Chapter 225

 ZONING

[HISTORY: Adopted by the Mayor and Council of the Town of Elsmere 6-14-1973 as Ord. No. 111. Amendments noted where applicable.]

ARTICLE I

Purpose; Scope; Interpretation; Short Title

~ 225-1. Purpose.

  These regulations were made in accordance with a comprehensive plan and were 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 provisions of transportation, water, sewerage, schools, parks and other public requirements. These regulations were made with reasonable consideration as to the characters 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.

~ 225-2. Scope.

  From and after the effective date of this chapter, the use of all land and every building or portion of a building erected, altered with respect to height and area, added to or relocated and every use within a building or use accessory thereto, in the Town of Elsmere shall be in conformity with the provisions of this chapter. Any existing building or structure and any existing use of a building or land not in conformity with the regulations herein prescribed shall be regarded as nonconforming but may be continued, extended or changed subject to the special regulations herein provided with respect to nonconforming buildings or uses.

~ 225-3. Interpretation. [Amended 12-15-1976 by Ord. No. 124]

  In interpreting and applying the provisions of this chapter, they shall be held to be the minimum requirements for the promotion of the public health, safety, comfort, convenience and general welfare. Where the provisions of this chapter impose greater restrictions than those of any law, other ordinance or regulation, the provisions of this chapter shall be controlling. Where the provisions of any law, other ordinance or regulation impose greater restrictions than this chapter, the provisions of such law, other ordinance or regulation shall be controlling, provided that in all cases arising within the Floodplain District the laws and ordinances concerning land use and control and other measures designed to reduce flood losses shall take precedence over any conflicting law, ordinance or code.

~ 225-4. Short title.

  These regulations and the accompanying map shall be known and may be cited as the "Town of Elsmere Zoning Ordinance."

~ 225-5. Definitions.

  Unless otherwise expressly stated, the following words and phrases shall be construed throughout this chapter to have the meanings herein indicated.

          ACCESSORY BUILDING -- A building subordinate to the main building on a lot and used for purposes customarily incidental to those of the main building.

          ACCESSORY USE -- A use subordinate to the main use of land or of a building on a lot and customarily incidental thereto.

           ACRE -- An area of land which includes forty-three thousand five hundred sixty (43,560) square feet.

           ADULT BOOKSTORE or ADULT VIDEO STORE [Added 9-8-1977 by Ord. No. 130; amended 12-8-1992 by Ord. No. 292] -- A commercial establishment which as its primary business purpose offers for sale or rental for any form of consideration any one (1) or more of the following:

           A.     Books, magazines, periodicals or other printed matter or photographs, films, motion pictures, video cassettes or video reproductions, slides or other visual representations which depict or describe specified sexual activities or specified anatomical area; or

           B.     Instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities.

           ADULT ENTERTAINMENT CENTER -- An enclosed building used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified anatomical areas (as defined below), for observation by patrons therein. [Added 9-8-1977 by Ord. No. 130]

          ALTERATIONS -- As applied to a building or a structure, a change or rearrangement in the structural parts in the existing facilities or an enlargement whether by extension of a side or by increasing in height or by moves from one location or position to another.

           BASE FLOOD (ONE-HUNDRED-YEAR FLOOD) -- The flood having a one-percent chance of being equaled or exceeded in any given year. [Added 1-13-1977 by Ord. No. 124]

           BASEMENT -- A story partly underground and having more than one-half (1/2) of its clear ceiling height above the average level of the adjoining ground.

          BILLBOARD -- Any sign used to identify or advertise the product made or the activity being pursued by any individual business, service, commercial or industrial enterprise and for the purpose of apprising the public of the location of such enterprise and/or the type of activity in which it is engaged.

           BOARD OF ADJUSTMENT -- The officially established Board of Adjustment of the Town of Elsmere.

           BUFFER ZONE -- A zone lying between two (2) others, designed to separate the two. The buffer zone shall have no other use. [Added 9-10-1987 by Ord. No. 214]

          BUILDING:

           A.     "Building" shall be defined as follows:

           (1)     DETACHED -- A building which has no party walls.

           (2)     SEMIDETACHED -- A building which has one (1) party wall in common with an adjacent buildings.

           (3)     ATTACHED -- A building which has two (2) party walls in common with adjacent buildings.

           B.   For the purposes of this chapter, this definition shall also include tents, lunch wagons, trailers, mobile homes, camp cars or other structures on wheels.

           C.   See "Structure." [Added 1-13-1977 by Ord. No. 124]

           BUILDING AREA -- The aggregate of the maximum horizontal cross-section areas, excluding cornices, eaves and gutters, of all buildings on a lot.

