with this § 160-5A(11) or any other applicable provision of the Town Code, as well as to determine compliance with state licensing or other regulatory requirements. During any such inspection, Town officials may secure and confiscate any evidence discovered that may be necessary for prosecution under this chapter. Town officials may, but shall not be obligated to, refer any suspected criminal activity to the proper police authorities.
(e)
Violations and penalties. Any person or entity in violation of this § 160-5A(11) shall be obligated to pay a civil fine in the amount of $500 for the first violation. Subsequent violations shall be punishable by a fine in such amount of $1,000 per violation. Each day that a violation continues shall be deemed to be a separate and additional violation for purposes of the civil fine imposed hereby. Any appeal of the civil fine imposed shall be lodged with the Fenwick Island Town Council within 10 days of receipt of written notice from the Town that the civil fine has been imposed. In the event of an appeal, the appealing party shall be given an opportunity to be heard and to present his case for rescission or reduction of the civil fine before the Town Council. The decision of the Town Council following any such appeal shall be final. Any and all civil fines imposed hereby shall be collectible in the same manner as delinquent taxes, and the Town shall be entitled to recover all costs and reasonable attorneys' fees incurred in connection with any such collection effort.
B.
Height regulations:
[Amended 2-22-2013; 4-1-2016; 5-3-2019]
(1)
No building shall exceed a height of 30 feet, except as provided in §§ 160-8A(2),160-9A(2), and 160-5B(2). Mechanical equipment and any other items attached to or mounted on a building shall be included in the calculation of a building's height.
[Amended 3-4-2022]
(2)
An elevator shaft shall be allowed to extend 4.5 feet in height above the principal maximum building height permitted by these zoning regulations, provided the elevator shaft blends with the architectural aesthetics of the building and provided the dimensions of the shaft are not increased by more than 12 inches. No signs or antennas are permitted on the shaft.
(3)
Notwithstanding §§ 160-5B(1) and 160-5B(2) above, where the principal building has a freeboard of 18 inches to 24 inches above base flood elevation (BFE), the principal maximum building height may be increased by said 18 inches to 24 inches, not to exceed a total building height of 32 feet measured from the highest point of the crown of the road.
(4)
Mechanical equipment located on the roof of a building shall be screened from view with screening that has openings constituting between 20% and 30% of the total surface area of the screening to provide for the flow-through of air. A detailed design drawing of the mechanical equipment, together with any required screening, shall be submitted with the application for a building permit.
[Added 3-4-2022]
C.
Area regulations. Same as § 160-4C as to use for single-family dwellings. For uses other than residential, the front building limit line setback, side yard and rear yard requirements shall be as follows:
(1)
Front building limit line. The building limit line shall be set back from the front lot line not less than 15 feet.
[Amended 7-24-2015]
(3)
Rear yard setback requirements:
[Amended 7-24-2015; 4-27-2018]
(a)
The rear yard building limit line shall be set back from the rear lot line not less than 10 feet. In addition:
[1]
All rear yard setbacks for lots located in the Commercial Zone shall include a professionally engineered or professionally landscaped five-foot vegetative stormwater buffer when abutting lots are used for residential purposes.
[2]
Shrubs and trees are required in the buffer as follows:
[a]
A minimum of two feet in height at planting, maintained at a maximum of 10 feet in height, no encroachment onto adjacent residential property, and spaced at a maximum distance of 10 feet apart. Such plantings shall be nondeciduous shrubs or trees that keep foliage year round.
(4)
Any mechanical equipment shall be prohibited in the side yard setbacks except that, in the case of corner lots, with respect to the side setback adjacent to the side street, there shall be permitted an encroachment of no more than four feet into the fifteen-foot setback for such mechanical equipment. Any mechanical equipment shall be prohibited in the rear setback. Any mechanical equipment shall be prohibited in any area which is less than 15 feet from the front property line. Mechanical equipment, whether located in the rear yard, front yard or corner side setback, shall be screened from view with screening that has openings constituting between 20% and 30% of the total surface area of the screening to provide for the flow-through of air. A detailed design drawing of the mechanical equipment, together with any required screening, shall be submitted with the application for a building permit.
