The board of adjustment shall have the following powers and duties:

1.

Administrative review. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the administrative official in the enforcement of this ordinance.

2.

Special exceptions; conditions governing; procedures. to hear and decide requests for those special exceptions which are specifically enumerated in this ordinance when, in the judgment of the board of adjustment, the particular use will be in harmony with the purpose and intent of the ordinance, will not significantly impair the appropriate use of adjoining or nearby property, and will serve the convenience and welfare of the community. No special exception shall be granted for a period of less than one year, and there shall be no limit upon the number of times a special exception can be renewed.

a.

In making such determination, the board of adjustment shall consider, among other things:

(1)

The volume of existing traffic and the volume of traffic that will be generated by the proposed use;

(2)

The adequacy or inadequacy of available parking and the possible need for and availability of additional off-street parking;

(3)

The potential for objectionable or nuisance-causing activities, including but not limited to air pollution (smoke, ash, dust, fumes, vapors or gases), vibration, noise, heat, glare, light, noxious odors, or radio or television interference;

(4)

The economic and aesthetic effect upon adjoining or nearby properties;

(5)

The suitability of the proposed use in keeping with the harmony of adjoining or nearby properties;

(6)

The amount of pedestrian traffic generated, including the potential for congregation of individuals at or near the property involved.

b.

(i)

In granting a special exception, the board of adjustment may impose any conditions not otherwise inconsistent with the terms of this ordinance reasonably calculated to minimize the impact of the permitted use upon adjoining and nearby properties, including but not limited to:

(1)

Limiting the hours of operation;

(2)

Requiring additional off-street parking above that otherwise required by the terms of this ordinance:

(3)

Requiring the erection of fences, shrubbery or other screening devices;

(4)

Further limiting the size, location and number of signs otherwise permitted by this ordinance;

(5)

Limiting the number of persons involved in the use at any one time, including those conducting the use and those being served by the use;

(6)

Limiting the use to a specific percentage of floor area or lot area or a specific portion of the lot or structure involved;

(7)

Limiting the number and hours of deliveries;

(8)

Limiting or prohibiting the display of products of samples visible from nearby streets or public ways;

(9)

Any other condition reasonably calculated to protect the community and nearby properties from any adverse effects resulting from the use if permitted as a special exception.

b.

(ii)

In granting a special exception for adult entertainment establishments and/or body art establishments, as these terms are defined at section 5.10.b.(2) of the zoning code, the board of adjustment shall impose the following time, place, and manner restrictions:

1.

All adult entertainment establishments shall strictly comply with all provisions of 24 Del. C. Chapter 16, as now in effect or as hereafter amended. Failure to comply with this requirement shall void the special exception permit.

2.

All body art establishments shall strictly comply with all provisions of 16 Del. Admin. C. § 4451 (Body Art Establishments), as the same may be amended from time to time and any other future corresponding provision of law, adopted under authority of 16Del. C. Chapter 1, §122(3)(w), as now in effect or as hereafter amended. Failure to comply with this requirement shall void the special exception permit.

3.

Adult entertainment establishments shall only be permitted in the highway commercial district (HC), and body art establishments shall only be permitted in the local commercial district (LC), central commercial district (CC), highway commercial district (HC), north corridor district (NC), and south corridor district (SCZ).

4.

All adult entertainment establishments and body art establishments, (hereafter referred to collectively as "adult uses") shall be subject to the following time, place, and manner regulations:

a.

No more than one activity constituting an adult use shall be permitted on any lot.

b.

No adult use shall be permitted in any building otherwise used in whole or part for residential purposes.

c.

No adult use shall be permitted on any lot which is located within 1,000 feet of any other lot on which is located an adult use. This distance shall be measured from the nearest property line of such use to the nearest property line of the proposed adult use.

d.

No adult use shall be permitted on any lot which is located within 1,000 feet of any lot in any residential district. This distance shall be measured from the nearest property line of any residential district to the nearest property line of the proposed adult use.

e.

No adult use shall be permitted on any lot which is located within 1,000 feet of any lot on which is located a church, community center, funeral home, school, day-care center, hospital, alcoholism center or drug treatment center, counseling or psychiatric treatment facility or public park. This distance shall be measured from the nearest property line of such above use to the nearest property line of the proposed adult use.

f.

