Chapter 3

§ 301 Grant of power. For the purpose of promoting health, safety, morals or the general welfare of the community, the legislative body of cities and incorporated towns may regulate and restrict the height, number of stories and size of buildings and other structures, percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes. 39 Del. Laws, c. 22, §  2 ; Code 1935, §  6228; 22 Del. C. 1953, §  301; § 302 Division into districts; regulations. For any or all of the purposes provided in § 301 of this title, the legislative body may divide the municipality into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this chapter, and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings throughout each district but the regulations in 1 district may differ from those in other districts. 39 Del. Laws, c. 22, §  3 ; Code 1935, §  6229; 22 Del. C. 1953, §  302; § 303 Purpose of regulations. The regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets, to secure safety from fire, panic and other dangers, to promote health and the general welfare, to provide adequate light and air, to prevent the overcrowding of land, to avoid undue concentration of population, to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration, among other things, as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the municipality. 39 Del. Laws, c. 22, §  4 ; Code 1935, §  6230; 22 Del. C. 1953, §  303; § 304 Establishment and enforcement of regulations. The legislative body of the municipality shall provide for the manner in which the regulations and restrictions and the boundaries of the districts shall be determined, established and enforced and from time to time amended, supplemented or changed. However, no such regulations, restriction or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least 15 days’ notice of the time and place of such hearing shall be published in an official paper or a paper of general circulation in such municipality. 39 Del. Laws, c. 22, §  5 ; Code 1935, §  6231; 22 Del. C. 1953, §  304; § 305 Changes in regulations; procedure. The regulations, restrictions and boundaries may from time to time be amended, supplemented, changed, modified or repealed. In case, however, of a protest against such changes signed by the owners of 20 percent or more, either of the area of the lots included in such proposed change or of those immediately adjacent thereto extending 100 feet therefrom or of those directly opposite thereto extending 100 feet back from the street frontage of such opposite lots, such amendment shall not become effective except by the favorable vote of three fourths of all the members of the legislative body of the municipality; provided, however, that in any municipality of this State with a population in excess of 50,000 persons, the foregoing provisions regarding a protest shall not be applicable to any such change which is proposed in connection with the construction of federally assisted multi-family housing for the elderly and handicapped, in all instances of which such change shall become effective by the favorable vote of a simple majority of all the members of the legislative body of the municipality. The provisions of § 304 of this title, relative to public hearings and official notice, shall apply equally to all changes or amendments. 39 Del. Laws, c. 22, §  6 ; Code 1935, §  6232; 22 Del. C. 1953, §  305; 67 Del. Laws, c. 183, §  1 ; § 306 Zoning commission. In order to avail itself of the powers conferred by this chapter, the mayor or the chief executive of cities or incorporated towns shall appoint a commission to be known as the zoning commission of 3 members, the appointments to be confirmed by the legislative body, to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. The commission shall consist of not more than 2 members from 1 party and appointments shall be made for 2, 4, and 6 years, and for 6-year terms thereafter. Such commission shall make a preliminary report and hold public hearings thereon before submitting its final report. The legislative body shall not hold its public hearings or take action until it has received the final report of such commission. 39 Del. Laws, c. 22, §  7 ; Code 1935, §  6232; 22 Del. C. 1953, §  306; § 307 Conflict with other laws. Wherever the regulations made under authority of this chapter require a greater width or size of yards or courts, or a lower height of building or less number of stories, or a greater percentage of lot to be left unoccupied, or impose other higher standards than are required in any other statute or local ordinance or regulation, the regulations made under authority of this chapter shall govern. Wherever any other statute, local ordinance or regulation requires a greater width or size of yards or courts, or a lower height of building or a less number of stories, or a greater percentage of lot to be left unoccupied, or imposed other higher standards than are required by the regulations made under authority of this chapter, such statute, local ordinance or regulation shall govern. 39 Del. Laws, c. 22, §  10 ; Code 1935, §  6236; 22 Del. C. 1953, §  307; § 308 Enforcement. In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted or maintained or any building, structure or land is used in violation of this chapter or of any ordinance or other regulation made under authority conferred thereby, the proper local authorities of the municipality, in addition to other remedies, may institute any appropriate action or proceeding to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use to restrain, correct or abate such violation, to prevent the occupancy of the building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises. 39 Del. Laws, c. 22, §  9 ; Code 1935, §  6235; 22 Del. C. 1953, §  308; § 309 Residential facilities for persons with disabilities. (a) For purposes of all local 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, §  4 ; 74 Del. Laws, c. 149, §§  9-11 ; § 310 Transfer of development rights; receiving zones. For any or all the purposes provided in § 301 of this title, the legislative