New Castle City Zoning Code
ARTICLE VIII
Board of Adjustment; Procedure
§ 230-53 Creation; members.
[Amended 3-8-2022 by Ord. No. 534]
A.
A Board of Adjustment is hereby established which shall consist of the Mayor and four individuals who have been residents of the City of New Castle for at least one year appointed by City Council. The Mayor shall act as Chairperson and permanent member of the Board of Adjustment. Of the remaining four members, the first new appointee to the Board of Adjustment shall serve for a term of one year. The second new appointee shall serve for a term of two years. The third and fourth new appointees shall serve for a term of three years. After the expiration of the initial terms of such newly appointed members of the Board of Adjustment, all subsequent appointments shall be for three-year terms.
B.
The City Council shall have the power and duty to fill all vacancies in the Board of Adjustment by appointment. Any such appointment to replace a member whose position becomes vacant for any reason prior to the expiration of that member's term shall be filled only for the remainder of that member's term.
C.
The City Solicitor shall attend all meetings, hearings, and proceedings of the Board of Adjustment, including when sitting as the Board of Building Appeals, to ensure compliance with applicable law, respond to legal questions posed by the Board, and to review, address, and provide recommendations regarding any legal and administrative issues which may arise or otherwise present themselves at such meetings.
D.
The City Planner or City Engineer shall attend all meetings, hearings, and proceedings of the Board of Adjustment. The City Planner or City Engineer shall review the application involved and such other materials and information as they deem appropriate. Prior to rendering any decision, the City Planner or City Engineer shall provide the Board of Adjustment with a recommendation as to the disposition of each matter presented for decision to the Board off Adjustment. Such review and recommendations shall not be binding on the Board of Adjustment and shall not apply to decisions of the Board of Building Appeals unless expressly required by law or requested by the Board.
§ 230-54 Proceedings of Board of Adjustment.
A.
The Board of Adjustment shall adopt rules necessary to the conduct of its affairs and in keeping with the provisions of this chapter. Meetings 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 shall be open to the public.
B.
The Board of Adjustment 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 a public record and be immediately filed in the office of the Board.
§ 230-55 Hearings; appeals; notice.
A.
Appeals to the Board of Adjustment concerning the interpretation or administration of this chapter may be taken by any person aggrieved or by any officer or bureau of the governing body of the City affected by any decision of the administrative official. Such appeals shall be taken within a reasonable time, not to exceed 20 days, by filing with the administrative official and with the Board of Adjustment a notice of appeal specifying the grounds thereof. The administrative official shall forthwith transmit to the Board all papers constituting the record upon which the action appealed from was taken.
B.
The Board of Adjustment shall fix a reasonable time for the hearing of appeal, giving public notice as required by § 230-62 of this chapter, and hold the public hearing within 30 days from the date of filing of the notice of appeal. At the hearing, any party may appear in person or by agent or attorney. The Board shall then decide the appeal within 45 days from the time of the hearing.
§ 230-56 Stay of proceedings.
An appeal stays all proceedings in furtherance of the action appealed from, unless the administrative official from whom the appeal is taken certifies to the Board of Adjustment, after the notice of appeal is filed with him/her, that by reason of facts stated in the certificate a stay would, in his/her opinion, cause imminent peril to life and property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by the Board of Adjustment or by a court having jurisdiction on application on notice to the administrative official from whom the appeal is taken and on due cause shown.
§ 230-57 Powers and duties.
The Board of Adjustment shall have the following powers and duties:
A.
Administrative review. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the administrative official in the enforcement of this chapter.
B.
Special exceptions; conditions governing applications; procedures.
(1)
To hear and decide only such special exception as the Board of Adjustment is specifically authorized to pass on by the terms of this chapter; to decide such questions as are involved in determining whether special exceptions should be granted; and to grant special exceptions with such conditions and safeguards as are appropriate under this chapter or to deny special exceptions when not in harmony with the purpose and intent of this chapter. A special exception shall not be granted by the Board of Adjustment unless and until:
(a)
A written application for a special exception is submitted indicating the section of this chapter under which the special exception is sought and stating the grounds on which it is requested, the application to include a plan for the proposed development showing the location of buildings, parking areas, traffic access, open spaces and any other pertinent information necessary to determine if the proposal meets the requirements of this chapter.
(b)
The Planning Commission or the Historic Area Commission has reviewed the application and forwarded a favorable recommendation to the Board where such review is required under this chapter.
(d)
The public hearing shall be held. Any party may appear in person or by agent or attorney.
(e)
The Board of Adjustment shall make a finding that it is empowered under the section of this chapter described in the application to grant the special exception and that the granting of the special exception will not adversely affect the public interest.
