Sussex County Unincorporated
City Zoning Code
City Zoning Code
ARTICLE XXVII
Board of Adjustment
§ 115-207 Establishment membership; officers; meetings.
A.
A Board of Adjustment is hereby created, which shall hereafter be referred to as the "Board."
B.
The Board shall consist of five members, whose selection, terms and qualifications shall be as indicated in 9 Del. C. § 6803(c), and any subsequent amendments thereto.
C.
The Board shall select a Chairman from its membership, shall appoint a Secretary and shall prescribe rules for the conduct of its affairs. The Chairman or, in his absence, the Acting Chairman shall have the power to issue subpoenas for the attendance of witnesses and the production of records and may administer oaths and take testimony.
D.
For the conduct of any hearing, a quorum shall not be less than three members, and an affirmative vote of three members of the Board shall be required to overrule any decision, ruling or determination of the official charged with enforcement of this chapter or to approve any special exception or variance.
E.
All meetings of the Board shall be open to the public.
§ 115-208 Procedures and records.
A.
Applications for special exceptions, interpretations and variances may be made by any property owner, tenant, government official, department, board or bureau. Such application shall be made to the Director in accordance with rules adopted by the Board. The application and accompanying maps, plans or other information shall be transmitted promptly to the Secretary of the Board, who shall place the matter on the docket, advertise a public hearing thereon and give written notice of such hearing to the parties in interest. The Director shall also transmit a copy of the application to the Planning and Zoning Commission, which may send a recommendation to the Board or appear as a party at the hearing.
B.
An appeal to the Board may be taken by any person aggrieved or by any officer, department, board or bureau of the county affected by any decision of the Director. Such appeal shall be taken within 30 days after the decision appealed from by filing with the Director a notice of appeal, specifying the grounds thereof. The Director shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken. An appeal stays all proceedings in furtherance of the action appealed from unless the Director certifies to the Board that, by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order granted by the Board or by a court of record, on application and on notice to the Director and on due cause shown.
C.
The Board shall fix a reasonable time for the hearing of an application or appeal, give public notice thereof as well as due notice to the parties in interest and decide the same within 30 days following the hearing. Upon the hearing, any party may appear in person or by agent or by attorney. Public notice of a hearing shall consist of publication at least 15 days prior to the hearing in a newspaper of general circulation in the county, specifying the time, place and nature of the hearing. In addition, the Board may cause the date, time, place and nature of the hearing to be posted conspicuously on the property, in accordance with the rules of the Board. In exercising its powers, the Board may 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 all the powers of the Director.
D.
The Board shall keep minutes of its proceedings and other official actions, 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 examinations and other official actions, all of which shall be filed in the office of the Board and shall be a public record.
E.
The Chairman of the Board or, in his absence, the Acting Chairman may administer oaths and compel the attendance of witnesses.
F.
An application or appeal to the Board may not be withdrawn within two business days prior to the day of the holding of the public hearing before the Board; provided, however, that an application or appeal may be withdrawn thereafter for good cause shown if a majority of the members of the Board shall vote to allow such withdrawal.
[Added 11-26-1991 by Ord. No. 804]
G.
Any applicant or appellant to the Board who fails to appear, or appear by agent, for a hearing before the Board shall be considered to have withdrawn its application or appeal. Whenever an applicant or appellant fails to withdraw an application or appeal as provided in Subsection F hereof or fails to appear, or appear by agent, for a hearing before the Board, an application or appeal substantially similar shall not be reconsidered sooner than one year after the previous failure to withdraw or failure to appear.
[Added 11-26-1991 by Ord. No. 804]
§ 115-209 Powers and duties.
The Board of Adjustment shall have the following powers:
A.
To hear and decide appeals where it is alleged that there is an error in any order, requirement, decision or determination made by an administrative official in the administration or enforcement of this chapter.
B.