body of the municipality is expressly granted the authority to develop and adopt regulations governing the transfer of development rights from identified districts, zones or parcels from any unincorporated area in any county to districts, zones, or parcels designated to receive such development rights, and to enter into agreements with counties for such purposes. Whenever a municipality exercises its authority to provide for the receipt of development rights it shall: (1) Have adopted a comprehensive plan as required by this chapter and conform thereto; (2) Provide for the transfer of development rights as an option to the use and development of the subject property according to the otherwise applicable zoning requirements; (3) Limit designation of receiving areas to locations where the municipality has determined that growth should be encouraged and where a transfer of development rights would not result in the inability of either existing or planned public facilities which serve the area to accommodate such growth; (4) Demonstrate that the creation and regulation of receiving districts are otherwise consistent with promotion of the policies expressed by the comprehensive plans of the municipality and the statewide planning goals and objectives established pursuant to Chapter 91 of Title 29; and (5) Provide for appropriate incentives for the transfer of development rights, including bonuses for the use of transferred development rights and intergovernmental agreements with counties which would permit the transfer and use of development rights between counties and municipalities. 72 Del. Laws, c. 122, §  5 ; § 311 Emergency Communication Systems [Effective until Feb. 1, 2027]. 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 Title 9. 76 Del. Laws, c. 181, §  4 ; § 311 Emergency Communication Systems [Effective Feb. 1, 2027]. The zoning ordinance and regulations adopted pursuant to this chapter shall provide that newly constructed, modified, or renovated 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 Title 9. The terms “newly constructed buildings,” “modified,” or “renovated” mean as defined in § 2616 of Title 9. 76 Del. Laws, c. 181, §  4 ; 85 Del. Laws, c. 296, § 4 ; § 312 Complete Community Enterprise Districts. For any or all of the purposes provided in § 301 of this title, the legislative body of a municipality may amend its zoning regulations for parcels of land as part of a Complete Community Enterprise District established in §§ 2103 and 2104 of Title 2. However, no such regulations shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least 60-days’ notice of the time and place of such hearing shall be published in an official paper or a paper of general circulation in such municipality. 80 Del. Laws, c. 224, § 5 ; § 313 Traffic impact study requirements. If the legislative body of a municipality enacts an ordinance, or a municipal agency adopts a regulation, that imposes a traffic impact study for a proposed change in the zoning classification for land, a new roadway access associated with site development, or for any other purpose, the ordinance or regulation must at least provide the following: (1) That the threshold for determining if a traffic impact study is required must be based on peak hour trips, not vehicle trips per day, and the threshold must at least meet the following: a. For a residential development, 500 peak-hour trips. b. For a commercial development, 500 peak-hour trips, excluding pass-by trips. (2) That the traffic impact study is not required in a “Downtown Development District” or “Downtown Development Corridor,” as defined under § 1902 of this title. 85 Del. Laws, c. 344, § 8 ; § 314 Residential density requirements. (a) For purposes of this section, “growth area” means an area designated within a municipal comprehensive plan as a growth area and also consistent with areas identified by the Strategies for State Policies and Spending for growth as Investment Levels 1 and 2, or any successor classifications adopted by this State. (b) Notwithstanding § 301 of this title or any provision of this Code to the contrary, and subject to subsection (c) of this section, the legislative body of a municipality shall adopt zoning ordinances and land development regulations within a growth area that do all of the following: (1) Permit a variety of housing types, including townhouses, multifamily dwellings, stacked flats, apartments, and mixed-use residential developments. (2) Establish bulk, dimensional, and design standards that reasonably accommodate the housing types permitted under paragraph (b)(1) of this section at densities established in paragraph (c)(2) of this section. (3) Encourage development patterns that reduce vehicular trips, increase pedestrian connectivity, support transit-oriented development, and promote mixed-use development consistent with guidance issued by the Department of Transportation. (c) By June 1, 2027, by regulation, or in the municipality’s comprehensive plan if due that same year, and thereafter at least once every 10 years in the municipality’s comprehensive plan, the legislative body of a municipality shall adopt residential growth area density requirements to do all of the following: (1) Based on the guidance under subsection (e) of this section, develop and periodically update residential density requirements applicable to growth areas throughout the municipality, beginning with a minimum density threshold of 4 units per acre for single family homes and increasing minimum density thresholds for other housing types. (2) Require residential development meet density requirements while recognizing that varying development densities may be appropriate within different portions of a designated growth area of the municipality. (3) Encourage compact, infrastructure-efficient, and housing-supportive development patterns within growth areas of the municipality. (d) Each time the comprehensive plan adopted under subsection (c) of this section is approved, the legislative body of a municipality shall issue updated regulations or ordinances