This Article establishes the procedures for all approvals, administrative reviews, and administrative relief required by this Chapter. The flow charts are for illustrative purposes only.

(Ord. No. 97-172, § 3(ch. 13, div. 31.000), 12-31-1997)

(Ord. No. 97-172, § 3(ch. 13, § 31.110), 12-31-1997; Ord. No. 98-062, § 1(ch. 13, § 31.110), 9-22-1998; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 09-066, § 16, 10-13-2009; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 18-020, § 22, 7-10-2018)

All rezoning amendment applications shall be processed in accordance with the provisions of this Article and the applicable provisions of this Code.

(Ord. No. 97-172, § 3(ch. 13, § 31.111), 12-31-1997; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 06-060, § 1(Exh. A), 9-26-2006; Ord. No. 09-066, § 17, 10-13-2009)

A.

Applicability. A pre-application sketch plan review conference is required for all rezoning requests and major land development applications. An applicant may request a pre-application sketch plan review conference for all other major or minor plans at any time. The pre-application sketch plan review conference may be waived by the Department when it is determined, after a review of the submission, that no departmental concerns exist.

B.

Submission requirements. See Appendix 1 of this Chapter.

C.

Pre-application sketch plan review conference. The purpose of the pre-application sketch plan review conference is to familiarize the applicant with principles of conservation design, departmental concerns and with the applicable provisions of this Chapter, as well as to permit the Department to assess the proposal and to identify any service problems or concerns in conjunction with the applicant's objectives. If additional studies and/or information are required for the proposed project, those studies and/or information must be provided to the Department prior to exploratory plan approval.

The Department shall use the pre-application sketch plan review conference to also identify conservation, open space and development areas. Site design and management practices shall also be examined to determine how minimal disturbance can be achieved while maintaining a high standard of community design. Discussion points will include:

1.

Greenway linkages on- and off-site (trails, biodiversity corridors, habitat areas, CNA's, etc.);

2.

Interconnectivity issues (pedestrian, vehicular, mass transit, etc.) and access issues;

3.

Open space linkages (parks, public and private open space and conservation areas);

4.

Article 10 resource protection areas;

5.

On-site, of regional scope (extending off-site), fully protected vs. partially protected resources;

6.

Soil associations;

7.

Farmland concentrations (agricultural districts, preservation easement purchases);

8.

Existence and location of historic and cultural resources;

9.

Scenic viewsheds or vistas into or out of the site (visual accents and vista points pursuant to County Scenic River and Highway Studies);

10.

Natural drainage patterns (pre-development), boundaries and discharged points based on characteristics such as soils, topography, vegetation and other local watershed issues; and

11.

Development options given zoning district and resource protection objectives.

D.

Community outreach.

1.

Community Outreach consists of a community meeting that occurs after the pre-application sketch plan review conference and prior to exploratory plan submission for plans that propose a rezoning, major or minor land development plan. This outreach is optional.

2.

The purpose of the community meeting is to:

a.

Encourage the applicant to pursue early and effective communications with members of the community that may be impacted by the application and the resident council person, providing the applicant an opportunity to understand and attempt to mitigate adverse impacts of a proposed project on the community, and to educate and inform the public.

b.

Provide property owners of impacted areas with an opportunity to learn about an application and an opportunity to work with an applicant to resolve concerns at an early stage of the process.

3.

The applicant shall notify the Department of Land Use and the resident council person of the date and location of the community meeting at least ten (10) business days prior to the event.

E.

Subsequent submission. For all rezonings and major residential subdivisions, the applicant shall have six (6) months from the date of the pre-application sketch plan review conference to submit an exploratory plan. The Department may require a new pre-application sketch plan review conference if an exploratory plan submission is not made within six (6) months.

(Ord. No. 09-066, § 17, 10-13-2009; Ord. No. 18-020, § 23, 7-10-2018; Ord. No. 21-009, § 11, 12-14-2021)

Editor's note— Ord. No. 09-066, § 17, adopted October 13, 2009, amended Sections 40.31.112 and 40.31.113 in their entirety to read as herein set out. Formerly, Sections 40.31.112 and 40.31.113 pertained to exploratory sketch plan review/conference, and rezoning/preliminary plan application, respectively, and derived from Ord. No. 97-172, § 3(ch. 13, §§ 31.112, 31.113), adopted December 31, 1997; Ord. No. 98-062, § 1(ch. 13, § 31.113), adopted September 22, 1998; Ord. No. 01-112, § 1(Exh. A), adopted March 12, 2002; Ord. No. 03-045, § 1(Exh. A), adopted July 8, 2003; Ord. No. 04-154, § 3, adopted January 25, 2005; Ord. No. 05-087, § 6, adopted October 25, 2005; Ord. No. 06-060, § 1(Exh. A), adopted September 26, 2006; Ord. No. 09-037, § 1, 10-13-2009.

A.

Applicability. An exploratory plan review is required for all land development plans, including those proposals for which a rezoning is sought. For all major plans and rezonings, the Department initial report and PLUS report is required prior to Planning Board public hearing.

B.

Exemptions. The Department shall have the authority to waive plan review requirements for County-initiated rezonings, administrative adjustments or rezonings not requiring a minor or major plan.

C.

Submission requirements.

1.

The applicant shall make a complete exploratory plan submission in accordance with Appendix 1 of this Chapter, including the applicable fee, the engineering checklist, a narrative addressing the comments from the pre-application meeting, and all other information required by this Chapter. Upon notification to the applicant of a complete submission, the applicant shall submit the major plan or rezoning to the Office of State Planning for Preliminary Land Use Service (PLUS) review.

2.

Traffic impact study (TIS). For all major plans and plans with rezonings where the Department has not waived traffic analysis requirements, the applicant shall submit traffic information pursuant to Article 11. If a traffic impact study is required, a scoping meeting shall be scheduled pursuant to Article 11 to identify concurrency issues. For all major plans and plans with rezonings, exploratory plans shall not be noticed for Planning Board public hearing until the Department is in receipt of DelDOT's comments and recommendations on the final TIS. For all major plans and plans with rezonings, no record plan submission shall occur until such time that the TIS is approved and the plan meets the concurrency requirements of Article 11.

3.

It is the applicant's responsibility to inform the County of any known restrictions or legal impediments which would interfere with or prevent the implementation of the proposed development.

4.

The Department of Public Works shall review sanitary sewer system plans in accordance with the engineering checklist. The Department of Public Works shall determine sewer feasibility based on the submitted plan.

5.

The Department will return to the applicant any incomplete submission or those submissions that do not substantially comply with all provisions of this Code.

6.

Viewshed plan. For all development subject to Section 40.04.240, the applicant shall submit a viewshed plan prepared in accordance with Appendix 1 of this Chapter.

D.

Exploratory plan initial report. The Department will issue a written report that identifies any concerns relating to Chapter compliance or other factors the applicant must consider.

For minor plans, the exploratory plan report shall inform the applicant whether the plan is found to be acceptable, acceptable with conditions, or unacceptable. Minor plans that are found acceptable or acceptable with conditions may submit site construction plans in accordance with Appendix 1 of this Chapter.

For major plans and rezonings where the Department finds the exploratory plan to be in general compliance with the standards of this Chapter and after the PLUS report is issued, those plans may advance to the Planning Board public hearing.

1.

The exploratory plan initial report shall list any other actions, environmental reports or other special studies required prior to subsequent plan submissions.

2.

If applicable, the Department shall respond to the appropriateness of a rezoning request.

3.

For any plan subject to Article 15 review; or for which a decision or recommendation is required by the Board of Adjustment, Planning Board, Historic Review Board, or Resource Protection Advisory Technical Advisory Committee or which is subject to any other special studies (i.e. floodplain, environmental impact assessment, Cockeysville, etc.); those decisions, recommendations, or studies must be issued and/or completed prior to record plan submission.

E.

Public hearing requirements. Upon a finding by the Department that the major plan or rezoning is in general compliance with this Chapter and, upon receipt of the written PLUS report, the exploratory plan shall be scheduled for a Planning Board public hearing on the next available hearing date. In the Traditional Neighborhood (TN) District, the design guideline for the entire development for architecture, signs, landscaping, streets, and public spaces shall be submitted.

1.

Exploratory plans without rezoning. Consideration of plans shall include public comment, discussions of the technical aspects of the plan, PLUS report and compliance with this Chapter. It is not the purpose of this hearing to examine the appropriateness of the proposed use or its intensity and scale.

2.

Rezonings. Following the introduction of a rezoning ordinance, an application shall be scheduled for public hearing. Applicants shall address the standards for zoning map amendment in Section 40.31.410 as part of the public hearing presentation. The public record shall remain open for thirty (30) calendar days following the public hearing.

F.

Department exploratory plan final report and rezoning recommendation.

1.

Exploratory plans without rezoning. The Department will issue a final report and may either find the exploratory plan acceptable, acceptable with conditions, or unacceptable, in which case a revised exploratory plan must be submitted. If an exploratory plan is found acceptable or acceptable with conditions, the applicant may submit site construction plans in accordance with Appendix 1 of this Chapter.

2.

Rezonings. At a Planning Board business meeting, the Department and Planning Board shall issue independent recommendations to either approve or conditionally approve the rezoning and the exploratory plan, or deny the rezoning. The written recommendations shall contain specific findings of fact resulting from the PLUS report, the public hearing, and Department analysis. The Department shall also issue an exploratory plan final report. Regardless of the recommendation and prior to the rezoning application being transmitted to County Council, the exploratory plan must be found acceptable. The recommendation report, including an acceptable exploratory plan shall be transmitted to County Council for consideration. The applicant may submit site construction plans in accordance with Appendix 1 of this Chapter following County Council approval of the rezoning.

G.

County Council rezoning hearing and decision. Upon receipt of a rezoning recommendation report from the Department and Planning Board, County Council shall hold a public hearing and render a decision. A simple majority or seven (7) votes shall be required to approve the rezoning ordinance when the Department recommends approval. A two-thirds (⅔) majority or nine (9) votes shall be required to approve the rezoning ordinance when the Department recommends disapproval. If County Council adopts the rezoning based upon the associated exploratory plan, the applicant may proceed to the record plan review stage. The effective date of the rezoning shall occur at plan recordation and the Official Zoning Map of New Castle County shall not be changed until that date. If there is no plan to be recorded associated with the rezoning, the effective date of the rezoning shall be the date the rezoning ordinance is signed by the County Executive. Any record plan submitted after County Council adopts a rezoning shall be in general conformance with the development depicted on the approved exploratory or preliminary plan that was relied upon by County Council when it granted the rezoning.

H.

Subsequent submission. An applicant shall have thirty-six (36) months from the date of the exploratory plan initial report to proceed to the record plan review stage, or the plan will expire. Pursuant to Table 40.31.390, the General Manager of the Department may grant an extension(s) for circumstances beyond the applicants control.

(Ord. No. 09-066, § 17, 10-13-2009; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 18-020, § 24, 7-10-2018; Ord. No. 22-072, § 12, 10-11-2022)

Editor's note— See note at Section 40.31.112.

A.

Record plan requirements. Upon approval of the construction plans, the applicant may submit a record plan pursuant to the requirements in Appendix 1 of this Chapter, including the applicable fee. Any agreements, surety, maintenance declarations or any other legal documents required by this Code shall also be submitted. In the Traditional Neighborhood (TN) District and in hamlets and villages the final design guidelines for the entire development for architecture, signs, landscaping, streets, and public spaces shall be submitted. The record plan must be in general conformance with the approved exploratory plan.

B.

Record plan review report. The Department will issue a written report that identifies any concerns relating to compliance with this Chapter, record plan submission requirements or other factors the applicant shall consider.

C.

Department review/approval. If the record plan and all supporting documents comply with this Chapter and any other applicable regulations, the General Manager of the Department shall approve the record plan and the Department will issue an approval letter. The General Manager of the Department shall also have the ability to approve all minor land development plans on behalf of County Council. Supporting documents shall include, but are not limited to:

1.

Letter of approval from DelDOT regarding transportation matters.

2.

Letter of approval from the State Fire Marshal.

3.

