South Bethany City Zoning Code
ARTICLE XV
Board of Adjustment
§ 145-56 Membership, terms, removals and vacancies.
[Amended 2-8-2002 by Ord. No. 106-01; 4-13-2012 by Ord. No. 163-12; 3-14-2014 by Ord. No. 171-13]
The Board of Adjustment of South Bethany shall consist of five members who are either: 1) full-time residents of the Town of South Bethany; 2) or own property within the Town of South Bethany and who reside within the Town at least 30 days, consecutively or nonconsecutively, each year they serve as a Board member. All Board members shall have knowledge of the problems of urban and rural development and, at the time of appointment and throughout the term of office, shall not be candidates for or members of the Town Council or employees of the Town. The Mayor shall appoint five members of the Board of Adjustment, and all such appointments shall be confirmed by a majority vote of the Town Council. All appointments shall be for a period of three years, provided that the terms of the original members shall be established in such a manner that the term of at least one member shall expire each year and the successor shall be appointed for a term of three years; provided, further, that notwithstanding the three-year term limitation, each member shall serve until his successor is duly appointed, confirmed and installed in office.
A.
Removal. Members of the Board of Adjustment may be removed by the Town Council for cause, after a public hearing, by a majority vote of the Town Council. Any vacancy occurring otherwise than by the expiration of term shall be filled for the unexpired term in the same manner as an original appointment.
B.
Quorum. At least three members of the Board of Adjustment shall constitute a quorum for the conduct of business. All decisions of the Board shall be made by a majority of those members present.
§ 145-57 Procedure.
A.
The Board of Adjustment shall elect from among its own members a Chairperson and a Secretary annually in the month of August. The Board of Adjustment shall adopt rules necessary to the conduct of its affairs and in keeping with the provisions of this chapter. Meetings shall be held at the call of the Chairperson with reasonable notice to the other members and at such other times as the Board may determine. The Chairperson or, in his absence, the Acting Chairperson may administer oaths and compel the attendance of witnesses and the presentation of documents. All meetings shall be open to the public.
[Amended 3-14-2014 by Ord. No. 171-13; 5-13-2016 by Ord. No. 180-16]
B.
The Board of Adjustment shall keep minutes of its proceedings showing the vote of each member upon each question, or if absent or failing to vote indicating such fact, and shall keep records of its actions, all of which shall be a public record and shall be filed in accordance with § 145-62 of this article.
§ 145-58 Powers and duties.
The Board of Adjustment shall, in its activities and decisions, be governed by Title 22, Chapter 3, of the Delaware Code, and Article II of this chapter. Within that scope, the Board of Adjustment shall have the following powers and duties:
A.
Appeals: to hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by a town official in the enforcement of this chapter. Such appeals shall be filed with the Town Manager within 20 days of discovery of the issuance of such order, but in no event more than 30 days after the issuance of a Certificate of Compliance/Occupancy (or where no Certificate of Complinace/Occupancy is required, after final completion of the work), together with application fees, and shall specify the details of the order and the consequences which serve as the basis for the appeal. Within 10 days of receipt of such appeal, the Town Manager shall send the applicable documents, including any relevant comments of the town official cited in the appeal, to the Chairperson and members of the Board of Adjustment. The Board of Adjustment shall designate a reasonable time for hearing of the appeal and shall give public notice in accordance with Subsection B(2) of this article. Any appeal stays all proceedings in furtherance of the action which has been appealed.
[Amended 2-8-2002 by Ord. No. 106-01; 3-14-2014 by Ord. No. 171-13]
B.
Special exceptions: to hear and decide only such special exceptions as the Board of Adjustment is specifically authorized to pass on by the terms of § 145-28 of this chapter. The Board of Adjustment may grant special exceptions with such additional conditions and safeguards as are appropriate under this chapter or may deny special exceptions when the particular use cannot be accommodated to a particular site without violating the purposes of this chapter. A special exception shall not be granted by the Board of Adjustment unless and until:
(1)
A written application for a special exception is submitted indicating the section of this chapter under which the special exception is sought and stating the grounds on which it is requested.
(2)
A public hearing shall be held. At least 30 days before the hearing, notice shall be posted and be not less than 11 inches by 17 inches on the property for which the special exception is sought; and at least 8 1/2 inches by 11 inches on the bulletin board in the Town Hall and at four other public places in the Town. The notice shall contain the name of the property owner, the geographic location of the subject property, subdivision or other matter requested and the date, time and place of the hearing. The notice shall also be published in one newspaper of general circulation in the Town at least 30 days prior to the hearing. A copy of the notice shall be mailed at least 30 days prior to the hearing to the owner(s) of the subject property and to the owner(s) of property, within the Town's corporate limits, located within a radius of 200 feet, measured from the center of the subject property, at their addresses as shown on the Town's tax records.
[Amended 2-8-2002 by Ord. No. 106-01; 8-12-2022 by Ord. No. 208-22]
C.
Variances. A variance from the dimensional terms of this chapter shall be granted only upon a finding by the Board of Adjustment that:
[Amended 3-9-2001 by Ord. No. 96-00]
(1)
Special conditions or exceptional situations exist with regard to the particular lot or structure (because, among other reasons, of its size, shape, location or topography) such that a literal interpretation/application of the dimensional terms of this chapter to that particular lot will result in unnecessary hardship and/or exceptional practical difficulties to the owner thereof;
(2)
The spirit of this chapter shall be observed and substantial justice done; and
(3)
The granting of the variance will not cause substantial detriment to the public good and will not substantially impair the intent and purpose of this chapter.
D.
Use variance prohibited. A variance shall not be given to permit uses which are not permitted in any given district.
E.
Additional powers and duties of the Board of Adjustment are listed in the following sections: §§ 42-10B, 42-15, 116-20F, 145-28, 145-40, 145-67 and 145-69.
[Added 3-14-2014 by Ord. No. 171-13[1]]
[1]
Editor's Note: This ordinance also repealed former Subsection E, Building permit extensions, added 2-8-2002 by Ord. No. 106-01.
§ 145-59 Procedures for application for a variance.
[Amended 2-8-2002 by Ord. No. 106-01; 3-14-2014 by Ord. No. 171-13]
Following the denial of an application for a building permit, an application for a variance may be filed in writing with the Town Manager, with application fees, and shall specify the physical conditions of the property on which the application is based. Within 10 days after receiving such application for a variance, the Board Secretary shall send the application together with all available documentation, including any relevant comments of the Code Enforcement Official or Town Manager, to the Chairperson and other members of the Board of Adjustment.
§ 145-60 Public hearing for variance request.
A public hearing shall be held and notice thereof given in accordance with § 145-58B(2) of this article.
§ 145-61 Coastal Floodplain Regulation variances.
[Amended 2-13-2015 by Ord. No. 177-14]
The Town of South Bethany Board of Adjustment (BOA) shall have the power to authorize, in specific cases, such variances from the requirements listed in Article XIV, Coastal Floodplain Regulations, not inconsistent with federal regulations, as will not be contrary to the public interest where, owing to special conditions of the lot or parcel, a literal enforcement of the provisions of these regulations would result in unnecessary hardship and/or exceptional practical difficulties.
A.
Application for a variance.
(1)
Any owner, or agent thereof, of property for which a variance is sought shall submit an application for a variance to the BOA as described in § 145-59.
(2)
At a minimum, such application shall contain the following information: name, address, and telephone number of the applicant; legal description of the property; parcel map; location of the floodplain; description of the variance sought; and reason for the variance request. Each variance application shall specifically address each of the considerations in § 145-61B and the limitations and conditions of § 145-61C.
B.
Considerations for variances. In considering variance applications, the BOA shall consider and make findings of fact on all evaluations, all relevant factors, and all requirements specified in other sections of these regulations. Additionally, the BOA may consider the following factors:
(1)
The danger that materials may be swept onto other lands to the injury of others.
(2)
The danger to life and property due to flooding or erosion damage.
(3)
The susceptibility of the proposed development and its contents (if applicable) to flood damage and the effect of such damage on the individual owner.
(4)
The importance of the services provided by the proposed development to the community.
(5)
The safety of access to the property in times of flood for ordinary and emergency vehicles.
(6)
The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action expected at the site.
(7)
The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, and streets and bridges.
C.
Limitations for variances.
(1)
In addition to satisfying those conditions outlined in § 145-58C for granting variances, an affirmative decision on a variance request shall only be issued upon:
(a)
A showing of good and sufficient cause. A "good and sufficient" cause is one that deals solely with the physical characteristics of the property and cannot be based on the character of the planned construction or substantial improvement, the personal characteristics of the owner or inhabitants, or local provisions that regulate standards other than health and public safety standards.
(b)
A determination that failure to grant the variance would result in exceptional hardship due to the physical characteristics of the property.
(c)
Increased cost or inconvenience of meeting the requirements of these regulations does not constitute an exceptional hardship to the applicant.
(d)
A determination that the granting of a variance for development within any designated floodway, or special flood hazard area with base flood elevations but no floodway, will not result in increased flood heights beyond that which is allowed in these regulations.
(e)
A determination that the granting of a variance will not result in additional threats to public safety; extraordinary public expense, nuisances, fraud on or victimization of the public, or conflict with existing local laws.
(f)
A determination that the structure or other development is protected by methods to minimize flood damages.
(g)
A determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(2)
Upon consideration of the individual circumstances, the limitations and conditions, and the purposes of these regulations, the BOA may attach such conditions to variances as it deems necessary to further the purposes of these regulations.
(3)
The BOA shall notify, in writing, any applicant to whom a variance is granted for a building or structure with a lowest floor elevation below the base flood elevation that the variance is to the floodplain management requirements of these regulations only, and that the cost of federal flood insurance will be commensurate with the increased risk.
§ 145-62 Filing of decisions of Board of Adjustment.
A.
Report of decisions. On all appeals, applications and other matters brought before the Board of Adjustment, the Board shall inform, in writing, all the parties of its decisions and the reasons therefor within 60 days after the date of the conclusion of the hearings.
B.
Finality. Decisions shall be filed with the Town Manager and shall become final on the date of such filing.
C.
Withdrawal of application. Once an application has been submitted to the Board, it may not be withdrawn prior to final decision thereof unless a majority of the members of the Board vote to allow the withdrawal.
D.
Rehearing. After the Board renders its decision, no new application with a substantially similar objective, filed by the original applicant or his successor in interest, shall be acted upon by the Board until two years have elapsed since the initial decision unless the Board finds that the facts and circumstances existing at the time of the initial decision by the Board have undergone a material change.
§ 145-63 Appeals from Board of Adjustment decisions.
Any person, including the Town Council, aggrieved by any decision of the Board of Adjustment, may appeal to the Superior Court for Sussex County, setting forth the grounds of the appeal. Such appeal shall be presented to the Court within 30 days from the date the decision of the Board of Adjustment is final as set forth in § 145-62.