Chapter 196

 SUBDIVISION AND LAND DEVELOPMENT

[HISTORY: Adopted by the Mayor and Council of the Town of Elsmere 3-12-1991 as Ord. No. 265. Amendments noted where applicable.]

~ 196-1. Title.

  These regulations shall be known and may be cited as the "Subdivision and Development Regulations" of the Town of Elsmere, Delaware.

~ 196-2. Authority.[1]

  By authority of the Home Rule Charter of the Town of Elsmere, the Council of the Town of Elsmere, Delaware, hereafter referred to as "the Council," adopts the following regulations governing the subdivision of land within the corporate limits of Elsmere, Delaware, and hereby exercises its authority to review, approve and disapprove plans for the subdivision of land within the corporate limits of Elsmere, Delaware. By the authority of the Town of Elsmere Ordinance No. 99,[2] the Planning Commission shall exercise its authority to review plans for the subdivision of land and make recommendations for approval or disapproval. The Town of Elsmere shall be exempted from these regulations.

~ 196-3. Purpose.

  The purpose of this chapter is to assure adequate sites suitable for residential, industrial and commercial development within the town. Such development should be coordinated with existing streets and structures to ensure that adequate open space and efficient traffic flow are maintained. These subdivision regulations are designed to protect and preserve the health, safety and general welfare of all Elsmere residents.

~ 196-4. Scope.

     A.   This chapter shall apply to any lot or lots forming a part of a subdivision created before or after the effective date of this chapter. This chapter shall supersede all other ordinances or provisions of the law with which it may be in conflict. This chapter, however, is not intended to impair or interfere with private restrictions placed upon property by deed, covenant or other private instrument, or with restrictive covenants running with the land. Where this chapter imposes a greater restriction upon the land than is imposed or required by such existing provisions of law, ordinances, contract, or deed, the provisions of this chapter shall control.

     B.   If any part of this chapter is judged to be invalid by any court of competent jurisdiction, such judgment will only apply to the part of the ordinance declared to be invalid and will not affect the validity of the remainder of the regulations.

     C.   This chapter will not apply to any action pending under the existing regulations.

~ 196-5. Subdivision; compliance required.

     A.   No tract, parcel or lot of land shall be divided, redivided, subdivided or resubdivided by recorded plat, separation of ownership or lease into two (2) or more tracts, parcels or lots, except in strict accordance with all provisions of this chapter and the subdivision regulations adopted hereunder.

     B.   No tract, parcel or lot of land shall be developed, and no construction shall be undertaken thereon, directed toward the occupancy of such land or the occupancy of any building, building structure or structures thereon or on any parcel thereof by more than two (2) families or more than two (2) businesses, professional, personal service or industrial establishments, except in strict accordance with the provisions of this chapter and the subdivision regulations adopted hereunder.

     C.   No public street, and no private street, alley or driveway intended to be used by more than two (2) families or by more than two (2) businesses, professional, personal service or industrial establishments or by customers of such businesses, professional, personal service or industrial establishments or by the public, and no sanitary sewer, water main or storm drain shall be laid out, constructed, opened or used over, through or under any tract, parcel or lot, except in strict accordance with the provisions of this chapter and the subdivision regulations adopted hereunder.

~ 196-6. Subdivision control.

     A.   No permit to erect, alter or repair any building upon land in a subdivision may be issued and no building may be erected in a subdivision, unless and until a subdivision plan has been approved and the required agreements have been executed.

     B.   No work, grading, excavation, construction, erection or building shall be commenced or done within any subdivision except in strict accordance with provisions in this chapter and the subdivision regulations adopted hereunder and pursuant to an approved subdivision plan and required agreements; provided that this section shall not prevent the making of test borings or engineering surveys.

     C.   Upon application and upon a showing that there has been full compliance with the subdivision regulations, the Building Code, the Zoning Ordinance[3] and all other applicable ordinances and regulations of the Town of Elsmere and the laws of the State of Delaware, the Building Committee of the town shall issue a certificate of occupancy to the developer for any dwelling house, building or structure.

     D.   No dwelling house, building or structure located in any subdivision shall be occupied or used, wholly or partially, until a certificate of occupancy as provided above shall be issued. No land on which any dwelling house, building or structure is located which is within a subdivision shall be conveyed and no possession of such land or dwelling house, building or structure shall be transferred until a certificate of occupancy as provided above has been issued.

~ 196-7. Resubdivision and future resubdivision.

