(a)

A building, structure, or use which is not in conformity with the provisions of this chapter at the effective date of this chapter may be continued in its present location provided that no subsequent alteration or addition is made which would extend said building, structure, or use for more than 20 percentum of the cubical content of the building or buildings or structure or structures existing and used for the nonconforming use, or for more than 20% of the lot area existing and used for the nonconforming use. Any building and structure addition shall conform to the area and height regulations of the district wherein it is located.

(b)

Whenever a nonconforming use has been discontinued for a period of one year, such use shall not thereafter be re-established, and any further use shall be in conformity with the provisions of this chapter, except that when such discontinuance is on account of any cause beyond the control of the owner, or tenant, the period of abandonment shall for the purpose of this chapter date from the termination of such cause.

A fraternity or sorority, however, that is suspended by the University of Delaware so that it is no longer approved and/or sanctioned to operate as a fraternity or sorority for a period of more than one year shall vacate the building and the use as a fraternity or sorority shall be terminated immediately upon such University suspension.

(c)

Nothing in this chapter shall require any change in the plans, construction or designated use of any building or part thereof, the construction of which shall be lawfully in progress at the time of passage of this chapter, or for which a permit shall have been issued pursuant to law, provided construction shall be promptly and diligently prosecuted.

(d)

In any case where a district boundary line crosses a building which existed at the time such boundary was established, a use permitted in the less restricted of the two districts may be extended, as a nonconforming use during the life of said building, into that part of the building situated within the more restricted district.

(e)

When in the public interest and where loss or damage has occurred to the property, to include land and/or buildings, occupied by nonconforming uses, and where such loss or damage has occurred through the action of a governmental agency, the board of adjustment, as provided in Article XIX, Section 32-66(a)(2) of this chapter, may grant as a special exception, after a public hearing, continuance of the nonconforming use. The board of adjustment may further limit but not extend, such nonconforming use to include the size and location on the land of any reconstructed buildings, the modification of existing buildings, and the use of the property, either on the same lot or on a contiguous lot under the same ownership at the time of enactment of the chapter.

(f)

A nonconforming use of a building or a nonconforming use of a nonconforming building may be extended either on the same lot or contiguous lot under the same ownership at the time of the enactment of this chapter if granted as a special exception by the board of adjustment, as provided in Article XIX, Section 32-66(a)(2) of this chapter, subject to the following special requirements:

(1)

The extension is for a use which is necessarily incident to the existing use;

(2)

The estimated cost of any extension involved does not exceed 50% of the replacement value, as appraised by the Newark Assessor, of the existing building to which it is incident;

(3)

Such extension shall have a floor area not to exceed 25% of the floor area of the existing building to which it is incident;

(4)

It will not impair the value of the adjoining property or adversely affect the character of the surrounding area; and

(5)

Provided only one extension shall be permitted by the board of adjustment during the life of a nonconforming use.

(g)

In the event that a nonconforming building, structure, or use existing in the special flood hazard area (SFHA), formerly known as the open floodway district (OFD) undergoes repair, reconstruction, or improvement, any changes must conform to the requirements of chapter 14A.

(h)

Notwithstanding any other provisions of this chapter, any nonconforming building or a nonconforming use shall comply with all provisions of Chapter 30, Water, Article VII, Water Resource Protection Regulations.

(Ord. No. 70-31, Art. XVI, § 1, 7-21-70; Ord. No. 77-35, Amend. No. 2, 7-11-77; Ord. No. 88-13, Amend. No. 5, 6-13-88; Ord. No. 91-17, 4-22-91; Ord. No. 02-21, Amend. No. 5, 9-23-02; Ord. No. 15-18, Amend. No. 18, 9-14-15; Ord. No. 16-05, Amend. No. 9, 1-25-16)

(a)

Nothing in this chapter shall prevent the restoration of a building destroyed less than 75 percent of its current sound value except for those areas upon which buildings are erected in the special flood hazard area (SFHA), formerly known as the open floodway district (OFD), and in those cases, restoration up to 100 percent shall be allowed, exclusive of the foundations, by fire, explosion, act of God or act of public enemy, subsequent to the passage of this chapter, or shall prevent the continuance of the use of such building or any part thereof as such use existed at the time of such destruction; provided that the restoration shall begin within not more than 12 months from the time of such destruction; and provided that the restorations shall comply with the provisions of article XVI, section 32-51, paragraph (g).

(b)

Nothing in this chapter shall prevent the restoration of walls or other part of any building declared unsafe by the building inspector.

(Ord. No. 70-31, Art. XVI, § 2, 7-21-70; Ord. No. 72-45, 8-14-72; Ord. No. 77-35, Amend. No. 3, 7-11-77; Ord. No. 16-05, Amend. No. 10, 1-25-16)

When the calculation of units per acre for purposes of density results in a fractional unit, any fraction shall be rounded to the next highest whole number.

(Ord. No. 16-30, Amend. No. 1, 10-10-16)

(a)

An open space in the form of an inner court or outer court shall be provided in any apartment dwelling wherever any room therein, in which a person or persons live, work, sleep, or congregate, cannot be adequately lighted or ventilated from the street or yard. Such court shall be adjacent to such room, the windows of which shall open on such court.

(b)

The least horizontal dimension of an inner court at its lowest level shall not be less than nine inches per foot of height of the highest portion of the adjoining walls of the building above the top of the sills of the windows in the lowest floor facing on the court. The maximum horizontal dimension of an inner court shall not be less than twice the required minimum horizontal dimension.

(c)

The minimum width of an outer court shall not be less than six inches per foot of height of the highest portion of the adjoining walls of the building above the top of the sills of the windows in the lowest floor facing on the court, and in no case less than ten feet. The maximum horizontal dimension of such court shall not exceed its width.

(d)

There shall be no windows in a wall in a court which is distant less than 12 feet from any opposite wall.

(Ord. No. 70-31, Art. XVI, § 4, 7-21-70)

No refuse dump, other than one limited to inorganic materials and accessory to a permitted industrial or manufacturing use and from which offensive odors shall not be emitted, shall be permitted in any district.

(Ord. No. 70-31, Art. XVI, § 5, 7-21-70)

(a)

Except as hereinafter specified in this section, yards, and courts required under this chapter shall be entirely free of buildings or parts thereof.

(1)

Ground story bay windows, oriels, or balconies may project not more than three feet into any required rear yard or into any required side yard with a width of eight feet or over. No such structure shall have width or greater dimension in excess of three times the distance of its projections.

(2)

Cornices and eaves may project not to exceed two feet over any required yard or court, except if the structure is approved by the building department director for shading windows, walls, or the portions of buildings from summer months' (June, July, August, September) sunlight.

(3)

Sills, leaders, belt courses and similar ornamental or structural features may project not more than six inches over any required yard or court, except if the structure is approved by the building department director for shading windows walls, or other portions of buildings from summer months' (June, July, August, and September) sunlight.

