Henlopen Acres City Zoning Code
ARTICLE III
Nonconforming Uses and Structures
§ 130-10 Continuation and abandonment of nonconforming uses.
A.
A nonconforming use may be continued although such use does not conform to the provisions of this chapter.
B.
If any nonconforming uses ceases for a continuous and uninterrupted period of 365 days, it shall be deemed to be abandoned and any subsequent use of the land or lot and/or building devoted to such nonconforming use shall be in conformity with the provisions of this chapter.
C.
The casual, intermittent, temporary or illegal use of any land or lot and/or building shall not be sufficient to establish the existence of a nonconforming use, and the existence of a nonconforming use in part of a lot shall not be construed to establish a nonconforming use on the entire lot.
§ 130-11 Change, extension or enlargement of nonconforming uses.
A.
A nonconforming use shall not be extended or enlarged, nor shall any structural alteration be made to any building in which a nonconforming use is conducted. No such use shall be extended to occupy any land outside any building devoted to a nonconforming use. The change of an existing nonconforming use to another existing and/or new nonconforming use or an increase in the intensity of a nonconforming use is prohibited. In the event that a nonconforming use is changed to a conforming use, then the right to renew and continue the nonconforming use terminates.
B.
A nonconforming use shall not be extended to occupy a greater area of land or volume than that occupied by such use prior to the effective date of this chapter.
§ 130-12 Nonconforming buildings; maintenance, repair, alteration and expansion.
A.
A building nonconforming only as to dimensions (including, but not limited to setback, height, lot coverage and square footage requirements) may be maintained, repaired, altered or extended, provided such alteration or extension does not increase the area or volume of nonconformity. That portion of a building that does not conform to the required setbacks shall not be extended either vertically or horizontally.
B.
Buildings of nonconforming dimensions containing nonconforming uses may be maintained and repaired but shall not be altered or extended either vertically or horizontally.
C.
In the event that a building of nonconforming dimensions or use is damaged or destroyed by any casualty to an extent not to exceed 80% of the replacement cost of the building as of the date of the casualty, it may be restored within one year after such casualty, but shall not be enlarged or extended in any way. If any such building is damaged or destroyed to the extent of more than 80% of its replacement costs as of the date of the casualty, or the building is condemned by the Delaware State Fire Marshal as a result of the casualty, the right to continue the nonconformity terminates.
(1)
The burden shall be on the owner to establish entitlement to continue the nonconformity.
(2)
In the event of a dispute over the replacement costs of a nonconforming building as of the date of the damage, then the replacement cost shall be the average of the replacement cost estimated in two written appraisals from independent member, Appraisal Institute certified appraisers, each having substantial experience in the community, one engaged by the owner and one engaged by the Town. The cost of both appraisals shall be paid by the owner.
D.
In the event that any building, or any portion thereof, of nonconforming dimensions or use is intentionally destroyed, razed, or dismantled, such building (or the nonconforming portion thereof) shall not be rebuilt except in conformity with all of the requirements and conditions of this chapter.
E.
In the event a building of nonconforming dimensions or use is moved, it shall thereafter conform to the regulations for the district in which it is located after it has been moved.
F.
Nonconforming fences may be repaired or replaced.
[Added 6-8-2018]
(1)
A replacement fence shall be erected in the same location as the previously existing fence.
(2)
Any change in fence material and/or design shall be approved by the Environmental Approval Committee.
(3)
A fence nonconforming in height shall be replaced in compliance with the provisions of this chapter.
(4)
Any fence replacing a nonconforming fence shall remain nonconforming.
§ 130-13 Trades, industry, hobbies and businesses.
No building shall be erected, altered or used, and no lot or property whether conforming or nonconforming shall be used for the conduct of any trade, industry, hobby or business. A hobby which is conducted entirely within a residence, the conduct of which does not cause the emission of odors, noises or dust, and for which no visible external storage is required, and which is not conducted for the sale of any products or services of that hobby, is permitted.
§ 130-14 Uses causing dust, odor, smoke, vibrations or noise.
No use is permitted which is noxious or offensive by reason of odor, dust, smoke, gas, vibration or noise, and the use of an internal combustion engine or other noisy machine shall not be permitted unless objectionable noise and vibration is eliminated by effective mufflers or silencers and unless the use is otherwise in conformity with all applicable laws of the State of Delaware.
§ 130-15 Temporary structures.
[Amended 7-13-2007]
It shall be unlawful for any person to construct, place or permit to be constructed or placed any temporary structure upon any property within the Town; provided, however, that a temporary structure may be constructed or placed upon property within the Town pursuant to the terms and conditions in this section and as set forth for accessory structures and uses in this chapter; provided, however, that the person shall make application or give notice, as required herein, and pay any applicable fee at least 72 hours prior to construction or placement of such temporary structure to the Town, including information and a drawing/site plan showing the property, the location on the property for the temporary structures, the size of the structures, and the reasons therefor.
A.
When a temporary structure is to be used in connection with construction, demolition, maintenance or repair on the premises and only when such activity is in progress on the premises:
(1)
Temporary structures are limited to one of each: dumpster, storage unit for property owner's noncommercial use, and portable toilet. These limits may be waived by the Town Manager upon a showing of good cause.
(2)
The application and fee shall be submitted to the Town Manager on forms provided or approved by the Town Manager. The Town Manager may, as a condition of approval and for good cause shown, modify and/or limit the size and location of such temporary structures to minimize any adverse impact on nearby property, traffic and/or safety.
(3)
The initial approval period shall not exceed 12 months. The Town Manager may, upon request and payment of the applicable fee, grant up to two extensions of three months each. If any request is denied, the Town Manager shall provide the reasons therefor in writing.
(4)
In any event, the approval terminates when the construction, demolition, maintenance or repair activity is substantially complete, at which time all temporary structures shall be promptly removed.
(5)
All required zoning certificates and/or building permits must be issued by both the Town and Sussex County prior to the placement or construction of any temporary structure.
B.
When a temporary structure is to be used in connection with a private social gathering or private social event, any other gathering or event, festival or exhibition, such use may not exceed a maximum of 72 hours, and the following must be met:
(1)
For a private social gathering or private social event, notice on the form provided by the Town Manager shall be filed at least 72 hours prior to the placement of such temporary structures.
(2)
For any other gathering or event, festival or exhibition, an application and any applicable fee shall be submitted at least 14 days before the placement of such temporary structures.
(3)
The Town Manager may limit the size, scale, scope, and location of such temporary structures to minimize any adverse impact on nearby property, traffic and/or safety. The Town Manager may extend the seventy-two-hour period upon a showing of good cause, but in no event shall such use exceed 14 days. Any extension may be conditioned upon such terms or restrictions as the Town Manager deems necessary to protect the public health, safety or welfare.
(4)
The temporary structure shall be promptly removed when the private social gathering, private social event, any other gathering or event, festival or exhibition is completed.