     A.     Resubdivision. Any change in the map of an approved or recorded subdivision (including plans approved prior to the adoption of this chapter) which affects street layout, areas dedicated for public use or any lot line, shall be reviewed by the same procedure, rules and regulations as for a subdivision.

     B.     Future resubdivision. Whenever a parcel of land is subdivided and the subdivision plan shows one (1) or more lots containing more than one (1) acre of land and there are indications that such lots will eventually be resubdivided into small building sites, the Town Council may require that such parcel of land allow for the future opening of streets and the ultimate extension of adjacent streets. Easements providing for the future opening and extension of such streets may be made a requirement of the plan.

~ 196-8. Vacation of approved subdivision plan.

     A.   The owner of an approved subdivision or any part of an approved subdivision may vacate said plan or any portion of said plan by submitting to the Town Manager a written request stating:

           (1)     The reasons for vacation; and

           (2)     Metes and bounds description of said property to be vacated. The written request must be accompanied by a copy of the approved and recorded plan.

     B.   The request shall be acted upon by the Town Council upon recommendation of the Subdivision Advisory Committee and Planning Commission. The Town Council may reject any request it deems not to be in the best interests of the public.

     C.   When the owners of several adjacent parcels wish to vacate recorded plans, a joint written document may be submitted to the Town Manager.

~ 196-9. Schedule of fees.

     A.   Fees for subdivision application, review and recordation shall be paid at time of application as follows:

           (1)     Administrative subdivision: twenty-five dollars ($25.).

                (a)     Recordation fee: sixty dollars ($60.).

           (2)     Minor subdivision:

                (a)     Application fee: one hundred dollars ($100.).

                (b)     Review fee:

                    [1]  Per dwelling unit: ten dollars ($10.).

                    [2]  For all commercial and industrial development, per acre or fraction thereof: twenty-five dollars ($25.).

               (c)     Recordation fee: one hundred fifty dollars ($150.).

           (3)     Major subdivision:

                (a)     Application fee: three hundred dollars ($300.).

                (b)     Review fee:

                    [1]  Per dwelling unit: ten dollars ($10.).

                    [2]  For all commercial and industrial development, per acre or fraction thereof: twenty-five dollars ($25.).

                (c)     Recordation fee: six hundred fifty dollars ($650.).

           (4)     Variance from subdivision and land development regulations: three hundred fifty dollars ($350.).

     B.   When a subdivision is not approved by Town Council or if the applicant withdraws his application prior to consideration by either the Planning Commission or Town Council, the recordation fees collected at the time of application shall be refunded to the applicant.

~ 196-10. Conditions of approval.

  The Town Council reserves the right to place conditions upon the approval of the subdivision of land.

~ 196-11. Waiver of subdivision regulations in special circumstances.

  The Town Manager, with approval of Town Council, may waive any requirement of these regulations as they may pertain to any development which, prior to annexation, had obtained subdivision approval from New Castle County.

~ 196-12. Liability.

  Nothing in this chapter shall be construed as to create any liability to the Town of Elsmere, its agents, servants and employees with respect to the administration and endorsement of the regulations adopted hereunder.

~ 196-13. Amendments.

     A.   The Town Council may amend these subdivision regulations by ordinance. Public hearings on all proposed amendments shall be held by the Planning Commission and Town Council after having been advertised in a newspaper of local circulation at least fourteen (14) days prior to the meeting date. In the case of an unfavorable report by the Planning Commission, such amendment shall not become effective except by a favorable vote of three-fourths (3/4) of the Town Council.

     B.   Any subdivision or land development plan that has been officially accepted in writing for review at the time of the effective date of any revision, modification or amendment shall continue to be reviewed under previous regulations through recordation of a plan.

     C.   The Planning Commission shall review the regulations annually to determine the advisability of recommending revisions or amendments in light of changing standards and technological advances.

~ 196-14. Existing approved subdivisions.

  The subdivision regulations in effect prior to the enactment of these subdivision regulations shall be applicable to any final subdivision plan approved by Council prior to the enactment of these regulations.

~ 196-15. Enforcement.

     A.   It shall be the duty of the Town Manager to enforce these regulations and to bring to the attention of the Town Solicitor and Town Council any violations or lack of compliance herewith.

     B.   No building permit shall be issued for the construction of any building or structure located on a lot subdivided or sold in violation of the provisions of these regulations.

~ 196-16. Violations; civil suits.