(4)

An open fire balcony, or fire escape, or a fire tower may project into a required side yard or rear yard not to exceed four feet.

(5)

An uncovered porch may project not more than eight feet into a required front yard.

(6)

Uncovered or enclosed steps or stairways leading to the basement or first floor of a building may project into a required front yard not to exceed ten feet in any residential district.

(Ord. No. 70-31, Art. XVI, § 6, 7-21-70; Ord. No. 80-13, Amend. Nos. 1, 2, 2-11-80)

A special permit may be authorized by the enforcement officer of this code for a construction office or trailer which may be necessary for the proper development of the community. Such permit shall be for a specified length of time not to exceed one year, but may be renewed at the expiration of one year after review by the enforcement officer, and shall be subject to the agreement by the recipient to remove such construction office or trailer at the expiration of such permit or to allow the city to remove it without cost to the city. The fee for issuing such permit shall be $10.00.

(Ord. No. 70-27, 6-23-70)

(a)

Minimum lot area; exceptions for existing lots. In the case of a lot with a building on it at the date of adoption of this chapter, but with an area less than that prescribed herein for the district in which it is located, such building may be altered, or a new building erected thereon, provided it complies with all other provisions of this chapter. In the case of a lot unimproved at the date of adoption of this chapter and not adjoining either an unimproved lot or an improved lot owned and controlled by the owner of the lot in question, building may be erected thereon if the area of the lot in question is at least 75% the size of that prescribed for the district in which it is located, provided that the building complies with all other provisions of this chapter. In the case of any lot unimproved at the date of adoption of this chapter, a building may be erected thereon irrespective of the lot area, provided said building complies with all other provisions of this chapter.

(b)

Minimum lot widths; exceptions for existing lots. In the case of a lot with a building on it at the date of adoption of this chapter, but with a width less than that prescribed for the district in which it is located, such building may be altered or a new building erected thereon provided it complies with all other provisions of this chapter. In case of a lot unimproved at the date of adoption of this chapter and not adjoining either another unimproved lot or an improved lot owned or controlled by the owner of the lot in question, a building may be erected thereon if the width of the lot in question is at least 80% of that prescribed for the district in which it is located, provided that the building complies with all other provisions of this chapter.

(c)

Height of buildings; exceptions to height limits.

(1)

In all districts, a public school, private school, parochial school or college may have a height of four stories not exceeding 50 feet.

(2)

In any district the maximum building height provisions shall not apply to dormers, spires, domes, cupolas, belfries, chimneys, smokestacks, flag poles, elevator enclosures, water tanks on roofs, silos, roof antennas, solar panels or collectors (on roofs), theater scenery lofts or fly lofts which occupy an aggregate of not over 25% of the ground floor area of the building, or a parapet wall or similar appurtenance that may be designed to provide architectural detail and/or to hide mechanical equipment extending not more than four feet above the limit of the height of the building on which it rests. A roof appurtenance that resembles a roof may extend above the limit of the height of the building up to a height equal to the floor to roof deck height of the top floor of the building provided that its slope does not exceed a 12/12 pitch.

(3)

In any district the maximum building height provisions shall not apply to public water tanks or public utility poles. Towers approved by special use permits are exempt from building height restrictions except as detailed in the special use permit requirements for each individual zoning district.

(d)

Building setback lines.

(1)

In any district, when the average setback of existing buildings within 200 feet of the side lot lines and within the same block front and zoning district, is less than such required distance, such building need not be set back from the front street line any further than such average setback, provided that:

a.

Where any business or industrial building is erected within 50 feet along the same street frontage of a residential district, such building shall be set back a distance of 75% of the setback required for that residential district, and

b.

The proposed building or structure does not exceed either 35 feet or three stories in height, except as specified in Section 32-18(d)(5).

(2)

Corner lots. On a corner lot, each story or part of a building, exclusive of cornices and uncovered steps and uncovered porches, shall be set back from the side street line the same distance as the required setback from the front street line as required in that district.

(3)

Visibility at corners. On any corner lot in a residence district, there shall be no building, structure, shrubbery, or planting such as will obstruct street traffic visibility within the triangular area formed by the intersection of the projection of any two street lines and a line joining the respective points on each of these lines distant 20 feet from their point of intersection.

(4)

Conformance with approved subdivision plats. If a building setback line shown on an approved subdivision plat prior to the date of adoption of this chapter calls for a different setback than is prescribed by the preceding provisions of this article, such building setback line shall control.

(e)

Rear yards.

(1)

Exception for corner lots. On a corner lot, the minimum depth of such rear yard shall be the same as required for an interior lot in that district.

(2)

Exception for through lots. Where a lot running through the block from street to street is to be occupied by only one principal structure, no rear yard is required, but each street frontage shall be subject to the building setback lines required for the district in which it is located.

(3)

Exceptions for plats recorded prior to adoption of chapter. In case of a lot on an approved subdivision plat, no rear yard need have a depth greater than 25% of the depth of the lot.

(Ord. No. 78-33, Amend. No. 19, 9-11-78; Ord. No. 80-13, Amend. No. 3, 2-11-80; Ord. No. 96-21, Amend. No. 7, 11-25-96; Ord. No. 16-23, Amend. Nos. 3, 4, 8-8-16; Ord. No. 21-18, Amend. No. 2, 6-14-21)

If more than one permitted use is located on a lot, except for accessory buildings, the area regulations applied shall be those which specify the more stringent requirements.

(Ord. No. 78-33, Amend. No. 20, 9-11-78)

(a)

Restaurants selling alcoholic beverages for public consumption on the premises that are less than 300 feet measured along a straight line from the facility selling alcoholic beverages to the nearest property line of a church, library, school, nursing home, hospital, dormitory, or lot zoned residential (RH, RT, RS, RD, RM, RA, RR, AC) shall be permitted, except as otherwise provided therein, subject to the following special requirements:

(1)

Live night club or floor show type entertainment defined as electronically amplified musical, dance, cabaret, or comedy performances that may be accompanied by dancing by patrons shall not be permitted, except that one person electronically amplified performances intended as accessory or background music or nonelectronically amplified performances shall be permitted. Permitted live entertainment shall not include adult entertainment as defined in this chapter. Full restaurant service as defined in this section shall be provided with all permitted live entertainment;

(2)

There shall be no carry-out liquor service;

(3)

Reserved;

(4)

There shall be no less than 50 seats in the facility; and

(5)

There shall be no alcoholic beverage promotional activities that encourage excessive consumption on the premises. Happy hours, reduced price alcoholic beverage specials, or similar alcoholic beverage promotional activities shall only be permitted where the service of such specials is restricted solely to seated patrons who shall also be required to order food as further defined as full restaurant service in this section. Such alcoholic beverage specials, in addition, shall be restricted to hours of 4:00 p.m. to 9:00 p.m.

