2006 Delaware Code - Subchapter I — General Provisions

§ 2601. Power of County Council; area subject to regulation.

(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; and

(5) The land, building or structure is a farm market or roadside stand provided the products offered for sale are grown or produced on the subject farm or lands in agriculture production associated with such farm operation and such farm market or roadside stand shall comply 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. All construction shall conform to applicable building codes and building permit requirements as enacted by the local jurisdiction;

b. 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';

c. 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

d. 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. (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.)

§ 2602. Zoning plan and regulations.

(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 one 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.)

§ 2603. Purposes of regulations.

(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 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, 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.)

§ 2604. Assistance from and cooperation with other agencies.

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.)

§ 2605. Department's powers in conduct of public hearing.

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.)

§ 2606. Adoption by county government of zoning plan and regulations; public hearing and notice; consultative hearings; resubmission to Department of Planning.

Repealed by 71 Del.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

§ 2607. Changes in zoning district, plan or regulations; procedure.

(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.)

§ 2608. Zoning coordination and integration; committees and rules of Department of Land Use.

(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.)

§ 2609. Violations of regulations or subchapter; enforcement, remedies and penalties.

(a) No person shall erect, construct, reconstruct, alter, maintain or use any building or structure or use any land in violation of any regulation in or of any provision of, any zoning regulation, or any change thereof, enacted or adopted by the 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.)

§ 2610. Nonconforming uses of land or buildings.

(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.)

§ 2611. Conflict between zoning regulations and other laws.

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.)

§ 2612. Residential facilities for persons with disabilities.

(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.)

§ 2613. Notice to local school districts of residential zoning changes.

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.)

§ 2614. Changes in zoning.

(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 Ccouncil approving such change in zoning by a concurrence of two thirds of all members elected to the County Ccouncil.

(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.)

§ 2615. Notice to property owners of zoning changes.

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 enactment of this act. (72 Del. Laws, c. 415, § 1.)