Sec. 48-66. - Membership.

(a)

Generally. There shall be a zoning board of adjustment, constituted in accordance with the provisions of 22 Del. C. ch. 3, subch. II (§ 321 et seq.).

(b)

Present members. The members of the zoning board of adjustment heretofore established under the preexisting zoning ordinance shall continue in office for the duration of their official terms.

(c)

Vacancies. Any vacancies on the zoning board of adjustment shall be filled in accordance with the state law referred to above.

(d)

Chairman and vice-chairman. The zoning board of adjustment shall elect its chairman and vice-chairman at the first meeting held after June 30 of each calendar year.

(Code 1968, § 48-60)

Sec. 48-67. - Meetings, procedures and records.

(a)

Meetings generally. Meetings of the zoning board of adjustment shall be held at the call of the chairman, or in his absence the vice-chairman, but at least once a month.

(b)

Procedure for obtaining permission of the board. Any person desiring to obtain the permission of the board for any purpose for which permission is required under this chapter, or for any use not otherwise covered, shall make written application therefore and such written application shall include:

(1)

A statement that the applicant has notified, or has attempted in good faith to notify, all owners of property that adjoins the applicant's property, as well as the affected city council representative;

(2)

Copies of the document that was sent via certified mail to the adjoining neighbors;

(3)

Copies of the returned receipts or signatures from adjoining property owners;

(4)

Any known opposition by adjoining property owners to the applicant's purpose for which the board's permission is being sought; and

(5)

An affidavit certifying that he/she is not delinquent in payment of city property taxes, water and sewer billing, or any other lienable fee or taxes for which amounts are past due to the city, for the property that is the subject of the written application, subject to verification by the city department of finance as of the date of the application;

and the board shall hold a public hearing thereon, after public notice and notification to the property owners affected, and render a decision. Such public notice shall be given not less than ten days before any public hearing except for an emergency, special or rescheduled meeting, provided, however, that any such emergency, special or rescheduled meeting shall still comply with the notice requirements of the Delaware Freedom of Information Act. Any notice required under this section shall include the posting of the board's agenda, as required by the Delaware Freedom of Information Act, the forwarding of copies of each agenda stating, as it does, the hearing location, hearing date and hearing time, with copies of the case number notice being provided to: the president of city council; to the city council district member, the county council member and the state representative in whole districts the subject property is located; and to the chair of the officially recognized neighborhood or civic association(s) in the area within which the subject property is located, as listed in the planning department community organization directory. Such notice and its accompanying list of property owners and addresses shall also be sent to each owner of record of properties located within not less than the city block surrounding the subject property, as well as to the "occupants" of the properties that are dwellings that are directly adjacent to or abutting the subject property or directly across a street or public alley from the subject property. For purposes of this section, "one city block" shall mean a city block, defined as the area within the perimeter of the rectangle formed by the sides of the four street within which the subject property is located, or a radius of 250 feet, whichever is greater. In the event that an application or appeal is withdrawn or is to be rescheduled and that fact is known prior to the hearing date and time, the zoning administrator shall make his/her best efforts to notify by telephone the president and the district member of council, the county council member, the state representative and the community organization in order that they may assist in providing further notification to property owners and occupants, given the short amount of time involved, of the fact that the appeal or application will not be heard on the date scheduled.

(c)

Meetings to be public; minutes; records. All meetings of the board shall be open to the public, and the board 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. All records of the board shall be filed in the office of the board and shall be open to public inspection.

(d)

Rules and regulations for transaction of business. The board shall adopt such other rules and regulations, not inconsistent with the state law or the provisions of this chapter, as it may deem necessary for the transaction of its business.

(e)

Applications for approval to operate rooming houses. The zoning board of adjustment shall not accept applications for approval to operate a rooming house from any person who is delinquent in payment of city property taxes, water and sewer billings, or any other account or loan for which amounts are past due and owning to the city, nor if any of such taxes, billings, accounts or loans are unpaid by the owner, if other than the applicant of the proposed rooming house building, until and unless all such taxes, water billings or other accounts and loans are paid in full, together with interest and penalties.

(f)

Multi-family conversions. Any building that had been designed for use as a single family residence but has been converted to a multi-family use and has been vacant for one year or more shall not thereafter be used for multi-family use, but may continue to be used as a single-family residence.

(g)

Applications for single-family to multi-family conversions. The applicant for a single-family to multi-family conversion shall be required to submit:

(1)

An affidavit from a licensed realtor stating that the proposed property has been actively marketed as a single-family dwelling for at least six months, unless the zoning administrator deems it unnecessary;

(2)

An affidavit certifying that he/she is not delinquent in payment of city property taxes, water and sewer billing, or any other account or loan for which amounts are past due to the city, subject to verification by the city department of finance; and

(3)

Plans at a scale of not less than ¼ inch to the foot, showing the dimensions and square footage.