To hear and decide on applications for special exceptions upon which the Board is specifically authorized to pass under this chapter.
C.
To authorize upon appeal in specific cases such variance from the terms of this chapter as will not be contrary to the public interest where, owing to special conditions, the enforcement of the provisions of this chapter will result in unwarranted hardship and injustice, but which will most nearly accomplish the purpose and intent of this chapter.
D.
To hear and decide applications for interpretation of the Zoning District Map where there is any uncertainty as to the location of a district boundary.
§ 115-210 Special exceptions.
In order to provide for adjustments in the relative location of uses and buildings, to promote the usefulness of these regulations and to supply the necessary elasticity to their efficient operation, special use exceptions, limited as to locations described in this Article, and special yard and height, exceptions are permitted by the terms of these regulations. The following buildings and uses are permitted as special exceptions if the Board finds that, in its opinion, as a matter of fact, such exceptions will not substantially affect adversely the uses of adjacent and neighboring property:
A.
Special use exceptions:
(1)
Temporary and conditional permits for a period not to exceed five years, such period to be determined by the Board, for the following uses, which are specified in each district:
[Amended 10-12-1999 by Ord. No. 1346; 10-12-2010 by Ord. No. 2152; 9-13-2011 by Ord. No. 2213; 10-22-2019 by Ord. No. 2684]
Archery ranges | |
Asphalt batching plants or concrete batching plants | |
Commercial dog kennels | |
Miniature golf courses or driving ranges | |
Nonaccessory tents for special purposes | |
Outdoor display or promotional activities at shopping centers or elsewhere | |
Pony rings | |
Raising for sale of birds, bees, rabbits and other small animals, fish and other creatures | |
Riding academies, public stables or private stables | |
Rifle or pistol ranges, trap or skeet shooting | |
Sawmills for cutting timber grown on the premises | |
Temporary buildings for use as a sales or rental office for an approved real estate development or subdivision | |
Use of a manufactured home as a single-family dwelling in any district to meet an emergency or hardship situation when not approved administratively by the Director or his or her designee, such permit not to exceed two years. The Director may, without requiring an application for a special use exception, grant an extension for an emergency or hardship situation previously approved by the County Board of Adjustment upon receipt of an affidavit from a doctor stating that the emergency or hardship situation still exists. Such extension may be granted annually as long as the emergency or hardship still exists. | |
Use of a manufactured-home-type structure for any business, commercial or industrial use when not approved administratively by the Director or his or her designee |
(2)
Exceptions to parking and loading requirements as follows:
(a)
Off-street parking areas, adjacent to or at a reasonable distance from the premises on which parking areas are required by the parking regulations of Article XXII, where practical difficulties, including the acquisition of property, or undue hardships are encountered in locating such parking areas on the premises and where the purpose of these regulations to relieve congestion in the streets would best be served by permitting such parking off the premises.
(b)
Waiver or reduction of the parking and loading requirements in any district whenever the character or use of the buildings is such as to make unnecessary the full provision of parking or loading facilities.
(c)
Waiver or reduction of loading space requirements where adequate community loading facilities are provided.
(d)
Waiver or reduction of loading space requirements for uses which contain less than 10,000 square feet of floor area where construction of existing buildings, problems of access or size of lot make impractical the provision of required loading space.
(e)
Waiver of or reduction in interior drive width.
(3)
Other special use exceptions as follows, which are specified in each district:
(a)
Private garages for more than four automobiles and with floor area of more than 900 square feet in a residential district.
(b)
Cemeteries for pets.
(c)
Commercial greenhouses, wholesale or retail.
(d)
Convalescent homes, nursing homes or homes for the aged.
(e)
Day nurseries or child-care centers.
(g)
Nurseries for growing of plants, trees and shrubs, including a building for sale of products produced on the premises.
(h)
In any HI-1 Heavy Industrial District, those heavy industrial uses upon which the Board is required to pass under Article XV.
