TITLE 9

Counties

Kent County

CHAPTER 49. ZONING

Subchapter I. General Provisions


(a) The county government 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 Kent County which lie outside of incorporated municipalities, or incorporated municipalities without zoning provisions, notwithstanding any provisions of other titles or chapters of this Code to the contrary. Any real property proposed to be used for an agritourism activity as defined in this title shall be given an expedited review before the Levy Court.

(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; and

(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.

(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.

9 Del. C. 1953, § 4901; 56 Del. Laws, c. 103, § 16; 66 Del. Laws, c. 207, § 1; 74 Del. Laws, c. 144, § 2; 75 Del. Laws, c. 244, §§ 3, 4; 76 Del. Laws, c. 409, § 3; 78 Del. Laws, c. 143, §§ 1-3.;

(a) For any or all of the purposes specified in § 4901 of this title the county government may divide the territory of Kent 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, alterations, 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.

(c) The county government shall provide for the manner in which regulations shall be enforced and shall designate the administrator of the regulations. The administrator so designated shall have authority to act as such throughout the County.

9 Del. C. 1953, § 4902; 56 Del. Laws, c. 103, § 16.;

(a) Regulations adopted by the county government, pursuant to the provisions of this subchapter, 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 this State, 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 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.

9 Del. C. 1953, § 4903; 56 Del. Laws, c. 103, § 16; 66 Del. Laws, c. 207, § 1.;

(a) In order to avail itself of the powers conferred by this subchapter, the county government shall appoint a commission of 5 members which shall be known as the Kent County Zoning Commission. Each member shall be appointed for a term of 6 years except that a member appointed to fill a vacancy occurring for any reason other than expiration of term, shall be appointed for the unexpired term.

(b) Each member shall be a freeholder and resident of Kent County, 4 of whom shall live outside any incorporated city or town. No more than 3 of the members of the Commission shall be of the same political party. Originally 3 members shall be appointed for 3 years, and the remaining 2 for 6 years so that at any biennial election, no more than 3 members shall be up for appointment. Members of the Regional Planning Commission otherwise qualified, shall be eligible for appointment to the Kent County Zoning Commission.

(c) Upon adoption of permanent zoning regulations by the county government, the Zoning Commission shall cease to exist and the members of the Zoning Commission shall become voting members of and shall serve out their terms on the Kent County Regional Planning Commission. Upon expiration of the said original terms, reappointment or appointment of new members shall be in accordance with the terms established for members of the Regional Planning Commission. Following consolidation with the Zoning Commission, the Kent County Regional Planning Commission shall henceforth exercise all of the powers and duties herein set forth for the Zoning Commission.

9 Del. C. 1953, § 4904; 56 Del. Laws, c. 103, § 16; 56 Del. Laws, c. 241, § 13; 58 Del. Laws, c. 340, § 1; 66 Del. Laws, c. 207, § 1.;

The Zoning Commission 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 Zoning Commission, as well as furnish such other technical assistance and advice as they may have available for such purpose.

9 Del. C. 1953, § 4905; 56 Del. Laws, c. 103, § 16.;

The Zoning Commission may employ such experts, trained personnel, and staff as the funds provided therefor may permit. The county government shall furnish the Zoning Commission with appropriate office space and other facilities. The county government may pay to the Regional Planning Commission of Kent 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.

9 Del. C. 1953, § 4906; 56 Del. Laws, c. 103, § 16.;

The Zoning Commission shall make, as promptly as possible, for certification to the county government, 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 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, for the location and 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.

9 Del. C. 1953, § 4907; 56 Del. Laws, c. 103, § 16.;

When the efforts of the Commission shall have reached the stage of a tentative plan, the Commission shall hold at least 1 public hearing on each tentative plan to be separately submitted, notice of which hearing shall be published at least 15 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.

9 Del. C. 1953, § 4908; 56 Del. Laws, c. 103, § 16.;

For the purpose of any public hearing under this subchapter, the Commission shall have the power to summon witnesses, administer oaths, and compel the giving of testimony.

9 Del. C. 1953, § 4909; 56 Del. Laws, c. 103, § 16; 66 Del. Laws, c. 207, § 1.;

(a) After receiving the certification of a zoning plan from the Zoning Commission and before the adoption of any zoning regulations, the county government shall hold a public hearing thereon, the time and place of which at least 30 days notice shall be given by 1 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.

(b) The county government may conduct consultative hearings 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 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 45 days from and after such submission within which to send its report to the county government, but the county government shall not be bound by the report.

