Fenwick Island City Zoning Code
§ 160-8
General regulations; exceptions.
A.
Height and area requirements shall be subject to the following regulations and exceptions:
(1)
Notwithstanding any contrary provisions of this chapter, public telephone booths shall be permitted in the Commercial Zone and shall be exempt from the front building limit line setback and yard requirements of this chapter, provided that such structures and their location are approved by the Town Council.
(2)
Chimneys may be erected to a height which is required to provide efficient draft.
(3)
In the case of a lot or parcel of land having a width of at least 35 feet but less than 50 feet, and which is included in a plat or deed of record at the time of adoption of this chapter, there shall be a side yard on each side of a dwelling of not less than five feet in width, and the provisions of § 160-4C(1) shall not apply to such lot or parcel. Eaves shall be set back not less than four feet from the side property line.
(4)
Every part of a required yard or court shall be open and unobstructed, without cover of any kind being partial or total from its lowest point to the sky except as follows:
(a)
Accessory building and private garage in accordance with § 160-4A(2) of this chapter are permitted.
(b)
Fire escapes when required by the State Fire Marshal and chimneys where placed so as not to obstruct light and ventilation are permitted.
(c)
Open decks, not enclosed with any material of any kind, and open stairways, not enclosed with any material of any kind, may be permitted to be constructed to a line not less than 10 feet from the rear property line and not less than seven feet from the side property line. Any open deck or open stairway which is over the top of or in any way covers another deck or stairway shall not be constructed so as to provide a weatherproof or waterproof covering which would provide for a roof for the open deck or open stairway below it. All decks must meet the minimum criteria for a deck of ingress and egress and be structurally sound to support the use as a deck.
[Amended 6-29-1990]
(5)
Open deck, not enclosed with any material of any kind, and open stairways, not enclosed with any material of any kind, may be permitted to encroach on the front building limit line not to exceed nine feet in the Residential Zone only. Any open deck or open stairway which is constructed within the above-mentioned permitted nine-foot encroachment area, which is over the top of or in any way covers another deck or stairway, shall not be constructed so as to provide a weatherproof or waterproof covering which would provide for a roof over the open deck or stairway below it. All decks must meet the minimum criteria for a deck as to ingress and egress and be structurally sound to support the use as a deck. The above-mentioned nine-foot encroachment shall not apply to any building which has a front building limit line of less than 25 feet.
[Amended 7-24-2015]
(6)
Nothing contained in this chapter shall prevent in any zone the erection and use of a structure or premises for public or private utility purposes when deemed necessary by the Town Council of the Town for public convenience and welfare.
(7)
In the case of corner lots having a side yard along a street upon which no lots front directly on that same side of the street, between two adjacent intersecting cross streets, such side yard may be reduced to a minimum width of seven feet. Eaves shall be set back a minimum of six feet from the side lot line.
(8)
No yard, court or other open space provided about any building for the purpose of complying with the provisions of these regulations shall be considered as a yard, court or other open space for another building, nor shall the size of any yard, court or open space be reduced to less than the area requirements of this chapter.
(9)
Fences.
(a)
No fence, wall, hedge, partition or other such structure shall be permitted in any zone under this chapter unless such fence, wall, hedge, partition or other such structure is not more than four feet above the grade level of the land on both sides of such fence, wall, hedge, partition or other such structure. Such a fence, wall, partition or other such structure shall not be solid but shall have openings approximately 20% to 30% of the total surface area to provide for the flow-through of air. A detailed design drawing of the structure shall be submitted with the application for a building permit.
[Amended 2-26-2016]
(b)
The following are exceptions to Subsection A(9)(a) above:
[Amended 8-24-2012; 7-24-2015]
[1]
Fences:
[a]
A fence is required for new construction along the rear property line on any lot in the Commercial Zone when used for commercial purposes. In the event a preexisting fence owned by either the adjacent residential property owner or the commercial property owner is in place the time of construction and is removed at any time after certificate of compliance is issued for the new construction, it is then the responsibility of the commercial property owner to replace the fence within a reasonable time as determined by the Building Official. Whether a new fence where none previously existed or the replacement of a preexisting fence is at issue, said fence shall be no less than six feet, nor more than seven feet, in height above the curb or crown level of the adjoining street and shall be constructed of a semi-solid design as required in § 160-8A(9)(b)[1][d] below.
[Amended 12-9-2016]
[b]
Fences are prohibited in the front setback area of all lots in the Commercial Zone.