Approval from the Engineering Section of the Department regarding drainage and stormwater maters.

4.

Approval from the Department of Public Works regarding sanitary sewer design and easements.

D.

Council consent.

1.

For major plans, the record plan shall be forwarded to County Council for its consent. Upon receipt of the plan, County Council shall schedule the matter for its next public hearing, and may take one (1) of the following actions:

a.

Adopt a resolution approving the record major plan; or

b.

Table and refer the plan back to the Department, no more than twice, with specific questions relating to technical compliance with this Chapter, State or federal constitutional requirements or any other statute or ordinance for which compliance is required. Upon receipt of a Department recommendation reaffirming approval of the plan, County Council shall adopt the resolution of approval, unless a second referral is made because of additional questions or concerns. Upon receipt of the Department's recommendation reaffirming approval of the plan after review of any additional concerns raised by County Council, Council shall adopt the resolution of approval.

2.

County Council may use any one (1) or more of the above options subject to the limitations contained in each subparagraph.

E.

Action upon receipt of County Council referral. Upon receipt of specific questions from County Council, the Department shall respond with its findings and a recommendation. The recommendation shall be one (1) of the following:

1.

That the plan be approved, in which case County Council shall adopt the resolution of plan approval at its next scheduled meeting which provides Council with at least seven (7) days' notice of the Department's findings and recommendation, unless a second referral is made, in which case Council shall adopt the resolution of plan approval at its next scheduled meeting following the second approval which provides Council with at least seven (7) days' notice of the Department's findings and recommendation.

2.

That the Department has rescinded its previous approval of the plan for noncompliance, in which case County Council shall withdraw the resolution of plan approval.

(Ord. No. 09-066, § 18, 10-13-2009; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 18-020, § 25, 7-10-2018; Ord. No. 24-031, § 1, 8-27-2024)

Editor's note— Ord. No. 09-066, § 18, adopted October 13, 2009, amended Section 40.31.114 in its entirety to read as herein set out. Formerly, Section 40.31.114 pertained to record plan submission, and derived from Ord. No. 97-172, § 3(ch. 13, § 31.114), adopted December 31, 1997; Ord. No. 98-080, § 1(ch. 13, § 31.114), adopted September 22, 1998; Ord. No. 99-075, § 1, adopted December 14, 1999; Ord. No. 01-112, § 1(Exh. A), adopted March 12, 2002; Ord. No. 06-060, § 1(Exh. A), adopted September 26, 2006, and Ord. No. 09-037, § 1, 10-13-2009.

A.

Recordation. Upon final approval or consent pursuant to Division 40.31.100, the plan shall be recorded at the Recorder of Deeds.

B.

Commencement of construction. Commencement of construction must begin within sixty (60) months of the date of recordation or the plan will sunset in accordance with the sunsetting provisions outlined in Article 1 of this Chapter.

(Ord. No. 09-066, § 19, 10-13-2009)

Text amendment proposals shall be heard and reviewed by County Council after Department and Planning Board review and recommendation. Text amendments may be proposed by the Department, the County Executive, County Council and County boards.

A.

Pre-introduction review. Upon request, the Departments of Land Use and Law shall assist the proponent of any land use-related legislation in the drafting of such legislation. In addition, when a member of County Council proposes the legislation, the County Council member may direct Counsel to Council to draft the text amendment. At the discretion of the County Council member, a copy of the legislation may be provided to the Department of Land Use for comment. Under no circumstances shall a County Council member be prohibited from introducing any legislation because of any comments from the Departments of Land Use or Law. If a County Council member elects to submit the legislation to the Department of Land Use prior to introduction thereof, the Departments of Land Use and Law shall have ten (10) working days to provide comment to the County Council member, unless the County Council member grants the Departments additional time. This Section shall not apply to any emergency ordinance introduced pursuant to 9 Del. C. § 1157.

B.

Department review and report. At the Department's option, the proposed text amendment may be submitted to PLUS for review and comment. A preliminary report will be prepared by the Department summarizing the relevant issues and comments by PLUS.

C.

Department/Planning Board public hearing. Following introduction of an ordinance by County Council, a proposed text amendment will be scheduled for public hearing before the Planning Board. The purpose of the public hearing is to solicit public comments on the appropriateness of the proposed amendment.

D.

Department report. A written recommendation report by the Department and the Planning Board shall contain specific findings of fact resulting from the PLUS report if applicable, the public hearing and Department analysis. The recommendation may also include proposed substitute language. The Department report and proposed text amendment shall then be forwarded to County Council for consideration.

E.

County Council hearing and action. Upon receipt of a recommendation report from the Department, County Council shall hold a public hearing and render a decision.

(Ord. No. 97-172, § 3(ch. 13, § 31.120), 12-31-1997; Ord. No. 98-062, § 1(ch. 13, § 31.120), 9-22-1998; Ord. No. 99-080, § 2-2-2000; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 19-120, § 1, 7-14-2020)

Any amendment to a declaration of restrictions to which the County is either a party to or beneficiary of the covenants therein shall follow the procedure set forth below:

A.

Applicability. This Section applies only when the consent of the County is sought in order to amend a declaration of restrictions to which the County is either a party to or a beneficiary of the covenants created therein. As a prerequisite to action under this Section, the consent of all parties, other than the County, as required by the terms of the declaration of restrictions and applicable law, must be secured.

B.

Submission requirements. The applicant shall submit all deed restriction change materials to the Department pursuant to the provisions in Appendix 1 to this Chapter. Such materials shall include:

1.

The application, consisting of a copy of the existing recorded declaration of restrictions, the proposed declarations, and the reasons for the change. Upon receipt of the application, the Department of Land Use shall forward the application to the Clerk of County Council and the district Council member. With the exception of the County, the proposed declarations shall be signed by all parties subject to the restrictions.

2.

A draft resolution for County Council's consideration which is to also be provided in electronic form. After review and correction if necessary, the Department of Land Use will forward same to the Clerk of County Council and the district Council member.

3.

The applicable Departmental filing fee in accordance with Appendix 2 to this Chapter.

4.

Reserved.

5.

All current school taxes, county taxes and sewer service fees must be paid or not delinquent at the time of application.

6.

All other information and items as required by Section 40.31.130.

C.

PLUS review. At the Department's option, the proposed deed restriction change will be submitted to PLUS for their review and comment. A report will be prepared by the Department summarizing the relevant issues and agency comments.

D.

Department/Planning Board public hearing. The public hearing will be used to solicit information on the proposed change and to determine if a change is in the best interests of the parties to the restrictions and is consistent with the planning goals of the County.

E.

Department report.

1.

After consideration of the deed restriction change application, the Department and the Planning Board shall forward their recommendations in one (1) report to the Clerk of County Council and the district council member. The written recommendations by the Department and the Planning Board shall contain specific findings of fact resulting from the PLUS report, the public hearing and Department analysis.

2.

If the Department recommends conditional approval of the application, declarations and resolution, or if the Department finds that the original declarations or resolution must otherwise be revised to meet the current recommendation, the applicant may submit revised documents in conformance with the Department's recommendation. All revised documents shall be submitted to the Department within sixty (60) days of the issuance of the written recommendation report and shall include:

a.

Revised declarations approved by the Department as meeting such conditions or necessary revisions and signed by all parties subject to the restrictions with the exception of the County; and

b.

A substitute draft resolution in both written and electronic form.

F.

Upon the Department's review of the application, declarations and resolution, as may be revised, the Department shall forward the documents and the recommendation report to the Clerk of Council and the district Council member to be placed on the agenda for County Council's consideration.

G.

County Council hearing and action. Upon receipt of the documents and the recommendation report from the Department, County Council shall act on the resolution, or any substitute resolution, at one of its next three (3) regularly scheduled public meetings. A simple majority or seven (7) votes shall be required to approve the resolution when the Department recommends approval. A two-thirds (⅔) majority or nine (9) votes shall be required to approve the resolution when the Department recommends disapproval. If County Council approves the deed restriction change, the President of County Council shall sign such deed restrictions on behalf of County Council. The Clerk of County Council shall then record the deed restrictions with the New Castle County Recorder of Deeds. Copies of the recorded document shall be provided to the Department and the applicant.

H.

The applicant shall be responsible for all Recorder of Deeds filing fees.

I.

Exceptions. An amendment of a declaration of restrictions established solely to provide for the maintenance of open spaces and other common facilities for subdivisions as prescribed by this Chapter shall be exempt from the public hearing process. County Council may adopt a resolution approving such amendment upon receipt of a favorable recommendation from the Department and the Office of Law. The submission requirements in Subsection B. shall be followed for this Subsection; additionally, the resolution in the explanatory whereas clauses and the resolved clause shall cite this Subsection, the reason for the exception, and note approval from the Department and Office of Law.

(Ord. No. 97-172, § 3(ch. 13, § 31.130), 12-31-1997; Ord. No. 00-130, § 2, 6-12-2001; Ord. No. 04-154, § 3, 1-25-2005; Ord. No. 06-060, § 1(Exh. A), 9-26-2006; Ord. No. 07-099, § 1, 9-25-2007; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 15-024, § 1, 10-27-2015; Ord. No. 18-020, § 26, 7-10-2018)

The Board of Adjustment is responsible to hear and render decisions on special use permits, dimensional (area) variances, use variances, beneficial use permits and any other applications as provided in Article 30. The process for review and action for each application shall be as follows:

A.

Preapplication conference. Applicants are encouraged to confer with the Department to determine the type of application to be sought.

B.

Submission requirements. All submissions shall comply with the requirements of Appendix 1 to this Chapter and any Board of Adjustment rules. Any Board of Adjustment application which would require the filing of a land development plan for implementation shall be accompanied by a simultaneous exploratory sketch plan submission. The Department shall review the exploratory sketch plan for conformity with the Board of Adjustment application; however, the burden of developing the Board of Adjustment application shall rest with the applicant.

C.

Department review/report. At the Department's option, the proposed Board of Adjustment application may be submitted to PLUS for their review and comment. A report shall be prepared by the Department summarizing PLUS comments and any other relevant issues. The report shall be submitted to the Board of Adjustment prior to the public hearing.

D.

Public hearing/decision. The Board of Adjustment shall render a decision based upon the public hearing and the Department's report.

(Ord. No. 97-172, § 3(ch. 13, § 31.140), 12-31-1997; Ord. No. 98-080, § 1(ch. 13, § 31.140), 9-22-1998; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

A.

Preapplication conference. Applicants are encouraged to confer with the Department prior to submitting the environmental impact assessment report.

B.

Department review and analysis. The environmental impact assessment report shall be submitted to appropriate RPTAC agencies for their review and comment. The Department shall review the RPTAC agency comments and shall issue a report containing RPTAC comments and the Departments determination.

C.

Reserved.

(Ord. No. 97-172, § 3(ch. 13, § 31.150), 12-31-1997; Ord. No. 99-075, § 1, 12-14-1999)

The Department's review shall be based on the standards of this Chapter. The following sections also guide the award of such permits or approvals.

(Ord. No. 97-172, § 3(ch. 13, div. 31.200), 12-31-1997; Ord. No. 12-084, § 5, 5-10-2016)

A limited or special use shall require the submission of a site plan unless a land development plan or parking plan is otherwise required. The Department may at its discretion waive any site plan requirement where in the opinion of the Department the proposed use will have a limited impact on the surrounding property and roads. The Department shall consider the traffic, parking, lighting, noise, litter, event duration, event hours, and other similar criteria when considering this waiver.

(Ord. No. 97-172, § 3(ch. 13, § 31.210), 12-31-1997; Ord. No. 99-075, § 1, 12-14-1999; Ord. No. 17-044, § 8, 10-10-2017; Ord. No. 18-020, § 27, 7-10-2018)

Where required, a parking plan shall be submitted unless a land development plan is otherwise required.

(Ord. No. 97-172, § 3(ch. 13, § 31.220), 12-31-1997; Ord. No. 01-112, § 1(Exh. A), 3-12-2002)

A property line adjustment is limited to the relocation of a common property line between two (2) residentially-zoned parcels that are proposed for residential use, provided the resulting lots are in conformance with this Chapter or with a variance granted by the Department or Board of Adjustment.