(6)

All existing facilities selling alcoholic beverages for consumption on the premises subject to a 12:00 midnight alcoholic beverage sales closing time as of (date of adoption of this ordinance), and all new such facilities located as specified in this subsection, shall be prohibited from selling alcoholic beverages on the premises after 12:00 midnight, unless such facilities receive a special use permit authorizing sales after 12:00 midnight, subject to the procedural requirements in Section 32-56.4(f) herein.

(b)

Those restaurants selling alcoholic beverages for consumption on the premises and located within the central portion of the city bounded by Chapel Street on the east, Delaware Avenue on the south, Elkton and New London Roads on the west, and the University of Delaware's North Campus property and the White Clay Creek on the north, if the property line of any such facility is adjacent to the property line of a church, library, school, nursing home, hospital, and dormitory, shall require a special use permit, as provided in Article XX, Section 32-78 subject to the requirement of five affirmative votes of council for approval, and subject to all other requirements herein.

(c)

Restaurants licensed by the Delaware Alcoholic Beverage Control Commission as a restaurant shall provide full restaurant service, with lunch, dinner, and dessert menus, which shall be defined as serving complete meals for consideration during all hours of operation; except that limited late service may be substituted for full restaurant service beginning 90 minutes before the time that alcoholic beverages are no longer served. The limited service of such food as sandwiches, salads, pizza, and similar items normally provided by taverns, luncheonettes, coffee shops, or snack bars shall not be deemed to be full restaurant service, but shall be deemed to be limited late service as permitted by this section. The service of alcoholic beverages shall be clearly incidental and complimentary to full and limited restaurant service. No age-based cover or similar surcharge for patrons shall be permitted in such facilities. This subsection regarding cover charges to take effect within 180 days of its adoption. There shall be no alcoholic beverage promotional activities that encourage excessive consumption on the premises. Happy hours, reduced price alcoholic beverage specials, or similar alcoholic beverage promotional activities shall be restricted to the hours of 4:00 p.m. to 9:00 p.m. This subsection to take effect within 90 days of its adoption, and shall apply to all existing and new establishments licensed to sell alcoholic beverages for public consumption on the premises.

(d)

Public balconies, decks, patios and sidewalk cafes which serve alcoholic beverages shall be subject to the following special requirements:

(1)

The balcony, deck, patio or sidewalk café size shall be in compliance with Section 32-56.8(1)(a)2, and shall not exceed the interior floor space of the associated business.

(2)

Food and beverages shall be served only to seated patrons.

(3)

No bar or similar structure used for sale or dispensing of liquor shall be permitted. Cooking facilities are prohibited, except as specifically authorized in Chapter 21, Peddlers, Vendors, and Solicitors, of this Code.

(4)

No electronically amplified sound shall be permitted.

(5)

No overflow of patrons on sidewalks and/or street right-of-way shall be permitted.

(6)

A minimum five-foot wide clear pedestrian path between any obstruction and the restaurant patio/sidewalk cafe shall be maintained at all times, but in no case shall the restaurant patio sidewalk cafe encroach into the public right-of-way. Upon application to the public works director, however, and in conjunction with review by the planning director, an intrusion into the five-foot wide clear pedestrian path may be permitted for periodic or special promotional events or related activities.

(7)

Tables, chairs, umbrellas, and any other objects provided in connection with a facility located directly on sidewalks shall be secured in an orderly fashion or removed from the sidewalk area when dining facility is closed to the public.

(8)

No tables and chairs nor any other parts of restaurant patios or sidewalk cafes shall be attached, chained, or in any manner affixed to any tree, post, sign, or other public fixtures.

(9)

Tables, chairs, umbrellas, and any other objects provided with a sidewalk cafe shall be maintained in a clean and attractive appearance and shall be in good repair at all times.

(10)

No vending machines of any kind shall be permitted.

(11)

For facilities directly on sidewalks, such facilities shall be swept and washed daily by restaurant operator including the adjoining sidewalks to the street curb. Raised decks, porches, and similar structures shall also be swept daily. Debris shall be disposed of properly in owner/manager's containers.

(12)

Restaurant patios and sidewalk cafes shall be subject to all other applicable requirements of this code.

(e)

Bar facilities in restaurants, defined as any counter in which alcoholic beverages may be stored, displayed, prepared and served, and at which patrons sit and/or stand and consume alcoholic beverages, shall be permitted, except as otherwise regulated herein, and shall be limited in size in terms of seats to no more than 15% of the total number of seats in the restaurant, not including outdoor seating at restaurant patios and sidewalk cafes.

(f)

Special use permits for restaurants, microbreweries, craft distilleries, and indoor theaters selling alcoholic beverages for public consumption on the premises:

(1)

Procedures: All facilities selling alcoholic beverages for public consumption on the premises, proposed after the adoption of this section, that require council approved special use permits for such sales, shall be subject to the following:

(A)

Special use permits as required herein shall be reviewed as provided in Article XX, Section 32-78, of this chapter.

(B)

Such special use permits, as they relate to the sale of alcoholic beverages, may be revoked at any time by a majority of council. Council may consider revocation upon a request of the mayor, a member of city council within whose district the restaurant, microbrewery, craft distillery or indoor theater is located, or the city manager. Such revocation shall be for a time period specified by council, but in no case shall be longer than one year from the date of revocation. Revocations shall be reviewed under the procedures in Article XX, Section 32-78, of this chapter.

(2)

Review criteria: In reviewing whether the applicant has demonstrated compliance with the factors for granting a special use permit specified in Article XX, Section 32-78 of this chapter, city council shall consider a written report prepared by the planning director, at the direction of the city manager, which shall include the following:

(A)

A police department evaluation concerning compliance with Chapter 19, Minors; Chapter 22, Police Offenses, Article XVII, Sales and Distribution of Alcoholic Beverages; and, Chapter 32, Zoning;

(B)

A building department evaluation concerning compliance with Chapter 32, Zoning, and Chapter 7, Building;

(C)

Any available information from the Delaware Alcoholic Beverage Control Commission; and

(D)

Other information as appropriate.

(g)

Facilities licensed by the Delaware Alcoholic Beverage Control Commission as a microbrewery or craft distillery are subject to the following special requirements:

(1)

All aspects of the distilling or brewing process must be completely confined within a building, including the storage of all materials and finished products.

(2)

Tasting rooms or taprooms for the tasting and sale of alcoholic beverages manufactured on the premises are permitted as accessory uses, with impact, requiring a special use permit under Sections 32-78 and 32-56.4(f) of this chapter. Tasting rooms or taprooms shall not operate as stand-alone bars or tasting/taproom. Tasting or taprooms shall comply with all applicable regulations as required by the Delaware Alcoholic Beverage Control Commission and all city alcohol regulations. Only one tasting and/or tap room is permitted per primary use.

(3)

Sales of alcohols manufactured outside the facility are prohibited, except as permitted by state law.