[c]
Fences along the side property line of all lots in the Commercial Zone shall not exceed four feet in height above the curb or crown level of the adjoining street and shall not encroach into the front setback area.
[d]
A solid foundation or retaining wall for such fence structure along the side property line shall be permitted, not to exceed two feet in height above the crown of the side streets adjacent to the commercial property. The remainder of the fence shall not be solid but shall have openings approximately 20% to 30% of the total surface area to provide for the flow-through of air. A detailed design drawing of the structure must be submitted with the application for a building permit.
[2]
Sidewalks and structures in an area 10 feet from the curb along Route l:
[a]
New construction and substantial improvements in the Commercial Zone:
[i]
A five-foot-wide sidewalk constructed in compliance with all ADA and DELDOT approved standards is required for new construction. Such sidewalk must be five feet wide, measured from the back of the existing curb along Route 1. Where no curb exists, the five feet shall be measured from the plane of the back of the curb from adjacent properties in the same block along Route 1. All existing entrances are subject to DELDOT approval and may or may not be allowed to remain.
[ii]
A five-foot-wide sidewalk constructed in compliance with all ADA and DELDOT approved standards or a DELDOT approved alternative is required for substantial improvement construction.
[iii]
All landscaping, permanent structures, and/or temporary or portable structures located in the area five feet in width, measured from the edge of the sidewalk required by Subsection A(9)(b)[2][a][i] above and projecting into the commercial property, shall not exceed three feet in height from ground elevation.
[b]
Existing commercial properties in the Commercial Zone:
[i]
No new landscaping, vegetation, permanent structures, and/or temporary or portable structures on a parcel along Route 1 in the Commercial Zone, located 10 feet or less from the edge of the curb, shall exceed three feet in height from ground elevation.
(10)
No land area required to comply with a specific provision of the ordinances of the Town of Fenwick Island shall be utilized for any purpose, use or computation, in order to comply with a second requirement of said ordinances.
(11)
No part of any required building setback area in the front, rear or side of any lot in the Residential Zone may be covered or paved with impervious or semi-impervious materials such as concrete, asphalt, brick, flagstone, etc., for driveways, parking spaces or any other purpose except for a single walkway, no more than three feet in width, in any front, rear or side yard. Such coverings or pavings 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 6-30-2000]
(12)
In new construction, all fixed items not located at or above base flood elevation and designed to be a permanent part of the property shall either be properly anchored using an auger type of anchor a minimum of two feet in the ground, proper footings designed to resist flotation, collapse or permanent lateral movement, or an anchor system design approved by the Building Official. In accordance with Delaware Code, Title 26, (Chapter 8 - Underground Utility Damage Prevention and Safety Act), "Miss Utility" must be contacted at 1-800-282-8555 before proceeding with any anchoring. Existing fixed items such as listed above are recommended to be anchored but are not required.
[Added 4-25-2014]
(13)
Commercial cell phone communications facilities are prohibited in the Residential, Commercial and Parks Zones.
[Added 6-23-2017]
B.
Regulations for structures such as but not limited to docks, piers, wharves, boat ramps, steps, boat houses, gazebos, piling and navigational aids in lagoons and canals.
(1)
In order to provide clear, safe and unobstructed operation of watercraft in lagoons or canals 60 feet or less in width within the corporate limits of Fenwick Island, Delaware, no structure such as but not limited to docks, piers, wharves, boat ramps, steps, boat houses, gazebos, piling and navigational aids shall be constructed which project beyond the bulkhead line of such lagoon or canal. Davits shall be permitted, provided that they shall not project over the waterways more than 12 feet from the bulkhead and, when not in use, they shall be retracted to a line at least four feet parallel to the bulkhead. This installation shall require a building permit.
[Amended 8-25-1989; 3-26-1999]
(2)
In all lagoons or canals in excess of 60 feet in width, such structures may be permitted to extend into the lagoon or canal a distance of not more than four feet beyond the bulkhead line. No construction of any kind is permitted to extend beyond the bulkhead line at the end of a lagoon or canal. Boat lifts shall be permitted, provided that the outside frame of said lift does not protrude more than 12 feet from the bulkhead and the perimeters of submerged boat lifts shall be clearly identified by reflectors so as not to be a hazard to boat traffic. Boat lifts shall be securely anchored and such installation shall require a building permit. Davits shall be permitted, provided that they shall not project over the waterways more than 12 feet from the bulkhead and, when not in use, they shall be retracted to a line at least four feet parallel to the bulkhead. This installation shall require a building permit.
