Ocean View City Zoning Code
ARTICLE XVII
Administrative and Beneficial Use Appeals; Variances
§ 140-106 Appeal of administrative decisions and determinations.
A.
Purpose: provide a mechanism for appeal where an error is alleged in any interpretation, order, requirement, decision, or determination made by the Administrative Official or designee in the administration of this chapter.
B.
Who may appeal. An appeal to the Board of Adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the Town affected by any decision of the Administrative Official or designee.
C.
Procedure.
(1)
Submittal. An aggrieved person or entity appealing a decision of the Administrative Official shall be required to submit the appeal within 30 days of the decision, along with an appeal fee required by the Code.
(2)
Required information. The appeal filed shall state the specific grounds for the appeal and the specific grounds for the error by the Administrative Official or designee.
(3)
Public hearing. The Board of Adjustment shall schedule a hearing within 45 days of the filing of the appeal. At the hearing, the appellant shall bear the burden of proof that the decision of the Administrative Official or designee was factually erroneous and/or contrary to law.
D.
Stay of proceedings. An appeal stays all proceedings in furtherance of the action appealed from unless the Administrative Official or designee certifies to the Board of Adjustment that a stay would cause imminent peril to life or property. In such a case, proceedings shall be stayed only by a restraining order granted by the Board of Adjustment or a court having jurisdiction.
§ 140-107 Beneficial use appeals.
A.
Definition. A "beneficial use appeal" is a process by which the Town of Ocean View evaluates an allegation that no beneficial use remains in a property and determines that some level of relief from this chapter is warranted.
B.
Who may apply. A landowner who alleges that the application of this chapter denies all, or substantially all, economically viable use of property may apply for relief after exhausting all other available avenues of appeal (including variance requests) to the Board of Adjustment.
C.
Application submission.
(1)
Filing. Applications shall be filed with the Administrative Official in the Office of the Board of Adjustment. The Board or the Administrative Official may provide forms to facilitate application processing.
(2)
Fee. The Town Council shall establish a fee schedule in an amount significant enough to cover all publication and other administrative costs.
(3)
Content. Applications shall be made in writing and shall provide the following information.
(a)
Information about the owner and applicant.
(b)
Documentation of the purchase date and price of the property;
(c)
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 or amendment thereto, and any known prior uses;
(d)
A description of the specific portions of this chapter that 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 Town related to the property;
(e)
A description of the use that the landowner believes represents the minimum beneficial use of the property and all documentation, studies, and other evidence supporting that position;
(f)
If the property has been listed for sale since the adoption of this chapter or amendment thereto, originals or copies of all bids, offers to purchase, and other correspondence regarding the sale of such property; and
(g)
Plans or drawings that support or clarify the relief or permission requested.
(h)
Other information requested by the Board of Adjustment, including, but not limited to, survey information.
D.
Burden of proof on applicant. Every applicant shall have the burden of presenting the information needed by the Board of Adjustment to make a beneficial determination use.
E.
Board of Adjustment hearing.
(1)
Scheduling. The Board of Adjustment shall schedule a public hearing.
(2)
Public notice.
(a)
Newspaper notice. The Town shall advertise the public hearing in a newspaper of general circulation. The notice shall appear at least 15 calendar days prior to the public hearing date and shall contain the following information:
[1]
The type of application;
[2]
A short description of the proposed action;
[3]
A description of the parcel and the approximate street location or address;
[4]
The location, date, and time of the public hearing; and
[5]
Information on where full details of the application may be obtained, including the hours of availability and phone number.
(b)
Notice to owner/applicant. The Town shall notify by mail the owner and/or applicant of the time and place of the hearing.
(3)
Public hearing. The hearing shall take place no fewer than 15 days following publication of the legal notice.
F.
Deprivation standards. 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:
(1)
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;
(2)
Common land uses. A use common to the Town 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 Town or adjoining areas, but which uses still provide for occupation and living by the landowner;
(3)
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;
(4)
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 chapter, constitute a denial of all or substantially all economic viable use of the property;
(5)
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;
(6)
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; and
(7)
Other. 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.
G.
Granting relief.
(1)
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.
(2)
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:
(a)
The reality of limited development potential, given the natural condition of the property, shall not be attributed to the regulations applied to the property.
(b)
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.
§ 140-108 Variances.
A.
Definition. A "variance" is relief from the strict application of the provisions of this chapter when, owing to special conditions or exceptional situations, a literal interpretation of this chapter will result in exceptional practical difficulties to the property owner.
B.
Application submission.
(1)
Filing. Applications shall be filed with the Administrative Official in the Office of the Board of Adjustment. The Board or the Administrative Official may provide forms to facilitate application processing.
(2)
Fee. The Town Council shall establish a fee schedule in an amount significant enough to cover all publication and other administrative costs.