9 Del. C. 1953, § 4910; 56 Del. Laws, c. 103, § 16; 66 Del. Laws, Sp. Sess., c. 201, § 2.;

(a) The county government may, from time to time, make amendments, supplements, changes or 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.

(b) With respect to any proposed changes, the Zoning Commission shall hold at least 1 public hearing, notice of which hearing shall be published at least 15 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 the Zoning Commission shall have transmitted its report upon the proposed changes within 45 days after acceptance of a completed application including all supporting documentation, by the Commission, the county government 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 county government shall not be bound by the report of the Zoning Commission. Before finally adopting any such changes, the county government shall hold a public hearing thereon, at least 15 days notice of the time and place of which shall be given at least 1 publication in a newspaper of general circulation in the County.

9 Del. C. 1953, § 4911; 56 Del. Laws, c. 103, § 16; 66 Del. Laws, Sp. Sess., c. 201, § 3; 67 Del. Laws, c. 166, § 1.;

The Zoning Commission may cooperate with other planning and zoning commissions within Kent 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 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.

9 Del. C. 1953, § 4912; 56 Del. Laws, c. 103, § 16.;

The county government shall, by ordinance, establish a Board of Adjustment and determine the membership, terms, qualifications and compensation of said Board.

9 Del. C. 1953, § 4913; 56 Del. Laws, c. 103, § 16; 56 Del. Laws, c. 241, § 14; 66 Del. Laws, c. 321, § 1.;

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

9 Del. C. 1953, § 4914; 56 Del. Laws, c. 103, § 16.;

The county government 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 subchapter, and the Board of Adjustment may adopt supplemental rules of procedure not inconsistent with this subchapter or such general rules.

9 Del. C. 1953, § 4915; 56 Del. Laws, c. 103, § 16; 66 Del. Laws, c. 207, § 1.;

(a) Appeals to the Board of Adjustment may be taken by any person refused a building permit, or from 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.

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

9 Del. C. 1953, § 4916; 56 Del. Laws, c. 103, § 16.;

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 regulations, 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) 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 subchapter 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 such 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 zoning plan and zoning regulations.

9 Del. C. 1953, § 4917; 56 Del. Laws, c. 103, § 16; 66 Del. Laws, c. 207, § 1.;

(a) 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 Kent 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 of the decision 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 proceeding 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 the referee's 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.

9 Del. C. 1953, § 4918; 56 Del. Laws, c. 103, § 16; 70 Del. Laws, c. 186, § 1.;

(a) The enforcement of any code or regulation adopted by the county government under the authority of this subchapter shall be as prescribed by the county government by ordinance.

(b) 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 government, 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.

9 Del. C. 1953, § 4919; 56 Del. Laws, c. 103, § 16; 65 Del. Laws, c. 304, § 2; 66 Del. Laws, c. 207, § 1.;

(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. The county government 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.

9 Del. C. 1953, § 4920; 56 Del. Laws, c. 103, § 16.;

The county government 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.

9 Del. C. 1953, § 4921; 56 Del. Laws, c. 103, § 16; 58 Del. Laws, c. 340, § 2; 66 Del. Laws, c. 207, § 1.;

(a) Whenever any regulations made under authority of this subchapter 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 regulations, the provisions of the regulations made under authority of this subchapter 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 subchapter, the provisions of such statute shall govern.

(b) Whenever any other statute shall derogate from this subchapter, unless it be a statute granting powers to the State Planning Office, this subchapter shall govern.

9 Del. C. 1953, § 4922; 56 Del. Laws, c. 103, § 16; 58 Del. Laws, c. 340, § 2; 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).

62 Del. Laws, c. 390, § 2; 74 Del. Laws, c. 149, §§ 4-6.;

With respect to any proposed residential zoning change, the county government 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.;

In the case of a rezoning application the county government shall determine its voting requirement necessary to take action thereon, which shall not be less than a majority of all members elected to Levy Court.

68 Del. Laws, c. 272, § 2.;

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.

This act shall become effective for zoning changes initiated after July 13, 2000.

72 Del. Laws, c. 415, § 2.;

The zoning ordinance and regulations adopted pursuant to this chapter shall provide that newly constructed buildings of 25,000 square feet of gross floor area or more, shall be designed, constructed and/or equipped in accordance with the provisions set forth in § 2616 of this title.

76 Del. Laws, c. 181, § 2.;