A.

Applicability. A property line adjustment shall not be processed if:

1.

The subject parcels were created on an open space subdivision plan, planned unit development or alternative development option.

2.

The adjustment would result in the transfer of a dwelling from one parcel to the other.

3.

Buildings, structures or uses on either of the subject parcels do not conform with this Chapter and do not have confirmed nonconforming status under Article 8.

B.

Submission requirements. The submission shall include an SLD-1 application and other materials as set forth in Appendix 1 to this Chapter to include a property line adjustment survey.

C.

Department review. If the property line adjustment survey complies with the requirements of this section, the General Manager of the Department or his or her designee shall sign the survey.

D.

Deed recordation. Upon approval of the application and survey, new deeds with revised legal descriptions of the two (2) subject parcels must be recorded with the New Castle County Recorder of Deeds. The deeds shall include the approved survey as an exhibit. Department approval of the property line adjustment shall expire in one (1) year from the date the General Manager signs the survey unless both deeds are revised consistent with the approved survey and recorded.

(Ord. No. 18-020, § 28, 7-10-2018)

Editor's note— Prior to the reenactment of Section 40.31.230 by Ord. No. 18-020, § 28, adopted July 10, 2018, Ord. No. 01-112, § 1(Exh. A), adopted March 12, 2002, repealed § 40.31.230 in its entirety. Formerly, said section pertained to sign permit as adopted by Ord. No. 97-172, § 3(ch. 13, § 31.230), adopted Dec. 31, 1997. See the Unified Development Comparative Table.

A zoning permit shall be required prior to receiving a building permit for any use or structure permitted by this Chapter. The zoning permit shall only be approved upon a determination by the Department that the application complies with all of the provisions of this Chapter. A site plan or other relevant plans may be required.

(Ord. No. 97-172, § 3(ch. 13, § 31.240), 12-31-1997)

The Department shall issue a written zoning verification responding to written inquiries relating to the provisions of this Chapter. The purpose of the verification shall be to address nonconforming situations (Section 40.08.310), permitted uses, zoning districts and standards.

(Ord. No. 97-172, § 3(ch. 13, § 31.250), 12-31-1997)

No new or existing building or structure shall be occupied or used, and no change in the character or use of land or of a building shall occur, until a certificate of occupancy has been issued by the County certifying that such building or use complies with all County regulations. This may be determined by an inspection by the County or an independent inspector authorized by the County.

(Ord. No. 97-172, § 3(ch. 13, § 31.260), 12-31-1997)

A floodplain permit shall be required for all proposed construction or other development in any special flood hazard area as defined in Division 40.10.300. Appendix 1 to this Chapter contains application requirements.

(Ord. No. 97-172, § 3(ch. 13, § 31.270), 12-31-1997; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 14-126, § 11, 1-13-2015)

Editor's note— Ord. No. 14-126, § 11, adopted January 13, 2015, changed the title of Section 40.31.270 from "Floodplain development permit" to "Floodplain permit."

A.

The delineation of the floodplain district may be revised, amended, and/or modified by County Council in compliance with the National Flood Insurance Program when:

1.

There are changes in flood elevations through natural or other causes; or

2.

Changes are indicated by future hydrologic and hydraulic studies.

B.

No revision to the floodplain district shall be made without prior consultation with the Department and the approval of the Federal Insurance Administration.

(Ord. No. 97-172, § 3(ch. 13, § 31.271), 12-31-1997)

An Historic permit shall be required for all proposed construction or other development in any Historic overlay zoning district pursuant to Section 40.15.160 of the County Code. Appendix 1 to this Chapter contains application requirements.

(Ord. No. 97-172, § 3(ch. 13, § 31.280), 12-31-1997; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 12-084, § 5, 5-10-2016; Ord. No. 20-071, § 12, 10-27-2020)

Editor's note— Ord. No. 20-071, § 12, adopted October 27, 2020, changed the title of Section 40.31.280 from "Historic permits and demolition by neglect" to "Historic permits." The historical notation has been preserved for reference purposes.

All extractive use operations involving the excavation of earth products, including those permitted as nonconforming uses pursuant to Article 8 shall be required to have a license. A performance bond shall be provided to the Department in an amount determined by the Department.

(Ord. No. 97-172, § 3(ch. 13, § 31.290), 12-31-1997; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

A.

Each license issued under this Article shall be for the sole use and benefit of the licensee to whom it is issued and shall not be transferred without the approval of the Department. No transfer will be permitted unless the transferee is in full compliance with this Article.

B.

Whomever intentionally uses, permits the use, or attempts to use or permit the use of a license issued under this Chapter by or on behalf of a person other than the licensee or his or her employee shall be fined under Division 40.31.900.

(Ord. No. 97-172, § 3(ch. 13, § 31.291), 12-31-1997)

A.

All license applications and renewals thereof required under this Article shall be made to the Department.

B.

Original applications for extractive use operations in a Planned Extractive Use District (PEUD) not legally in existence on or before December 13, 1983, shall include an approved copy of the record major plan following recordation by the Recorder of Deeds. Such applications shall be reviewed by the Department. If the application or plan does not conform to the requirements of all applicable laws and ordinances, the Department shall disapprove such application in writing, stating the reasons therefor. If the application and plan conform to all applicable laws and ordinances, the Department shall issue a license in a timely manner, subject to any condition specified in this Article.

(Ord. No. 97-172, § 3(ch. 13, § 31.292), 12-31-1997)

An exception from any of the license requirements applicable to extractive use operations legally in existence prior to and engaged in substantial operation within the year before December 13, 1983, may be granted by resolution of County Council upon the recommendation of the Department, if the Department finds, based upon criteria, including, but not limited to, input from the TAC, the history of the operation, its size, the amount of material extracted and remaining to be extracted, the land uses surrounding the site, the location of wells on adjoining properties, and the other environmental and land use considerations, that the continuation of the existing extractive use may be allowed without substantial detriment to the public good and without substantially impairing the intent and purpose of this Article to prevent environmental impairment and land use incompatibilities.

(Ord. No. 97-172, § 3(ch. 13, § 31.293), 12-31-1997)

A.

Under this Article, the owner or licensee shall submit semi-annual reports, including certification from professional engineers that the operation of the extractive use is in conformance with all approved plans and reports. Such semi-annual reports shall begin upon commencement of extractive operations and continue for the time period specified in the approved restoration plan. They shall include the following:

1.

Volume of materials removed.

2.

Areas and depths of excavation.

3.

Current locations of fences.

4.

Results of groundwater monitoring.

5.

Status of restoration activity.

6.

Any contemplated changes in operating practice.

B.

The written reports shall be maintained by the Department.

(Ord. No. 97-172, § 3(ch. 13, § 31.294), 12-31-1997)

A.

Not less than sixty (60) days prior to the expiration date of an extractive use operator's license, the holder of such license must file a completed application of renewal with the Department.

B.

The Department shall evaluate the information contained in the application and shall consult with the TAC. The Department's evaluation and recommendation may include appropriate modifications in the excavation plan, an operating report, restoration, drainage, erosion or sedimentation plans, as well as any additional special conditions deemed advisable by it to prevent environmental impairment or other detriment to the public good. Based upon compliance with this recommendation, the Department shall act upon the renewal application.

C.

If the renewal application is not acted upon before the expiration of the current license, that license shall remain in effect until the renewal application is either granted or denied.

(Ord. No. 97-172, § 3(ch. 13, § 31.295), 12-31-1997)

A.

The authorized representatives of the Department shall have access to the site during normal working hours for the purpose of inspection. These representatives shall, while on the site, conduct themselves in a manner which minimizes interference with the operation of the extractive use.

B.

The owner and/or operator of an extractive use found to be operating without a license shall be subject to a fine of one hundred dollars ($100.00) per offense. Each day of operation and each truckload of material removed from the premises of an extractive use operating without a license shall constitute a separate offense.

C.

The owner, operator or its designee shall inspect the premises daily. Upon discovery of any illegally dumped material, the owner, operator or its designee shall notify the Department immediately.

D.

If, as a result of on-site inspection or other verifiable information, the Department finds that the operation is not in compliance with the conditions under which the license or the renewal thereof was granted, the Department may suspend the license immediately by notifying the owner or operator, and by posting the property. Within seventy-two (72) hours, the owner or operator of the extractive use shall have the right to meet with the Department to show cause why the license should not be suspended or revoked. If, as a result of this meeting, the Department determines that the extractive use operation is not in compliance, it may grant up to sixty (60) days to the owner or operator to achieve compliance. During this time period, if deemed appropriate by the Department, the suspension of the license may be lifted. However, if the extractive use operation is not in compliance at the end of the sixty (60) day period, the license shall be revoked.

E.

If, as a result of on-site inspection or other verifiable information, the Department finds that the operation has caused a depletion or degradation of water supply wells and/or aquifers on the subject property or on abutting or nearby properties, the Department shall suspend the license immediately by notifying the owner or operator, and by posting the property. Within seventy-two (72) hours, the owner or operator of the extractive use shall have the right to meet the Department to show cause why the license should not be suspended or revoked. Such suspension shall not be lifted unless and until the depletion or degradation has been remedied by the owner and/or operator. Where deemed appropriate by the Department, such remedy may include a temporary or permanent replacement water supply.

F.

Any person aggrieved by the suspension or revocation of a license under this Section may appeal to the Board of Licenses and Inspections as provided by this Chapter.

(Ord. No. 97-172, § 3(ch. 13, § 31.296), 12-31-1997)

A.

Grounds. The performance bond required under this Article shall be forfeited upon the failure of the holder of a license granted under this Article to perform in the manner set forth in the conditions on which the license was granted. Revocation of a license granted under this Article shall also cause forfeiture of the performance bond.

B.

Notice. The Department shall notify the owner and/or operator by registered mail of its intention to initiate forfeiture proceedings. If the owner or operator cannot be located or will not accept the registered letter, notice shall be given by publication in a newspaper of general circulation at least once a week for three (3) consecutive weeks in the area where the operator and/or owner was last known to reside, and the property shall be posted.

C.

Hearing. The owner or operator shall have sixty (60) days to meet with the Department to show cause why the bond should not be forfeited. On a showing of cause by the owner or operator, the Department shall provide for a reasonable time, but not more than three (3) months, for the owner or operator to fully comply with the performance of the conditions on which the license was granted under this Article. Upon failure of the owner or operator to show cause, the bond shall be forfeited, and notice by the Department shall be given to the legal owner of the land. If a showing of intention to restore compliance with conditions of the license is not submitted to the Department within thirty (30) days from the date of forfeiture, the bond deposit shall be forfeited.

D.

Operation after the forfeiture of bond. No owner or operator may conduct extractive operations within the County if he or she has previously forfeited any bond posted pursuant to an extractive use operation, unless, on application by the applicant, he or she repays the County the cost of reclamation if the County has restored the land.

(Ord. No. 97-172, § 3(ch. 13, § 31.297), 12-31-1997)

A.

Modifications of the approved excavation plan, operating report, restoration plan, or drainage, erosion and sedimentation plans required shall be governed by the applicable sections of this Chapter and shall include consultation with the TAC. Modification of the approved excavation plan, operating report, restoration plan, drainage, erosion and sedimentation plans required shall be made by application to the Department, which shall consult with the TAC. The Department, if it deems it necessary, may convene a meeting of the TAC to discuss the technical aspects of the proposed modification. If requested, the applicant shall appear and answer questions concerning the application. The Department shall, pursuant to recommendation of the TAC, take appropriate action on the application. No modification of any plan or report required shall be allowed to take effect prior to the required approval described in this Section.

B.

An extractive use shall be considered abandoned if the amount of material which has been extracted for a period of one (1) year is less than ten (10) percent of the amount required by the approved excavation plan and operating report or the approved modifications thereof according to Subsection A, and if restoration of the site has not taken place in the manner prescribed by the approved restoration plan or the approved modifications thereof according to Subsection A. An abandoned extractive use operation shall be subject to all remedies available to the County.

C.