(4)

All garbage and production waste must be stored in covered containers and not visible from public ways.

(5)

There shall be no alcoholic beverage promotional activities that encourage excessive consumption on the premises. Happy hours, reduced price alcoholic beverage specials, or similar alcoholic beverage promotional activities shall be restricted to hours of 4:00 p.m. to 9:00 p.m.

(6)

Areas for the sale, serving, and consumption of alcoholic beverages on premises may be rented out to individuals or groups for private parties only with a Newark police department issued special event permit.

(7)

Expanded open-air seating, adjacent and accessory to a microbreweries or craft distillery, where the alcoholic beverages produced onsite are served or consumed, are permitted with a special use permit under Sections 32-78 and 32-56.4(f) of this chapter, with the following conditions:

(A)

A description of the open air seating area location, layout and its operations shall be included in the application for the special use permit under subsection 32-78(a)(1).

(B)

No bar or similar structure used for sale or dispensing of liquor shall be permitted. Cooking facilities are prohibited, except as specifically authorized in Chapter 21, peddlers, vendors and solicitors, of this Code.

(C)

Any noise emanation from the open-air seating area shall not violate the regulations of this Code or other regulations pertaining to noise. Noise from the open-air seating area shall not substantially or unreasonably interfere with the neighbor's enjoyment of their property.

(D)

All hours of operation are limited to between the hours of 10:00 a.m. to 10:00 p.m.

(E)

Tables, chairs, umbrellas, and any other objects provided with an open-air seating area shall be maintained in a clean and attractive appearance and shall be in good repair at all times. The area shall also be kept clean.

(F)

No vending machines of any kind shall be permitted.

(G)

No overflow of patrons on sidewalks and/or street right-of-way shall be permitted.

(H)

A fence may be required by city council in addition to any state requirement for enclosures. Fence requirements shall be established on a case by case basis as specified by city council. Fence requirements shall be based on the location of the establishment, adjoining land use, lot and building size, and proximity to residential properties and streets.

(I)

Open-air seating areas shall have a maximum capacity of one person for each 10 square feet of the floor area of the open-air seating area. Capacity of the open-air seating area shall be posted in the open-air seating area.

(J)

Open-air seating areas shall be subject to all other applicable requirements of this Code

(K)

Open area seating areas within 200 feet of land zoned residential (RH, RT, RS, RD, RM, RA, RR, AC) are subject to the requirement of five affirmative votes of council for approval.

(h)

All code provisions restricting expansions of patios into alleys and onto neighboring properties to expand outdoor seating and restricting open containers in public spaces within this section are amended to allow the city manager to consider, grant, deny or revoke such applications. Additionally, all code provisions restricting expansions of patios into alleys and onto neighboring properties to expand outdoor seating for serving food and drink are amended to allow the city manager to consider, grant, deny, or revoke such applications. This provision shall sunset immediately upon the latest of the following three events:

(1)

The lifting of the associated provision of the modified state of emergency declared by Governor John C. Carney on March 16, 2020;

(2)

The sunset of the provisions for expanded outdoor seating as enacted by HB 349 with HA 1; or

(3)

The sunset of any subsequent bill adopted by the state legislature extending these provisions.

(Ord. No. 80-11, Amend. No. 1, 2-11-80; Ord. No. 81-42, Amend. No. 1, 11-23-81; Ord. No. 85-1, Amend. No. 1, 1-14-85; Ord. No. 87-13, Amend No. 1, 4-27-87; Ord. No. 89-29, 8-14-89; Ord. No. 91-14, Amend. No. 7, 3-25-91; Ord. No. 93-1, Amend. Nos. 1, 2, 1-11-93; Ord. No. 00-28, Amend. Nos. 2, 3, 9-25-00; Ord. No. 01-7, Amend. Nos. 1—3, 5-14-01; Ord. No. 01-17, Amend. Nos. 1, 2, 9-24-01; Ord. No. 02-22, Amend. Nos. 5—7, 9-23-02; Ord. No. 05-15, Amend. No. 6, 5-23-05; Ord. No. 05-15 (Revised), Amend. Nos. 5, 6, 5-23-05; Ord. No. 05-32, Amend. No. 1, 12-12-05; Ord. No. 06-01, Amend. No. 1, 1-9-06; Ord. No. 11-19, Amend. Nos. 1, 2, 10-10-11; Ord. No. 16-16, Amend. No. 2, 4-25-16; Ord. No. 17-04, Amend. Nos. 6, 7, 2-13-17; Ord. No. 20-02, Amend. No. 3, 2-10-20; Ord. No. 20-21, Amend. No. 4, 9-28-20)

Nonresident gardening, defined as growing of produce for personal consumption only and not for sale to the public, and not as an accessory use to a residence, shall be permitted in districts RH, RT, RS, RD, RM, RA, RR, UN, BL, BLR, BN, BB, BC, ML, MI, and MOR, subject to the following special requirements:

(1)

All such gardens and adjacent sidewalks shall be kept clean from weeds or noxious plant growth detrimental to the public health and welfare.

(2)

Composting of organic garden refuse shall not be permitted.

(3)

All produce shall be harvested as it matures.

(4)

Gardening should be permitted in daylight hours only.

(Ord. No. 84-5, Amend. No. 1, 3-26-84; Ord. No. 89-29, Amend. Nos. 1, 2, 8-14-89)

Fences or similar structures erected in any required front yard in single-family residential districts (RH, RT, RS, RD, and RR) or erected in a front yard in any lot developed or approved for development, in any district, for one-family detached, semi-detached, attached, and similar dwellings shall not exceed three feet in height. All fences shall conform to the requirements in Section 32-56.2(d)(3).

(Ord. No. 90-36, Amend. No. 2, 11-26-90)

(1)

Tower, broadcasting and telecommunications, located inside the public rights-of-way, subject to the following conditional use standards and requirements:

(a)

Timing of approval for applications. The city shall comply with all federal timing requirements for the consideration of applications for new towers and collocated antennas that fall under Section 6409(a) of the Spectrum Act, and/or any orders promulgated by the FCC or any other governing entity.

(b)

New tower applications shall be accompanied by a professional engineer's report containing the following:

1.

Certification that the proposed tower will fill significant gap in wireless coverage or capacity that exists in the applicable area and that the type of wireless facility being proposed is the least intrusive means by which to fill that gap in wireless coverage. The existence or non-existence of a gap in wireless coverage shall be a factor in the city's decision on an application for approval of tower.

2.

A technical evaluation of the feasibility of attaching the tower or antenna to an existing, or previously approved, structure or wireless support structure, or sited on land owned and maintained by the City of Newark. A list of approved, municipally-owned buildings and parcels appropriate for wireless facilities placement is kept on file at the city zoning office. Council may deny an application to construct a new tower if the applicant has not made a good faith effort to mount an antenna on an existing structure.

3.