effectuating the residential growth area density requirements, which must be developed in consultation with the following, or a designee of the following: (1) The Director of the State Housing Authority. (2) The Secretary of the Department of Transportation. (3) The Director of the Office of State Planning Coordination. (4) The President of the Delaware League of Local Governments. (5) The Governor. (e) The Delaware State Housing Authority shall develop guidance for residential density requirements applicable to growth areas throughout this State starting with a minimum density threshold of 4 units per acre for single family homes and increasing minimum density thresholds for other housing types. The guidance must include all of the following: (1) Recommendations for permitting a variety of housing types, including townhouses, multifamily dwellings, stacked flats, apartments, and mixed-use residential development. (2) Recommendations for establishing bulk, dimensional, and design standards that reasonably accommodate the housing types permitted under paragraph (e)(1) of this section. (3) Recommendations, developed in consultation with the Department of Transportation, for development patterns that reduce vehicular trips, increase pedestrian connectivity, support transit-oriented development, and promote mixed-use development. 85 Del. Laws, c. 344, § 8 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } } § 321 Creation and powers. The legislative body of cities or incorporated towns shall provide for the appointment of a board to be known as the board of adjustment and in the rules and regulations adopted pursuant to the authority of this chapter shall provide that the board may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained. 39 Del. Laws, c. 22, §  8 ; Code 1935, §  6234; 22 Del. C. 1953, §  321; § 322 Composition; terms of office. (a) In cities or incorporated towns not having heretofore adopted a home rule charter pursuant to Chapter 8 of this title, the board of adjustment shall consist of all of the following members or their authorized agents: (1) The chief engineer of the street and sewer department, the public works commissioner, or the city manager. (2) The city solicitor. (3) The mayor. If the city or incorporated town has no city engineer or public works commissioner, or city solicitor, then the mayor or chief executive of such city or town shall appoint 2 members, each to be appointed for a term of 3 years and removable for cause by the appointing authority upon written charges and after public hearing, who, with the presiding officer of the zoning commission, shall constitute the board of adjustment for such city or town. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant. (b) In cities or incorporated towns having heretofore or hereafter adopted a home rule charter pursuant to Chapter 8 of this title, the legislative body thereof may establish a board of adjustment consisting of 5 members who shall be residents of the city or incorporated town and who shall have knowledge of and experience in the problems of urban or suburban or rural development, and who, at the time of appointment, shall not be candidates-elect for or incumbents of an elective public office. The mayor or chief executive officer of such city or incorporated town, with consent of the legislative body thereof, shall appoint 4 members for terms of 4 years, provided that the terms of the original members shall be established in a manner that 1 shall expire each year. The mayor or chief executive officer of such city or incorporated town, with the consent of the legislative body thereof, shall appoint 1 member who shall be chairperson and who shall serve at the pleasure of that appointing official. The members shall be entitled to compensation as determined by the city or incorporated town. (c) In the event that a city or incorporated town qualifying under subsection (b) of this section fails to establish a board of adjustment as permitted in subsection (b) of this section, the board of adjustment shall consist of those persons designated in subsection (a) of this section. (d) (1) Anything heretofore in this section to the contrary notwithstanding, any city or town, by its legislative body, may establish a board of adjustment consisting of not less than 3 nor more than 5 members who shall be residents of the city or town and who shall have knowledge of the problems of urban or suburban or rural development and who, at the time of appointment and throughout the term of office, shall not be candidates nor members of the legislative body nor employees of the city or town. The mayor or chief executive officer of such city or town shall appoint such members of the board of adjustment, and all such appointments shall be confirmed by a majority vote of the elected members of the legislative body. (2) All appointments shall be for a period of 3 years, provided that the terms of the original members shall be established in such a manner that the term of at least 1 member shall expire each year and the successor shall be appointed for a term of 3 years. The board of adjustment so selected shall elect from among their own number a chairperson and a secretary. (3) Any member of the board of adjustment may be removed from office by the legislative body for cause after a hearing by a majority vote of all the elected members of the legislative body of such city or town. A vacancy occurring otherwise than by the expiration of term shall be filled for the remainder of the unexpired term in the same manner as an original appointment. 39 Del. Laws, c. 22, §  8 ; Code 1935, §  6234; 22 Del. C. 1953, §  322; 57 Del. Laws, c. 717 ; 58 Del. Laws, c. 276 ; 59 Del. Laws, c. 137, §  1 ; 64 Del. Laws, c. 284, §  1 ; 70 Del. Laws, c. 186, §  1 ; 78 Del. Laws, c. 211, §  1 ; 81 Del. Laws, c. 218, § 1 ; § 323 Rules; meetings; administration of oaths; records. The board of adjustment shall adopt rules in accordance with any ordinance adopted pursuant to this chapter. Meetings of the board shall be held at the call of the chairperson and at such other times as the board may determine. Such chairperson, or in the chairperson’s absence, the acting chairperson, may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public. The board shall keep minutes of its proceedings showing the vote of each member upon each question or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall be a public record. 