Henlopen Acres City Zoning Code
ARTICLE IX
Board of Adjustment; Appeals
§ 130-43 Establishment and jurisdiction of Board of Adjustment.
[Amended 1-10-1992]
A.
There is established a Board of Adjustment to consist of not less than three nor more than five members who shall be residents of the Town and who shall have knowledge of the problems of urban and rural development and who, at the time of appointment and throughout the term of office, shall not be candidates nor Commissioners nor employees of the Town. The Mayor shall appoint such members of the Board of Adjustment, and all such appointments shall be confirmed by a majority vote of all the elected Commissioners.
[Amended 10-12-2007]
B.
All appointments shall be for a period of three years, provided that terms of the original members shall be established in such a manner that the term of at least one member shall expire each year, and the successor shall be appointed for a term of three years. The Board of Adjustment so selected shall elect from among their own number a Chairman and a Secretary.
C.
Any member of the Board of Adjustment may be removed from office by the legislative body for cause after a hearing by a majority vote of all the elected Commissioners. 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.
§ 130-44 Appeals.
[Amended 1-19-2007; 10-12-2007]
Appeals to the Board of Adjustment may be taken by any person aggrieved or by an officer, department, board or bureau of the Town of Henlopen Acres affected by any decision of any official charged with the administration or enforcement of this chapter. Such appeal shall be taken within 10 days of such decision by filing with the Board of Adjustment and the official from whom the appeal is taken by delivery to the Town Manager a notice of appeal specifying the grounds thereof. The Town Manager shall forthwith transmit to the Board of Adjustment all the papers constituting the record upon which the action appealed from was taken.
§ 130-45 Stay of proceedings.
[Amended 10-12-2007; 7-11-2008]
An appeal shall stay all proceedings in furtherance of the action appealed from, unless the Town Manager certifies to the Board of Adjustment after the notice of appeal shall have been filed with him that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by restraining order which may be granted by the Board of Adjustment or by a court of competent jurisdiction on application or notice to the Town Manager on due cause shown.
§ 130-46 Hearing.
[Amended 1-14-2000]
Within a reasonable time of the filing of an appeal, the Board of Adjustment shall fix a reasonable time for hearing of the appeal, give public notice thereof by publication of local circulation in one weekly issue thereof, which shall be at least 14 days prior to such hearing, as well as due notice to the parties, and decide the same within a reasonable time. Upon the hearing, any party may appear in person or by agent or by attorney.
§ 130-47 Powers of Board of Adjustment.
The Board of Adjustment shall have the following powers:
A.
To hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by an official charged with the administration or enforcement of this chapter or by any ordinance amendatory or supplemental thereof.
[Amended 1-19-2007; 10-12-2007]
B.
To hear and decide special exceptions to the terms of this chapter upon which such Board is required to pass under this chapter.
C.
To authorize upon appeal, in specific cases, such variance from the terms of this chapter that will not be contrary to the public interest where, owing to special conditions or exceptional situations, a literal interpretation of the provisions of this chapter will result in unnecessary hardship or exceptional practical difficulty to the owner of the property so that the spirit of this chapter shall be observed and substantial justice done, provided that such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the this chapter and the Zoning Map.
[Amended 2-14-1998]
§ 130-48 Determination.
In exercising the above-mentioned powers, the Board of Adjustment, in conformity with law, may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the official charged with the administration or enforcement of this chapter from whom the appeal is taken.
§ 130-49 Rules and regulations.
The Board of Adjustment shall adopt rules as to the manner and time of filing appeals or applications for special exceptions, or for a variance from the terms of this chapter, and for the conducting of hearings and for the giving of such notice or notices as may be required or deemed advisable by the Board, all of which rules and regulations shall conform with the requirements of this chapter and the law on that behalf.
§ 130-50 Expiration of special exception or variance.
[Amended 7-10-1992; 7-14-2006]
Unless otherwise specified by the Board of Adjustment, any special exception or variance granted by said Board of Adjustment shall be valid for a period of one year from the date such special exception or variance is granted by the Board of Adjustment. If the right to the special exception or variance is not exercised by the property owner within such period, the special exception or variance shall lapse and become void; provided, however, that for good cause shown and upon application to the Board of Adjustment, together with the payment of the required fee, the Board of Adjustment may grant an extension of a special exception or variance but such extension shall not exceed a maximum of three months.
§ 130-51 Fees for appeals, special exceptions and variances.
[Amended 7-9-1999 by Ord. No. 99-1]
Each application for an appeal, special exception or variance as provided in this chapter shall be accompanied by a fee payable to the Town of Henlopen Acres in the amount set from time to time by the Commissioners by resolution to cover costs, which fee or part thereof may be refunded by the Board upon due consideration.
§ 130-52 Meetings; minutes; records.
Meetings of the Board of Adjustment shall be held at the call of the Chairman and at such other times as the Board may determine. The Chairman or, in his absence, the Acting Chairman may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. The Board shall keep minutes of its proceedings 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 immediately filed in the office of the Board and shall be a public record.
§ 130-53 Appeal from Board of Adjustment to Superior Court.
[Added 1-14-2000[1]]
Any person or persons, jointly or severally aggrieved by any decision of the Board of Adjustment or any taxpayer or officer, department, board or bureau of the Town, may present to the Superior Court a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within 30 days after the filing of the decision in the Office of the Board of Adjustment.