     A.   The subdivision of any lot or any parcel of land by the use of metes and bounds description for the purpose of sale, transfer or lease with the intent of evading these regulations shall not be permitted. All such described subdivisions shall be subject to all of the requirements contained in these regulations.

     B.   No owner or agent of the owner of any parcel of land located in a proposed subdivision shall transfer or sell any such parcel before the subdivision has been approved by the Town Council in accordance with the provisions of these regulations and a plan filed with the New Castle County Recorder of Deeds.

     C.   The Town Council or any owner of real estate affected by a violation of this section may, in addition to other remedies provided by law, institute injunction, mandamus, abatement or any other appropriate action or proceeding to prevent, enjoin, abate or otherwise correct such action.

~ 196-17. Violations and penalties.

  Any violation of these regulations shall be a misdemeanor, punishable by a fine of not less than fifty dollars ($50.) nor more than one thousand dollars ($1,000.) or by imprisonment not to exceed six (6) months, or by both fine and imprisonment. Any person who shall violate these regulations shall be deemed guilty of a separate offense for every day that the violation shall continue. Furthermore, any person, partnership, corporation, etc., who, prior to entering into a public works agreement to secure the necessary improvements, contracts to sell, conveys, rents or leases any lots or dedicated or reserved areas which form part of a subdivision, shall be guilty of a misdemeanor and be subject to the above penalties. Each parcel, plat or lot so disposed of shall be deemed a separate violation of this chapter.

~ 196-18. Definitions.

     A.   For the purpose of these regulations, certain numbers, abbreviations, terms and words used herein shall be used, interpreted and defined as set forth in this section.

     B.     Unless the context clearly indicates to the contrary, words used in the present tense include the future tense; words used in the plural number include the singular; the word "herein" means "in these regulations;" the word "regulations" means "these regulations."

     C.   A "person" includes a corporation, a partnership and an incorporated association of persons such as a club; "shall" is always mandatory; a "building" includes a "structure;" a "building" or "structure" includes any part thereof; "used" or "occupied" as applied to any land or building shall be construed to include the words "intended, arranged or designed to be used or occupied."

     D.     Words and terms defined.

          ACCESSWAY -- A right-of-way which provides common vehicular and pedestrian access to a property or properties, extending not more than four hundred (400) feet from a street to a dead end.

          ADMINISTRATIVE SUBDIVISION -- The adjustment of property lines or straightening of boundaries; does not create a lot upon which building can occur. (See ~ 196-21.)

          ALLEY -- A public or private right-of-way primarily designed to serve as secondary access to the side or rear of those properties whose principal frontage is on some other street.

          APPLICANT -- The owner of land proposed to be subdivided or his representative. Consent shall be required from the legal owner of the premises.

          ARCHITECT -- An architect registered by the Delaware State Board of Examiners and Registration of Architects.

          BLOCK -- A tract of land bounded by streets or by a combination of streets and public parks, cemeteries, railroad rights-of-way, shorelines of waterways or boundary lines of municipalities.

          BUILDING -- Any structure built for the support, shelter or enclosure of persons, animals, chattels or movable property of any kind and includes any structure.

          BUILDING SETBACK LINE -- A line extending between the two (2) side lot lines of a lot or parcel of land which is parallel to and a stated distance from a street line.

          CARTWAY (roadway traveling) -- That portion of a street right-of-way which is intended for use as a means of vehicular circulation.

          COLLECTOR STREET -- A street which serves as the connection from minor streets to the arterial street system.

          CONSTRUCTION IMPROVEMENTS PLAN -- The maps or drawings accompanying a subdivision plan and showing the specific location and design of improvements to be installed in the subdivision in accordance with the requirements of the Town Council as a condition of the approval of the plat.

          CROSSWALK -- A right-of-way municipally or privately owned, ten (10) feet or more in width, which cuts across a block in order to improve pedestrian access to adjacent street or properties.

           CUL-DE-SAC -- A local street with only one (1) outlet and having an appropriate terminal for the safe and convenient reversal of traffic movement, including the turning of fire trucks.

          DEVELOPER -- The owner of land proposed to be subdivided or his representative. Consent shall be required from the legal owner of the premises.

          DWELLING UNIT -- Any structure or part thereof, designated to be occupied as living quarters for one (1) or more individuals customarily living together as a single housekeeping unit and using certain rooms and housekeeping facilities in common.

          EASEMENT -- Authorization by a property owner for the use by another and for a specified purpose, of any designated part of his property.