Evidence that the applicant cannot adequately extend or infill its communications system by the use of equipment such as redoes, repeaters, antennas, and other similar equipment installed on existing structures, such as utility poles or their appurtenances and other available tall structures. The applicant shall demonstrate that the proposed tower must be located where it is proposed in order to serve the applicant's service area and that no other viable alternative location exists.

4.

The applicant shall demonstrate that it contacted the owners of tall structures, buildings, and towers within a one-quarter of a mile radius of the site proposed for the tower, sought permission to install an antenna on those structures, buildings, and towers and was denied for one of the following reasons:

a.

The proposed antenna and related equipment would exceed the structural capacity of the existing building, structure or tower, and its reinforcement cannot be accomplished at a reasonable cost.

b.

The proposed antenna and related equipment would cause radio frequency interference with other existing equipment for that existing building, structure, or tower and the interference cannot be prevented at a reasonable cost.

c.

Such existing buildings, structures, or towers do not have adequate location, space, access, or height to accommodate the proposed equipment or to allow it to perform its intended function.

d.

A commercially reasonable agreement could not be reached with the owner of such building, structure, or tower.

5.

A signal coverage/propagation map of the area to be served by the proposed tower. The propagation shall show signal intensity in dBm, as well as major roads, residential developments, and commercial areas. The city reserves the right to request propagation maps for other sites or height alternatives.

6.

Certifications that the proposed tower shall comply with all applicable state and federal regulations.

(c)

Location and development standards.

1.

Available infrastructure.

a.

As part of its application for approval, the applicant must demonstrate that it cannot infill the capacity or coverage gap in its system by utilizing existing infrastructure (i.e., utility or light poles) in the rights -of-way as a support structure for an antenna, rather than constructing a new tower. Applicants that utilize existing infrastructure for the siting of antennas may proceed with the siting of their facilities by obtaining administrative approval from the city.

b.

To the extent permissible under state and federal law, antennas attached to existing infrastructure shall not exceed six feet in height and shall employ stealth technology, if possible, in their design.

c.

Applicants replacing an existing pole with a new pole to support a new antenna must bear all costs associated with such pole replacement.

2.

Towers in the rights-of-way shall not exceed a height comparable to the average height of utility poles or electrical poles within a two block radius of the proposed facility, unless the applicant can prove to the satisfaction of council that a taller tower is the only method by the applicant can infill its gap in coverage or capacity.

3.

Towers are prohibited within 75 linear feet of areas in which all utilities are located underground.

4.

Towers shall not be located in the front façade area of any structure.

5.

Towers are prohibited in the BB—Central Business District.

6.

Tower are prohibited in the 100-year flood zone, as determined by the City.

7.

Applicants proposing the construction or siting of towers in state-owned rights-of-way shall demonstrate that it submitted all appropriate applications to the Delaware Department of Transportation and subsequently received permission for the siting or construction of said towers.

(d)

Design regulations.

1.

The tower shall employ the most current stealth technology available in an effort to appropriately blend into the surrounding environment and minimize aesthetic impact. The application of the stealth technology chosen by the applicant shall be subject to the approval of the city council.

2.

To the extent permissible under state and federal law, any height extensions to an existing tower shall require prior approval of the city, and shall not violate the provisions described herein.

3.

Towers shall be designed structurally, electrically, and in all respects to accommodate both the applicant's antennas and comparable antennas the maximum amount of future users based on the size of the proposed tower.

4.

The design committee of the Downtown Newark Partnership will review applications for the placement of new towers in the downtown district in order to ensure that the character of such districts is preserved. The applicant shall take into consideration the design recommended by the design committee when it submits its final conditional use application to council.

(e)

Equipment location. Towers and related equipment shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, or to otherwise create safety hazards to pedestrians and/or motorists or to otherwise inconvenience public use of the rights-of-way as determined by the city. In addition:

1.

Ground-mounted related equipment shall be located between the sidewalk and the curb. For reasons of safety and aesthetics, such equipment shall neither protrude onto the curb, nor obstruct the sidewalk.

2.

Required electrical meter cabinets shall the screened to blend in with the surrounding area to the satisfaction of the city council.

3.

Any graffiti on the tower or on any related equipment shall be removed at the sole expense of the owner as prescribed in chapter 17.

4.

Any underground vaults related to telecommunications towers shall be reviewed and approved by city council.

(f)

Time, place and manner. The city shall determine the time, place and manner of construction, maintenance, repair and/or removal of all towers in the rights-of-way based on public safety, traffic management, physical burden on the rights-of-way, and related considerations. For public utilities, the time, place and manner requirements shall be consistent with the police powers of the city and the requirements of the public utility code.

(g)

A structural engineer registered in Delaware shall issue to the city a written certification of the proposed tower's ability to meet the structural standards offered by either the Electronic Industries Association or the Telecommunication Industry Association and certify the proper construction of the foundation and the erection of the structure.

(h)

Towers and antennas shall employ stealth technology and shall be aesthetically and architecturally compatible with the surrounding environment and shall maximize the use of a like facade to blend with the existing surroundings and neighboring buildings to the greatest extent possible. Council shall consider whether its decision upon the subject application will promote the harmonious and orderly development of the zoning district and/or surrounding area involved; encourage compatibility with the character and type of development existing in the area; benefit neighboring properties by preventing a negative impact on the aesthetic character of the community; preserve woodlands and trees existing at the site to the greatest possible extent; and encourage sound engineering and construction principles, practices and techniques.

(i)

Permit required for modifications. To the extent permissible under applicable state and federal law, the proposed modification of an existing tower, which substantially changes the dimensions of such wireless support structure, shall first obtain a building permit from the city. Non-routine modifications shall be prohibited without such permit.

(j)

No tower shall interfere with public safety communications or the reception of broadband, television, radio or other communication services enjoyed by occupants of nearby properties.

(k)

Towers shall be fully automated and unattended on a daily basis and shall be visited only for maintenance or emergency repair. Such maintenance shall be performed to ensure the upkeep of the tower in order to promote the safety and security of the city's residents, and utilize the best available technology for preventing failures and accidents. Any maintenance or repair to antennas or towers located above high voltage power lines shall be performed by contractors who are OSHA-certified to work above high voltage power lines.

(l)

To the extent permissible under state and federal law, no tower or antenna may be located upon any property, or on a building, structure that is listed on either the National or Delaware Registers of Historic Places, included in section 7-19 of this Code pertaining to historic structures, or is described in the official historic structures and/or historic districts list maintained by the city. No tower in the public rights-of-way shall be located along a highway or other road that is considered by the city to be a scenic route.

(m)

All towers shall post a sign in a readily visible location identifying the name and phone number of a party to contact in the event of an emergency. The only other signage permitted on the tower shall be that required by the FCC, or any other federal or state agency.