Such application shall be approved only if in the opinion of the zoning board of adjustment the proposed activity will not adversely affect the character and future development of the neighborhood within which it is proposed to be located and such use will not increase motor vehicle parking problems and congestion in the neighborhood. The board in its determinations shall consider the cumulative effect on the availability of motor vehicle parking spaces particularly in light of all other existing uses within a radius of 300 feet of the proposed location.

(Code 1968, § 48-61; Ord. No. 97-100(sub 1), § 1, 2-19-98; Ord. No. 01-062(sub 1), § 1, 8-23-01; Ord. No. 02-094, § 1, 12-12-02; Ord. No. 08-007(sub 3), § 1, 7-10-08)

State law reference— Meeting generally, 22 Del. C. § 323.

Sec. 48-68. - Administrative powers.

In exercising the powers conferred under this division and in conformance with state law, the zoning board of adjustment may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, determination or refusal appealed from or may make such order as may be necessary to carry out its decision or authorization, and to that end shall, in such cases, have all the powers of the official or body from whom the appeal is taken.

(Code 1968, § 48-64)

Sec. 48-69. - Appellate jurisdiction.

(a)

Generally. The zoning board of adjustment, pursuant to the provisions of the state law referred to under section 48-66, shall hear and decide appeals from and review any order, requirement, decision or determination made by the building inspector or other officer charged with the enforcement of this chapter.

(b)

Notice of appeal. Notice of appeal shall be given in writing to the building inspector and to the board, within such period as the board may by its rules and regulations prescribe. Such notice of appeal shall state clearly and in detail the grounds of appeal.

(Code 1968, § 48-62)

State law reference— Appeals, 22 Del. C. § 324 et seq.; time limit for appeals to courts, 10 Del. C. § 8126.

Sec. 48-70. - Variances.

(a)

The zoning board of adjustment may after a public hearing, following public notice and notification to property owners affected, grant a variance from the requirements of this chapter, where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property on March 8, 1962 or by reason of exceptional topographic conditions or owing to special conditions or exceptional situation of such piece of property, the strict application of any regulation would make it impractical for the owner to use such piece of property for a proposed principal building and buildings accessory thereto in conformance with those requirements of this chapter and thus would result in exceptional practical difficulties to, or unnecessary hardship upon, the owner of such property; provided, that such variance may be granted so that the spirit of this chapter shall be observed and substantial justice done without substantial detriment to the public good and without substantially impairing the intent and purposes of this chapter.

(b)

The zoning board of adjustment may, after a public hearing, following public notice and notification to property owners affected, and subject to appropriate conditions and safeguards, grant a variance from the requirements of this chapter where, owing to special conditions or exceptional situation, a literal enforcement of the provisions of this chapter would result in unnecessary hardship upon, or exceptional practical difficulties to, the owner of property and such requested variance is in harmony with the character of the neighborhood and is appropriate to the uses and/or buildings permitted or existing in such neighborhood; provided that such variance may not be granted in instances where to do so would be detrimental to the health and welfare of the neighborhood, depreciate surrounding property values, create a fire hazard, exacerbate existing parking problems or otherwise be contrary to the public interest, but such variance may be granted so that the spirit of this chapter shall be observed and substantial justice done.

(c)

The zoning board of adjustment may, after a public hearing, following public notice and notification to property owners affected, grant variances from the provisions of this Code applicable to floodplain and floodprone areas, subject to the following procedures and requirements:

(1)

Variances shall not be issued by the board for any property within any designated regulatory floodway if any increase in flood levels during the base flood discharge would result;

(2)

Variances may be issued by the board for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, in conformance with the provisions of subsections (3), (4), (5) and (6) of this subsection;

(3)

Variances shall only be granted by the board upon:

a.

A showing of good and sufficient cause;

b.

A determination that failure to grant the variance would result in exceptional hardship to the applicant; and

c.

A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause a fraud upon or victimization of the public, or conflict with existing provisions of this Code;

(4)

Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazards, to afford relief.

(5)

The board, through the zoning administrator, shall notify the applicant for a variance under this section that:

a.

The issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as much as $25.00 for $100.00 of insurance coverage; and

b.

Such construction below the base flood level increases risks to life and property.

Such notification shall be maintained with a record of all variance actions as required in subsection (6) of this subsection; and

(6)

The board shall:

a.

Maintain a record of all variance actions, including justification for their issuance; and

b.

Report such variances issued to the administrator of the Federal Emergency Management Agency as required by federal regulations.

(d)

Variances for a pre-existing condition with a dimension of no greater than one foot may be granted administratively by the zoning administrator without approval of the zoning board of adjustment and without a public hearing, subject to the procedures set forth in section 48-32

(Code 1968, § 48-63(a); Ord. No. 10-074, § 1, 2-3-11)

Sec. 48-71. - Special exceptions.