An extractive use may be considered halted when extraction of material has ceased temporarily due to market conditions or other reasonable cause as determined by the Department. The licensee claiming such temporary cessation shall submit the cause thereof in writing to the Department within six (6) months from the beginning of such cessation. The Department shall determine whether the extractive use should be declared halted. If not declared halted, such extractive use must resume operation within a year from the time extraction of materials ceased, or within thirty (30) days from such determination, whichever time period is longer. An extractive use which fails to resume operation within such time period shall be subject to Subsection B. An extractive use which has been declared halted must resume operation when the Department determines that the adverse conditions causing temporary cessation have passed. No operation may be halted for a period exceeding twenty-four (24) consecutive months, after which time extractive use operation shall be resumed or final restoration shall commence. The license renewal requirements under Section 40.31.295 shall not abate and the licensee shall comply fully with all pollution control and water supply depletion and degradation sections of this Article during any period in which the extractive use is halted. Failure to comply with this Article shall subject the extractive use operation to all remedies available to the County.

(Ord. No. 97-172, § 3(ch. 13, § 31.298), 12-31-1997; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

The purpose of the preapplication conference is to familiarize the applicant with any County concerns and with the provisions of this Chapter, as well as to allow the Department to assess the proposal and identify any problems or concerns. Upon request the Department will schedule a preapplication conference.

(Ord. No. 97-172, § 3(ch. 13, § 31.310), 12-31-1997)

A.

Forms. All application forms must be signed by the legal owner or an authorized agent of the legal owner and any other person having a contractual interest in the application. The application form shall contain a statement granting the Department a right of reasonable access to view, enter and inspect the property, on-site uses or buildings for compliance with this Chapter.

B.

Payment of County taxes. All current County taxes, school taxes and sewer service fees must be paid or not delinquent at the time of application.

C.

Application completeness. The Department shall determine, within ten (10) days of submission, whether the application is complete. If it is not complete, it will be returned to the applicant with an explanation of its deficiencies.

D.

Fees. All applications shall be accompanied by a fee. Fees are set by the Department with approval of the administration and are listed in Appendix 2 to this Chapter.

E.

Withdrawal of application. An applicant has the right to withdraw an application any time prior to a final decision. Such withdrawal shall be in writing and submitted to the Department. All application fees shall be forfeited.

F.

Public notice of land development plans.

1.

Online notice. The Department shall post the receipt of all major and minor land development plans and resubdivision plans on a web page established for legal notices on the County's website within five (5) days of the receipt of a completed application.

2.

Posted notice. The applicant shall erect a posted notice sign for all major and minor land development plans and resubdivision plans within ten (10) days of submission of a completed initial exploratory sketch plan to the Department.

a.

Location. The posted sign shall be placed in a conspicuous location (no greater than seven (7) feet from a residential or local road right-of-way, and no greater than ten (10) feet from a collector or arterial right-of-way); one (1) along each adjacent right-of-way and shall be perpendicular to the street so as to be clearly visible to the public. The Department shall have the discretion to require the applicant to move the posted sign to a more acceptable location if it is determined by the Department that the location is inappropriate for public viewing. The Department shall also have the discretion to permit only one (1) posted sign on corner lots of less than one (1) acre.

b.

Size. The posted sign shall be double-faced and each side shall consist of a four (4) foot by four (4) foot laminated sign with a yellow background with two (2) inch black lettering in a sans serif typeface.

c.

Plan information. The sign shall depict the lot configuration of residential applications or building footprint with square footage, paving, and landscaping in the case of nonresidential applications. The application number, the applicant's name and phone number, the name of the plan, and the tax parcel number(s) shall be prominently displayed on the sign. The applicant shall be responsible for cleaning and replacing any posted sign (no more than once) which has been defaced to the extent that the information to be conveyed is no longer legible.

d.

Proof of posting. The applicant shall provide the Department with photographic proof of posting and a signed affidavit. The Department will not commence review of the plan until such proof is provided. In addition, the application shall be considered withdrawn if the required affidavit is not received by the Department within twenty (20) days of the accepted initial exploratory sketch plan submission. Failure of any such posted notice to remain in place after the notice has been posted shall not be deemed a failure to comply with these standards or be grounds to challenge the validity of any decision made on the application unless the notice was removed by the applicant or at his or her direction.

e.

Removal of posted notice. The applicant shall remove the posted notice sign no later than ten (10) days after recordation, expiration or withdrawal of the plan.

(Ord. No. 97-172, § 3(ch. 13, § 31.320), 12-31-1997; Ord. No. 99-075, § 1, 12-14-1999; Ord. No. 00-090, § 1, 11-28-2000; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 04-059, § 1(Exh. A), 7-13-2004; Ord. No. 06-060, § 1(Exh. A), 9-26-2006; Ord. No. 07-052, § 1, 7-24-2007; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 18-020, § 29, 7-10-2018; Ord. No. 22-053, § 5, 10-25-2022; Ord. No. 24-057, § 7, 9-24-2024)

For the purpose of this Chapter, whenever a response or decision is required by the Department, it shall be issued in writing within twenty (20) days of receipt of a complete submission. This requirement may be waived by mutual consent of the Department and the applicant.

(Ord. No. 97-172, § 3(ch. 13, § 31.330), 12-31-1997)

Except as required below, the Department shall be responsible for ensuring notice of a public hearing through newspapers when required by state law, online posting, posted notice in public buildings as determined by the Department, and mailed notice for meetings of the Board of Adjustment, Planning Board, Resource Protection Area Technical Advisory Committee, Historic Review Board and Design Review Advisory Committees.

A.

Text amendments and rezonings. Notice requirements for text amendments and rezonings shall comply with the applicable provisions of State law, including notice in a newspaper of general circulation, as may be amended from time to time.

B.

Other applications.

1.

Online notice. The Department shall post applicant rezonings and all other applications (e.g., deed restriction changes; subdivision, area, use and floodplain variance requests; beneficial use appeals; appeals of Departmental decisions; major land development plans; Historic Review Board applications; RPATAC applications (Resource Protection Area Technical Advisory Committee); Design Review Advisory Committee applications); and other Planning Board and Board of Adjustment applications on a web page established for legal notices on the County's website. Notice shall appear at least fourteen (14) calendar days prior to the public hearing date and shall contain the following information:

a.

The type of application.

b.

A short description of the proposed action.

c.

A description of the parcel and the approximate street location or address.

d.

The location, date, and time of the public hearing.

e.

Information on where full details of the application may be obtained, including the hours of availability and phone number.

2.

Notice to owner/applicant. The Department shall notify by mail the owner and/or applicant of the time and place of the hearing.

3.

Mailed notice. When a public hearing is required, the Department shall send a copy of the legal notice to the last known address of all property owners within a three hundred (300) foot radius of the property or twelve (12) different property owners, whichever is greater; no less than ten (10) calendar days prior to the public hearing. A copy of the legal notice for public hearings for all applications shall also be sent to the respective civic organizations registered with the Department of Land Use immediately surrounding the applicant's property and to the area umbrella civic association.

4.

Posted notice. The applicant shall erect a public hearing posted notice sign on all subject properties at least ten (10) days in advance of a public hearing, except for residential Board of Adjustment applications and DRAC applications (not including minor and major land development plans) referred by the Department for recommendation. The Department shall post BOA residential variance applications and DRAC applications that are not land development plans.

a.

Location. The posted sign shall be placed in a conspicuous location (no greater than seven (7) feet from a residential or local road right-of-way, and no greater than ten (10) feet from a collector or arterial right-of-way); one (1) along each adjacent right-of-way and shall be perpendicular to the street so as to be clearly visible to the public. The Department shall have the discretion to require the applicant to move the posted sign to a more acceptable location if it is determined by the Department that the location is inappropriate for public viewing. The Department shall also have the discretion to permit only one (1) posted sign on corner lots of less than one (1) acre.

b.

Size. The posted sign shall be double-faced and each side shall consist of a four (4) foot by four (4) foot laminated sign with a yellow background with two (2) inch black lettering in a sans serif typeface. If a posted sign already exists at the site, the notice for the public hearing may be affixed to the existing sign.

c.

Plan information. The sign shall depict the lot configuration of residential applications or building footprint with square footage, paving, and landscaping in the case of nonresidential applications. The applicants name and phone number, the name of the plan, the application number, and the tax parcel number(s) shall be prominently displayed on the plan. In addition, the date, time, location and hearing board shall be clearly visible. The applicant shall be responsible to clean or replace any posted sign (no more than once) which has been defaced to the extent that the information to be conveyed is no longer legible.

d.

Proof of posting. The applicant shall provide the Department with photographic proof of posting and a signed affidavit prior to the public hearing. Failure of any such posted notice to remain in place after the notice has been posted shall not be deemed a failure to comply with these standards or be grounds to challenge the validity of any decision made on the application unless the notice was removed by the applicant or at his or her direction.

e.

Removal of posted notice. In addition, the applicant shall remove the posted notice sign no later than ten (10) days after the public hearing being advertised has been completed. If the posted notice sign is serving more than one (1) purpose, that is, other public hearings are pending or the land development plan is yet to be recorded, the posted notice sign shall remain until after recordation, expiration or withdrawal of the plan.

C.

County Council public hearings.

1.

Text amendments and County initiated comprehensive rezonings. Notice requirements for text amendments and County initiated comprehensive rezonings need only comply with the applicable provisions of State law, as may be amended from time to time.

2.

Other land use applications. All public hearings held by County Council shall be advertised pursuant to County Council's rules of procedure except as provided in Subsection C.1.

(Ord. No. 97-172, § 3(ch. 13, § 31.340), 12-31-1997; Ord. No. 00-090, § 2, 11-28-2000; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 03-107, § 1(Exh. A), 3-23-2004; Ord. No. 04-059, § 1(Exh. A), 7-13-2004; Ord. No. 05-087, § 7, 10-25-2005; Ord. No. 06-031, § 3, 7-11-2006; Ord. No. 06-060, § 1(Exh. A), 9-26-2006; Ord. No. 07-052, § 2, 7-24-2007; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 22-053, § 5, 10-25-2022)

If an applicant seeks a continuance of a scheduled public hearing of the Planning Board, Board of Adjustment, Historic Review Board, or other administrative body, such request, accompanied by the appropriate fee, shall be made by the applicant in writing to the Department prior to the scheduled time and date of the hearing, or the applicant may request the continuance at the scheduled public hearing. An applicant shall be allowed to seek a continuance no more than twice for the same application.

(Ord. No. 97-172, § 3(ch. 13, § 31.350), 12-31-1997)

A.

Order of proceedings. All proceedings before the Planning Board, Board of Adjustment, Historic Review Board or other administrative bodies shall be conducted in accordance with the rules of procedure adopted by each board or administrative body.

B.

Testimony. In the event any testimony or evidence is excluded by the body, the person offering such testimony or evidence may request an opportunity to make a proffer in regard to such testimony or evidence for the record. Such proffer shall be made at the public hearing.

C.

Close of public hearing. Upon the completion of all testimony, the hearing shall be closed. No further testimony or evidence shall be taken during public comment periods. However, the applicant may be asked questions or allowed to comment on any proposed conditions to the granting of the application.

D.

Record.

1.

The body conducting the public hearing shall record the public hearing. The taped record and all evidence submitted during the hearing shall constitute the record, along with the written decision of the body.

2.

All records shall be public records, open for inspection, upon reasonable notice, at the offices of the Department during normal business hours.

3.

Upon application to the Department, a copy of the public hearing record may be obtained by any person by paying the duplication cost of the record.

(Ord. No. 97-172, § 3(ch. 13, § 31.360), 12-31-1997)

After the close of the public hearing before the Planning Board, Board of Adjustment, Historic Review Board or other administrative body, the body conducting the hearing shall consider the merits of the application, all relevant evidence and testimony, and the Department's report. The body conducting the hearing shall thereafter render a decision or recommendations, as appropriate, either to approve, approve with conditions, or disapprove the application based upon the criteria set forth in this Chapter.

A.

All boards or administrative bodies shall issue a written decision or recommendation within twenty (20) days of the date of the hearing, except as noted elsewhere in this Chapter. Provided, however, that the board or body may announce an oral decision following the hearing to be supplemented by a written decision.