(2)
In considering any special exception application, the Board of Adjustment shall:
[Amended 3-8-2022 by Ord. No. 534]
(a)
Consider the suitability of the property for the use desired. Assure itself that the proposal is consistent with the spirit, purpose, and intent of this chapter, the Comprehensive Plan, and other relevant plans.
(b)
Determine that the proposal will not substantially injure or detract from the use of neighboring property or from the character of the neighborhood and that the use of the adjacent property is adequately safeguarded.
(c)
Determine that the proposal will serve the best interests of the City, the convenience of the community, and benefit the public welfare.
(d)
Consider the effect of the proposal upon the public services and facilities, such as public water, sewers, police and fire protection, and public schools.
(e)
Consider the probable effects upon highway traffic and pedestrian movements, and assure adequate access and circulation arrangements in order to protect major roads from undue congestion and hazard.
(f)
Be guided in its decision by sound standards of subdivision and land development practice where applicable.
(g)
Prescribe conditions and safeguards in addition to those otherwise required by the City Code as are necessary to assure that the intent of this chapter is complied with, which conditions may include (but are not limited to) harmonious design of buildings, planting and its maintenance as a sight and sound screen, the minimizing of noxious, offensive or hazardous elements, and adequate standards of parking, loading and sanitation.
(3)
Violation of conditions and safeguards, when made a part of the decision by which the special exception is granted, shall be deemed a violation of this chapter and punishable under §§ 230-57F and 230-65F of this chapter. The Board of Adjustment shall prescribe a time limit within which the action for which the special exception is required shall be begun or completed, or both. Failure to begin or complete, or both, such action within the time limit set shall void the special exception.
[Added 3-8-2022 by Ord. No. 534]
C.
Variances; conditions governing applications; procedures.
(1)
A variance shall authorize upon appeal in specific cases such variance from the terms of this chapter as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this chapter would result in unnecessary hardship. A variance from the terms of this chapter shall not be granted by the Board of Adjustment unless and until:
(a)
A written application for a variance is submitted demonstrating:
[1]
That special conditions and circumstances exist which are peculiar to the land, structure or buildings involved and which are not applicable to other lands, structures or buildings in the same district.
[2]
That literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this chapter.
[3]
That the special conditions and circumstances do not result from the actions of the applicant.
[4]
That granting the variance requested will not convey on the applicant any special privilege that is denied by this chapter to other lands, structures or buildings in the same district.
(b)
No nonconforming use of neighboring lands, structures or buildings in the same district and no permitted use of lands, structures or buildings in other districts shall be considered grounds for the issuance of a variance.
(d)
The public hearing shall be held. Any party may appear in person or by agent or attorney.
(e)
The Board of Adjustment shall make findings that the requirements of § 230-57C(a) have been met by the applicant for a variance.
(f)
The Board of Adjustment shall further make a finding that the reasons set forth in the application justify the granting of the variance and that the variance is the minimum variance that will make possible the reasonable use of land, building or structure.
(g)
The Board of Adjustment shall further make a finding that the granting of the variance will be in harmony with the general purpose and intent of this chapter and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.
(2)
In granting any variance, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this chapter. Violation of such conditions and safeguards, when made a part of the decision by which the variance was granted, shall be deemed a violation of this chapter and punishable under §§ 230-57F and 230-65F of this chapter.
[Amended 3-8-2022 by Ord. No. 534]
(3)
Under no circumstances shall the Board of Adjustment grant a variance to allow a use not permissible under the terms of this chapter in the district involved or any use expressly or by implication prohibited by the terms of this chapter in said district.
D.
Structural alterations resulting in an enlargement or extension of a nonconforming structure or use.
[Added 12-3-1991 by Ord. No. 336]
(1)
Definitions and interpretations. For purposes of this subsection the following definitions and interpretations shall apply.
(a)
Reference to structural alteration means a structural alteration resulting in the extension or enlargement of a structure subject to a nonconforming use.
(b)
The words "structure" and "building" have the same meaning.
(c)
The replacement value of the existing building or structure as determined by the Building Inspector shall be presumed correct and shall be subject to challenge, if at all, only by submission of two separate unrelated appraisals, one of which must be an M.A.I.