(i)
[2]Telephone central offices, in any AR, MR, GR, HR, UR, RPC and VRP Districts, provided that all storage of materials, all repair facilities and all housing of repair crews are within a completely enclosed building.
[2]
Editor’s Note: Former Subsection A(3)(i), which listed a determination, in cases of uncertainty, of the district classification of any use not specifically named, was repealed 4-16-2019 by Ord. No. 2644. Ordinance No. 2644 also redesignated former Subsection A(3)(j) through (r) as Subsection A(3)(i) through (q), respectively.
(l)
The alteration, extension or replacement of a nonconforming manufactured home, subject to the provisions of § 115-196.
[Amended 10-12-2010 by Ord. No. 2152]
(m)
More than one manufactured home may be permitted on a farm of 10 acres or more pursuant to § 115-21A(5), provided that all manufactured homes or dwellings on the property are the primary place of residence for persons employed on the premises or immediate members of the family owning or operating the farm, and provided that the granting of this exception will not adversely affect the values or uses of adjacent properties.
[Amended 3-25-1997 by Ord. No. 1131; 10-12-2010 by Ord. No. 2152]
(n)
Tourist home (also referred to as "bed-and-breakfast inns") in any AR, MR, GR, UR and B-1 Districts.
[Added 5-16-1989 by Ord. No. 585]
(o)
In any C-1 General Commercial District, off-premises signs, not exceeding 600 square feet total, subject to the provisions of § 115-81A(2).[4]
[Added 12-14-1993 by Ord. No. 945]
[4]
Editor's Note: Former Subsection A(3)(p) and (q), regarding manufactured homes, which immediately followed, were repealed 10-8-2019 by Ord. No. 2682.
(p)
Accessory dwelling units, subject to the dimensional requirements of § 115-20A(15)(c), (d) and (e).
[Added 10-22-2019 by Ord. No. 2684; amended 6-25-2024 by Ord. No. 3027]
B.
Special yard exceptions:
(1)
An exception in the yard regulations on a lot where, on the adjacent lot, there is a front, side or rear yard that does not conform to such yard regulations in a way similar to the exception applied for.
(2)
An exception in the depth of a rear yard on a lot in a block where there are nonconforming rear yards.
(3)
An exception where there are irregularities in depths of existing front yards on a street frontage on the side of a street between two intersecting streets, so that any one of the existing depths shall, for a building hereafter constructed or extended, be the required minimum front yard depth.
C.
Special height exceptions:
(1)
An exception to the height regulations in the LI-1 and LI-2 Districts.
(2)
An exception to the height limit of 150 feet for a radio or television broadcasting station or tower, provided that construction and safety features are approved by the Director in accord with applicable regulations, and provided that no hazard is created in an airport approach zone.
§ 115-211 Variances.
A.
Subject to the provisions of § 115-209, the Board shall have the power to grant the following variances:
(1)
A variation in the yard requirements in any district so as to relieve practical difficulties or particular hardships in cases when and where, by reason of exceptional narrowness, shallowness or other unusual characteristic of size or shape of a specific piece of property at the time of the enactment of such regulation or restriction or by reason of exceptional topographical conditions or other extraordinary situation or condition of such piece of property or by reason of the use or development of property immediately adjacent thereto, the strict application of each regulation or restriction would result in peculiar and exceptional practical difficulties to or exceptional hardship upon the owner of such property. Such granting of variance shall comply, as nearly as possible, in every respect with the spirit, intent and purpose of this chapter, it being the purpose of this provision to authorize the granting of variation only for reasons of demonstrable and exceptional hardship as distinguished from variations sought by applicants for purposes or reasons of convenience, profit or caprice.
B.
No such variance shall be authorized by the Board unless it finds:
(1)
That there are unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not to circumstances or conditions generally created by the provisions of the Zoning Ordinance or code in the neighborhood or district in which the property is located.
(2)
That, because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the Zoning Ordinance or code and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.