          ENGINEER -- An individual technically qualified in the State of Delaware and registered by the Delaware Association of Professional Engineers; or in the case of a structure only, in lieu of an engineer, an architect registered by the Delaware State Board of Examiners and Registration of Architects.

          FRONTAGE -- That side of a lot abutting on a street or way ordinarily regarded as the front of the lot. All sides of a corner lot abutting on a street will be considered frontage.

          IMPROVEMENTS -- See "lot improvement" or "public improvement."

          LANDSCAPE SCREENING -- Any planting, structure, device, wall, fence or combination of materials with a sufficient height above finished grade so as to create a visual barrier or improve or enhance the natural environment.

          LOCAL STREET -- A street used primarily as the principal means of access to adjacent residential properties.

           LOT -- A tract, plot or portion of a subdivision or other parcel of land intended as a unit for purpose, whether immediate or future, of transfer of ownership or for building development.

           LOT, CORNER -- A lot situated at the intersection of two (2) streets.

           LOT IMPROVEMENT -- Any building, structure, place, work of art or other object or improvement of the land on which they are situated constituting a physical betterment of real property or any part of such betterment. Certain lot improvements shall be properly bonded as provided in these regulations.

           MAIN THOROUGHFARE -- A street which serves or is designated to serve as a connection between uses which generate heavy traffic volumes and/or between other arterial streets.

          MAJOR SUBDIVISION -- The division of any parcel of land into six (6) or more lots upon which building can occur, with the following exceptions: All subdivisions regardless of number or size of lots which create new streets shall be classified as major subdivisions; all multifamily developments of six (6) or more families regardless of number or size of lots shall be classified as major subdivisions; all commercial, business or industrial developments regardless of the number or size of lots shall be classified as major subdivisions, except where no new streets or other public improvements are created.

          MINIMUM LOT AREA -- The area of a lot taken at its perimeter, exclusive of any portion within a public or private street right-of-way.

          MINOR SUBDIVISION -- The division of a parcel of land into five (5) or fewer residential lots upon which building can occur (in accordance with Chapter 225, Zoning) or the adjustment of property lines to permit the expansion of an existing structure. The "minor subdivision" shall not involve any new street or road. The division of a parcel of land for commercial or industrial uses where no new streets or other public improvements are involved.

          MONUMENT -- A stone or concrete boundary marker intended to fix the physical location of property lines, having a flat top at least five (5) inches in diameter or four (4) inches square and at least thirty-six (36) inches in length.

          MULTIFAMILY DWELLING UNIT -- A dwelling unit which is intended for sale, lease or rental located in a residential building designed for or occupied by three (3) or more households.

          NONRESIDENTIAL SUBDIVISION -- A subdivision whose intended use is other than residential, such as business, commercial or industrial.

           OFF-SITE -- Any premises not located within the perimeter of the property to be subdivided, whether or not in the same ownership of the applicant for subdivision approval.

          OFFICIAL MAP -- The map established by the Town Council pursuant to law showing the streets, highways and parks and drainage systems and setback lines theretofore laid out, adopted and established by law and any amendments or additions thereto adopted by the Town Council or additions thereto resulting from the approval of subdivision plats by the Town Council and the subsequent filing of such approved plats.

           OPEN SPACE, PRIVATE -- A plot or area of land and/or water which is not dedicated to public use, but is intended for active and/or passive recreational use or other similar open uses, excluding areas used or intended to be used for buildings, parking, loading and streets.

           OPEN SPACE, PUBLIC -- A plot or area of land and/or water which is dedicated to public use by legal mapping and/or by any other lawful procedure and which is intended for active and/or passive recreational use or other similar open uses, excluding areas used or intended to be used for buildings, parking, loading and streets.

          ORDINANCE -- Any legislative action, however denominated by the Town of Elsmere, which has the force of law, including any amendment or repeal of any ordinance.

          OWNER -- Any persons, group of persons, firm or firms, corporation or corporations or any other legal entity having legal title to or sufficient proprietary interest in the land sought to be subdivided under these regulations.

           PARK AND RECREATION IMPROVEMENT FUND -- A special fund established by the Town Council to retain moneys contributed by developers in accordance with the "money in lieu of land" provisions of these regulations to purchase recreational lands within reasonable proximity of the land to be subdivided so as to be of local use to the future residents of the subdivision.

          PLANNING COMMISSION -- The Planning Commission of the Town of Elsmere established in accordance with Ordinance No. 99 (May 1969)[4] to advise the Council on zoning and planning, in addition to other matters.

