TITLE 9

Counties

New Castle County

CHAPTER 26. ZONING

Subchapter I. General Provisions


(a) The County Council may, in accordance with the conditions and procedure specified in this subchapter, 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 however, that no such regulation or regulations promulgated pursuant to Chapter 30 of this title shall apply to any lands, buildings or other structures proposed to be used by or for any nonprofit corporation organized under the laws of this State and engaged at the time of such proposal in the operation in this State of 1 or more acute general hospital facilities for the purpose of such or similar operations, or to any lands, buildings or other structures of such corporation devoted to such operations. The territory lying within incorporated municipalities shall be included upon request made by the governing body or authority thereof.

(b) Notwithstanding subsection (a) of this section, no such regulation or regulations shall apply to any land, building, greenhouse or other structure proposed to be devoted to any agricultural use or which is devoted at the time of such proposal to agricultural use or to any land, building, greenhouse or other structure owned by a cooperative agricultural associations or a corporation which is or is proposed to be devoted to agricultural use. For the purposes of this subsection, any land, building, greenhouse or structure shall be deemed to be devoted to agricultural use if:

(1) The land, building, greenhouse or structure is assessed pursuant to § 8335 of this title;

(2) The land, building, greenhouse or structure is within an Agricultural Preservation District pursuant to Chapter 9 of Title 3;

(3) The person who owns, leases or otherwise controls the land, building, greenhouse or structure is required to implement a nutrient management plan or agricultural waste management plan for the same and the land, building, greenhouse or structure itself is devoted to or used in the production for sale of plants and animals useful to man, including but not limited to:

a. Forages and sod crops;

b. Grains and feed crops;

c. Dairy animals and dairy products;

d. Poultry and poultry products;

e. Livestock, including beef cattle, sheep, swine, horses, ponies, mules or goats, including the breeding and grazing of any or all of such animals;

f. Bees and apiary products;

g. Fish, hydroponic and aquacultural products;

h. Fur animals; and

i. Trees and forest products;

(4) The land, building, greenhouse or structure is devoted to and meets the requirements and qualifications for payments or other compensation pursuant to a soil conservation program under an agreement with an agency of the federal government;

(5) The land, building or structure is a farm market or roadside stand provided:

a. The products offered for sale are grown or produced on the subject farm or lands in agriculture production associated with such farm operation; or

b. The products are grown or produced on a local regional farm, and such farm market or roadside stand shall comply with the following provisions:

1. All buildings, structures and associated canopies shall comply with the building height setback requirements established by the local jurisdiction within its zoning ordinances. All construction shall conform to applicable building codes and building permit requirements as enacted by the local jurisdiction;

2. Off street customer parking shall be provided in accordance with the provisions of the zoning ordinance of the local jurisdiction provided that at least 1 parking space shall be provided for each 100 square feet of floor area of the establishment. The area of 1 parking space shall be equivalent to a standard parking stall of 9' x 18';

3. If a new vehicular entrance is proposed to support a farm market or roadside stand, an entrance permit shall be obtained from the Delaware Department of Transportation prior to the start of construction; and

4. Signage shall comply with signage provisions and permitting requirements established by the local jurisdiction within its zoning ordinances; and

(6) The land, building or structure is used for an agritourism activity, and such land, building or structure complies with the following provisions:

a. All buildings, structures and associated canopies shall comply with the building height setback requirements established by the local jurisdiction within its zoning ordinances. The construction of buildings or structures to be used by the participants of any agritourism activity shall conform to applicable building codes and building permit requirements enacted by the local jurisdiction;

b. If a new vehicular entrance is necessary to support an agritourism activity, an entrance permit shall be obtained from the Delaware Department of Transportation prior to the start of construction; and

c. Any signage shall comply with signage provisions and permitting requirements established by the local jurisdiction, as well as any applicable signage regulations adopted by the Department of Transportation.

(c) Notwithstanding subsection (a) of this section, no such regulation or regulations shall apply to the agricultural uses of conducting hayrides, horseback riding, guided tours, barn parties and petting zoos.