(3)
That such unnecessary hardship has not been created by the appellant.
(4)
That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located and not substantially or permanently impair the appropriate use or development of adjacent property nor be detrimental to the public welfare.
(5)
That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
C.
Variances to the provisions of § 115-189G and H of Article 10 shall only be issued in conformance with the following criteria:
(1)
A showing of good and sufficient cause.
(2)
A determination that failure to grant the appeal would result in exceptional hardship to the applicant.
(3)
A determination that the granting of an appeal will not result in increased flood heights, additional threats to public safety or extraordinary public expense, create nuisances, cause fraud on or victimization of the public or conflict with existing local laws or ordinances.
(4)
A determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
D.
The Secretary of the Board shall notify the applicant, in writing, that the issuance of a decision to allow construction of a structure below the one-hundred-year flood level will result in increased premium rates for flood insurance and that such construction below the one-hundred-year flood level increases risks to life and property. Such notification shall be maintained along with a record of all decisions, including justification for their issuance. A report of such decisions shall be submitted in the annual report to the Federal Insurance Administrator.
E.
F.
No variance shall be authorized unless the Board finds that the condition or situation of the property concerned or the intended use of the property is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the chapter.
G.
No variance shall be granted for any construction, development, use or activity within any Floodway Area that would cause any increase in the one-hundred-year flood elevation.
[Added 12-27-1983 by Ord. No. 163]
H.
In a manufactured home park, if an adjoining site received a variance for building separation from Sussex County, no variance for building separation caused by the adjoining site’s variance shall be required for the replacement of an existing accessory structure previously approved by Sussex County, as long as setback requirements are met and the replacement structure is of the same size and on the same footprint.
[Added 12-14-2010 by Ord. No. 2168]
§ 115-212 Conditions attached to approvals.
Where, in these regulations, special exceptions are permitted, provided that they are approved by the Board, and where the Board is authorized to decide appeals or approve certain uses and where the Board is authorized to approve variances, such approval, decision or authorization shall be limited by such conditions as the case may require, including the imposition of any of the following specifications:
A.
No outside signs or advertising structures except professional or directional signs.
B.
Limitations of signs as to size, type, color, location or illumination.
C.
Amount, direction and location of outdoor lighting.
D.
Amount and location of off-street parking and loading space.
E.
Cleaning or painting.
F.
Gable roof or other type.
G.
Construction and materials.
H.
Connected or disconnected with other buildings.
I.
Exits or entrances, doors and windows.
J.
Paving, shrubbery, landscaping or ornamental or screening fences, walls or hedges.
K.
Time of day or night for operating.
L.
No storefronts.
M.
No structural changes.
N.
Control or elimination of smoke, dust, gas, noise or vibration by operations.
O.
Requirements for termination of a use based on lapse of time or such other conditions as the Board may specify.
P.
Such other conditions as are necessary.
§ 115-213 Lapse of special exception or variance.
[Amended 3-20-2018 by Ord. No. 2563]
After the Board of Adjustment has approved a special exception or granted a variance, the special exception or variance so approved or granted shall lapse after the expiration of two years if no substantial construction or change of use has taken place in accordance with the plans for which such special exception or variance was granted. The Board of Adjustment may extend the expiration date of the special use exception or variance for a period not to exceed one year upon a showing of good cause; provided, however, that the extension request is submitted prior to the expiration of the existing approval. If a decision of the Board is appealed, the two years shall not begin until the decision on appeal becomes final.
§ 115-214 Amendment of special exception or variance.
The procedure for amendment of a special exception or variance already approved or a request for a change of conditions attached to an approval shall be the same as for a new application, except that, where the Director determines the change to be minor relative to the original approval, he may transmit the same to the Board with the original record without requiring that a new application be filed.
§ 115-215 Judicial review.
Appeals to courts from a decision of the Board may be filed in a manner prescribed by law.