           BUILDING HEIGHT -- The vertical dimension measured from the average elevation of the finished lot grade at the front of the building to the highest point of the ceiling of the top story of a flat roof, to the deckline of a mansard roof and to the average height between the plate and ridge of a gable, hip or gambrel roof.

           BUILDING LINE -- The line parallel to the street line at a distance therefrom equal to the depth of the front yard required for the district in which the lot is located, except that in the case of a rear lot, the building line shall be located to the rear of the rear property line of the front lot, not less than the depth of the required front yard.

          BUILDING, PRIMARY -- A buildings or buildings, in which is conducted the main or principal use of the lot on which said building is situated.

           BUSINESS OFFICE -- A business establishment which does not offer a product or merchandise for sale to the public but offers a service to the public. However, personal services, such as barber- and beauty shops and repair shops, such as radio and television repair shops, are not to be included within the definition of business services.

           CAMPER TRAILERS -- A folding structure, mounted on wheels and designed for travel, recreation and vacation use.

           CELLAR -- A story partly underground and having more than one-half (1/2) of its clear ceiling height below the average level of the adjoining ground.

          CERTIFICATE OF OCCUPANCY -- A certificate issued by the Building Official upon completion of construction, alteration or change in occupancy of a building. Said certificate shall acknowledge compliance with all requirements of this chapter, such adjustment thereto granted by the Board of Adjustment and that the building was constructed in accordance with the plans and specifications filed with the Building Official and meets all other applicable town regulations.

           CHURCH -- A building or group of buildings including customary secondary buildings designed or intended for public worship. For the purpose of this chapter, the word "church" shall include chapels, congregations, cathedrals, temples and similar designations as well as rectories, parish houses, convents and such accessory uses.

           CURB LEVEL -- The officially established grade of the curb in front of the midpoint of the lot or in the absence of an officially established curb level, the mean level of any existing curb or of the lot at the street line.

          DEVELOPMENT -- Any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, (including the placement of prefabricated buildings a mobile homes), mining, dredging, filling, grading, paving, excavation or drilling operations. [Added 1-13-1977 by Ord. No. 124]

           DISPLAY -- To locate an item in such a manner that, without obtaining assistance from an employee of the business establishment, it is available to the general public for handling and inspection; or the cover or outside package on the item is visible to members of the general public. [Added 12-8-1992 by Ord. No. 292]

          DWELLING:

           A.     SINGLE-FAMILY -- A building, on a lot, designed and occupied exclusively as a residence for one (1) family.

           B.     TWO-FAMILY -- A building, on a lot, designed and occupied exclusively as a residence for (2) families.

           C.     MULTIPLE -- A buildings on a lot, designed and occupied exclusively as a residence for three (3) or more families.

           ELECTRIC SUBSTATION -- An assemblage of equipment for purposes other than generation or utilization, through which electric energy in bulk is passed for the purposes of switching or modifying its characteristics to meet the needs of the general public, provided that in residence districts an "electric substation" shall not include rotating equipment, storage of materials, trucks or repair facilities or housing of repair crews.

          EXISTING MOBILE HOME PARK OR MOBILE HOME SUBDIVISION -- A parcel (or contiguous parcels) of land divided into two (2) or more mobile home lots for rent or sale for which the construction of facilities for servicing the lot on which the mobile home is to be affixed (including, at a minimum, the installation of utilities, either final site grading or the pouring of concrete pads and the construction of streets) is completed before the effective date of floodplain management regulations adopted by a community. [Added 1-13-1977 by Ord. No. 124]

          FAMILY -- One (1) or more persons, related by blood or marriage, occupying a dwelling unit and living as a single nonprofit housekeeping unit.

           FARM BUILDING -- Any building used for storing agricultural equipment or farm produce, housing livestock and poultry and processing dairy products. The term "farm building" shall not include dwellings.

           FLOOD or FLOODING [Added 10-22-1991 by Ord. No. 276]:

           A.     A general and temporary condition of partial or complete inundation of normally dry land areas from:

           (1)     The overflow of inland or tidal waters.

           (2)     The unusual and rapid accumulation or runoff of surface waters from any source.

           (3)     Mudslides (i.e., mudflows) which are approximately caused by flooding as defined herein and are akin to a river of liquid and flowing mud on the surfaces of earth which is carried by a current of water and deposited along the path of the current.

           B.     The collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels or suddenly caused by an unusually high water level in a natural body of water, accompanied by a severe storm or by an unanticipated force of nature, such as flash flood or an abnormal tidal surge or by some similarly unusual and unforeseeable event which results in flooding as defined herein.