          PUBLIC IMPROVEMENT -- Any drainage ditch, roadway, parkway, sidewalk, pedestrian way, tree, lawn, off-street parking area, lot improvement or other facility for which the Town of Elsmere may ultimately assume the responsibility for maintenance and operation, of which may affect an improvement for which town responsibility is established. All such improvements shall be properly bonded.

          REGISTERED ENGINEER -- An engineer properly registered in the state.

          REGISTERED LAND SURVEYOR -- A land surveyor properly licensed and registered in the state.

          RESERVE STRIP -- A parcel of ground in separate ownership separating a street from other adjacent properties or from other streets.

          RESUBDIVISION -- A change in a map of an approved or recorded subdivision plan if such change affects any street layout on such map or area reserved thereon for public use or any lot line; or it affects any map or plan legally recorded prior to the adoption of any regulations controlling subdivisions.

          REVERSE FRONTAGE LOTS -- A lot extending between and having frontage on two (2) generally parallel streets, one (1) major and one (1) minor, with vehicular access solely from the minor street.

          RIGHT-OF-WAY -- A strip of land occupied or intended to be occupied by a street, crosswalk, railroad, road, electric transmission line, oil or gas pipeline, water main, sanitary or storm sewer main, shade trees or for another special use. The usage of the term "right-of-way" for land platting purposes shall mean that every right-of-way hereafter established and shown on an approved subdivision plan is to be separate and distinct from the lots or parcels adjoining such right-of-way and not included within the dimensions of areas of such lots or parcels. Rights-of-way intended for streets, crosswalks water mains, sanitary sewers, storm drains, shade trees or any other use involving maintenance by a public agency shall be dedicated to the public use by the developer or owner of the approved subdivision on which such right-of-way is established.

          STREET, DEAD END -- A street or a portion of a street with only one (1) vehicular-traffic outlet.

          STREET RIGHT-OF-WAY WIDTH -- The distance between property lines measured at right angles to the center line of the street.

          SALES or LEASE -- Any immediate or future transfer of ownership or any possessory interest in land, including contract of sale, lease, devise, intestate succession or transfer or an interest in a subdivision or part thereof, whether by metes and bounds, deed, contract, plat, map, lease, devise, intestate (not disposed of by will, having made no will) succession or other written instrument.

          SETBACK -- The distance between a building and a street line and a building and all surrounding property lines as established by the Zoning Ordinance of the Town of Elsmere.[5]

          STRUCTURE -- Any man-made object having an ascertainable stationary location on or in land or water, whether or not affixed to the land.

          SUBDIVIDER -- Any person who:

           (1)     Having an interest in land, causes it, directly or indirectly, to be divided into a subdivision; or

           (2)     Directly or indirectly sells, leases or develops or offers to sell, lease or develop or advertises for sale, lease or development, any interest, lot, parcel, site, unit or plat in a subdivision; or

           (3)     Engages directly or through an agent in the business of selling, leasing, developing or offering for sale, lease or development a subdivision or any interest, lot, parcel, site, unit or plat in a subdivision; and

           (4)     Is directly or indirectly controlled by or under direct or indirect common control with, any of the foregoing.

          SUBDIVISION -- Any land, vacant or improved, which is divided or proposed to be divided into two (2) or more lots, parcels, sites, units, plots or interests for the purpose of offer, sale, lease or development, either on the installment plan or upon any and all other plans, terms and conditions, including resubdivision. "Subdivision" includes the division or development of residential and nonresidential zoned land, whether by deed, metes and bounds description, devise, intestacy, lease, map plat or other recorded instrument. (See "Administrative Subdivision," "Minor Subdivision," and "Major Subdivision" and ~ 196-5 above.)

          SUBDIVISION ADVISORY COMMITTEE -- A Committee comprising of Town Manager, building officials, Town Engineer, Town Fire Marshall or his designate and the Chief of Police or his designate and such members of public, semipublic and private agencies, departments, corporations, associations or groups having an interest in the subdivision plan review process, coordinated by the Town Manager to review subdivision proposals in accordance with these regulations.

          SUBDIVISION AGENT -- Any person who represents or acts for or on behalf of a subdivider or developer, in selling, leasing or developing or offering to sell, lease or develop any interest, lot, parcel, unit, site or plat in a subdivision, except an attorney-at-law whose representation of another person consists solely of rendering legal services.