B.

All decisions or recommendations shall be set forth in writing and include the following:

1.

A statement of specific findings of fact including the basis upon which such facts were determined.

2.

A brief statement of the applicable provisions of this Chapter or any other relevant standards or regulations.

3.

An analysis based upon the applicable provisions of this Chapter and the findings of fact.

4.

A statement of approval, approval with conditions, or disapproval.

5.

Any other information deemed necessary by the board or administrative body.

C.

Council votes. Whenever County Council is required to vote on an action, a simple majority or seven (7) votes shall be required to approve any land use application when the Department recommends approval. A two-thirds (⅔) majority nine (9) votes shall be required to approve the land use application when the Department recommends disapproval.

(Ord. No. 97-172, § 3(ch. 13, § 31.370), 12-31-1997; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 04-059, § 1(Exh. A), 7-13-2004; Ord. No. 04-154, § 3, 1-25-2005; Ord. No. 09-066, § 20, 10-13-2009)

This Chapter is intended to protect the interests of both present and future residents, landowners, neighbors, and the general public. In rendering a decision, the Planning Board, Board of Adjustment, Historic Review Board or administrative body shall be bound to follow the provisions of this Chapter. The following rules shall govern decisions:

A.

All decisions shall be based solely upon the provisions of this Chapter.

B.

When interpretation of this Chapter is required in rendering a decision, the legislative intent of County Council shall be used to guide all decisions.

(Ord. No. 97-172, § 3(ch. 13, § 31.380), 12-31-1997)

A.

Land use application decisions are effective as of the date the written decision is issued. The decision may be either one of approval, conditional approval, or disapproval. The expiration time limits of a land use application decision contained in Table 40.31.390 shall commence on the date of the first written decision within each stage of the application review process. Where indicated in Table 40.31.390, the General Manager of the Department may grant three (3) month extensions of time for circumstances beyond the applicant's control and shall state in writing the reasons therefor.

Table 40.31.390
TIME LIMITS

B.

After a rezoning of a property by County Council, no ordinance to amend the zoning map regarding the zoning designation of the property shall be considered until the expiration of three (3) years from the date of the rezoning except for zoning corrections pursuant to Section 40.02.110 C, New Castle County initiated rezonings, and comprehensive rezonings. No zoning map amendment that would change the zoning designation of property depicted on a record plan shall be considered until the expiration of the time limit provided for a record plan in Table 40.31.390 above, except for zoning corrections pursuant to Section 40.02.110 C.

(Ord. No. 97-172, § 3(ch. 13, § 31.390), 12-31-1997; Ord. No. 98-062, § 1(ch. 13, § 31.390), 9-22-1998; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 08-078, § 1, 9-30-2008; Ord. No. 09-066, § 20, 10-13-2009; Ord. No. 09-068, § 1(Exh. A), 11-10-2009; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

In determining whether a zoning map amendment should be recommended or approved, all of the following factors shall be considered:

A.

Consistency with the Comprehensive Development Plan and the purposes of this Chapter. In areas of new development, consistency with the Comprehensive Development Plan shall be considered to meet the Subsections B and C, unless compelling evidence indicates the proposed amendment would threaten public health, safety, and general welfare.

B.

Consistency with the character of the neighborhood.

C.

Consistency with zoning and use of nearby properties.

D.

Suitability of the property for the uses for which it has been proposed or restricted.

E.

Effect on nearby properties.

F.

Recommendations by the Department.

(Ord. No. 97-172, § 3(ch. 13, § 31.410), 12-31-1997; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

In determining whether a text amendment shall be recommended or approved, all of the following factors shall be considered:

A.

Implementation of a new portion of the Comprehensive Development Plan.

B.

Implementation and achievement of the Comprehensive Development Plan's goals and objectives.

C.

Consistency with the provisions of this Chapter and standards for similar uses.

D.

Necessity to respond to State and/or federal legislation.

E.

Flexibility in meeting the objectives of this Chapter.

F.

Changes to conditions, interpretations, and/or clarifications to existing language for new uses.

G.

Consideration of specific problems found in this Chapter.

(Ord. No. 97-172, § 3(ch. 13, § 31.420), 12-31-1997; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

A.

Certain land uses and developments present unique conditions with respect to their relationship to the community. Such uses and developments are identified as special uses in each particular zoning district.

B.

Approval of a special use application shall be dependent upon findings that the use complies with this Chapter and the following standards:

1.

The use meets the requirements of Division 40.03.300.

2.

The use is consistent with the Comprehensive Development Plan.

3.

The use is compatible with the character of the land in the immediate vicinity.

4.

The design minimizes the adverse effects, including visual impact on adjacent lands.

5.

The use minimizes adverse impacts on the environment or government services.

6.

The intensity of the use shall not exceed that permitted by Article 5. A lower intensity may be mandated based upon the record.

(Ord. No. 97-172, § 3(ch. 13, § 31.430), 12-31-1997)

A.

The Board of Adjustment may impose restrictions and conditions on the approval of a special use to:

1.

Ensure the special use is developed as presented in drawings, exhibits, and assertions made at the public hearing.

2.

Ensure the general purposes, goals, and objectives of the Comprehensive Development Plan and this Chapter are met.

3.

Prevent or minimize the adverse effects from the proposed use and development on other properties in the neighborhood, and on the public health, safety, and general welfare.

(Ord. No. 97-172, § 3(ch. 13, § 31.431), 12-31-1997)

The County may institute proceedings to revoke a special use permit for violation of the conditions of approval or because the permit has expired. The County shall provide notice to the landowner and the public in the same manner as was provided for the establishment of the special use.

(Ord. No. 97-172, § 3(ch. 13, § 31.432), 12-31-1997)

Editor's note— Ord. No. 14-126, § 12, adopted January 13, 2015, repealed the former Section 40.31.440 in its entirety, which pertained to environmental impact assessment reports, and derived from Ord. No. 97-172, § 3(ch. 13, § 31.440), adopted December 31, 1997; Ord. No. 98-080, § 1(ch. 13, § 31.440), adopted September 22, 1998, and Ord. No. 10-113, § 1(Exh. A), adopted January 18, 2011.

A.

The Board of Adjustment shall hear and decide applications for a variance from the provisions of any zoning code or regulation if all of the following are satisfied:

1.

The variance sought will not be contrary to the public interest.

2.

Owing to special conditions or exceptional situation, a literal interpretation of the provisions of any zoning code or regulation at issue will result in unnecessary hardship or exceptional practical difficulties to the owner of the property.

3.

If the variance were granted, the spirit of the zoning code or regulation provision at issue shall be fully observed and substantial justice done.

4.

Such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of any zoning code, regulation or map.

B.

Floodplain variance applications. When considering floodplain variance applications, the Board of Adjustment shall also consider the following factors:

1.

The danger that materials may be swept onto other lands to the injury of others.

2.

The danger to life and property due to flooding or erosion damage.

3.

The susceptibility of the proposed development and its contents (if applicable) to flood damage and the effect of such damage on the individual owner.

4.

The importance of the services provided by the proposed development to the community.

5.

The availability of alternative locations for the proposed use which are not subject to, or are subject to less, flooding or erosion damage.

6.

The necessity to the facility of a waterfront location, where applicable, or if the facility is a functionally dependent use.

7.

The compatibility of the proposed use with existing and anticipated development.

8.

The relationship of the proposed use to the comprehensive plan for that area.

9.

The safety of access to the property in times of flood for ordinary and emergency vehicles.

10.

The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site.

11.

The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, and streets and bridges.

C.

Limitations for floodplain variances. An affirmative decision on a variance request shall only be issued upon:

1.

A showing of good and sufficient cause. A "good and sufficient" cause is one that deals solely with the physical characteristics of the property and cannot be based on the character of the planned construction or substantial improvement, the personal characteristics of the owner or inhabitants, or local provisions that regulate standards other than health and public safety standards.

2.

A determination that failure to grant the variance would result in exceptional hardship due to the physical characteristics of the property.

3.

Increased cost or inconvenience of meeting the requirements of these regulations does not constitute an exceptional hardship to the applicant.

4.

A determination that the granting of a variance for development within any designated floodway, or special flood hazard area with base flood elevations but no floodway, will not result in increased flood heights beyond that which is allowed in these regulations.

5.

A determination that the granting of a variance will not result in additional threats to public safety; extraordinary public expense, nuisances, fraud on or victimization of the public, or conflict with existing local laws.

6.

A determination that the structure or other development is protected by methods to minimize flood damages.

7.

A determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

D.

The Board of Adjustment shall notify, in writing, any applicant to whom a variance is granted for a building or structure with a lowest floor elevation below the base flood elevation that the variance is to the floodplain management requirements only, and that the cost of federal flood insurance will be commensurate with the increased risk.

E.

All case law that has developed, and continues to develop, interpreting 9 Del. C. § 1313 shall be adhered to by the Board of Adjustment (Jurisdiction of the Board of Adjustment).

(Ord. No. 97-172, § 3(ch. 13, § 31.451), 12-31-1997; Ord. No. 09-068, § 1(Exh. A), 11-10-2009; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 14-126, § 12, 1-13-2015)

To approve a variance from subdivision standards, the Planning Board shall find that all of the following standards have been met based upon the testimony and evidence presented:

A.

1.

There is a practical hardship for the development of a site if the development must adhere to the standard;

2.

The standard, as applied in this instance, creates conflicts in other sections and makes compliance difficult or unreasonable;

3.

The site conditions, topography, size, shape, or other natural features make strict adherence difficult or impossible; or

4.

The Department recommends that the subdivision would be better designed if the variance were granted.

B.

Granting the variance will not create a safety or health hazard.

C.

The variance will not make the subdivision a less desirable place to establish the proposed uses.

D.

The variance makes the achievement of the policies of this Chapter easier to attain and permits a better overall plan.

E.

The variance is not simply a means of reducing development costs, but is required to address a difficulty or hardship.

(Ord. No. 97-172, § 3(ch. 13, § 31.452), 12-31-1997)

In approving an application for a variance, the body may impose additional restrictions and conditions on such approval. Restrictions and conditions may limit the use of the property, the standards for locating the use, standards for mitigating the impact on adjoining property owners, or standards to protect the health, safety, and general welfare of the community. The Board of Adjustment written decision shall list all such conditions, restrictions, and/or limitations associated with their approval.

(Ord. No. 97-172, § 3(ch. 13, § 31.453), 12-31-1997; Ord. No. 98-062, § 1(ch. 13, § 31.453), 9-22-1998; Ord. No. 04-059, § 1(Exh. A), 7-13-2004)

The development approved by the variance shall not be carried out until the applicant has secured all other development approvals required by this Chapter. Approval of a variance shall apply only to that section of the regulations for which it is approved and does not ensure that the development shall receive subsequent approval unless the relevant and applicable portions of federal, State and County law are met.

(Ord. No. 97-172, § 3(ch. 13, § 31.454), 12-31-1997)

A variance may be amended, extended, varied, or altered only pursuant to the standards and procedures for the original approval of a variance.

(Ord. No. 97-172, § 3(ch. 13, § 31.455), 12-31-1997)

(Ord. No. 97-172, § 3(ch. 13, § 31.456), 12-31-1997; Ord. No. 06-060, § 1(Exh. A), 9-26-2006)

This Division contains rules and standards for an appeal of a decision made by a County administrative board or body.

(Ord. No. 97-172, § 3(ch. 13, div. 31.500), 12-31-1997)

An applicant pursuing approval of a land use application who is aggrieved by a finding, decision, or interpretation of a decision maker made in response to review of such application may appeal such action to the jurisdictionally approved agency pursuant to Table 40.30.110. Appeals may only be taken based upon a final decision, not the recommendation of an agency. All appeals from the final decision of an administrative body or the Department shall be filed with the Department within twenty (20) days of the date the written decision is issued by the body or Department. All appeals to County Council shall be filed within twenty (20) days with the Clerk of Council. Unless otherwise provided by law, any appeal to a court of law or equity shall be made within twenty (20) days of the issuance of a written final decision. Unless otherwise provided by law, no appeal to a court of law or equity may be taken until all remedies made available by this Chapter have been exhausted.