(2)
Upon satisfaction of certain conditions, the Board of Adjustment is authorized, upon appeal in specific cases, to approve the structural alteration by enlargement or extension of a building devoted to a nonconforming use where such building structure enlargement or extension will not be contrary to the public interest, where, because of special conditions, a literal enforcement of the provisions of this chapter would result in unnecessary hardship and where recognition of a permitted structural enlargement or extension permits a limited recognition of the doctrine of natural expansion consistent with the protection of the public welfare, safety and health. The Board of Adjustment shall not authorize a structural alteration which results in the enlargement or extension of a structure subject to a nonconforming use unless and until:
(a)
The Board receives a written application for a structural alteration which will result in an enlargement or extension of a structure subject to a nonconforming use, which application indicates the section of this chapter under which the structural alteration is sought and stating the grounds on which it is requested. The application must include a plan for the proposed construction or alteration showing location of buildings, parking areas, traffic access, open spaces and any other pertinent information necessary to determine if the application meets the requirements of this chapter.
(b)
If a Planning Commission or Historic Area Commission review is required under this chapter, receipt by the Board of a favorable recommendation from either or both Commissions, as appropriate.
(c)
Notice shall be given as specified in § 230-62 of this chapter, and a public hearing shall be held to consider the application. Any party may appear in person or by agent or attorney. The Board of Adjustment shall notify, by regular mail, property owners within 300 feet of subject property and shall carefully consider any comments or concerns of these property owners.
(d)
The Board of Adjustment shall further make a finding that the reasons set forth in the application justify authorizing the structural alteration and that the structural alteration is the minimum alteration that will make possible the reasonable use of land, building or structure consistent with a limited recognition of the doctrine of natural expansion.
(e)
The Board of Adjustment shall further make a finding that the granting of approval for the structural alteration will be in harmony with the general purpose and intent of this chapter and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.
(f)
If approved by the Board of Adjustment, a building devoted to a nonconforming use may be extended, either on the same lot or on a contiguous lot under the same ownership at the time of enactment of this chapter, subject to the conditions specified below:
[1]
The extension is for a use which is necessarily incident to the existing use or for the same use.
[2]
Such extension or enlargement shall comply in all respects to this chapter except as to use.
[3]
The estimated cost of any building involved does not exceed 50% of the replacement value of the building as determined by the Building Inspector in light of the building's current assessed value.
(3)
In authorizing any structural alteration under this chapter, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this chapter. Violations of such conditions and safeguards, when made a part of the terms under which the structural alteration is approved, shall be deemed a violation of this chapter and punishable under § 230-65 of this chapter.
E.
Board of Building Appeals matters. The Board of Adjustment shall serve as the Board of Building Appeals and shall be vested with the jurisdiction, powers and duties delegated to the Board of Building Appeals as provided in Chapter 141, Dangerous or Vacant Buildings, of the City Code.
[Added 11-4-2020 by Ord. No. 531[1]]
[1]
Editor's Note: This ordinance also redesignated former Subsections E through H as Subsection F through I, respectively.
F.
Decisions of the Board of Adjustment.
[Amended 3-8-2022 by Ord. No. 534]
(1)
In exercising its various powers, the Board of Adjustment may, so long as such action is in conformity with the terms of this chapter, 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 powers of the administrative official from whom the appeal is taken.
(2)
The concurring vote of the majority of the members of the Board shall be necessary to reverse any order, requirement, decision or determination of the administrative official or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter or to effect any variation in the application of the chapter.
(3)
Full compliance with any and all conditions and safeguards prescribed by the Board of Adjustment in rendering any decision is a prerequisite to the use or maintenance of the improvements or other variances authorized by such decision. Failure to abide by and comply with such conditions and safeguards runs contrary to the interests of the City, the health and welfare of its residents, administrative economy, and the rule of law.
(a)
In the event of a violation or other failure to comply with such conditions and safeguards imposed by the Board of Adjustment, the Code Official shall send written notice of such violation or failure to comply via registered or certified US Mail to the legal owner of the real property involved at the address maintained for such owner on the real estate tax rolls of the City, and to any tenant or occupant in possession of such real property at the property address. The written notice shall specify the corrective action to be taken and shall state that fines representing a lien on the real estate in question will be assessed if the violation or other failure to comply with conditions or safeguards is not corrected within 20 days from the mailing of such notice.
(b)
The failure to correct such violations or to comply with any conditions or safeguards prescribed by the Board of Adjustment under § 230-57 shall constitute a civil offense, subject to a fine of $100 for each day such failure to correct or comply continues, commencing 20 calendar days after mailing of the notice required by § 230-57F(3)(a). Such fines shall be the joint and several obligations of the legal title holder to the real property in question and any tenant or occupant of such property.
(c)
Any fines assessed by the Code Official under this section shall, until paid, constitute a civil debt due and owing to the City and shall further constitute a lien in favor of the City on the subject real property subject to condition or safeguard prescribed by the Board of Adjustment. The amount of the lien shall be considered a tax lien, executable as such via praecipe for monition or otherwise, and shall include all court costs and legal fees associated with the enforcement of such line.