(3)
Content. Applications shall be made in writing and shall provide the following information:
(a)
Information about the owner and applicant;
(b)
Statement of the type of relief requested that includes references to the applicable parts of this chapter from which relief is sought;
(c)
Information about the property for which the application or review is being made;
(d)
Plans or drawings that support or clarify the relief or permission requested; and
(e)
Other information requested by the Board of Adjustment, including, but not limited to, survey information.
C.
Burden of proof on applicant. Every applicant shall have the burden of proof.
D.
Board of Adjustment hearing.
(1)
Scheduling. The Board of Adjustment shall schedule a public hearing on the application.
(2)
Public notice.
(a)
Newspaper notice. The Town shall advertise the public hearing in a newspaper of general circulation. The notice shall appear at least 15 calendar days prior to the public hearing date and shall contain the following information:
[1]
The type of application;
[2]
A short description of the proposed action;
[3]
A description of the parcel and the approximate street location or address; and
[4]
The location, date, and time of the public hearing;
[5]
Information on where full details of the application may be obtained, including the hours of availability and phone number.
(b)
Notice to owner/applicant. The Town shall notify by mail the owner and/or applicant of the time and place of the hearing.
(c)
Mailed notice. The Town shall send a copy of the legal notice to the last known address on file in the Town tax records of all property owners within a two-hundred-foot radius of the property measured at each property line no fewer than 15 calendar days prior to the public hearing.
(d)
Property posted notice. The Town shall erect a public hearing posted notice sign on all subject properties at least 10 days in advance of a public hearing.
(e)
Town Hall. Notice shall be posted at Town Hall and shall contain the same information as required for the newspaper advertisement.
(3)
Public hearing.
(a)
The hearing shall take place no fewer than 15 days following publication of the legal notice.
(b)
The Board of Adjustment's hearing shall be conducted, and applications shall be acted on as specified in § 140-18 of this chapter.
(c)
The Board of Adjustment may attach conditions to approvals of applications.
E.
Relationship to ordinances, standards, approvals, and review procedures. Approval of an application by the Board of Adjustment does not supersede or obviate the need for complying with any other applicable ordinances, standards, approvals, or review procedures.
F.
Reapplications and appeals.
(1)
Limitation on reapplications. The Board of Adjustment shall not hear or accept an application requesting the same relief or permission for the same property for a period of 12 months from the date that the Board of Adjustment took action on the application.
(2)
Appeals to Superior Court. Appeals from the Board of Adjustment's decisions shall be made to the Superior Court as permitted by law.
G.
Required findings. Pursuant to Title 22, Section 327, of the Delaware Code and applicable law, the Board of Adjustment shall determine whether each variance application meets the following criteria:
(1)
The variance relates to a specific parcel of land, and the hardship is not shared generally by other properties in the same zoning district and vicinity;
(2)
The variance can be granted without substantial detriment to the public good;
(3)
The benefits from granting the variance would substantially outweigh any detriment;
(4)
Approval of the variance would not substantially impair the intent and purposes of the Comprehensive Plan or this chapter; and
(5)
All requirements for the grant of a variance under Delaware law.
I.
Additional standards.
(1)
Use variances. Use variances may be granted only when such use variances strictly comply with the requirements for use variance under Delaware law. These provisions governing use variances shall not be construed to permit the Board of Adjustment, under the guise of a variance, to authorize a use of land not otherwise permitted in this chapter.
(2)
Nonconforming situations not grounds for variance. Nonconforming lots, structures, uses, or signs shall not be expanded by variance.
§ 140-108.1 Administrative variances.
[Added 3-12-2019 by Ord. No. 357]
A.
Notwithstanding the provisions of Article XVII of this chapter, the Director of Planning, Zoning and Development may administratively grant yard setback, height limit, or building separation, subject to the following:
B.
Administrative variances shall not be granted for standards pertaining to the number of dwelling units permitted, parking requirements, vision clearance area, density, or use of property.
C.
Within 30 working days after the administrative variance application is submitted and accepted, the Director may approve the administrative variance or advise the applicant requesting the administrative variance that an application must be submitted to the Board of Adjustment.
D.
In taking any such action, the Director shall be governed by all the procedures, standards, and limitations of this chapter applicable to the Board of Adjustment in granting variances, except public hearing requirements. In approving such a variance under the provisions of this section, the Director shall allow only a variance necessary to provide reasonable relief and, as deemed advisable, may prescribe such conditions, to include landscaping and screening measures, to assure compliance with the intent of this chapter.
E.
Upon the approval of a variance for a particular building in accordance with the provisions of this section, the same shall be deemed a lawful building.
F.
The decision of the Director shall be appealable to the Board of Adjustment.