(Ord. No. 97-172, § 3(ch. 13, § 31.510), 12-31-1997; Ord. No. 01-112, § 1(Exh. A), 3-12-2002)

Administrative appeals shall be heard based solely upon the materials (e.g., plans, documents, reports, studies, drawings, and testimony) available to the official or body rendering the initial decision. Appeals shall not be used to consider new or altered plans. Information submitted but not discussed in rendering a decision, shall be considered part of the original record and may be considered on appeal. Testimony may be given based upon the material submitted to the decision-maker. If, however, a hearing was held and testimony given prior to the initial decision being made, the appeal shall be based solely upon the record and any evidence submitted during the hearing. The applicant shall be required to pay all transcript fees and shall attach a copy of the transcript to the application for appeal.

(Ord. No. 97-172, § 3(ch. 13, § 31.511), 12-31-1997)

Cross reference— Administration, ch. 2.

A.

The body hearing an appeal may reverse a decision only upon a finding that:

1.

The decision-maker made an error in its interpretation of the applicable sections of this Chapter; or

2.

The decision-maker's findings and conclusions were not the result of an orderly and logical review of the evidence and the applicable provisions of this Chapter.

B.

For an appeal to County Council from a denial of a subdivision variance by the Planning Board, County Council may grant relief to the applicant where it finds that the strict application of the subdivision provisions of this Chapter would cause an unjust result.

C.

When County Council's consent is required for a use variance granted by the Board of Adjustment (see Table 30.110), the Department shall forward the Board's decision granting the use variance along with a draft resolution for County Council's consideration to the Clerk of County Council, the sponsor, the sponsor's legislative aide, and the applicant. The draft resolution shall be provided in electronic form to the sponsor's legislative aide. County Council shall grant the resolution consenting to the use variance granted by the Board so long as:

1.

The Board did not make an error in its interpretation of the applicable sections of this Chapter; and

2.

The Board's findings and conclusions were the result of an orderly and logical review of the evidence and the applicable provisions of this Chapter.

If County Council finds that an error was made by the Board or its conclusions were not supported by the evidence as set forth in the Board's written decision, County Council shall disapprove or remand the matter back to the Board for further review and consideration. If necessary, County Council may remand with instructions or request that a new hearing be held by the Board.

(Ord. No. 97-172, § 3(ch. 13, § 31.512), 12-31-1997; Ord. No. 00-130, § 3, 6-12-2001; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

When a provision of this Chapter is unclear or when a proposed use is not listed in Table 40.03.110, the Department shall provide a written interpretation.

(Ord. No. 97-172, § 3(ch. 13, § 31.520), 12-31-1997)

Uses not listed in Article 3 shall be placed into the most similar category. For a nonresidential use, the NAICS code shall be the first guide. Where the same NAICS code is found in several use categories, the Department shall consider the characteristics of the use, including the intensity of the use and its likely adverse impacts. Where a choice remains after reviewing for adverse impacts, the use should be classified with the similar use that has the most adverse impacts.

(Ord. No. 97-172, § 3(ch. 13, § 31.521), 12-31-1997)

The Department shall evaluate a request for an interpretation in light of the Comprehensive Development Plan, this Chapter, and/or the zoning map, whichever is appropriate. All interpretations shall be approved by the Department of Law prior to being issued.

(Ord. No. 97-172, § 3(ch. 13, § 31.522), 12-31-1997)

The Department shall maintain a record of all interpretations rendered. This record shall be available, upon reasonable request, for public inspection at the Department during normal business hours.

(Ord. No. 97-172, § 3(ch. 13, § 31.523), 12-31-1997)

A beneficial use appeal is a process by which the County evaluates an allegation that no beneficial use remains in a property and determines that some level of relief from this Chapter is warranted. A landowner who has been denied all or substantially all economically viable use of property through the application of this Chapter may apply for relief after exhausting all other available avenues of appeal to a County body.

(Ord. No. 97-172, § 3(ch. 13, div. 31.600), 12-31-1997)

The following data shall accompany all applications for a beneficial use appeal:

A.

Documentation of the purchase date and price of the property.

B.

A description of the physical features of the property, total acreage, and present use, the use of the property at the time of the adoption of this Chapter, and any known prior uses.

C.

A description of the specific portions of this Chapter which allegedly eliminate all or substantially all economically viable use of the property, together with all appraisals, studies, any other supporting evidence, and any actions taken by the County related to the property.

D.

A description of the use which the landowner believes represents the minimum beneficial use of the property and all documentation, studies, and other evidence supporting that position.

E.

If the property has been listed for sale since the adoption of this Chapter, originals or copies of all bids, offers to purchase, and other correspondence regarding the sale of such property.

(Ord. No. 97-172, § 3(ch. 13, § 31.610), 12-31-1997)

In determining if a landowner has been deprived of the beneficial use of property, the Board of Adjustment shall take into account the following factors:

A.

Diminution in value. The property value, prior to the adoption of this Chapter, shall be compared to the property value with the regulations as applied. A mere decrease in value does not deprive the landowner of all or substantially all beneficial use of property. The diminution in value must be such that it effectively deprives the landowner of all or substantially all viable use or enjoyment of the property.

B.

Common land uses. A use common to the County and/or the area of the subject site, although it may not involve further development of the land, may be considered a beneficial use. Attention shall also be given to land uses considered to be the lowest intensity in the County or adjoining areas, but which uses still provide for occupation and living by the landowner.

C.

Subsidy. A minimum beneficial use of the land may be a use where a governmental subsidy is provided. If such a subsidy exists, its value should be reflected in the considered minimum beneficial use on a valuation basis. The cumulative public costs of a subsidy should be considered payment to the landowner for the restriction on the property if the annual subsidy enhances the economic return of the existing use to the landowner. The value of the proposed use shall be adjusted to reflect the degree to which a subsidy enhances the property value by determining the value of the use without the subsidy.

D.

Adverse impacts. The extent to which this Chapter protects users, future users, or neighbors from threats to health, safety or general welfare shall be considered. A use that seriously threatens the health, safety or general welfare of current or future residents or neighbors shall not be considered a use the property owner is entitled to enjoy and shall not, when restricted by the County, constitute a denial of all or substantially all economic viable use of the property.

E.

Expectations. Expectations shall, in general, not be considered. Only expectations backed by reasonable investments made prior to the adoption date of the regulations in question may be considered.

F.

Nuisances. In no case shall a use that is a nuisance per se, or a use that in that particular location constitutes a nuisance, constitute grounds for relief.

G.

The Board of Adjustment may also take into account any factors that have been considered by a federal court or a Delaware court in determining whether all, or substantially all, economic use of a property has been denied a landowner who has made a takings claim pursuant to the federal or State Constitution.

H.

If requested by the landowner, the Board of Adjustment shall make a determination as to whether the code provision at issue substantially advances a legitimate governmental interest. In making this determination, the Board of Adjustment may rely upon any relevant federal or State case law.

(Ord. No. 97-172, § 3(ch. 13, § 31.620), 12-31-1997; Ord. No. 98-080, § 1(ch. 13, § 31.620), 9-22-1998)

If the finding is that a landowner has been denied all or substantially all economic viable use of the property, the Board of Adjustment shall grant relief. In the alternative, the Board of Adjustment may also find that some beneficial use of the property remains. The Board of Adjustment shall grant only that level of relief necessary to provide for a beneficial use of the property.

A.

Minimum increase. In granting relief, the landowner shall be given the minimum increase in use intensity or other possible concessions from this Chapter to permit a beneficial use of the land. The following guidelines shall be used to determine the minimum beneficial use of the property:

1.

The standards set forth in Section 40.31.620 shall be used to help determine the need for additional density or uses.

2.

The reality of limited development potential, given the natural condition of the property, shall not be attributed to the regulations applied to the property.

3.

The potential for damages to either future residents or property shall be assessed in determining a beneficial use. Conditions shall be placed on sites where damage from hazardous conditions is likely. The conditions may include location restrictions, size limitations, and increased building standards.

(Ord. No. 97-172, § 3(ch. 13, § 31.630), 12-31-1997)

For any plans not previously discussed, the following shall pertain.

(Ord. No. 97-172, § 3(ch. 13, § 31.710), 12-31-1997)

Proposed revisions to previously recorded plans and previously platted parcels that will not result in any new lots or additional gross floor area shall be considered resubdivisions and shall be reviewed as minor plans for any of the following purposes:

A.

Lot line changes.

B.

Elimination or relocation of any easements depicted on a record plan or the establishment of an easement that qualifies as a subdivision, except that revisions to establish, eliminate or relocate a private storm drainage easement or publicly-maintained and funded storm drainage or sewer easement shall not be required to be depicted on a record plan unless otherwise required by this Chapter or Chapter 12.

C.

Changes to parking, loading and access configurations which do not result in any nonconforming situation being made more nonconforming. Any new improvements not depicted on the plan to be superseded must comply with the current regulations of this Chapter.

D.

Changes in the design or shape of a building which do not materially affect the original design concept and do not result in any nonconforming situation being made more nonconforming. Any new improvements not depicted on the plan to be superseded must comply with the current regulations of this Chapter.

E.

Minor changes to stormwater management areas or open space configurations which do not materially affect the original design concept.

F.

Amendments to notes or other data shown on a plan.

G.

Multifamily conversions proposed under Subsection 40.03.340.B.

(Ord. No. 97-172, § 3(ch. 13, § 31.711), 12-31-1997; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 06-060, § 1(Exh. A), 9-26-2006; Ord. No. 18-020, § 30, 7-10-2018; Ord. No. 24-057, § 7, 9-24-2024)

Revisions to Diversified Planned Unit Developments (DPUD) shall be reviewed in accordance with the standards set forth in this Chapter. A new rezoning ordinance shall be submitted for reintroduction and hearing if the revisions constitute one of the following:

A.

An increase in overall density.

B.

An increase in the number of units of any dwelling unit type by fifteen (15) percent or more.

C.

A decrease in open space.

D.

Major changes in the location of use types on the site which amend the concepts or original intent of the design represented by the exploratory sketch plan.

(Ord. No. 18-020, § 31, 7-10-2018)

Editor's note— Prior to the reenactment of Section 40.31.712 by Ord. No. 18-020, § 31, adopted July 10, 2018, Ord. No. 17-044, § 9, adopted October 10, 2017, repealed the former Section 40.31.712 in its entirety, which pertained to utility plans, and derived from Ord. No. 97-172, § 3(ch. 13, § 31.712), adopted December 31, 1997.

All title subdivision plans shall be reviewed as minor subdivisions, but may be incorporated into a major land development plan. The purpose of a title subdivision is to facilitate the subdivision of multi-family residential, office, commercial, or industrial development, appropriately zoned for the particular use, from single ownership into separate lots for the purpose of conveying individual title of the separate units established by the title subdivision plan. The Department shall review the title plan using the following standards:

A.

A title subdivision may be approved for all or a portion of a land area covered by a major land development plan. No such approval shall alter, modify or release the development from the design standards and requirements of the major land development plan.

B.

When a portion of a major land development plan is submitted for a title subdivision, such portions shall comply with the applicable design standards and requirements. Additional units, buildings or groups of buildings may be added to the original portion so long as the portion and the additions comply with the applicable design standards and regulations.

C.

Prior to the sale of any lot in a title subdivision, the subdivider shall establish a maintenance organization with the obligation to maintain all areas and facilities within the subdivision which are designated for common use. The subdivision plan shall contain a clear designation of such common areas and facilities. Such common areas and facilities shall be subject to all the requirements of Article 27 and any and all other applicable laws, rules and regulations, with the purpose of ensuring that the common facilities shall be maintained in a good and proper condition, fit for their intended purpose. A cross access easement may also be required by the Department to ensure continued compliance with existing and future parking requirements, or other transportation or access requirements.

D.

The individual lots and buildings created by a title subdivision shall not internally be required to conform to lot area, lot width, height limits, building setback, rear yard or side yard requirements of this Chapter. The development as a whole and all height, setback and other bulk regulations that limit the placement of a building, however, shall be enforced. Other restrictions shown on the major land development plan shall continue to apply as if the title subdivision had not occurred.

(Ord. No. 97-172, § 3(ch. 13, § 31.713), 12-31-1997; Ord. No. 98-080, § 1(ch. 13, § 31.713), 9-22-1998; Ord. No. 10-004, § 1, 3-23-2010; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

A record conversion plan is a minor plan in which each dwelling unit in a building having single ownership may be converted into condominium or cooperative dwelling units comprised of such dwelling unit with attendant common elements as shall be set forth in the record conversion plan. The purpose of a record conversion plan is to facilitate individual condominium ownership of dwelling units which have been constructed as multi-family dwellings, including, high-rise, mid-rise and garden apartments or as single-family attached dwellings such as townhouses.

(Ord. No. 97-172, § 3(ch. 13, § 31.714), 12-31-1997)

Each application to rename a subdivision/land development plan or street shall follow the procedure set forth below.

A.

The applicant shall submit a petition to the resident County Council person as follows:

1.

When the owners of property within an existing subdivision or land development propose to rename the subdivision or land development, a petition signed by two-thirds (⅔) of the property owners shall be submitted to County Council requesting adoption of a resolution.

2.

When the owners of property within an existing subdivision or land development propose to rename streets therein, a petition signed by two-thirds (⅔) of the property owners, whose address range numbering references the subject street(s), shall be submitted to County Council requesting adoption of a resolution.

B.

The resident County Council person shall forward the renaming petition to the Department for processing. Upon receipt of the renaming petition and the filing fee in accordance with Appendix 2 of this Chapter, the Department shall review the request with the United States Post Office and the New Castle County Emergency Service Communication Center and make a recommendation to County Council. The recommendation shall include a draft name change resolution for County Council consideration and will be provided in both written and electronic form.

C.

County Council, upon receipt of the appropriate Recorder of Deeds filing fee, shall place the renaming resolution on their agenda. If adopted, the resolution shall be recorded in the Recorder of Deeds and indexed by the Recorder of Deeds by the old and new names of the street or subdivision/land development.

D.

The resolution shall be forwarded to the Department, DelDOT, New Castle County Emergency Service Communications, and United States Post Office.

(Ord. No. 97-172, § 3(ch. 13, § 31.715), 12-31-1997; Ord. No. 98-080, § 1(ch. 13, § 31.715), 9-22-1998; Ord. No. 06-060, § 1(Exh. A), 9-26-2006; Ord. No. 07-099, § 2, 9-25-2007; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

The General Manager of the Department shall have the authority to approve record plan modifications to correct errors and to allow minor revisions to previously-recorded plans.

A.

A record plan modification shall be permitted for any of the following purposes.

1.

To correct typographical errors or missing or incorrect bearings and distances or building restriction lines.

2.

To adjust lot lines to correct surveying errors or omissions.

3.

To adjust plan phasing for plans that are of a single use category, with the exception of mixed use projects.

4.

To correct site data and plan notes that were made in error.

5.

To eliminate or relocate any private easements depicted on a record plan.

6.

Making changes to open space or common facilities by maintenance organizations, condominium or third-party conservancies (Subsection 40.27.540.B).

7.

Relocating nonresidential accessory structures, waste storage, and HVAC equipment (Section 40.03.430 and Section 40.03.431).

8.

Converting temporary outdoor restaurant seating established in Section 40.03.329 to permanent outdoor seating.

B.

Record plan modifications shall be reviewed as minor plans.

1.

The record plan modification shall retain the original plan application number.

2.

Only modifications for permitted revisions and the required supersedes note may be depicted on the plan.

3.

The Department shall forward the record plan modification to outside agencies for review and approval as it deems necessary.

4.

Upon Department approval, the plan shall be recorded in the Office of the Recorder of Deeds.

(Ord. No. 18-020, § 32, 7-10-2018; Ord. No. 24-057, § 7, 9-24-2024)

The types of subdivision include minor, major, special subdivisions (rural and staged), title subdivisions, conversion plans and subdividing the residual land from a special subdivision. Each type may require a preapplication conference, exploratory plan, preliminary plan, or record plan review as indicated in Table 40.31.720. No land may be sold, transferred, or offered for sale until a record plan has been recorded.

Table 40.31.720
REQUIRED PLAN SUBMISSIONS

(Ord. No. 97-172, § 3(ch. 13, § 31.720), 12-31-1997; Ord. No. 23-104, § 8, 1-9-2024)

The developer shall provide all performance guarantees or surety requirements contained in this Chapter prior to minor or major plan approval by the Department.

(Ord. No. 97-172, § 3(ch. 13, div. 31.800), 12-31-1997; Ord. No. 98-080, § 1(ch. 13, div. 31.800), 9-22-1998)

The Department shall have the authority to impose conditions on a record plan which shall appear as notations on the record plan.

A.

The sections of this Article pursuant to which a record plan has been approved, and all notations appearing on a record plan, shall have the effect of restrictive covenants and shall run with the land covered by the record plan against the owners who have executed the record plan, their heirs, successors and assigns, in favor of the County, provided that the right to enforce such covenants shall lie exclusively with the County. The fact that several parcels belonging to different owners are similarly restricted or that a restricted parcel is divided among several different owners shall not imply the creation of any private property or contract rights, on account of reliance or otherwise, among or between such several owners. All agreements, restrictions or covenants of any kind required by the Department of Land Use or Law shall be recorded prior to the final approval of a plan from the Department and the documents title and recorded book and page number shall appear on the plan as a note. The document to be recorded may contain a clause which indicates that the provisions of the document will not become effective unless the plan is approved and recorded.

B.

The execution and filing of a record plan shall constitute a representation by the persons executing the record plan that all known persons owning or having an interest in the land covered by the record plan have authorized the filing and have executed the record plan and that there are no known restrictions or legal impediments which would interfere with or prevent the unqualified applicability of this Chapter.

(Ord. No. 97-172, § 3(ch. 13, § 31.810), 12-31-1997)

Except for minor residential subdivisions or plans for which a governmental entity is the applicant or property owner, all improvements contemplated in minor or major land development plans as required by this Chapter for sewer, drainage and detention, as well as for other improvements such as stormwater management facilities, parking, curbing, paving, sidewalks, open space improvements and common facilities, property monuments, earthwork, lighting, landscaping and bufferyards (except for replacement of on-lot residential landscaping), and any other improvements required by this Chapter ("the Improvements") shall be subject to a performance guarantee.

A.

The developer's engineer shall submit an itemized cost estimate for the Improvements. The designers of the Improvements shall submit cost estimates. Valid bids from contractors may be substituted for cost estimates. The Department shall review all bids, checking for consistency with similar bids or public bids to ensure they are reasonable.

B.

In the alternative, a formula as established by the Department may be used in lieu of cost estimates.

C.

The developer must establish a performance guarantee acceptable to the County to guarantee and warrant the costs of constructing or reconstructing all improvements shown on the record plan. The performance guarantee shall be provided in one of two ways:

1.

The developer may submit the performance guarantee prior to plan recordation. In accordance with the construction phasing plan, the performance guarantee may be tied to the cost of the Improvements for phases of the minor or major land development plans, as shown on such plans, in which case a surety in the amount of one hundred twenty (120) percent for a particular phase must be available upon recordation of the record plan and subsequent phase sureties posted at the time of pre-construction request or building permit; or

2.

In lieu of Subsection C.1, the developer must, prior to plan recordation, submit a performance guarantee in the sum of five thousand dollars ($5,000.00). The developer shall then submit the full performance guarantee under Subsection C.1., prior to the preconstruction meeting or building permit application. An annual administrative fee is required in an amount set forth in Appendix 2 until the full performance guarantee is provided.

D.

The performance guarantee must remain posted with the Department until such time that all open space and common facilities have been inspected and receive final approval and in accordance with the construction phasing plan. The amount of the surety shall be required by the Department in the amount of one hundred twenty (120) percent of the dollar amount calculated under Subsection A or B above.

1.

After all open space and common facilities have been constructed and approved by the Departments of Public Works and Land Use, the surety may be reduced or released.

2.

A maintenance guarantee is required in an amount equal to twenty (20) percent of the performance guarantee provided under Subsection A or B above. All Improvements except for landscaping must be free from defects for a minimum period of time after the date of the Department of Public Works' inspection and acceptance of the final improvement to be constructed. For non-residential projects, the minimum period is three (3) years; for residential projects, five (5) years. The Department of Public Works may extend the maintenance guarantee period as deemed necessary by the General Manager as defects are discovered. The purpose of this surety is to ensure that the facilities are constructed as designed and function as intended.

3.

All reductions in the amount or releases of the letter of credit or other surety must be approved by the General Manager of the Department of Public Works.

E.

Each performance guarantee provided prior to plan recordation must be for a period of not less than three (3) years, unless a longer time is requested by the Department.

F.

The bond, letter of credit or other surety must be executed by the applicant and a corporate surety or financial institution licensed to do business in the State that is not associated with the developer.

G.

Prior to the approval of a minor or major land development plan, the LDIA must be reviewed and approved by the County and recorded in the Office of the Recorder of Deeds.

(Ord. No. 97-172, § 3(ch. 13, § 31.820), 12-31-1997; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 03-045, § 1(Exh. A), 7-8-2003; Ord. No. 07-012, § 2, 5-8-2007; Ord. No. 07-117, § 2, 9-25-2007; Ord. No. 09-068, § 1(Exh. A), 11-10-2009; Ord. No. 10-030, § 1, 6-8-2010; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 18-031, § 77, 4-24-2018; Ord. No. 18-020, § 33, 7-10-2018; Ord. No. 20-090, § 7, 4-13-2021; Ord. No. 24-057, § 7, 9-24-2024)

Approvals, releases or reductions made in error, or based upon false or misleading information, shall not relieve the developer of any obligation created by any plan, Code provision, or Development Agreement. Reductions or releases shall not relieve the developer of any obligation to complete and maintain open space and common facilities.

(Ord. No. 97-172, § 3(ch. 13, § 31.830), 12-31-1997; Ord. No. 98-080, § 1(ch. 13, § 31.830), 9-22-1998; Ord. No. 07-012, § 2, 5-8-2007)

A.

Upon completion of all or part of the improvement, the developer may request a reduction or closure of the surety or performance guarantee. The Department shall have the development inspected. Any deficiencies shall be identified and the developer notified in writing of the deficiencies. If all work is complete and a maintenance bond provided, the surety shall be closed. For work proceeding in stages, the developer may request partial release. Prior to release, a maintenance guarantee shall be required.

B.

When a resubdivision plan is recorded to eliminate all improvements shown on a previously recorded land development plan or revert subdivided property to its status prior to the most recent recorded land development plan, or when a plan sunsets in accordance with Section 40.01.130, the Department may release the required surety.

(Ord. No. 97-172, § 3(ch. 13, § 31.840), 12-31-1997; Ord. No. 18-020, § 34, 7-10-2018)

In the event construction has not been completed sixty (60) calendar days prior to the surety expiration, the Department shall inspect and send a report to the developer indicating items to be completed by thirty (30) calendar days prior to the expiration. Should the developer want additional time, a new surety covering a minimum of six (6) months shall be submitted to the Department. If all work is not completed or an extended surety has not been presented thirty (30) days prior to expiration, the Department shall notify the Department of Law to call the surety.

(Ord. No. 97-172, § 3(ch. 13, § 31.850), 12-31-1997)

A.

Any person who violates any provision(s) of this Chapter or fails to comply with any of the requirements hereof, or who maintains, erects, constructs, alters, or repairs a building, structure or premises in violation of an approved plan or directive of the Department, or of a permit or a certificate issued under this Chapter, shall be subject to any of the enforcement mechanisms and penalties outlined in this Division.

B.

This Division shall apply to any violation of the provisions of this Chapter. The enforcement mechanisms of this Division shall also apply to violations of any former County subdivision or zoning regulations to the extent that such provisions are legally applicable at the time of the violation.

C.