(d)
In addition to any other available remedy for violation or failure to comply with conditions or safeguards prescribed by the Board of Adjustment, the Code Official may, upon written notice to the legal title holder to the real property in question and any tenant or occupant of such property, temporarily or permanently revoke any outstanding building permit, certificate of occupancy or other certificate, license or permit issued by the City in connection with the real property that is the subject of such violation or noncompliance.
(e)
Appeals from the Code Official's assessment of a fine, or revocation of any permit, license or certificate for a violation or other failure to comply with a condition or safeguard imposed by the Board of Adjustment may be taken to the Board of Adjustment in accordance with § 230-55 of this chapter, provided that such appeals are filed with the City within 20 days of such assessment or revocation. An appeal shall not be deemed timely filed until the appropriate filing fee has been paid to the City.
(f)
The provisions of this § 230-57F(3) shall apply to all conditions and safeguards imposed by the Board of Adjustment in connection with any special exception, variance, or other application, whether imposed prior to the adoption hereof or thereafter. Notwithstanding the foregoing, nothing in this § 230-57F(3) is intended to, nor shall, create an ex post facto criminal liability for preexisting violations of this chapter.
G.
Legality issues. Where it is alleged that this chapter or portion hereof is procedurally or substantively invalid, illegal or unconstitutional, the Board shall take evidence relating to such legal issue and shall make, in lieu of a decision on such issue, a report of its findings of fact, so that such report, upon appeal to court duly entered, may be filed with the court as part of the record.
H.
The following factors shall be considered when reviewing cases for variances in the Floodplain District:
[Added 6-7-1977 by Ord. No. 222]
(1)
Variances may be issued by the Board for new construction and substantial improvements to be erected on a lot of 1/2 acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, in conformance with the procedures of Subsection G(2), (3), (4) and (5) of this section.
(2)
Variances shall only be issued by the Board upon a determination that the granting of a variance will not result in increased flood heights, additional threats to public safety or extraordinary public expense, create nuisances, cause fraud on or victimization of the public or conflict with existing local laws or ordinances. It shall be presumed that a building and/or structure falling within the floodplain will increase flood heights, and the applicant shall have the burden of proving that granting the variance shall not increase flood heights.
(3)
Variances shall only be issued upon determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(4)
The Board shall notify the applicant, in writing, over the signature of the Secretary of the Board, that the issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance and such construction below the base flood level increases the risks to life and property. Such notification shall be maintained with a record of all variance actions as required in Subsection G(5) of this section.
(5)
The Board shall maintain a record of all variance actions, including justification for their issuance, and report such variances to the City Engineer for his annual report submitted to the Federal Insurance Administrator.
I.
Warning and disclaimer of liability.
(1)
The degree of flood protection sought by the provisions of this chapter is considered reasonable for regulatory purposes and is based on acceptable engineering methods of study. Larger floods may occur on rare occasions. Flood heights may be increased by man-made or natural causes, such as ice jams and bridge openings restricted by debris. This chapter does not imply that areas outside floodplain districts or that land uses permitted within such districts will be free from flooding or flood damages.
(2)
This chapter shall not create liability on the part of The Mayor and Council of New Castle or any officer or employee thereof for any flood damages that result from reliance on this chapter or any administrative decision made thereunder. The granting of a building permit or approval of plan in the Floodplain Zoning District shall not constitute a representation, guaranty or warranty of any kind by the municipality or by any official or employee thereof of the practicality or City of the proposed use.
§ 230-58 Appeals from Board of Adjustment.
Any person or persons or any board, taxpayer, department or bureau of the City aggrieved by any decision of the Board of Adjustment may seek review by the Superior Court of such decision, in the manner provided by the laws of Delaware and particularly by Chapter 3, Title 22, Annotated code of Delaware.
§ 230-59 Interpretation and enforcement; duties of City Council.
A.
It is the intent of this chapter that all questions of interpretation and enforcement shall be first presented to the administrative official and through him/her to the Board of Adjustment only on appeal from the decision of the administrative official and that recourse from the decisions of the Board of Adjustment shall be to the courts as provided by law and particularly by Chapter 3, Title 22, Annotated Code of Delaware.
B.
It is further the intent of this chapter that the duties of the City Council in connection with this chapter shall not include hearing and deciding questions of interpretation and enforcement that may arise. The procedure for deciding such questions shall be as stated in this section and this chapter. Under this chapter, the City Council shall have only the duties of considering the adopting or rejecting proposed amendments or the repeal of this chapter, as provided by laws, and of establishing a schedule of fees and charges as stated in § 230-58.