Kent County Unincorporated
City Zoning Code
City Zoning Code
ARTICLE XXVII
Board of Adjustment
§ 205-398 Organization.
A.
The Levy Court shall appoint a Board of Adjustment of seven members. The members shall be appointed for an undefined term concurrent with that of the appointing Commissioner, to be served at the pleasure of a majority of the Levy Court. Each Levy Court Commissioner shall be entitled to submit the name of a qualified appointee residing in his district for consideration and confirmation by the Levy Court. The persons appointed to the Board of Adjustment shall be individuals with knowledge of and experience in dealing with the problems of urban and rural development. At the time of appointment, they shall not be candidates for or in elective office.
B.
Vacancies shall be filled for the unexpired term in the same manner as in the case of regular appointments.
C.
The Levy Court shall provide compensation for services rendered and for payment of necessary expenses of the members of the Board in accordance with the Board's bylaws.
D.
Subject to the approval of the Levy Court, the Board may employ such secretarial and technical assistance as may be required to perform its functions properly.
E.
The Board shall adopt rules for the conduct of its business, such rules to be made available to the public. For the conduct of any hearing, a quorum shall be not less than four members and an affirmative vote of four members of the Board shall be required to overrule any decision, ruling or determination of the official charged with enforcement of this chapter, or to approve any variance.
§ 205-399 Powers of Board of Adjustment.
The Board of Adjustment shall have the following powers:
A.
To hear and decide appeals where it is alleged by the appellant there is an error in any order, requirement, decision or refusal made by an administrative official or agency based on or made in the enforcement of the zoning regulations.
B.
To hear and decide, in accordance with the provisions of any zoning regulations, requests for interpretation of the map or for decisions upon other special questions upon which the Board is authorized by any zoning regulation to pass.
§ 205-400 Procedure for applications to Board of Adjustment.
A.
Appeals.
(1)
Appeals to the Board of Adjustment may be made by any person refused a building permit or from the decision of any administrative officer or agency made by the administration or enforcement of the provisions of this chapter. Appeals to the Board of Adjustment may also be made by any officer, department, board or bureau of the County affected by the grant or refusal of a building permit or by other decision of an administrative officer or agency made by the administration or enforcement of the provisions of this chapter.
(2)
Such appeal shall be made within 30 days of the administrative officer's or agency's written decision by filing a notice of appeal, specifying the grounds for the appeal, with the Secretary to the Board. An appeal shall stay all proceedings in furtherance of the decisions being appealed unless the Secretary to the Board certifies that, in his opinion, by reason of facts stated in the appeal, a stay would cause imminent peril to life or property. In such instances, case proceedings shall not be stayed other than through a restricting order granted by the Board or court of record, upon notice to the Secretary to the Board.
(3)
In exercising its powers the Board may reverse or affirm, wholly or partly, or may modify, the order, requirement, decision or determination being appealed.
B.
Variances.
(1)
Where by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of the enactment of the regulations, or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation adopted under this article would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship, other than financial, upon such property, a variance from such strict application so as to relieve such difficulties or hardship, provided that such relief may be granted without substantially impairing the intent and purpose of the zoning plan and zoning regulations.
(2)
Variances are to be granted only when the conditions upon which the request is based are unique to the property for which the variance is sought and are not applicable generally to other property. The hardship must be created by the unique physical characteristics of the property, and not by the real or perceived inconvenience of the property owner. This section is not to be used to permit more than one dwelling unit on a property, or to create irregularly shaped (flag or pipestem) lots.
(3)
The Board of Adjustment shall have the authority to impose any appropriate condition to the approval of a variance it deems necessary to protect the health, safety and welfare of the community.
C.
Public notice. No hearing shall be held by the Board until notice of time and place thereof has been provided to the applicant and property owners within 200 feet of the subject property at least 15 days before the date of said hearing. Notice shall be provided as follows:
(1)
Staff shall notify by regular mail all property owners within 200 feet of the extreme limits of the subject property as their names appear in the County tax record at least 15 days prior to the hearing.
(2)
The Department shall provide notice to the general public of the public hearing before the Commission by publishing the date, time, place, and nature of the hearing at least 15 days before the hearing in a newspaper of general circulation in the County.
(3)
The Commission's staff will also post a notice outlining the date, time, place, and nature of the hearing in a conspicuous location on the property.
(4)
The published and posted notices shall contain reference to the time and place or places within the County where the application is available for review.
D.
The Board shall designate a secretary to keep minutes of its proceedings and other official actions which shall be filed in the office of the Board and shall be public records. The Chairman of the Board or, in his absence, the Vice Chairman may administer oaths and compel the attendance of witnesses.
§ 205-401 Lapse of variance.