          FLOODWAYPROOFING -- Any combination of structural and nonstructural additions, changes or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents. [Added 10-22-1991 by Ord. No. 276]

           FLOOR AREA, GROSS -- The sum of the horizontal areas of the floor or floors of a building which are enclosed and usable for human occupancy. Said areas shall be measured from the inside face of exterior walls or from the center line of walls separating two (2) dwelling units. Said areas shall not include areas below the average level of the adjoining ground, garage space or accessory building space.

           FRONT LINE -- A line parallel to the street, tangent only to the furthermost projection of the building's facade.

          GARDEN APARTMENT DEVELOPMENT -- A building or group of buildings designed to accommodate more than one (1) dwelling unit within a single structure and which is designed so that the group of dwelling units utilize such common facilities as pedestrian walks, parking and garage areas, open space, recreation areas and utility and service facilities.

           GOLF COURSE -- An area of fifty (50) or more contiguous acres containing a full size golf links, at least nine (9) holes totaling a minimum of two thousand seven hundred (2,700) yards from tee to green, together with such necessary and usual accessory uses as a clubhouse, caretakers' dwellings, dining and refreshment facilities and other such uses, provided that the operation of such facilities is incidental and subordinate to the operation of a golf course.

          HARMFUL TO MINORS -- The quality of any description or representation, in whatever form, of nudity, sexual contact, sexual excitement or sado-masochistic abuse which: predominantly appeals to the prurient, shameful or morbid interest of minors; is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors and is, when taken as a whole, lacking in serious literary, artistic, political or scientific value for any reasonable minor. [Added 12-8-1992 by Ord. No. 292]

          HISTORIC STRUCTURE [Added 10-22-1991 by Ord. No. 276] -- Any structure that is:

           A.     Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register;

           B.     Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district;

           C.     Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of Interior; or

           D.     Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either:

           (1)     By an approved state program as determined by the Secretary of the Interior; or

           (2)     Directly by the Secretary of the Interior in states without approved programs.

           HOME OCCUPATIONS -- An occupation or profession which:

           A.     Is carried on in a dwelling unit, building or other structure accessory to a dwelling unit;

           B.     Is carried on by a member of the family residing in the dwelling unit;

           C.     Is clearly incidental and secondary to the use of the dwelling for residential purposes; and

           D.     Which conform to the following additional conditions:

           (1)     The occupation or profession shall be carried on wholly within the principal building or within a building or structure accessory thereto and already existing on the premises.

           (2)     Not more than one (1) person outside the immediate family is employed.

           (3)     There is no exterior evidence of the home occupation other than a name plate sign that conforms to the sign ordinance.

           (4)     No offensive noise, vibration, smoke, dust, odors, heat or glare shall be produced.

          JUNKYARD -- Any area and/or structure used or intended to be used for the conducting and operating of the business of selling, buying, storing or trading in used or discarded metal, glass, paper, cordage or any used or disabled fixtures, vehicles or equipment of any kind.

           LOT -- A parcel of land on which a main building and any accessory buildings are or may be placed, together with the required open spaces. The area of a lot which abuts a street shall be measured to the street line only. In the case of a rear lot, the computed area of a lot shall not include the accessway from the front lot line to the street.

           LOT, CORNER -- A parcel of land at the junction of and fronting on two (2) or more intersecting streets.

           LOT COVERAGE -- That percentage of the lot area which is devoted to building area.

           LOT WIDTH -- The horizontal distance between the side lot lines, measured between the points on the side lot lines at which they are intersected by the rear line of the required front yard area, said line being the required setback line.

          LOWEST FLOOR -- The lowest floor of the lowest enclosed area (including basement). An unfinished or flood-resistant enclosure, usable solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building's lowest floor; provided that such enclosure is not built so as to render the structure in violation of the applicable nonelevation design requirements. [Added 10-22-1991 by Ord. No. 276[1]]

          MANUFACTURED HOME -- Any structure, transportable in one (1) or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. For floodplain management purposes, the term "manufactured home" also includes park trailers, travel trailers and other similar vehicles placed on a site for greater than one hundred eighty (180) consecutive days. For insurance purposes, the term "manufactured home" does not include park trailers, travel trailers and other similar vehicles.

          MANUFACTURED HOME PARK OR SUBDIVISION -- Any parcel (or contiguous parcels) of land divided into two (2) or more manufactured home lots for rent or sale. [Added 7-9-1987 by Ord. No. 212]

           MEAN SEA LEVEL -- The average height of the sea for all stages of the tide. [Added 1-13-1977 by Ord. No. 124]

          MOBILE HOME -- A structure, transportable in one (1) or more sections, which is built on a permanent chassis and designed to be used with or without a permanent foundation when connected to the required utilities. It does not include recreational vehicles or travel trailers. The term includes but is not limited to the definition of "mobile home" as set forth in regulations governing the Mobile Home Safety and Construction Standards Program [24FR328 2.7(a)]. [Amended 1-13-1977 by Ord. No. 124; 4-14-1983 by Ord. No. 182]

          MOBILE HOME PARK -- A parcel of land under single ownership which has been so designated and improved that it contains two (2) or more mobile home lots for the placement thereon of mobile homes.