No adult use shall be permitted on any lot which is located within 1,000 feet of any school bus stop. This distance shall be measured from the nearest school bus stop to the nearest property line of the proposed adult use premises.

g.

No adult use shall be permitted on any lot which is located within 1,000 feet of any commercial enterprise that customarily employs minors. This distance shall be measured from the nearest commercial enterprise to the nearest property line of the proposed adult use premises.

h.

No adult use shall be permitted on any lot which is located within 1,000 feet of any establishment that sells or serves alcoholic beverages. This distance shall be measured from the establishment that sells or serves alcoholic beverages to the nearest property line of the proposed adult use premises.

i.

The proposed use shall meet all other requirements of the laws of the Town of Smyrna, including but not limited to district lot and bulk regulations, parking regulations and signage requirements.

j.

It shall be a condition of any special permit issued for an adult use that no person under the age of 18 years shall be permitted into the premises.

k.

Explicit messages or drawings on signs and/or the public display of explicit sexual material associated with any adult entertainment use is prohibited.

l.

Adult uses may operate only between the hours of 10:00 a.m. 8:00 p.m., Mondays through Fridays, and between 10:00 a.m. and 11:00 p.m. on Saturdays, only.

m.

All adult uses shall continuously carry liability insurance with minimum limits of $1,000,000.00 single limit.

5.

In the event the adult use special exception applicant shall meet all of the above requirements, the adult use special exception permit shall be issued, subject to forfeiture for a violation of any of the requirements imposed by this ordinance.

6.

Any adult use special exception issued or granted pursuant to this amendment to the zoning code shall be personal to the applicant only, and shall not be deemed to go with the land or lot upon which the adult use is located, and shall not be transferable.

7.

All adult use special exceptions issued or granted pursuant to this amendment to the zoning code shall be of a limited duration of three years, however, any such adult use special exception applicant may apply to the board of adjustment for renewal of said adult use special exception within six months of the expiration date of the current adult use special exception.

8.

All adult use special exception holders shall permit the State of Delaware, through its designated agents, and the Town of Smyrna, through its designated agents, to enter upon the entirety of the premises upon which the adult use is conducted during its hours of operation, for the purpose of inspection and testing, and for the purpose of determining whether the terms of applicable state and town laws are being complied with.

9.

A certificate of zoning compliance shall not be issued for an adult entertainment establishment or a body art establishment until the town has received a copy of all licenses and permits required by the State of Delaware or any other government or regulatory body or agency for the establishment and/or the establishment's employees. After giving 15 days' written notice, a certificate of zoning compliance may be revoked due to the failure of the establishment or any of its employees to have a valid license or permit, and it shall not be reinstated until a valid license or permit has been provided to the town. If an adult entertainment establishment or a body art establishment or employee thereof disputes the need to obtain a permit or license, the adult entertainment establishment or a body art establishment or employee may request a hearing before the town council. If a hearing is requested, any existing certificate of zoning compliance shall not be revoked prior to the hearing but no new certificate of zoning compliance shall be issued prior to the hearing. If a permit or license is not provided to the town, the town may require a letter of no objection from the entity responsible for issuing the permit or license prior to issuing a certificate of zoning compliance.

10.

If any section, paragraph, sentence or clause of this amendment is determined or declared to be invalid or unenforceable by any court of competent jurisdiction, the remainder hereof shall remain in full force and effect.

c.

Any person desiring a special exception as authorized under the terms of this ordinance shall file a written application describing the requested use in detail. Such application shall include, among other information:

(1)

The nature of the requested use;

(2)

The specific section of the zoning ordinance authorizing such use as a special exception;

(3)

The address of the property subject to the request;

(4)

A detailed description of the intended use addressing those considerations (and other appropriate considerations, if any) listed in paragraph 2(a) above.

Applications shall be accompanied by a brief site plan drawn to scale showing the size and location of the lot and structures involved, adjoining properties and streets, the area where the use will be confined, and the location of off-street parking on the subject property.

In addition to the above information and site plan, the applicant shall provide such other relevant information as requested by the zoning officer.

d.

The board of adjustment shall hold a public hearing on the request which shall be noticed as provided in section 14 of this ordinance. In addition, the applicant and adjoining property owners shall be notified by mail. ("Adjoining property owners," for purposes of this paragraph, means properties contiguous to the subject property and, if separated by a street or alley, properties which would be contiguous to the subject property if their sidelines were extended at right angles across such street or alley.)

e.

At the public hearing, any party may appear in person by agent or by attorney.

f.

The board of adjustment shall make specific findings as to those considerations listed in paragraph 2(a) and shall approve or deny the request accordingly. If the application is approved, the board may impose any appropriate conditions as provided in paragraph 2(b) above.

g.

The board of adjustment may limit a special exception to a specified period of time at the end of which time the special exception shall expire and the right to continue such use shall automatically terminate unless a new application to continue the special exception is approved; provided however, that no special exception shall be granted for a term of less than one year.

In allowing any application to renew or extend the term of a special exception, the board of adjustment shall consider and make appropriate finding, taking into account changing circumstances of the area, if any, and the impact that the use has had on nearby properties during the period of time it has been in existence. If the request to renew or extend the term of the special exception is granted, the board may, in so granting the request, impose new or alternate conditions reasonably calculated to effectuate the purpose and intent of this ordinance.

h.

The violation of any condition imposed by the board of adjustment may be grounds for the termination of such special exception after notice and hearing before the board on the issue of such violation. Such notice and hearing shall be effected pursuant to section 14 of this zoning ordinance.

3.

Variances; conditions governing applications; procedures. To authorize upon appeal in specific cases such variance from the terms of this ordinance as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this ordinance would result in unnecessary hardship and/or exceptional practical difficulties. A variance from the terms of this ordinance shall not be granted by the board of adjustment unless and until:

a.

A written application for a variance is submitted demonstrating:

(1)

That special conditions or exceptional practical difficulties exist which are particular to the land, structure or building involved because, among other reasons, of its size, shape, location or topography and which are not applicable to other lands, structures or buildings in the same district;

(2)

That literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this ordinance;

(3)

That the special conditions and circumstances do not result from the actions of the applicant;

(4)

That granting the variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands, structures, or buildings in the same district.

No nonconforming use of neighboring lands, structures or buildings in the same district, and no permitted use of lands, structures or buildings in other districts shall be considered grounds for the issuance of a variance.

The above standards shall be construed and applied consistent with the then-current controlling law covering the granting of area variances by the board of adjustment, including, but not limited, case law interpreting the exceptional practical difficulties standards. No application to the board of adjustment shall otherwise be required when the criteria of section 11 of this ordinance are met.

b.

Notice shall be given as specified in section 14 of this ordinance. The owner of the property for which the variance is sought or his agent shall be notified by mail.

c.

The public hearing shall be held. Any party may appear in person or by agent or by attorney.

d.

The board of adjustment shall make findings that the requirements of section 9(3)(a) have been met by the applicant for a variance.

e.

The board of adjustment shall further make a finding that the reasons set forth in the application justify the granting of the variance, and that the variance is the minimum variance that will make possible the reasonable use of land, building, or structure.

(1)

The variance is the minimal variance that will make possible the reasonable use of the land, building or structure;

(2)

The granting of the variance will be in harmony with the general purpose and intent of the zoning code; and

(3)

The variance will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.

f.

The board of adjustment shall further make a finding that the granting of the variance will be in harmony with the general purpose and intent of this ordinance, and will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.

(1)

The variance is the minimal variance that will make possible the reasonable use of the land, building or structure;

(2)

The granting of the variance will be in harmony with the general purpose and intent of the zoning code; and

(3)

The variance will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.

In granting any variance, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this ordinance. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this ordinance and punishable under section 17 of this ordinance.

Under no circumstances shall the board of adjustment grant a variance to allow a use not permissible under the terms of this ordinance in the district involved, or any use expressly or by implication prohibited by the terms of this ordinance in said district.

(Ord. of 8-16-93(2), § 3; Ord. No. 010-10, § 1, 5-17-10; Ord. No. 003-20, §§ 8, 9, 1-6-20)

4.

Decisions of the board of adjustment. In exercising the above-mentioned powers, the board of adjustment may, so long as such action is in conformity with the terms of this ordinance, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination as ought to be made, and to that end shall have powers of the administrative official from whom the appeal is taken. The concurring vote of the majority of the members of the board shall be necessary to reverse any order, requirement, decision, or determination of the administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under this ordinance, or to effect any variation in the application of this ordinance.

(Ord. of 4-5-93(2); Ord. No. 004-06, §§ 1—4, 2-21-06)