(n)

Towers shall not be artificially lighted, except as required by law. If lighting is required, the applicant shall provide a detailed plan for sufficient lighting, demonstrating as unobtrusive and inoffensive an effect as is permissible under state and federal regulations. The applicant shall promptly report any outage or malfunction of FAA-mandated lighting to the appropriate governmental authorities and to the city manager. This requirement shall not apply to towers employing stealth technology in the rights-of-way that are designed to resemble streetlights.

(o)

Towers shall be operated and maintained so as not to produce noise in excess of applicable noise standards under state law and the City Code, except in emergency situations requiring the use of a backup generator, where such noise standards may be exceeded on a temporary basis only, but no more than 24 hours.

(p)

Relocation or removal of facilities. Within 60 days following written notice from the city, or such longer period as the city determines is reasonably necessary or such shorter period in the case of an emergency, the owner of a tower in the rights-of-way shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any tower when the city, consistent with its police powers and applicable public utility commission regulations, shall determine that such removal, relocation, change or alteration is reasonably necessary under the following circumstances:

1.

The construction, repair, maintenance or installation of any city or other public improvement in the right-of-way;

2.

The operations of the city or other governmental entity in the right-of-way;

3.

Vacation of a street or road or the release of a utility easement; or

4.

An emergency as determined by the city.

(q)

Permit fees. The city may assess appropriate and reasonable permit fees directly related to the city's actual costs in reviewing and processing the application for approval of a new tower, as well as related inspection, monitoring, and related costs.

(r)

Nothing herein shall be construed to prohibit the city from leasing fiber that it owns and/or maintains to third parties.

(s)

All proposed tower applications shall be accompanied with proof that the telecommunications applicant has a contract with a wireless service provider to install, construct, modify, maintain or operate the specified wireless communications facilities in the right-of-way in which such installation, construction, modification, maintenance or operation is to begin within one year of approval.

(2)

Tower, broadcasting and telecommunications, located outside the public rights-of-way, within zoning districts in this chapter in which they are permitted, and subject to the following special requirements:

(a)

Timing of approval for applications. The city shall comply with all federal timing requirements for the consideration of applications for new towers, as well as collocated antennas that fall under the Spectrum Act and/or the October 2014 Report and Order promulgated by the FCC. Tower applications shall be accompanied by a professional engineer's report containing the following:

1.

A technical evaluation of the utilization of existing towers for telecommunications or other equipment intended for the installation on the proposed tower, as well as a propagation study evidencing the need for the proposed tower or other communication facilities and equipment, a description of the type and manufacturer of the proposed transmission/radio equipment, the frequency range (megahertz band) assigned to the applicant, the power in watts at which the applicant transmits, and any relevant related tests conducted by the applicant in determining the need for the proposed site and installation.

2.

A technical evaluation of the feasibility of attaching the tower or antenna to an existing, or previously approved, structure or wireless support structure, or sited on land owned and maintained by the City of Newark. A list of approved, municipally-owned buildings and parcels appropriate for wireless facilities placement is kept on file at the city planning and development office. Council may deny an application to construct a new tower if the applicant has not made a good faith effort to mount an antenna on an existing structure. The applicant shall demonstrate that it contacted the owners of tall structures, buildings, and towers within a one-quarter of a mile radius of the site proposed for the tower, sought permission to install an antenna on those structures, buildings, and towers and was denied for one of the following reasons:

a.

The proposed antenna and related equipment would exceed the structural capacity of the existing building, structure or tower, and its reinforcement cannot be accomplished at a reasonable cost.

b.

The proposed antenna and related equipment would cause radio frequency interference with other existing equipment for that existing building, structure, or tower and the interference cannot be prevented at a reasonable cost.

c.

Such existing buildings, structures, or towers do not have adequate location, space, access, or height to accommodate the proposed equipment or to allow it to perform its intended function.

d.

A commercially reasonable agreement could not be reached with the owner of such building, structure, or tower.

3.

Certification that the proposed tower will fill a significant gap in wireless coverage or capacity that exists in the applicable area and that the type of wireless facility being proposed is the least intrusive means by which to fill that gap in wireless coverage. The existence or non-existence of a gap in wireless coverage shall be a factor in the city's decision on an application for approval of a telecommunications tower.

4.

Written certification of compliance with Federal Communications Commission Safety Standards for exposure to nonionizing electromagnetic radiation.

5.

Copies of all applicable state and federal permits.

6.

An engineering analysis of the proposed tower, including a summary of the proposed tower's capacity to provide space for future co-location by others.

(b)

Any principal part of the tower, excluding guy cables, shall be set back from the nearest property line of a church, library, school, nursing home, hospital, or lot zoned residential (RH, RT, RS, RD, RM, RR, and AC) not less than three times the height of the tower or 350 feet, whichever is greater. The setback shall be measured from the nearest point of the base of the tower to the nearest point of the property line of the protected use. If the applicant uses self-collapsing technology in its tower design, the setback from the nearest property line shall be one and a half times the height of the tower or 150 feet, which is greater.

(c)

No artificial light shall be installed upon any such tower unless required by the Federal Aviation Administration. If such light is required, it shall be screened so as not to project its light below the horizontal plane in which it is located.

(d)

Towers shall not exceed 175 feet in height unless a variance is successfully obtained by the applicant. Towers over 200 feet in height shall be guyed and not self-supporting nor consisting of lattice type structures, unless the applicant demonstrates that a guyed tower shall have a greater negative visual impact than a self-supporting tower.

(e)

To the extent permitted by applicable federal law and FCC regulations, towers located on existing buildings or structures shall not extend beyond 22 feet above the highest point of the building or structure. Accessory buildings or facilities for towers located on existing buildings or structures shall be located either in or on top of such buildings or structures.

(f)

The applicant shall submit a soil report to the city complying with the standards of Appendix I: Geotechnical Investigations, ANSI/EIA-222, as amended, to document and verify the design specifications of the foundation of the tower, and anchors for guy wires, if used.

Landscaping shall be provided around the base of the tower and adjacent to a required security fence that shall be at least 10 feet high. The landscaping shall consist of a minimum 25-foot-wide planting strip with ground cover and/or grass, including at least one row of six-foot-high evergreen trees providing a solid screen adjacent or proximate to the fence, and 15-foot-high, two-inch caliper deciduous trees, interspersed within the buffer area and no more than 20 feet apart. Applicants may substitute alternative landscape plans that meet the purposes of this subsection to limit the visual impact of the lower portion of the tower and adjoining accessory facilities. Camouflaged towers designed to look like trees may be exempt from this subsection, subject to council approval. Towers located on top of buildings three stories or more in height and telecommunication antennas located on existing buildings shall be exempt from this subsection, except that a six-foot-high solid evergreen screen shall be required between any telecommunications antenna or tower accessory building and adjoining properties. A 10-foot-high security fence and an adjoining six-foot-high solid evergreen screen adjacent or proximate to the fence shall be provided around the anchoring facilities for guy wires for guyed towers.

(g)

No outdoor storage shall be permitted at the tower site.