No street, sanitary sewer, storm sewer, water main, or other improvements shall be constructed, opened, or dedicated for public use or for the common use of occupants of buildings abutting thereon, and no part of any land which has been subdivided after the adoption of regulations under this Chapter, shall be sold, transferred or conveyed, except pursuant to an approval received for the land subdivision in accordance with the regulations adopted under this Chapter. Whoever violates this Section shall be subject to the penalties found in 9 Del. C. § 3006 (Penalties for selling before approval).

D.

Except as provided in Subsection E, no land use application shall be granted by any board, Department, or Council if any of the following parties, having an interest in the application or the property the application is filed for, are not in good standing with the County:

1.

Applicant;

2.

Property owner;

3.

Equitable owner;

4.

Permit holder; and

5.

Any individual with a controlling interest in the property (controlling interest means the acquisition of sufficient dominance to determine the operational and financial policies, including disposition of its assets, of any legal entity that is a party listed in Subsections 1 through 4, but excluding mortgage holders).

Not in good standing means that at the time of the request, any of the above enumerated parties are delinquent in the payment of monies owed to the County or have been found to be in violation of this Code after a rule to show cause hearing. If a Board, the Department or County Council denies a Land Use application based upon the fact that a party/parties is not in good standing, such decision must be sent to the party/parties in writing outlining the basis for the conclusion within ten (10) days.

E.

An administrative board may consider and decide a land use application, so long as any of the parties enumerated in Subsection D are not delinquent in their payment of monies owed to the County, where the application is submitted in an effort to resolve an existing Code violation. In such situations, the County will stay enforcement of the Code violation, so long as there is no imminent threat to the health, safety or welfare to the citizens of the County, until the administrative board has issued its written decision on the application.

(Ord. No. 99-151, § 2, 10-10-1999; Ord. No. 03-024, § 1, 6-24-2003; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

A.

Notice. Whenever the Department or Code Enforcement Officer determines that there has been a Code violation or has reasonable grounds to believe that a violation has occurred, notice shall be given to the owner or person responsible for the property who shall be legally responsible for such violations. All notices shall:

1.

Be in writing;

2.

Contain the address of the property or a description of the property sufficient for identification;

3.

Include a clear statement of the reason or reasons why the notice is being issued; and

4.

Include a correction order allowing a reasonable time to achieve compliance with the Code which shall in no case be greater than thirty (30) days.

B.

Method of service. Notice required by this Section shall be satisfied where a copy of the notice required by this Section is:

1.

Delivered to the owner or any responsible person personally; or

2.

Mailed by regular United States mail and addressed to the owner or responsible person at his or her last known address as reflected by the County's records; or

3.

Posted in a conspicuous place on the property affected by such notice.

C.

Exceptions to this Section.

1.

In no case shall the Department or Code Enforcement Officer be required by this Section to provide a correction order to any owner or person previously provided notice pursuant to this Section or under any former Code provision where the same Code violation is alleged by the Department or Code Enforcement Officer to exist. This exception shall apply regardless of whether the new violation exists on the same property for which notice had previously been given or a different property.

2.

In the event that a Code violation exists or is reasonably believed to exist because work is being done in an unsafe or dangerous manner, jeopardizes the health, safety or welfare of the public, or is being done (or was done) in the absence of necessary approval(s), plan(s), or permit(s) or because of a Division 40.06.000D sign code violation, no correction order is required by this Section.

(Ord. No. 97-172, § 3(ch. 13, § 31.910), 12-31-1997; Ord. No. 98-080, § 1(ch. 13, § 31.910), 9-22-1998; Ord. No. 99-151, § 3, 10-10-1999; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

A.

Administrative enforcement.

1.

Pre-deprivation show cause hearing: Except as provided in Subsections 2. and 3. below, if such violations are not remedied within the time specified in the notice, the General Manager of the Department or his or her designee, shall schedule a rule to show cause hearing and provide the person an opportunity to defend his, her, or its conduct at a show cause hearing prior to any penalty being imposed. After such rule to show cause hearing, the General Manager of the Department or his or her designee, shall render a decision within ten (10) days and send a written letter to the person informing him, or her of his or her decision and detail the reasons for any adverse action taken.

2.

The General Manager, or his or her designee, may issue a citation that imposes a civil penalty for violation of any code provision delineated herein. A pre-deprivation show cause hearing shall not be required prior to the issuance of the citation if the property owner or responsible party is provided an opportunity to contest the citation within ten (10) business days of its issuance.

a.

Citations may be issued for a violation of:

i.

Subsections 40.03.420.A.6, 40.03.420.A.8, and 40.03.420.A.9 (concerning home occupations).

ii.

Section 40.03.440 (concerning sale of motor vehicles as an accessory use).

iii.

Sections 40.06.030.B.6.c and 40.06.030.B.6.d.iii (concerning Electronic Variable Message Sign (EVMS)).

iv.

Section 40.06.040.E (concerning prohibited signs).

b.

The civil penalty may not exceed fifty dollars ($50.00) for each violation that remains after the tenth (10th) calendar day of issuance of the notice of violation. However, any civil penalty not paid within thirty (30) calendar days from the date of the citation shall double.

c.

After the property owner or responsible party has an opportunity to contest the citation through an administrative appeal process, the violation shall constitute a continuing violation if it is not remedied. A notice of violation shall not be required for a continuing violation and the General Manager, or his or her designee, may issue a citation and impose an additional fifty dollars ($50.00) penalty each day the violation continues.

d.

The owner of a property or the responsible party aggrieved by any citation issued pursuant to this section may, within ten (10) business days of the date of the citation, follow any one of the following administrative appeal processes to contest the citation:

i.

Request a show cause hearing as described in Subsection A. Requests shall be made in writing to the General Manager, or his or her designee, unless a different method is delineated in the notice of violation or citation.

ii.

Submit a detailed written explanation of the grounds for the appeal to the General Manager, or his or her designee.

e.

Reserved.

f.

Stay. An appeal of a violation under this Section shall act as an automatic stay of the action being appealed.

g.

The General Manager, or his or her designee, shall issue a written decision affirming, modifying, reversing, revoking or vacating the citation. The decision may be appealed pursuant to Division 40.31.500.

3.

In the event a violation of Subsection 40.06.040.E is reasonably believed to exist by the Department or a Code Enforcement Officer, the Department or Code Enforcement Officer may immediately confiscate the sign, display, or device. Any sign, display, or device shall become the property of the County if the property owner or responsible party does not claim it within ten (10) calendar days from the date of its confiscation. No hearing shall be provided to the property owner or responsible party unless additional penalties are pursued.

4.

Post-deprivation show cause hearing: Whenever the General Manager of the Department or his or her designee, determines that work on any premises is being done in an unsafe or dangerous manner, jeopardizes the health, safety or welfare of the public, or is being done (or was done) in the absence of necessary approval(s), plan(s), or permit(s), such work shall be immediately stopped by the issuance of a stop work order. In addition to the notice requirements contained in Section 40.31.910, the notice shall require the person notified to appear within no more than ten (10) days at a specified time in the office of the General Manager of the Department or his or her designee, to show cause why the work should be allowed to continue. The General Manager of the Department or his or her designee, shall render a decision within ten (10) days and send a written letter to the person informing them of his or her decision and detail the reasons for any adverse action taken.

a.

When a stop work order has been issued on work being performed in an unsafe or dangerous manner, or that jeopardizes the health, safety or welfare of the public, the General Manager of the Department or his or her designee, may also place a stop work order on all other work being performed by such person in order to ascertain whether the person is in violation of this Code on other work sites.

b.

Unlawful continuance. Any person who shall continue any work in or about the structure after having been served with a stop work order, except such work as that person has been directed to perform to remove a violation of an unsafe condition, shall be considered to be in violation of this Chapter.

c.

Removal of placard. Any person who defaces or removes a violation notice or stop work order notice or placard shall be considered to be in violation of this Chapter.

5.

Penalties that may be imposed after hearing.

a.

Refusal to issue any further building permits or certificates of occupancy. The General Manager of the Department or his or her designee, may refuse to grant any further building permits or certificates of occupancy to the applicant, to any corporation, partnership, joint venture, or other legal entity with which the applicant has a controlling interest (controlling interest means the acquisition of sufficient dominance to determine the operational and financial policies of a corporation, partnership, committee, club or other organization, holding company, joint stock company, receivership, trust, or any legal entity organized for profit, including disposition of its assets or any interest representing more than five (5) percent of a corporation, partnership, committee, club or other organization, holding company, joint stock company, receivership, trust, or any legal entity organized for profit), or to any business entity formed by the applicant in an attempt to circumvent the effect of this penalty. The General Manager of the Department or his or her designee, is authorized to withhold additional permits only until the applicant remedies outstanding Code violations.

b.

Institution of remedial action. The County may initiate action to remedy the violation. Upon completion of such remedial work, the violator shall be provided the opportunity to reimburse the County for the cost incurred. In addition to any expense incurred by the County for the removal or abatement of such violations, a minimum administrative fee of one hundred dollars ($100.00) shall be assessed to the owner or possessor of land or improved premises. If the amount is not paid within thirty (30) days after notice requesting reimbursement is received, such amount, together with a penalty of ten (10) percent of such expense and interest of six (6) percent per annum shall be assessed against the land or improved premises. If the violator fails to reimburse the County within the thirty (30) days, the County may: (i) call or collect on any bond or insurance established for this purpose; (ii) place a lien on any property within the County held by the person as permitted by State law; and/or (iii) institute a civil action for the recovery of such expense, together and with any penalty and/or interest, against the person, and the County shall be awarded reasonable attorney fees. This Section shall not be construed to limit any other actions or remedies at law or equity.

c.

Administrative fines. Notwithstanding any other section of this Chapter, the General Manager of the Department, or his or her designee, may assess a civil penalty to the property owner or person responsible for the property for violation of any code provision delineated in is Chapter, or violation of any permit, certificate, approved plan, or directive of the General Manager, or his or her designee. The civil penalty may be up to one to one hundred dollars ($100.00) for each day the violation continues. The General Manager of the Department, or his or her designee, may also assess the property owner or person responsible for the property any expense incurred by the County for the removal, abatement or correction of such violation. If the amount is not paid within such time stated in a notice, decision, order or directive of the General Manager, or his or her designee, such amount, together with a penalty of ten (10) percent of expenses incurred and interest of six (6) percent per annum shall be assessed against the land or improved premises.

6.

Service of notices and citations issued pursuant to these administrative enforcement provisions shall be pursuant to Subsection 40.31.910.B.

B.

Civil enforcement. Any person violating the provisions of this Chapter or former zoning or subdivision regulations shall be subject to a civil proceeding instituted by the County Attorney. The County may apply to the Court of Chancery for injunctive relief against the person, to prevent, abate, or enjoin any continuing violation of the provisions of this Division. The violator shall be responsible for any costs incurred in preventing, abating, or enjoining such violations.

C.

Criminal enforcement. Any person violating the provisions of this Chapter or the provisions of any former subdivision or zoning code shall be subject to a criminal proceeding instituted by any Code Enforcement Officer and/or the County Attorney. It is unnecessary to prove the defendant's state of mind with regard to offenses which constitute violations as the legislative purpose is to impose strict liability for such offenses. If a penalty is not otherwise provided for, violators will be subject to a five hundred dollar ($500.00) fine. Each day that a continuing violation of any ordinance is maintained or permitted shall constitute a separate offense. All notices given prior to criminal enforcement shall comply with constitutional due process requirements.

(Ord. No. 97-172, § 3(ch. 13, § 31.920), 12-31-1997; Ord. No. 98-080, § 1(ch. 13, § 31.920), 9-22-1998; Ord. No. 99-151, § 4, 10-10-1999; Ord. No. 06-060, § 1(Exh. A), 9-26-2006; Ord. No. 07-012, § 2, 5-8-2007; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 18-020, § 35, 7-10-2018)

(Ord. No. 97-172, § 3(ch. 13, § 31.930), 12-31-1997; Ord. No. 98-080, § 1(ch. 13, § 31.930), 9-22-1998; Ord. No. 99-151, § 4, 10-10-1999)

(Ord. No. 97-172, § 3(ch. 13, § 31.940), 12-31-1997; Ord. No. 99-151, § 4, 10-10-1999)