After the Board of Adjustment has granted a variance, the variance so approved or granted shall lapse after the expiration of one year after the date of the notice of the decision if no substantial construction or change of use has taken place in accordance with the plans for which such variance was granted, or if the Board does not specify some longer period than one year for good cause shown, and the provisions of these regulations shall thereafter govern.
§ 205-402 Amendment of variance.
The procedure for amendment of a 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 Secretary to the Board determines the change to be minor relative to the original approval, he may transmit the same to the Board with the original record without requiring that a new application be filed.
§ 205-403 Appeals to courts.
Any person jointly or severally aggrieved by any decision of the Board of Adjustment may present to the Superior Court in and for Kent County a petition setting forth that such decision is illegal in whole or in part, specifying the grounds for the illegality. The petition shall be presented to the Court within 30 days after the filing of the decision in the office of the Board (9 Del. C. § 4918).
§ 205-404 Administrative variance.
A.
Notwithstanding any other provision of this chapter, the Director of Planning Services shall have the authority, as qualified below, to approve certain adjustments to specific requirements of this chapter. Such a reduction may be approved by the Director of Planning Services in accordance with the following provisions:
(1)
Limits for the adjustment are as follows:
(a)
Setbacks: Maximum possible adjustment of 10% of the measurement that is involved, or five feet, whichever is greater; however, no structure shall be permitted closer than five feet to a property line.
(b)
Impervious cover: Maximum possible adjustment of 3%.
(c)
Variances are not allowed for standards pertaining to the number of dwelling units permitted, parking requirements, height of building, vision clearance area, density, or use of property
(2)
Such reduction will not impair the purpose and intent of this chapter.
(3)
It will not be detrimental to the use and enjoyment of other property in the immediate vicinity.
(4)
It will not create an unsafe condition with respect to both other property and public streets.
(5)
If compliance with the minimum requirements would cause unreasonable hardship upon the owner.
(6)
The reduction will not result in an increase in density from that permitted by the applicable zoning district regulations.
B.
In taking any such action, the Director of Planning Services shall be governed by all the procedures, standards, and limitations of this chapter applicable to the Board of Adjustment in granting variances, except the public hearing requirements. In approving such a variance under the provisions of this section, the Director of Planning Services shall allow only a variance necessary to provide reasonable relief and, as deemed advisable, may prescribe such conditions, to include landscaping and screening measures to assure compliance with the intent of this chapter.
C.
Upon the approval of a variance for a particular building in accordance with the provisions of this section, the same shall be deemed to be a lawful building.
D.
The Director of Planning Services shall have no power to waive or modify the standards necessary for approval as specified in this section.
E.
Any variance request greater than the limits listed above shall be referred to the Board of Adjustment in accordance with this chapter.
F.
The Director of Planning Services shall give written notice to property owners within 200 feet of the subject property and accept written statements for 10 working days from the date of mailing. If a letter of objection is received within the 10 working days, the application shall be denied and the applicant may apply to the Board of Adjustment for consideration.
G.
If no letter of objection is received, the Director of Planning Services or designee shall approve, conditionally approve or deny such application within 15 working days after the application for administrative variance is submitted and accepted. The Department of Planning Services, Division of Planning, shall inform the applicant, in writing, of the conditions, if any, for approval or the reasons for disapproval. Such written notice shall also describe the process of appeals. A copy of the written notice shall be kept in the permanent records of the Kent County Department of Planning Services, Division of Planning.
H.
The decision of the Director of Planning Services shall be appealable to the County Administrator, who may uphold or overturn the decision of the Director after review and consideration. For any such appeal filed with the County Administrator, the County Administrator shall issue a written determination of final administrative decision. Any applicant who may be aggrieved a final administrative decision may appeal such decision to the Board of Adjustment for consideration in accordance with the provisions of § 205-400.
[Amended 9-24-2019 by Ord. No. 19-18]
§ 205-405 Variance application and procedures.
Applications for a variance shall be submitted to the Department of Planning Services, Division of Planning. The application shall be in such form and contain such information and documentation as shall be prescribed from time to time by the Director of Planning Services but shall in all instances contain at least the following information and documentation:
A.
A completed application form with the signatures of legal owners.
B.
A plot plan accurately describing the location of all existing and proposed structures in relation to the property lines, the location of the well and septic (if applicable), the lines and distances of each property line, the location of any easement or rights-of-way affecting the property, and the location and width of the frontage street/road.
C.
A statement of the particular requirements of this chapter by citation and description.
D.
A statement of the minimum variance of the requirements of this chapter which would be necessary to permit the proposed activity.
E.
A statement of the exceptional or undue hardship which would result if said particular requirements of this chapter were applied to the subject property.
F.
Such other and further information and documentation as the Director of Planning Services or the Board of Adjustment may be deemed necessary or appropriate to a full and proper consideration and disposition of the particular application.