48 Del. Laws, c. 321, § 1; 9 Del. C. 1953, § 2601; 55 Del. Laws, c. 85, § 18A; 60 Del. Laws, c. 661, § 1; 66 Del. Laws, c. 207, § 1; 71 Del. Laws, c. 401, § 15; 74 Del. Laws, c. 144, § 1; 75 Del. Laws, c. 244, §§ 1, 2; 76 Del. Laws, c. 409, § 2; 78 Del. Laws, c. 143, §§ 1-3.;

(a) For any or all of the purposes specified in § 2601 of this title the County Council 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.

(b) All such regulations shall be uniform for each class or kind of buildings throughout any district, but the regulations in 1 district may differ from those in other districts.

48 Del. Laws, c. 321, § 2; 9 Del. C. 1953, § 2602; 55 Del. Laws, c. 85, §§ 18A, 18C; 71 Del. Laws, c. 401, § 15.;

(a) Regulations adopted by the County Council, pursuant to the provisions of this subchapter, shall be in accordance with a comprehensive development plan adopted pursuant to this title, and 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 this State, including, among 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 1 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 nonurban 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.

48 Del. Laws, c. 321, § 3; 9 Del. C. 1953, § 2603; 55 Del. Laws, c. 85, § 18A; 66 Del. Laws, Sp. Sess., c. 199, § 1; 66 Del. Laws, c. 207, § 1; 70 Del. Laws, c. 270, § 1; 71 Del. Laws, c. 401, § 15.;

The Department of Land Use shall 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 Department of Land Use, as well as furnish such other technical assistance and advice as they may have available for such purpose.

48 Del. Laws, c. 321, § 5; 9 Del. C. 1953, § 2605; 55 Del. Laws, c. 85, § 18B; 71 Del. Laws, c. 401, § 85.;

At any public hearing held pursuant to this subchapter, the Department of Land Use may summon witnesses, administer oaths and compel the giving of testimony.

48 Del. Laws, c. 321, § 6; 9 Del. C. 1953, § 2609; 55 Del. Laws, c. 85, § 18B; 66 Del. Laws, c. 207, § 1; 71 Del. Laws, c. 401, § 85.;

Repealed by 71 Del. Laws, c. 401, § 86, effective July 13, 1998.;

(a) The County Council may, from time to time, make amendments, supplements, changes, modifications (herein called "changes"), in accordance with a comprehensive development plan adopted pursuant to Chapter 13 of this title, 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 Department of Land Use.

(b) With respect to any proposed changes, the Department of Land Use shall hold at least 1 public hearing, notice of which hearing shall be published at least 7 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.

(c) Unless such Department of Land Use shall have transmitted its report upon the proposed changes within 45 days after the submission thereof to it, the County Council shall be free to proceed to the adoption of the changes without further awaiting the receipt of the report of the Department of Land Use. In any event, the County Council shall not be bound by the report of the Department of Land Use. Before finally adopting any such changes, the County Council shall hold a public hearing thereon, at least 15 days notice of the time and place of which shall be given by at least 1 publication in a newspaper of general circulation in the County.

48 Del. Laws, c. 321, § 8; 9 Del. C. 1953, § 2611; 50 Del. Laws, c. 118, § 1; 55 Del. Laws, c. 85, §§ 18A, 18B; 66 Del. Laws, Sp. Sess., c. 199, § 2; 66 Del. Laws, c. 201, § 1; 71 Del. Laws, c. 401, §§ 15, 85.;

(a) The New Castle County Department of Land Use 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.

(b) The Department of Land Use may appoint committees and adopt such rules for the conduct of its business as it deems proper to effect such cooperation or to more expeditiously and effectively perform its functions.

48 Del. Laws, c. 321, § 9; 9 Del. C. 1953, § 2612; 55 Del. Laws, c. 85, § 18B; 71 Del. Laws, c. 401, § 85.;

(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 County Council under the authority of this subchapter.

(b) Whoever violates any such regulation, provision or change of this subchapter, shall be fined not more than $100, or imprisoned not more than 10 days, or both.

(c) Each and every day during which such illegal erection, construction, reconstruction, 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 subchapter or of any regulation or provision of any regulation, or change thereof, enacted or adopted by the County Council under the authority granted by this subchapter, the County Council, the attorney thereof, or any owner or occupier of real estate within the district or within an adjoining 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.

48 Del. Laws, c. 321, § 13; 9 Del. C. 1953, § 2619; 54 Del. Laws, c. 222; 55 Del. Laws, c. 85, § 18A; 66 Del. Laws, c. 207, § 1; 71 Del. Laws, c. 401, § 15.;

(a) 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. County Council 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.

(b) If the County acquires title to any property by reason of tax delinquency and such properties are not redeemed as provided by law, the future use of such property shall be in conformity with the then existing 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.

48 Del. Laws, c. 321, § 14; 9 Del. C. 1953, § 2620; 55 Del. Laws, c. 85, § 18A; 71 Del. Laws, c. 400, §§ 2.;

Whenever any regulation made under authority of this subchapter requires a greater width or size of yards, courts or other open spaces, or requires a lower height of buildings or smaller number of stories, or requires a greater percentage of lot to be left unoccupied, or imposes other higher standards than are required in or under any other statute or local regulation, the regulations made under authority of this subchapter shall govern. Whenever any other statute or local regulation requires a greater width or size of yards, courts or other open spaces, or requires a lower height of buildings or a lesser number of stories, or requires a greater percentage of lot to be left unoccupied, or imposes other higher standards than are required by any regulations made under authority of this subchapter, such statute shall govern.

48 Del. Laws, c. 321, § 17; 9 Del. C. 1953, § 2623; 66 Del. Laws, c. 207, § 1.;

(a) For purposes of all county zoning ordinances a residential facility licensed or approved by a state agency serving 10 or fewer persons with disabilities on a 24-hour-per-day basis shall be construed to be a permitted single family residential use of such property.

(b) For the purposes of this section, the term "persons with disabilities" includes any persons with a handicap or disability as those terms are defined in the Delaware Fair Housing Act (Chapter 46 of Title 6).

(c) [Repealed]

62 Del. Laws, c. 390, § 1; 74 Del. Laws, c. 149, §§ 1, 2, 3.;

With respect to any proposed residential zoning change the County Council shall notify the local school district for the area at least 7 days prior to the initial hearing upon such residential zoning change.

66 Del. Laws, Sp. Sess., c. 195, § 1; 71 Del. Laws, c. 401, § 15.;

(a) Unless the Department of Land Use recommends approval of a rezoning, the County Council shall not change the zoning for any parcel of land without the County Council approving such change in zoning by a concurrence of two thirds of all members elected to the County Council.

(b) Any rezoning which is approved subject to restrictions shall require a two-thirds vote of all members elected to the County Council to release, remove or change such restrictions, unless the Department of Land Use recommends approval of the release, removal or change of said restrictions, in which case a simple majority of all members elected to the County Council shall be required.

68 Del. Laws, c. 272, § 1; 69 Del. Laws, c. 27, § 1; 71 Del. Laws, c. 401, §§ 15, 85.;

With respect to any proposed zoning change, unless the owner applies for the change or consents to the change, the county government shall notify the owner of the property and all adjacent property owners to the extent and in the manner the county by ordinance so provides as of June 28, 2000, mailed at least 7 days prior to the initial hearing upon such zoning change.

72 Del. Laws, c. 415 shall become effective for zoning changes initiated after enactment of this act.

72 Del. Laws, c. 415, § 1.;

(a) "Emergency communications equipment" includes, but is not limited to: repeater systems, 2-way radio communications, signal boosters, bi-directional amplifiers, radiating cable systems or internal antenna or any combination of the foregoing.

(b) "Emergency public safety personnel" includes firefighters, emergency medical services personnel, law-enforcement officers and other personnel routinely called upon to provide emergency assistance to members of the public in a wide variety of emergency situations, including but not limited to, fires, medical emergencies, crimes and terrorist attacks.

(c) "Newly constructed buildings" are defined as any structure of 25,000 square feet or more for which a building permit is issued commencing February 24, 2008. New construction shall not be construed as a renovation or modification of a building, or an expansion or addition to a building which is contiguous to an existing building for which a permanent certificate of occupancy was in effect by February 24, 2008. A structure shall be considered new construction even if it is physically connected to an existing structure exempt from the provisions of this section if it is not contiguous to the structure. "Contiguous structures" shall mean at least 2 structures that share a common wall or floor.

(d) The zoning ordinance and regulations adopted pursuant to this section shall provide that newly constructed buildings of 25,000 square feet of gross floor area or more shall be designed, constructed and/or equipped so that they meet the GAT (Grid Acceptance Test) at 95% compliance for 800 MHz public safety in-building communications coverage. The in-building coverage required under this section may occur naturally or may require in-building emergency communications equipment as defined in subsection (a) of this section.

(e) No issuing agency shall award a permanent certificate of occupancy unless a building affected under this section meets the GAT 95% coverage requirement. An issuing agency may issue a temporary certificate of occupancy for a period of 3 months if a reasonable effort has been made to meet the requirements under this section prior to the issuance of the temporary certificate of occupancy.

(f) The Delaware Department of Safety and Homeland Security (DSHS), or its designee, shall develop and promulgate rules and regulations for the implementation of the provisions in this section. The Secretary of DSHS shall form an advisory committee consisting of representatives of state agencies and private commercial and industrial building interests to develop the rules and regulations specified in this section. The advisory committee shall be comprised of no more than 16 members which shall consist at least of the following members:

(1) The Secretary of the Department of Safety and Homeland Security or the Secretary's designee;

(2) A representative of the Office of Facilities Management to be appointed by the Director of the Office of Management and Budget;

(3) A representative of the Delaware Volunteer Firefighter's Association;

(4) A representative from Emergency Medical Service;

(5) A representative from the Delaware State Police to be appointed by the Colonel of the State Police;

(6) A representative of the Police Chiefs Council to be appointed by the President of the Police Chiefs Council;

(7) A representative from the Delaware Department of Transportation [DelDOT] to be appointed by the Secretary of the DelDOT;

(8) A representative of the Delaware Department of Technology and Information to be appointed by the Chief Information Officer of the Delaware Department of Technology and Information;

(9) A representative from the Delaware Healthcare Association;

(10) A member of the Commercial Industrial Realty Council;

(11) Two members at-large to be appointed by the Governor of the State of Delaware.

The remaining members shall be appointed by the Governor and shall represent owners and developers of buildings greater than 100,000 square feet. The Advisory Committee shall expire upon completion and adoption of the rules and regulations under this section, but no later than February 28, 2009.

(g) The rules and regulations promulgated by the Department of Safety and Homeland Security shall not require any building to be certified for 95% in-building coverage until all 800 MHz communications towers within a county, under the Next Generation 800 MHz Project in effect at the time this section is enacted, are fully operational. If a building otherwise subject to the provisions of this section is temporarily exempt from certification under this section due to unfinished towers in a county, the design and construction of a building shall incorporate the means to later install any equipment necessary to meet the 95% GAT in-building coverage requirement. A building temporarily exempted under this subsection shall be certified within 6 months after all Next Generation 800 MHz communication towers are fully operational within a county. The Department of Safety and Homeland Security shall publish, and update, on its website, a map of the State showing those counties in which buildings subject to this chapter must comply with the requirements under this section.

(h) If a building, subject to the provisions of this section, has been certified as meeting the GAT 95% in-building coverage requirement, then persons and/or entities involved in the design, construction, ownership and maintenance of the building shall not be liable for any injury, death or damage that solely and directly results from the acts or omissions in its operation of the State of Delaware 800 MHz Emergency Communications system.

(i) Except as otherwise provided in this section, the following shall be an exception to the provisions of this section:

(1) Areas of a building, otherwise subject to the provisions of this Section, where electromagnetic interference (EMI's) will interfere with the efficient operation of equipment sensitive to EMI's; and,

(2) Any agricultural building not intended and not used for human occupancy, including but not limited to, commercial poultry houses, animal barns, etc.

(j) Buildings that would otherwise be subject to the provisions of this section shall be permanently exempt if a building permit is issued by February 28, 2009.

(k) When all towers associated or related to the Next Generation 800 MHz Project have been erected and are operational, subsection (g) of this section shall no longer be applicable and shall expire unless otherwise provided by a subsequent act of the General Assembly.

(l) The 95% GAT 800 MHz Emergency Communications in-building coverage standard shall be the standard applicable to the 800 MHz Emergency Communications System and any minor upgrades to the 800 MHz Emergency Communications System.

76 Del. Laws, c. 181, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 378, § 1.;