CHAPTER 321

NEW CASTLE COUNTY LEVY COURT ZONING

AN ACT GRANTING THE LEVY COURT OF NEW CASTLE COUNTY AUTHORITY TO ADOPT ZONING REGULATIONS.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:

Section 1. GRANT OF POWER:--The Levy Court of New Castle County is hereby empowered, in accordance with the conditions and procedure specified in the subsequent Sections of this Act, to regulate the location, height, bulk, and size of buildings and other structures, the percentage of lot which may be occupied, the size of yards, courts, and other open spaces, the density and distribution of population, the location and uses of buildings and structures for trade, industry, residence, recreation, public activities or other purposes, and the uses of land for trade, industry, residence, recreation, public activities, water supply conservation, soil conservation, or other similar purposes, in any portion or portions of New Castle County which lie outside of incorporated municipalities; provided that the territory lying within incorporated municipalities shall be included upon request made by the governing body or authority thereof.

Section 2. ZONING PLAN AND REGULATIONS:--For any or all of the purposes specified in Section 1 of this Act the Levy Court may divide the territory of New Castle County into districts or zones of such number, shape, or area as it may determine, and within such districts, or any of them, may regulate the erection, construction, reconstruction, alteration, and uses of buildings and structures and the uses of land. All such regulations shall be uniform for each class or kind of buildings throughout any district, but the regulations in one district may differ from those in other districts. The Levy Court shall provide for the manner in which regulations shall be enforced and shall designate the administrator of said regulations and the administrator so designated shall have authority to act as such throughout said County.

Section 3. PURPOSES IN VIEW:--Regulations adopted by the Levy Court of New Castle County, pursuant to the provisions of this Act, shall be designated and adopted for the purpose of promoting the health, safety, morals, convenience, order, prosperity or welfare of the present and future inhabitants of the State of Delaware, including, amongst other things, the lessening of congestion in the streets or roads or reducing the waste of excessive amounts of roads, securing safety from fire and other dangers, providing adequate light and air, preventing on the one hand excessive concentration of population and on the other hand excessive and wasteful scattering of population or settlement, promoting such distribution of population and such classification of land uses and distribution of land development and utilization as will tend to facilitate and provide adequate provisions for public requirements, transportation, water flowage, water supply, drainage, sanitation, educational opportunities, recreation, soil fertility, food supply, protection of the tax base, securing economy in governmental expenditures, fostering the State's agricultural and other industries, and the protection of both urban and non-urban development.

The regulations shall be made with reasonable consideration, among other things, of the character of the particular district involved, its peculiar suitability for particular uses, the conservation of property values and natural resources and the general and appropriate trend and character of land, building and population development.

Section 4. ZONING COMMISSION:--In order to avail itself of the powers conferred by this Act, the Levy Court shall in June, 1951 appoint a permanent commission of five members, each of whom shall be a resident of New Castle County, outside the City of Wilmington or any other incorporated City or Town, which Commission shall be known as the New Castle County Zoning Commission. One of said members shall be appointed for a term of one year, one for two years, one for three years, one for four years, and one for five years. Thereafter all members shall be appointed for the term of five years. No more than three of the members of the said Commission shall be of the same political party. Members of the Regional Planning Commission, otherwise qualified, shall be eligible for appointment to the New Castle County Zoning Commission. Any vacancy in the New Castle Zoning Commission shall be filled by the Levy Court.

Section 5. ASSISTANCE FROM AND COOPPERATION WITH OTHER AGENCIES; PERSONNEL:--The Zoning Commission is directed to make use of the expert advice and information which may be furnished by appropriate State, Federal, or other officials, departments and agencies and all officials, departments, and agencies within the State having information, maps, and data pertinent to County zoning are hereby authorized and directed to make the same available for the use of the Zoning Commission, as well as to furnish such other technical assistance and advice as they may have available for such purpose. The Zoning Commission may employ such experts, trained personnel, and staff as the funds provided therefor may permit. It shall be the duty of the said Levy Court to furnish the said Zoning Commission with appropriate office space and other facilities. The Levy Court may pay to the Regional Planning Commission of New Castle County for salaries and other expenses of the Zoning Commission an amount based upon a proportionate use of personnel and facilities of the Regional Planning Commission by the Zoning Commission.

Section 6. PREPARATION OF ZONING PLAN:--It shall be the duty of said Zoning Commission to make, as promptly as possible, for certification to the Levy Court, a zoning plan or plans, including both the full text of the zoning regulation or regulations and the maps and representing the recommendations of the said Zoning Commission for the regulation by districts or zones of the location, height, bulk, and size of buildings and other structures, percentage of lot which may be occupied, the size of lots, courts, and other open spaces, the density and distribution of population, the location and use of buildings and structures for trade, industry, residence, recreation, public activities or other purposes, and the uses of land for trade, industry, recreation, public activities, soil conservation, water supply conservation or other similar purposes.