[1]
Editor's Note: This ordinance also provided for the renumbering of former Subsection C(4) through (6) as Subsection C(6) through (8), respectively.
(5)
Commercial pools, hot tubs and spas.
[Added 6-23-2017[2]]
(a)
All pools, hot tubs and spas shall be located between the front setback line and the main structure, be at ground level designed to utilize the main structure as a screen, and shall not extend any closer than 25 feet from the rear property line. The front and side yard setback requirements for commercial pools, hot tubs and spas shall be the same as those which apply to the main structure of the property.
[Amended 2-24-2023]
(b)
Every unenclosed portion of a commercial pool shall be protected by a continuous safety barrier consisting of county-approved fencing or its equivalent. Fencing which is part of such a required commercial pool safety barrier may be up to six feet tall. Barriers are not required for commercial hot tubs or spas when a cover is provided.
(c)
All commercial pools, hot tubs and spas shall comply with all applicable state and county regulations.
[2]
Editor's Note: This ordinance also provided for the renumbering of former Subsection C(4) through (6) as Subsection C(6) through (8), respectively.
(6)
The area between the front lot line and the front building limit line may be used for driveways and/or parking spaces provided it complies with § 160-10B(2) (size of parking spaces in the Commercial Zone). The side yard and rear yard areas may also be used for driveways and parking areas; provided, further, that only limited-access entrances and exits to such driveways and parking areas are permitted from the bordering streets. The limited-access entrances and exits shall be controlled by drop between such entrances and exits, and the parking areas shall comply with the parking regulations of this chapter.
[Amended 8-22-2008; 7-24-2015]
(7)
No part of any required building setback area in the front, rear, or side of any lot in the Commercial Zone may be covered or paved with impervious or semi-impervious materials such as concrete, asphalt, brick, flagstone, etc. Such coverings or paving existing at the time of enactment of this subsection may continue to be used and repaired as a nonconforming use, but may not be expanded in any horizontal dimension nor rebuilt or replaced with such materials.
[Added 7-24-2015]
(8)
Each motel/hotel permitted to be erected or altered hereafter shall occupy a lot(s) providing a minimum of 1,000 square feet of land area for each sleeping room therein, including sleeping rooms in any apartment included in the motel/hotel building. Each motel/hotel use existing as of the date of the adoption of this amendment on December 11, 2015, shall occupy a lot(s) providing a minimum of 600 square feet of land area for each sleeping room, not to exceed a total of 65 sleeping rooms, including rooms in any apartment included in the hotel/motel building.
[Amended 9-23-2005; 12-11-2015]
D.
[3] Fire regulations. All construction in the Commercial Zone must be approved by the State Fire Marshal, except individual single-family dwellings.
[3]
Editor's Note: Former Subsection D, regarding townhouses, as amended 7-26-1996 by Ord. No. 77, was amended and renumbered as § 160-5A(55) by ordinance of 10-20-2000. See now § 160-5A(10).
E.
Lighting. Lighting (inside and/or outside) on commercial properties must be arranged so as not to reflect or cause glare into any residential property where the intensity of light is strong enough to seriously disturb a person of normal sensibilities. This includes the lighting of permitted illuminated signs.
F.
Sidewalks approved by DELDOT, in compliance with ADA regulations and no less than five feet in width or a DELDOT and ADA approved alternative are required for all new construction and substantial improvements in the Commercial Zone. (See § 140-2 - Article II - Sidewalks.)
[Added 7-24-2015]
G.
Mechanicals/grease interceptors/transformers.
[Added 2-24-2023]
(1)
All mechanical equipment shall have a decibel level less than 85 decibels at the source and no more than 55 decibels as measured at any residential property line. A decibel meter app may be used to make the determination and shall be presumptively deemed accurate of any decibel measurement and, if used, two measurements are to be measured and recorded. Emergency equipment, such as emergency generators, will be exempt from the decibel requirement during the state of emergency or a power outage. The acceptable decibel reading may be achieved by using sound-buffering cabinets or enclosures.
(2)
The maximum height of the screening or sound enclosure for mechanicals shall not exceed the maximum height allowed for the building.
(3)
Grease interceptors shall be mandatory for any structure that provides food services and shall be located underground no closer than 25 feet from a rear property line.