[Amended 3-26-1999]
(3)
Proposed construction of any structures in any lagoon or canals must receive prior approval by the State of Delaware, Department of Natural Resources and Environmental Control and the United States Army Corps of Engineers in addition to the approval and issuance of a permit by the Town of Fenwick Island, Delaware.
(4)
When application is made for a building permit for the construction of structures such as but not limited to bulkheads, docks, piers, wharves, boat ramps, steps, boat houses, gazebos, piling and navigational aids, the procedure shall be as follows:
(a)
Prior to submitting an application to the State of Delaware, Department of Natural Resources and Environmental Control and the United States Army Corps of Engineers, the data required by Chapter 61, Building Construction, § 61-3, and copies of all material and data required for application for a permit from the State of Delaware, Department of Natural Resources and Environmental Control and the United States Army Corps of Engineers shall be submitted to the Town of Fenwick Island for preliminary review and clearance as to compliance with Town ordinances. The submission of applications to the State of Delaware, Department of Natural Resources and Environmental Control and the United States Army Corps of Engineers shall be accompanied by a letter from the Town of Fenwick Island stating that the project has preliminary clearance from the Town of Fenwick Island and complies with its regulations. Such preliminary clearance shall not be construed as permission to commence any work on the project.
[Amended 9-29-1995]
(b)
When approval of the application and a permit have been obtained from the State of Delaware, Department of Natural Resources and Environmental Control and the United States Army Corps of Engineers, copies of such permits shall be submitted to the Town of Fenwick Island for final review, and, if finally approved by the Town of Fenwick Island, payment of the required fee shall be made and a building permit issued.
D.
No parabolic or dish-type antenna, larger than 18 inches in diameter, shall be erected, constructed, altered or maintained on any lot within the Town of Fenwick Island. As used in this section, "parabolic or dish-type antenna" shall mean any concave, circular or dish-shaped device of any size designed for receiving communication or telephone signals from a satellite. Such prohibition shall not apply if such antenna is housed in a building erected in compliance with all applicable ordinances.
[Added 7-26-1996 by Ord. No. 77]
E.
Nonconforming uses.
(1)
Nonconforming use of land and buildings. Except as otherwise provided herein, the lawful use of land or buildings existing at the effective date of this chapter may be continued although such use does not conform to the provisions hereof.
(2)
Discontinuance of nonconforming uses. Without just cause, no building or portion thereof used in whole or in part for a nonconforming use in a Residential or Commercial District which remains idle or unused for a continuous period of 12 months, whether or not the equipment or fixtures are removed, shall again be used except in conformity with the regulations of the district in which such building or land is located.
(3)
Destruction or removal of a nonconforming structure or use to the extent of more than 50% of the fair market value.
[Amended 2-27-2004; 3-18-2005]
(a)
Fair market value immediately prior to destruction or removal shall be for a structure only, not land, and shall be determined by the Town's Assessor at the expense of the property owner.
(b)
When such destruction or removal occurs voluntarily by the property owner, any rebuilding and/or restoration must conform to current Town ordinances and all applicable regulations; otherwise all rights as a nonconforming structure or use shall terminate.
(c)
When such destruction or removal occurs naturally or involuntarily, rebuilding and/or restoration may occur with no more than the same degree or amount of nonconformity as existed prior to the destruction or removal as verified by records provided by the Town or owner.
(d)
When such destruction or removal occurs by any cause, all rights to maintain multiple dwellings on a single lot in the Residential Zone shall be terminated.
(4)
Intermittent use. The casual, intermittent, temporary or illegal use of land or buildings shall not be sufficient to establish the existence of a nonconforming use, and the existence of a nonconforming use on a part of a lot shall not be construed to establish a nonconforming use on the entire lot.
(5)
Existence of a nonconforming use. Whether a nonconforming use exists shall be a question of fact and shall be decided by the Board of Adjustment after public notice and hearing and in accordance with the rules of the Board.
(6)
Alteration and/or renovation of a nonconforming building. A building nonconforming as to height, area or other regulations may be altered or renovated, provided that such alteration does not increase the degree of nonconformity in any respect and does not increase the amount of nonconforming horizontal or vertical areas. Where nonconformity is due to multiple dwellings existing on a single lot, no such dwelling (building) may be increased in size in any external dimension.
(7)
Nonconforming uses not validated. A nonconforming use in violation of a provision of the ordinance which this chapter amends or replaces shall not be validated by adoption of this chapter unless such use complies with the terms of this chapter.