When the efforts of said Commission shall have reached the stage of a tentative plan, the Commission shall hold at least one public hearing on each tentative plan to be separately submitted, notice of which hearing shall be published at least fifteen days before the date of the hearing in a newspaper of general circulation in the County. The notice shall contain the time and place of hearing, and shall specify the place and times at which the tentative text and maps of the zoning regulations may be examined. For the purpose of any of its public hearing or hearings under this Act, the Commission shall have power to summon witnesses, administer oaths, and compel the giving of testimony.

Section 7. METHOD OF PROCEDURE BY LEVY COURT: --After receiving the certification of a zoning plan from the Zoning Commission and before the adoption of any zoning regulations, the Levy Court shall hold a public hearing thereon, of the time and place of which at least thirty days' notice shall be given by one publication in a newspaper of general circulation in the County. Such notice shall state the place at which the text and maps as certified by the Zoning Commission may be examined. The Levy Court may conduct consultative hearings to aid it in determining the desirability of contemplated or recommended regulations. No change in or departure from text or maps, as certified by the Zoning Commission, shall be made unless such change or departure shall first be submitted to the Zoning Commission for its approval or disapproval or suggestions. The Zoning Commission shall have thirty days from and after such submission within which to send its report to the Levy Court, but the Levy Court shall not be bound by the report.

Section 8. CHANGES:--The Levy Court may, from time to time, make amendments, supplements, changes, modifications (herein called "changes") with respect to the number, shape, boundary or area of any district or districts, or any regulation of, or within, such district or districts, or any other provision of any zoning regulation or regulations, but no such changes shall be made or become effective until the same shall have been proposed by or be first submitted to the Zoning Commission. With respect to any proposed changes, the Zoning Commission shall hold at least one public hearing, notice of which hearing shall be published at least seven days before the date of the hearing in a newspaper of general circulation in the County. The notice shall contain the time and place of hearing, and shall specify the nature of the proposed change in a general way and shall specify the place and times at which the text and map relating to the proposed change may be examined. Unless such Zoning Commission shall have transmitted its report upon the proposed changes within fifteen days after the submission thereof to it, the Levy Court shall be free to proceed to the adoption of the changes without further awaiting the receipt of the report of the Zoning Commission. In any event, the Levy Court shall not be bound by the report of the Zoning Commission. Before finally adopting any such changes, the Levy Court shall hold a public hearing thereon, at least fifteen days' notice of the time and place of which be given by at least one publication in a newspaper of general circulation in the County.

Section 9. COOPERATION BETWEEN COUNTIES:--The New Castle County Zoning Commission may cooperate with other planning and zoning commissions within New Castle County and within other Counties and States, and with the planning, zoning, legislative and administrative authorities of incorporated or unincorporated municipalities, either within or without such County, with a view to coordinating and integrating the zoning of the County with the planning and zoning of other Counties or of municipalities. The said Zoning Commission shall also have power to appoint such committee or committees, and adopt such rules for the conduct of its business, as it may deem proper to effect such cooperation or to more expeditiously and effectively perform its functions.

Section 10. THE BOARD OF ADJUSTMENT:--The Levy Court for New Castle County shall appoint a Board of Adjustment of three members. The members shall be appointed for a term of three years; provided that of the original members of said Board of Adjustment, one member shall be appointed for a term of one year; another member appointed for a term of two years; and another member appointed for a term of three years. The persons appointed to the Board of Adjustment shall be individuals with knowledge of and experience in dealing with problems of urban and rural development. At the time of appointment they shall not be candidates for, candidates elect for, or incumbents of an elective public office. Any member of the said Board may be removed for cause by the Levy Court upon written charges and after a public hearing. Vacancies shall be filled for the unexpired term in the same manner as in the case of regular appointments. The Levy Court shall provide per diem compensation and provide for payment of necessary expenses for the members of the said Board. It shall be the duty of the Levy Court to furnish the said Board with necessary office space and other facilities, and subject to the approval of the Levy Court, the said Board is hereby authorized to employ such secretarial and technical assistants as may be required to properly perform its functions.

The Levy Court shall provide and specify in its zoning or other regulations, general rules to govern the organization, procedure and jurisdiction of said Board of Adjustment, which rules shall not be inconsistent with this Act, and the Board of Adjustment may adopt supplemental rules of procedure not inconsistent with this Act or such general rules.

Section 11. APPEALS TO THE BOARD OF ADJUSTMENT:--Appeals to the Board of Adjustment may be taken by any person aggrieved by his inability to obtain a building permit, or by the decision of any administrative officer or agency based upon or made in the course of the administration or enforcement of the provisions of the zoning regulations. Appeals to the Board of Adjustment may be taken by any officer, department, board or bureau of the County affected by the grant or refusal of a building permit or by other decision of an administrative officer or agency based on or made in the course of the administration or enforcement of the provisions of the zoning regulations. The time within which such appeal must be made, and the effect, form, or other procedure relating thereto, shall be as specified in the general rules provided by the said Levy Court to govern the procedure of such Board of Adjustment or in the supplemental rules of procedure adopted by such Board.

Upon appeals the Board of Adjustment shall have the following powers:

(1) To hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative official or agency based on or made in the enforcement of the zoning regulations.

(2) To hear and decide, in accordance with the provisions of any such regulations, requests for special exceptions or for interpretation of the map or for decisions upon other special questions upon which such Board is authorized by any such regulations to pass.

(3) Where by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of the enactment of the regulations, or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation adopted under this Act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the owner of such property, to authorize, upon an appeal relating to said property, a variance from such strict application so as to relieve such difficulties or hardship, provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and zoning regulations.

Section 12. COURT REVIEW:--Any persons jointly or severally aggrieved by any decision of the Board of Adjustment or any taxpayer or any officer, department, board or bureau of the County may present to the Superior Court in and for New Castle County, a petition duly verified, setting forth that such decision is illegal in whole or in part, specifying the grounds of the illegality. Such a petition shall be presented to the Court within thirty days after the filing of the decision in the office of the Board. Upon the presentation of such petition, the Court may allow a writ of certiorari, directed to the Board of Adjustment, to review such decision of the Board of Adjustment, and shall prescribe therein the time within which a return thereto must be made and served upon the relator's attorney, which shall not be less than ten days and may be extended by the Court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the Court may, on application, on notice to the Board and on due cause shown, grant a restraining order. The Board of Adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof, or of such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and. material to show the grounds of the decision appealed from and shall be verified. If, upon the hearing, it shall appear to the Court that testimony is necessary for the proper disposition of the matter, it may take evidence, or appoint a referee to take such evidence as it may direct and report the same to the Court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the Court shall be made. The Court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

Costs shall not be allowed against the Board, unless it shall appear to the Court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.

Section 13. VIOLATIONS; ENFORCEMENT AND REMEDIES:--It shall be unlawful to erect, construct, reconstruct, alter, maintain or use any building or structure or to use any land in violation of any regulation in or of any provision of, any zoning regulation, or any change thereof, enacted or adopted by the Levy Court under the authority of this Act. Any person, firm or corporation violating any such regulation, provision or change, or any provision of this Act, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than One Hundred Dollars ($100.00), or imprisoned not more than ten days, or both. Each and every day during which such illegal erection, construction, reconstruction, alteration, maintenance or use continues shall be deemed a separate offense. In case any building or structure is or is proposed to be erected, constructed, reconstructed, altered, maintained or used, or any land is or is proposed to be used, in violation of this Act or of any regulation or provision of any regulation, or change thereof, enacted or adopted by the Levy Court under the authority granted by this Act, the Levy Court, the attorney thereof or any owner of real estate within the district in which such building, structure or land is situated, may, in addition to other remedies provided by law, institute injunction, mandamus, abatement or any other appropriate action or actions, proceeding or proceedings to prevent, enjoin, abate or remove such unlawful erection, construction, reconstruction, alteration, maintenance or use.

Section 14. NONCONFORMING USES:--The lawful use of a building or structure, or the lawful use of any land, as existing and lawful at the time of the enactment of a zoning regulation, or in the case of a change of regulations, then at the time of such change, may, except as hereinafter provided, be continued although such use does not conform with the provisions of such regulations or change, and 'such use may be extended throughout the same building, provided no structural alteration of such building is proposed or made for the purpose of such extension. The Levy Court in any zoning regulations may permit the restoration, reconstruction, extension or substitution of nonconforming uses upon such terms and conditions as may be set forth in the zoning regulations.

If the said County acquire title to any property by reason of tax delinquency and such properties be not redeemed as provided by law, the future use of such property shall be in conformity with the then provisions of the zoning regulations of the County, or with any change of such regulations, equally applicable to other like properties within the district in which the property acquired by the County is located.

Section 15. LIST OF NONCONFORMING USES:--Immediately after the adoption of any zoning regulations or changes by the Levy Court, the said Zoning Commission shall prepare and publish a complete list of all nonconforming uses and occupations existing at the time of the adoption of said regulations or changes. Such list shall contain the names and addresses of the owner or owners of such nonconforming use and of any occupant, other than the owner, the legal description or descriptions of the land, and the nature and extent of land use. After any necessary corrections have been made under a procedure prescribed by the Levy Court, copies of such list shall, when approved by such body, be filed for record in the offices of the Zoning Commission, and of the Board of Adjustment, and shall be corrected yearly as the Levy Court may prescribe.

Section 16. FINANCES:--The Levy Court is empowered to appropriate out of the general county fund such moneys, otherwise unappropriated, as it may deem fit to finance the work of the said Zoning Commission and of the Board of Adjustment, and to enforce the zoning regulations and restrictions which are adopted, and to accept grants of money and service for these purposes, and other purposes, in accordance with this Act, from either private or public sources, State or Federal.

Section 17. CONFLICT WITH OTHER LAWS:--Whenever any regulations made under authority of this Act require a greater width or size of yards, courts or other open spaces, or require a lower height of buildings or smaller number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required in or under any other statute or local regulation, the provisions of the regulations made under authority of this Act shall govern. Whenever the provisions of any other statute or local regulation, require a greater width or size of yards, courts or other open spaces, or require a lower height of buildings or a less number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required by any regulations made under authority of this Act, the provisions of such statute shall govern.

Approved June 5, 1951.