(a)

The zoning board of adjustment may after public hearing, following public notice and notification to property owners affected, grant special exceptions as provided in the preceding articles of this chapter where in the judgment of the board such special exceptions shall be in harmony with the general purpose and intent of the zoning regulations and maps and will not tend to affect adversely the use of neighboring property in accordance with such zoning regulations and maps, subject in each case to the special conditions specified in such articles, as follows:

(b)

The zoning board of adjustment may, after a public hearing, following public notice and notification to property owners affected, and subject to appropriate conditions and safeguards, grant a special exception from the requirements of this chapter where, owing to special conditions or exceptional situations, the owner of a licensed business can petition the board for an exception from the hour limitation set forth in section 5-78 of this Code. The zoning board of adjustment shall promulgate rules for receiving evidence and deciding upon such applications. The zoning board of adjustment shall determine whether the requested special exception is in harmony with the character of the neighborhood and is appropriate to the uses and/or buildings permitted or existing in such neighborhood; provided that such exception may not be granted in instances where to do so would be detrimental to the health and welfare of the neighborhood, depreciate surrounding property values, create a fire hazard, exacerbate existing parking problems or otherwise be contrary to the public interest. The zoning board of adjustment shall apply the following procedures and requirements:

(1)

The special exception from the limitation on hours of operation may only be granted by the board upon:

a.

A determination of good and sufficient cause;

b.

A determination that the special exception will not have an adverse impact on the community;

c.

A determination that it is necessary and reasonable for the conduct of the business;

d.

A determination that the special exception will not contribute to or exacerbate problems related to the public safety, as determined by a review of crime statistics and calls for service in the community, and the nature thereof, but in this determination, said calls for service by the business owner shall not be an unfavorable consideration, but rather a favorable consideration;

e.

A determination that the layout, appearance and site conditions of the business contribute to safe business practices as well as ensure the safety of the community; and

f.

An applicant's submitted plan to remedy any and all negatives associated with the business and demonstration of how execution of said plan will enhance and improve the business and the community.

(2)

Rebuttable presumption in favor of the special exception from the limitation on hours of operation may be granted upon documentation by the business owner that:

a.

A 24-hour video recording surveillance of the location is provided;

b.

A written crime prevention policy that includes an employee training component is on file with the Wilmington Police Department;

c.

The business is in compliance with 21 U.S.C. § 863, which prohibits the sale of drug paraphernalia.

(Code 1968, § 48-63(b); Ord. No. 92-028, § 2, 6-4-92; Ord. No. 92-056(sub 1), § 1, 12-7-92; Ord. No. 05-050(sub 4), § 4, 7-13-06; Ord. No. 07-070, § 3, 12-6-07)

Sec. 48-72. - Nonconforming uses and buildings.

The zoning board of adjustment may after public hearing, following public notice and notification to property owners affected, authorize the reestablishment of a discontinued nonconforming use, or changes and extensions of nonconforming uses or nonconforming buildings, where in the judgment of the board such reestablishment, changes or extensions will not adversely affect the use of neighboring property, as follows:

(1)

Approve the change of a nonconforming use to another nonconforming use less detrimental to the neighborhood, as provided in section 48-38(b)(3).

(2)

Approve a structural alteration in a building devoted to a nonconforming use, as provided in section 48-38(b)(5).

(3)

Approve the extension of a nonconforming use over a portion of a building or premises designed for such use on March 8, 1962, as provided in section 48-38(b)(6).

(4)

Approve the extension of a nonconforming use or a building devoted to a nonconforming use, either on the same lot or to a contiguous lot under the same ownership, as provided in section 48-38(b)(7).

(5)

Approve the reestablishment of a nonconforming use which has been discontinued for a period of one year, provided that there is evidence that the cause of discontinuance was beyond the control of the owner or tenant or evidence to rebut a presumption of intent to discontinue, in accordance with the provisions of section 48-38(b)(8).

(Code 1968, § 48-63(c))

Sec. 48-73. - Additional powers.

The zoning board of adjustment shall have the following additional powers of original jurisdiction, in each case to be exercised only upon petition to the board, after public notice and hearing, in conformity with the purpose and intent of this chapter, and with due consideration to the effect on neighboring property and public welfare:

(1)

Determine and establish the true location of district boundaries in any disputed case, in accordance with section 48-98(d).

(2)

Direct, in undeveloped areas of the city, the grant of temporary and conditional permits of limited duration for nonconforming uses and nonconforming buildings when deemed necessary for the development of such areas.

(3)

Exercise such other powers of original jurisdiction as are authorized or may be authorized under the state law referred to in section 48-66.

(4)

Based on demonstrated need and subject to the approval of the zoning board of adjustment and the planning commission, and any conditions imposed thereby, the facilities of a public utility required for its service may be erected and used in any district.

(5)

Appeals by the design review commission (DRC) of decisions of the commissioner of licenses and inspections as provided in section 48-420 and appeals by an applicant pursuant to article IX of this chapter.

(Code 1968, § 48-63(d); Ord. No. 92-029, § 3, 6-4-92)

Secs. 48-74—48-95. - Reserved.