TITLE 9

Counties

Sussex County

CHAPTER 69. ZONING

Subchapter I. General Provisions


All definitions used in § 6801 of this title shall apply to this subchapter, and as used in this subchapter, unless the same shall be inconsistent with the context:

(1) "Nonconforming structure" means 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.

(2) "Nonconforming use" means 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.

(3) "Structure" means 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."

9 Del. C. 1953, § 6901; 56 Del. Laws, c. 97; 66 Del. Laws, c. 207, § 1.;

(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 that portion of Sussex County which is not included within the corporate limits of any city or town, unless any territory within such corporate limits is included upon request made by the governing body or authority of such city or town, not withstanding any provision 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 County Council.

(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, § 6902; 56 Del. Laws, c. 97; 57 Del. Laws, c. 762, § 12; 64 Del. Laws, c. 78, § 1; 66 Del. Laws, c. 207, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 144, § 3; 75 Del. Laws, c. 244, §§ 5, 6; 76 Del. Laws, c. 409, § 4; 78 Del. Laws, c. 143, §§ 1-3.;

(a) For any or all of the purposes specified in § 6902 of this title, the county government 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 1 district may differ from those in other districts.

(c) The county government 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.

9 Del. C. 1953, § 6903; 56 Del. Laws, c. 97; 57 Del. Laws, c. 762, § 12.;

(a) Regulations adopted by the county government, pursuant to the provisions of this subchapter, 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, 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, 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 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, § 6904; 56 Del. Laws, c. 97; 57 Del. Laws, c. 762, § 12; 66 Del. Laws, c. 207, § 1.;

In order to avail itself of the powers conferred by this subchapter, the county government shall appoint a permanent commission of 5 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 § 6803 of this title and its organization, meeting, office of the Commission, Secretary of the Commission, and other personnel shall be the same as in §§ 6804 and 6805 of this title.

9 Del. C. 1953, § 6905; 56 Del. Laws, c. 97; 57 Del. Laws, c. 762, § 12; 66 Del. Laws, c. 207, § 1.;

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.

9 Del. C. 1953, § 6906; 56 Del. Laws, c. 97.;

(a) The Commission shall make, as promptly as possible, for certification to the county government, 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 buildings 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 subsection (a) of this section, an interim holding zone proposal to control the development of land may be instituted by Sussex County pursuant to § 6909 of this title as a temporary measure, but in no case shall the interim zoning be effective beyond December 31, 1970.

9 Del. C. 1953, § 6907; 56 Del. Laws, c. 97; 57 Del. Laws, c. 217; 57 Del. Laws, c. 762, § 12.;

Any public hearing required by this subchapter shall be held in accordance with § 6812 of this title.

9 Del. C. 1953, § 6908; 56 Del. Laws, c. 97; 66 Del. Laws, c. 207, § 1.;

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

9 Del. C. 1953, § 6909; 56 Del. Laws, c. 97; 64 Del. Laws, c. 78, § 2; 66 Del. Laws, c. 207, § 1.;

(a) Before the adoption of any zoning proposal or zoning regulations, the county government shall hold a public hearing in accordance with § 7002(m) of this title.

(b) The county government 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 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, § 6910; 56 Del. Laws, c. 97; 57 Del. Laws, c. 762, § 12; 64 Del. Laws, c. 78, § 3.;

(a) The county government 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.

(b) With respect to any proposed changes, the Commission shall hold at least 1 public hearing pursuant to § 6812 of this title.

(c) Unless the Commission shall have transmitted its report upon the proposed changes within 45 days after the submission thereof to it, the county government 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 county government shall not be bound by the report of the Commission. Before finally adopting any changes, the county government shall hold a public hearing thereon pursuant to § 7002(m) of this title. Additionally, notice of the hearing by the county government shall be posted on the property itself.

9 Del. C. 1953, § 6911; 56 Del. Laws, c. 97; 57 Del. Laws, c. 762, § 12; 64 Del. Laws, c. 78, § 4.;

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 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.

9 Del. C. 1953, § 6912; 56 Del. Laws, c. 97.;

The county government shall appoint a Board of Adjustment of 5 members, subject to the same terms and qualifications as indicated in § 6803(c) of this title.

9 Del. C. 1953, § 6913; 56 Del. Laws, c. 97; 57 Del. Laws, c. 762, § 12.;

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, § 6914; 56 Del. Laws, c. 97; 57 Del. Laws, c. 762, § 12.;

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, § 6915; 56 Del. Laws, c. 97; 57 Del. Laws, c. 762, § 12; 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 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, form, or other procedure relating thereto, shall be as 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.

(c) Appeals taken to the Board of Adjustment may be referred by the Board of Adjustment to the Commission for its review and recommendations.

9 Del. C. 1953, § 6916; 56 Del. Laws, c. 97; 57 Del. Laws, c. 762, § 12; 64 Del. Laws, c. 78, § 5.;

Upon appeals, the Board of Adjustment shall have the power to:

(1) 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) 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) 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 or exceptional practical difficulty 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;

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;

c. That such unnecessary hardship or exceptional practical difficulty has not been created by the appellant;

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 chapter and the zoning ordinance or code. The Board is empowered in no case, however, to grant a variance in the use of land or structures thereon.

9 Del. C. 1953, § 6917; 56 Del. Laws, c. 97; 69 Del. Laws, c. 82, §§ 1, 2.;

(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 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 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. The cost of the transcript of the hearing appealed from shall be the responsibility of the person appealing the decision unless said costs are allowed against the Board as provided in subsection (g) of this section.

(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, § 6918; 56 Del. Laws, c. 97; 64 Del. Laws, c. 78, § 6; 70 Del. Laws, c. 186, § 1.;

(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 government 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, 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 government under the authority granted by this subchapter, the county government, 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.

9 Del. C. 1953, § 6919; 56 Del. Laws, c. 97; 57 Del. Laws, c. 762, § 12; 66 Del. Laws, c. 207, § 1.;

(a) Nonconforming uses of land or structure may, except as provided in subsection (b) of this section, be continued although such use does not conform with the provisions of such regulations or change thereof, provided no structural alteration of such structure is proposed or made for the purpose of such continuance.

(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, § 6920; 56 Del. Laws, c. 97.;

Immediately after the adoption of any zoning regulations or changes by the county government, 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 structures and uses 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 prescribed by the county government, and copies of such list shall, when approved by the county government, be filed for record in the offices of the Commission and the Board of Adjustment.

9 Del. C. 1953, § 6921; 56 Del. Laws, c. 97; 57 Del. Laws, c. 762, § 12.;

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 and other purposes, in accordance with this chapter, from either private or public sources, state or federal.

9 Del. C. 1953, § 6922; 56 Del. Laws, c. 97; 57 Del. Laws, c. 762, § 12.;

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 regulation, 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.

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

9 Del. C. 1953, § 6923; 56 Del. Laws, c. 97; 66 Del. Laws, c. 207, § 1.;

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 county council.

68 Del. Laws, c. 272, § 3.;

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 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 July 13, 2000.

72 Del. Laws, c. 415, §§ 3, 4.;

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, § 3.;