(h)

Unless otherwise required by the Federal Communications Commission or the Federal Aviation Administration, towers shall be light gray in color. Camouflaged towers designed to look like trees or employing other alternative methods of stealth technology may be exempt from this subsection, subject to council approval. Telecommunication antennas with colors designed to match buildings or structures to which they are attached shall be exempt from this subsection. Towers shall be aesthetically and architecturally compatible with the surrounding environment and shall maximize the use of a like facade to blend with the existing surroundings and neighboring buildings to the greatest extent possible.

Council shall consider whether its decision upon the subject application will promote the harmonious and orderly development of the zoning district involved; encourage compatibility with the character and type of development existing in the area; benefit neighboring properties by preventing a negative impact on the aesthetic character of the community; preserve woodlands and trees existing at the site to the greatest possible extent; and encourage sound engineering design and construction principles, practices and techniques.

(i)

A tower shall be located so as not to encroach into any established public or private airport approach as established by the Federal Aviation Administration.

(j)

Towers higher than 100 feet must be a minimum of 2,000 feet from the nearest similar tower, measured from the base of the towers.

(k)

New telecommunications facilities may be attached to an approved tower without applying for an additional special use permit so long as the new facility does not substantially change the dimensions of the wireless support structure, or trigger any other exemption outlined by federal or state regulation. Antennas being sited on structures that do not already act as wireless support structures may be approved administratively, so long as they do not exceed 10 feet in height and are constructed with a stealth design approved by council. To the extent permitted by state and federal law, as built drawings must be submitted to staff in advance of receiving such administrative approval, in order to determine whether the applicants proposed facility is eligible for administrative approval.

(l)

No interference with existing television, cable television, radio signals, emergency communications services, or other electronic devices shall be permitted from the tower. If interference occurs, it shall be immediately remedied by the operators of the tower.

(m)

If a tower is abandoned, unused for two years, or no longer operable, it shall be removed within six months of its abandonment. If a tower is not dismantled as specified in this subsection, the city shall arrange to have the facility dismantled and will assess the landowner all costs associated with the removal of the tower. If the full amount due the city is not paid by the owner, or person in control of the property, or his or her agent, within 90 days of receipt of a bill from the city, the city finance director shall cause a special assessment to be recorded in the municipal lien docket. The recordation of such special assessment shall constitute a lien on the property and shall remain in full force and effect for the amount due in principal and interest until final payment has been made.

(n)

That the owner of such tower shall provide proof to the city that the tower has undergone a triennial inspection for structural integrity. Said inspection is to be performed by a certified engineer, or other qualified professional, at the expense of the owner of the tower. If structural deterioration is found to be present, and such deterioration affects the physical stability or aesthetic integrity of the tower, the owner shall be required to correct such deterioration within a time limit to be established by the building department.

In addition, the operator of such tower shall provide annual proof to the city that the tower has undergone field measurements to ensure compliance with all applicable Federal Communication Commission safety standards for exposure to nonionizing electromagnetic radiation. Such field measurements, and submission of the results to the city, shall be conducted upon start of the facility and annually thereafter, except that every third year, such proof of compliance shall be submitted on behalf of the operator by an independent nonionizing electromagnetic radiation evaluator. All such field measurements, and submission of the results, are to be performed by a certified engineer, or other qualified professional, at the expense of the operator. If such field measurements demonstrate noncompliance with Federal Communication Commission safety standards specified in this section, transmission at the facility shall be suspended until such time as full Federal Communication Commission safety standards compliance is demonstrated to the satisfaction of the city.

(o)

The owner of such tower shall give proof to the city that any damages which may occur to surrounding properties or injury which may occur to persons, which damages or injuries are caused by a failure of the tower and/or its associated structural supports, regardless of whether such failure is a result of human error or an act of God, shall be paid by the owner of the tower and/or insurers of the tower.

(p)

Wireless telecommunications facilities shall not be located upon a property, and/or on a building or structure that is listed on the National or Delaware Registers of Historic Places, included in Section 7-19 of this Code pertaining to historic structures, or is described in the official historic structures and/or historic districts list maintained by the city.

(q)

Wireless telecommunications facilities shall be operated and maintained so as not to produce noise in excess of applicable noise standards under state law and the City Code, except in emergency situations requiring the use of a backup generator, where such noise standards may be exceeded on a temporary basis only, but no more than 24 hours.

(r)

The city may assess appropriate and reasonable permit fees directly related to the city's actual costs in reviewing and processing the application for approval of a tower or antenna, as well as related inspection, monitoring, and related costs.

(s)

City residents and amateur radio operators utilizing satellite dishes, towers and antennas for the purpose of maintaining television, phone, radio and/or internet connections at their respective residences shall be exempt from the regulations enumerated in this section of the zoning ordinance.

(t)

Notwithstanding the criteria set forth in Section 32-78 of this chapter, council shall grant the application if all of the foregoing requirements are met.

(Ord. No. 17-22, Amend. No. 3, 6-12-17; Ord. No. 17-36, Amend. No. 1, 11-27-17; Ord. No. 24-10, Amend. No. 7, 4-22-24)

(1)

Sidewalk café, patio, deck, balcony and parklet standards.

(a)

These standards apply to all new sidewalk cafes, patios, decks, balconies and parklets in the downtown district as defined in Chapter 2, Section 2-44(b).

Exception: Patios, decks and balconies associated with single family dwellings.

1.

The city planning and development and public works and water resources departments shall have the discretion to require conditions to the permit given specific site characteristics.

2.

Sidewalk cafes, patios, decks and balconies shall be limited to a maximum of 1,000 square feet.

Exceptions:

a.

The size may exceed 1,000 square feet where a minimum of 10% of the total area is used for recreational purposes that will not jeopardize the health, safety or welfare of surrounding individuals or display of art, not for business purposes. Where meeting this requirement the total size shall not be limited unless restricted by property lines, clearance requirements, other sections of this code or other regulations.

b.

Patios, decks and balconies associated with businesses which serve alcohol shall be limited in accordance with Section 32-56.4.

3.

Sidewalk cafes, patios and decks shall be accessible in accordance with the Americans with Disabilities Act currently in effect and the accessibility requirements of the Building Code in effect at the time of construction permitting. Balconies shall be accessible when located on an accessible story.

4.

An accessible route shall be provided in the public way past the sidewalk café, patio or parklet.

5.

Sidewalk cafes, patios, parklets and decks shall not interfere with the accessibility of the sidewalks, building entrances or exits.

6.

Sidewalk cafés, patios, decks and parklets shall have an accessible route to the public way.

a.

The accessible route shall not go through a building.

Exceptions:

i.

Where the only access is through a building, or

ii.

Where the walking surface is greater than 10 inches above the adjoining grade.

7.

Patios, decks and parklets shall be enclosed within a fence, wall, barrier or guard, exclusive of ingress and egress.

a.