39 Del. Laws, c. 22, §  8 ; Code 1935, §  6234; 22 Del. C. 1953, §  323; 70 Del. Laws, c. 186, §  1 ; § 324 Appeals to board. Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the municipality affected by any decision of the administrative officer. Such appeal shall be taken within a reasonable time as provided by the rules of the board by filing with the officer from whom the appeal is taken and with the board a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken. 39 Del. Laws, c. 22, §  8 ; Code 1935, §  6234; 22 Del. C. 1953, §  324; § 325 Stay of proceedings. An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board of adjustment after the notice of appeal has been filed with the officer that, by reason of facts stated in the certificate, a stay would in the officer’s opinion cause imminent peril to life or property. In such case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board or by a court having jurisdiction on application on notice to the officer from whom the appeal is taken and on due cause shown. 39 Del. Laws, c. 22, §  8 ; Code 1935, §  6234; 22 Del. C. 1953, §  325; 70 Del. Laws, c. 186, §  1 ; § 326 Notice and hearing on appeal. The board of adjustment shall fix a reasonable time for the hearing of the appeal, give public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing any party may appear in person, by agent or by attorney. 39 Del. Laws, c. 22, §  8 ; Code 1935, §  6234; 22 Del. C. 1953, §  326; § 327 Determinations of board. (a) The board of adjustment may: (1) Hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this chapter or of any ordinance adopted pursuant thereto; (2) Hear and decide special exceptions to the terms of the ordinance upon which the board is required to pass under such ordinance; (3) Authorize, in specific cases, such variance from any zoning ordinance, code or regulation that will not be contrary to the public interest, where, owing to special conditions or exceptional situations, a literal interpretation of any zoning ordinances, code or regulation will result in unnecessary hardship or exceptional practical difficulties to the owner of property so that the spirit of the ordinance, code or regulation shall be observed and substantial justice done, provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of any zoning ordinance, code, regulation or map; provided, however, that notwithstanding any provision of law to the contrary, the legislative body of any city or incorporated town may, by ordinance, vest a designated town official or department with authority to administratively grant a dimensional variance for existing conditions that do not exceed 1 foot of the required dimension restrictions without the application being considered by the board of adjustment, subject to the standards, procedures and conditions set forth in the ordinance granting such authority. (b) In exercising the powers provided in subsection (a) of this section the board may, in conformity with this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken. 39 Del. Laws, c. 22, §  8 ; Code 1935, §  6234; 22 Del. C. 1953, §  327; 65 Del. Laws, c. 61, §  1 ; 76 Del. Laws, c. 371, §  1 ; § 328 Appeal to Superior Court from board’s decision. (a) Any person or 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 municipality may present to the Superior Court a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such 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 to review such decision of the board and shall prescribe therein the time within which a return thereto must be made and served upon the relator’s attorney, which shall not be less than 10 days and may be extended by the Court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the Court may, on application, on notice to the board and on due cause shown, grant a restraining order. (c) The Court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. 39 Del. Laws, c. 22, §  8 ; Code 1935, §  6234; 22 Del. C. 1953, §  328; § 329 Priority of proceedings. All issues in any proceeding under this subchapter shall have preference over all other civil actions and proceedings. 39 Del. Laws, c. 22, §  8 ; Code 1935, §  6234; 22 Del. C. 1953, §  329; § 330 Hearing on appeal. 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 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. 39 Del. Laws, c. 22, §  8 ; Code 1935, §  6234; 22 Del. C. 1953, §  330; 70 Del. Laws, c. 186, §  1 ; § 331 Record on appeal. 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 a transcript of the hearing appealed from is the responsibility of the person appealing the decision, unless the cost is awarded against the board as provided in § 332 of this title. 39 Del. Laws, c. 22, §  8 ; Code 1935, §  6234; 22 Del. C. 1953, §  331; 73 Del. Laws, c. 38, §  1 ; § 332 Costs on appeal. Costs shall not be allowed against the board of adjustment, unless it appears to the Court that it acted with gross negligence, in bad faith or with malice in making the decision appealed from. For purposes of this section, the word “costs” includes all fees paid or owed to the Prothonotary’s Office in connection with the appeal to the Superior Court and all documented out-of-pocket expenses incurred by the board of adjustment in preparing, filing and serving sufficient copies of the record of the proceedings appealed from, including but not limited to expenses for photocopying, copying and/or duplication of survey drawings or plots, audio tape recordings, video tape recordings, computer discs, and expenses for preparing the transcript of the hearing. 39 Del. Laws, c. 22, §  8 ; Code 1935, §  6234; 22 Del. C. 1953, §  332; 73 Del. Laws, c. 38, §  2 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } }