CHAPTER 97

AN ACT TO AMEND TITLE 9, DELAWARE CODE BY ADDING A CHAPTER 69 THERETO PROVIDING FOR ZONING IN SUSSEX COUNTY.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Title 9, Delaware Code, is amended by adding thereto a new chapter 69 to read as follows :

CHAPTER 69. ZONING

§ 6901. Definitions

All definitions used in Chapter 63, Section 6301 shall apply to this chapter and as used in this chapter, unless the same shall be inconsistent with the context, the following terms shall mean--

'Nonconforming Structure" : A structure or part of a structure manifestly not designed to comply with the applicable use provisions in a zoning regulation or amendment heretofore or hereafter enacted, where such structure lawfully existed prior to the enactment of such ordinance or code or amendment by reason of its location. Such nonconforming structures include nonconforming signs.

"Nonconforming Use" : A use, whether of land or of a structure, which does not comply with the applicable use provisions in a zoning regulation or amendment heretofore or hereafter enacted, where such use was lawfully in existence prior to the enactment of such ordinance or code or amendment, or prior to the application of such ordinance or code or amendment by reason of its location.

"Structure" : Any man-made object having an ascertainable stationary location on or in land or water whether or not affixed to the land. The word "structure" includes the word "building".

§6902. Power of Levy Court; area subject to regulation

The Levy Court may, in accordance with the conditions and procedure specified in this chapter, 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 Sussex County which lie outside of incorporated municipalities, and also incorporated municipalities without zoning provisions, notwithstanding any provisions of other Titles or Chapters of the Delaware Code to the contrary.

§6903. Zoning map and regulations; commission

(a) For any or all of the purposes specified in section 6402 of this Title the Levy Court may divide the territory of Sussex 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 the nature and extent of use of buildings and structures, and the nature and extent of the use of land.

(b) 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.

(c) The Levy Court shall provide for the manner in which regulations shall be enforced, prescribe penalties for violations and shall designate the administrator of the regulations. The administrator so designated shall have authority to act as such throughout the County.

§6904. Purposes of regulations

(a) Regulations adopted by the Levy Court, pursuant to the provisions of the Chapter, shall be in accordance with the approved Comprehensive Development Plan and shall be designated and adopted for the purpose of promoting the health, safety, morale, convenience, order, prosperity or welfare of the present and future inhabitants of Sussex County, 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, flood, and other dangers, pro-

viding 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, water and air pollution abatement, 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.

(b) 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.

§6905. Planning and zoning commission; appointment; term and qualifications

(a) In order to avail itself of the powers conferred by this chapter, the Levy Court shall appoint a permanent commission of five members which shall be known as the County Planning and Zoning Commission of Sussex County and who shall be the same voting members appointed under Chapter 63, §6303, and its organization, meeting, office of the commission, secretary of the commission, and other personnel shall be the same as in Chapter 63, Planning §6304 and §6305.

§6906. Assistance from and cooperation with other agencies

In performing its zoning function the commission may make use of the expert advice and information which may be furnished by appropriate State, Federal, or other officials, departments and agencies. All officials, departments, and agencies within the State having information, maps and data pertinent to county zoning shall make the same available for the use of the commission, as well as furnish such other technical assistance and advice as they may have available for such purpose.

§6907. Tentative zoning proposal preparation by Commission

(a) The commission shall make, as promptly as possible, for certification to the Levy Court, a zoning proposal based upon and in full accordance with the adopted Comprehensive Development Plan including both the full text of the zoning regulation or regulations and the maps for the regulation by districts or zones of the location, height, bulk, and size of building and other structures, percentage of lot which may be occupied, size of lots, courts, and other open spaces, density and distribution of population ; for the use of buildings and structures for trade, industry, residence, recreation, public activities or other purposes, and for the uses of land for trade, industry, recreation, public activities, soil conservation, water supply conservation or other similar purposes.

(b) After the creation of the commission and prior to the creation of the adopted Comprehensive Development Plan and prior to the tentative zoning proposal described in §6406 (a) above, an interim holding zone proposal to control the development of land may be instituted by Sussex County pursuant to §6409 as a temporary measure, but in no case shall the interim zoning exceed two years from the passage of this chapter.

§6908. Public hearing and notice

Any public hearing required by this chapter shall be held in accordance with Chapter 63, §6312.

§6909. Commission's powers in conduct of public hearings

For the purpose of any public hearing under this chapter, the Commission shall have power to summon witnesses, administer oaths, and compel the giving of testimony. A written transcript of the public hearing shall be made and become a part of the commission's public records.

§6910. Adoption by Levy Court of zoning map and regulations; public hearings and notice; consultative hearings; resubmission to Commission

(a) After receiving the certification of a zoning proposal from the Commission and before the adoption of any zoning regulations, the Levy Court shall give public notice in accordance with §6312. In addition a third public notice shall be required and published at least thirty (30) days prior to the public hearing.

(b) The Levy Court may conduct consultative hearings prior to the required public hearing to aid it in determining the desirability of contemplated or recommended regulations.

(c) No change in or departure from text or maps, as certified by the commission, shall be made unless such change or departure shall first be submitted to the Commission for its approval or disapproval or suggestions. The Commission shall have forty-five (45) 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.

§6911. Changes in zoning district; map or regulations; procedure

(a) The Levy Court may, from time to time, make amendments, supplements, changes or modifications (herein called "changes") in accordance with the Comprehensive Development Plan 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 Commission.

() With respect to any proposed changes, the Commission shall hold at least one public hearing pursuant to §6312.

(a) Unless the Commission shall have transmitted its report upon the proposed changes within forty-five (45) 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 Commission. In any event, the Levy Court shall not be bound by the report of the Commission. Before finally adopting any changes, the Levy Court shall hold a public hearing thereon pursuant to §6312.

§6912. Zoning coordination

The Commission may cooperate with other planning and zoning commissions within Sussex County and within other counties and states, and with legislative and administrative authorities of incorporated or unincorporated municipalities, either within or without such county, with a view to coordinating and integrating and the zoning of the county with the planning and zoning of other counties or states or of municipalities. The 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.

§6913. Board of Adjustment; appointment, terms and qualifications; removal; vacancies; compensation

(a) The Levy Court for Sussex County shall appoint a Board of Adjustment of five members, subject to the same terms and qualifications as indicated in §6803 (c) .

§6914. Office and personnel of Board of Adjustment

The Levy Court shall furnish the Board of Adjustment with necessary office space and other facilities. Subject to the approval of the Levy Court, the Board may employ such secretarial and technical assistants as may be required to properly perform its functions.

§6915. Rules governing organization; procedure and jurisdiction of Board of Adjustment

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

§6916. Appeals to the Board of Adjustment; who may take; procedure

(a) 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 property owner, 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.

(b) The time within which such appeal must be made, and the effect of other procedure relating thereto, shall be as specified in the general rules provided by the Levy Court to govern the procedure of the Board of Adjustment or in the supplemental rules of procedure adopted by the Board.

(c) All appeals taken to the Board of Adjustment shall be referred to the Commission for its review and recommendations.

§ 6917. Powers of Board of Adjustment upon appeals

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 zoning regulation, requests for special exceptions or for interpretation of the map or for decisions upon other special questions upon which the Board is authorized by any zoning regulation to pass.

(3) To hear and decide requests for variances. The Board may grant a variance in the application of the provisions of the zoning ordinance or code only if all of the following findings are made :

a. 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 ; and

b. 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 ; and

c. That such unnecessary hardship has not been created by the appellant; and

d. That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare ; and

e. 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.

In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this act and the zoning ordinance or code. The Board is impowered in no case, however, to grant a variance in the use of land or structures thereon.

§ 6918. Court review of decision of Board of Adjustment; procedure

(a) Any persons jointly or severally aggrieved by a 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 Sussex County, a petition duly verified, setting forth that such decision is illegal in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the Court within 30 days after the filing in the office of the Board.

(b) Upon the presentation of the petition, the Court may allow a writ of certiorari, directed to the Board of Adjustment, to

review the decision of the Board of Adjustment, and shall prescribe therein the time within which a return thereto must be made and served upon the petitioner's attorney, which shall not be less than 10 days and may be extended by the Court.

(c) 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.

(d) 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 the 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.

(e) 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.

(f) The Court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

(g) 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.

§ 6919. Violations of regulations of chapter; enforcement; remedies and penalties

(a) No person shall erect, construct, reconstruct, alter, maintain or use any building or structure or 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 chapter.

(b) Whoever violates any such regulation, provision or change, or any provision of this chapter, shall be fined not more than $100.00, or imprisoned not more than ten days, or both.

(c) Each and every day during which such illegal erection, construction, alteration, maintenance or use continues shall be deemed a separate offense.

(d) 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 chapter 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 chapter, the Levy Court, the attorney thereof, or any owner of real estate within the county 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.

§6920. Nonconforming uses of land or structure

(a) Nonconforming uses of land or structure may, except as hereinafter provided, be continued although such use does not conform with the provisions of such regulations or change, provided no structural alteration of such building is proposed or made for the purpose of such extension.

(b) If the County acquires 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.

§6921. List of nonconforming structures and uses

Immediately after the adoption of any zoning regulations or changes by the Levy Court, the Commission shall prepare and publish a complete list of all nonconforming structures and uses in the affected area and existing at the time of the adoption of the regulations. Such lists shall contain the names and addresses of the owner or owners of such nonconforming use and of any occupant, other than the owner, and list the nonconforming

structure or use and applicable section of the zoning regulation. Any necessary corrections shall be made under a procedure pre-'scribed by the Levy Court, and copies of such list shall, when approved by the Levy Court, be filed for record in the offices of the Commission and the Board of Adjustment.

§6922. Appropriations

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

§6923. Conflict between zoning regulations and other laws

Whenever any regulations made under authority of this chapter 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 chapter 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 lesser 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 chapter, the provisions of such statute shall govern.

Whenever the provisions of any other statute shall derogate from the provisions of this chapter, unless it be a statute granting powers to the State Planning Office, the provisions of this chapter shall govern.