Fences, walls and barriers which are more than 75% solid that create a visual screen shall not exceed three feet in height where located:

i.

Within eight feet of the street curb.

ii.

Within 15 feet of a crosswalk or vehicular way.

iii.

Within 20 feet of an intersection of public rights-of-way.

Exception: Street trees in approved locations.

b.

Fences, walls and barriers shall meet the requirements of a guard (as defined in the building code) where the walking surface is greater than 30 inches above the adjoining grade.

c.

Posts and other supporting elements shall be installed by approved methods.

d.

Exposed surfaces of fences, walls and barriers shall not be constructed of plastic or pressure treated wood. All materials shall be durable, weather resistant, smooth and approved by the manufacturer for exterior use.

e.

Barriers shall be a minimum of two feet in height.

Exception: Barriers greater than three feet in width shall be a minimum of six inches in height.

f.

Pointed tops for posts or supporting elements are prohibited.

g.

Landscape barriers shall be approved by the parks and recreation department.

h.

Fences, walls and barriers shall be continuous except as required for walkways and egress elements.

8.

Sidewalk cafés associated with businesses which serve alcoholic beverages shall be subject to the requirements of Section 32-56.4(d).

9.

Cooking facilities located in sidewalk cafés shall require a special use permit as provided in this chapter, Article XX, Section 32-78 or Chapter 21, Peddlers, Vendors and Solicitors, of this Code.

10.

Roofs and awnings over patios and decks shall not be located:

a.

Within eight feet of a street curb.

b.

Within 15 feet of a crosswalk or vehicular way.

c.

Within 20 feet of an intersection of public rights-of-way.

Exception: Roofs shall be permitted where the sides are a minimum of 40 percent open and the side wall/barrier does not exceed 42 inches in height.

11.

Patios, decks, balconies and parklets associated with a business shall be maintained in good repair and sanitary condition. The property owner or business shall sweep and wash all areas daily. All garbage and debris shall be disposed of in approved containers.

(b)

Patios, decks, sidewalk cafés and parklets shall provide the required clearances from other right-of-way structures in accordance with the attached Diagram 1 and the following specifications:

1.

A six-foot minimum clear path of travel is required. The clear path of travel shall be accessible in accordance with the Americans with Disabilities Act currently in effect and the accessibility requirements of the Building Code in effect at the time of construction permitting.

2.

The clear path of travel is measured from the outside edge of the sidewalk café enclosure, fence or post base to the nearest obstruction (i.e., tree pit, parking meter, bike rack, planting strip, etc.). If no obstruction exists, the clear path of travel is measured to the back of curb. Sidewalk cafes shall not encroach into tree pits. A-frame portable signs or other encroachments are not allowed in the pedestrian clear path of travel. *Note: Sidewalk cafes with five-foot minimum clear paths of travel permitted and constructed prior to the adoption of this ordinance may continue, but any future expansions and/or modifications must meet these requirements.

3.

The public works and water resources director and/or the planning and development director may require more than the minimum clear path of travel when needed to facilitate the public's use of the right-of-way. (i.e., in areas of high peak-periods of pedestrian volumes, areas where more specific planning/analysis suggest a wider clear path of travel, near transit or loading zones, near public plazas or art installations, access points where large volumes of pedestrians circulate, etc.).

4.

The path of travel shall be straight and not involve sharp or jagged turns that would impair pedestrian circulation.

5.

A sidewalk café width shall not exceed the available pedestrian clear travel path width when the sidewalk café is adjacent to a Parklet, street closed to vehicular traffic, or other public space, except where approved by the public works and water resources director.

6.

Where a new patio, deck or parklet is constructed, the existing adjacent sidewalk shall be modified as necessary to be accessible in accordance with the Americans with Disabilities Act currently in effect and the accessibility requirements of the Building Code in effect at the time of construction permitting.

(c)

Setbacks are required from the following elements. These elements must be clearly identified on the required site plan with the permit application.

Exception: Where a clear path of travel is provided around the associated element.

1.

Five-feet from alleys, bus, handicap parking and loading zones.

2.

Five-feet from parking meters, pay stations, traffic signs, utility poles, fire hydrants, fire department connections, bike racks, waste receptacles and other street fixtures.

(d)

Sidewalk cafés shall not require a change to the occupancy permit for the associated permitted business.

1.

The associated business shall have the required number of plumbing fixtures associated with the additional occupants based on the building and plumbing codes in effect at time of construction permitting.

(2)

Heating elements, grills and fire pits are permitted in accordance with the International Fire Code and State of Delaware Fire Prevention Regulations in effect and shall be approved by the fire marshal and code enforcement division.

(3)

The installation and use of speakers and other amplified sound equipment shall be regulated in accordance with Chapter 20A, Noise.

(4)

Sidewalk cafes, patios and parklets must be in compliance with all Delaware Alcoholic Beverage Control Board (DABCB) laws, subject to DABCB enforcement and city council special use permit conditions.

(5)

No tables, chairs, umbrellas or any other objects provided with a sidewalk café, patio, deck or any other use shall be attached, chained or affixed in any manner to a tree, post, utility pole, sign or other public feature.

(6)

All sidewalk cafés, patios, decks, balconies and parklets shall be maintained daily in a clean and attractive appearance and shall be in good repair at all times. Sidewalk cafés, patios, decks, balconies and parklets associated with private property or businesses shall be cleaned and swept daily by the property owner or associated business.

(7)

No vending machines of any kind shall be permitted.

(8)

No signs shall be permitted in a sidewalk café, patio or parklet constructed within the right-of-way. Signs located on private property shall be approved and constructed in accordance with Article XVII, Signs, of this chapter.

(9)

There shall be no overflow of patrons onto the sidewalk or right-of-way from sidewalk cafés, patios, decks, balconies and parklets associated with businesses. All tables, chairs and other furnishings owned by a property owner or business shall be located within the required enclosure and kept in good repair.

(10)

Security personnel or other supervision shall be provided to maintain order and a clear path of travel where a line of customers forms to enter a sidewalk café, patio, deck or parklet associated with a business.

(11)

All code provisions requiring council to approve applications to expand outdoor seating for serving food and drink are amended to allow the city manager to consider, grant, deny or revoke such applications. Additionally, all code provisions restricting expansions of patios into alleys and onto neighboring properties to expand outdoor seating for serving food and drink are amended to allow the city manager to consider, grant, deny, or revoke such applications. This provision shall sunset immediately upon the latest of the following three events:

(a)

The lifting of the associated provision of the modified state of emergency declared by Governor John C. Carney on March 16, 2020;

(b)

The sunset of the provisions for expanded outdoor seating as enacted by HB 349 with HA 1; or

(c)

The sunset of any subsequent bill adopted by the state legislature extending these provisions.

(Ord. No. 20-02, Amend. No. 4, 2-10-20; Ord. No. 20-21, Amend. No. 3, 9-28-20)