           MOTOR VEHICLE SERVICE ESTABLISHMENT -- A building or use which is designed or intended to be used for the storage, servicing, repair, maintenance or cleaning of motor vehicles or other automotive equipment.

           NET LOT AREA -- The area of a lot remaining after deduction of all easements (streets, accessways, sidewalks, etc.).

           NEW CONSTRUCTION -- Structures for which the start of construction commenced on or after the effective date of a floodplain management regulation adopted by a community. [Added 1-13-1977 by Ord. No. 124]

           NEW MOBILE HOME PARK OR MOBILE HOME SUBDIVISION -- A parcel (or contiguous parcels) of land divided into two (2) or more mobile home lots for rent or sale for which the construction of facilities for servicing the lot on which the mobile home is to be affixed (including at a minimum, the installation of utilities, either final site grading or the pouring of concrete pads and the construction of streets) is completed on or after the effective date of floodplain management regulations adopted by a community. [Added 1-13-1977 by Ord. No. 124]

          NONCONFORMING BUILDING OR USE or NONCONFORMING LOT -- 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 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 that no structural alteration of such building is proposed or made for the purpose of such extension.[2]

           ONE-HUNDRED-YEAR FLOOD or BASE FLOOD -- The flood having a one-percent chance of being equaled or exceeded in any given year. [Added 10-22-1991 by Ord. No. 276]

           OPEN SPACE -- An unoccupied space open to the sky on the same lot with a principal and/or accessory building.

          PARKING SPACE -- An open apace or a garage, on a lot, used for parking motor vehicles, the area of which is not less than two hundred (200) square feet and to which there is access from a street or alley.

          PLANNED UNIT DEVELOPMENT -- A development of forty (40) contiguous acres, which provides housing at varying densities and of various types and necessary commercial, recreational and community facilities.[3]

          PLANNING COMMISSION -- The Planning Commission of the Town of Elsmere.

          PRIMARY USE -- The main or principal activity taking place or intended to take place in a building or on a lot.

          PRIVATE GARAGE -- An accessory building used for the storage of any number of motor vehicles owned and used by the owner or tenant of the premises and for the storage of not more than two (2) motor vehicles owned and used by persons other than the owner or tenant of the premises.

          PUBLIC GARAGE -- A building, not a private garage, used for the storage, repair or servicing of motor vehicles of any type of ownership.

          REGULATORY FLOODWAY -- The channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height. [Added 10-22-1991 by Ord. No. 276]

          RESIDENTIAL DENSITY, GROSS -- The total number of dwelling units which may be or are developed on an area of land, before requirements for public access and required open spaces are provided.

          RESIDENTIAL DENSITY, NET -- The resulting number of dwelling units which may be or are developed on a site or lot after public access and required open spaces are provided.

          RESIDENTIAL PROFESSIONAL OFFICE -- A professional office when conducted on residential property and shall be limited to those of the practice of medicine, law, dentistry, architecture and engineering. The conduct of such profession shall permit the employment of not more than one (1) employee and shall be limited to one-fourth (1/4) of the total floor area of the buildings.

          RESTAURANT -- Any establishment, however designated, at which food is sold for consumption on the premises to patrons seated within an enclosed building. However, a snack bar at a public or a community playground, playfield, park or swimming club operated solely by the agency or group operating the recreational facilities and for the sole use of the patrons of the facility shall not be deemed to be a restaurant.

          RESTAURANT, DRIVE-IN -- An establishment where patrons are served soft drinks, ice cream and other food products for consumption outside the confines of the principal building or in automobiles parked on the premises, regardless of whether or not, in addition thereto, seats or other accommodations are provided for the patrons.

           ROOM -- As applied to garden apartment developments, a "room" shall be defined as a living room, dining room, kitchen and/or bedroom. A kitchenette, which does not include space for eating and a dining area of which one (1) full wall is open into a living room shall be counted as one-half (1/2) room. A bathroom shall not count as a room.

           SIGN -- Any device, structure or object for visual communication that is used for the purpose of bringing the subject thereof to the attention of others, but not including any flag, badge or insignia of any public, quasi-public, civic, charitable or religious groups.

           SIGN AREA -- The area defined by the edge or frame of a sign. Where there is no geometric edge of frame of the sign, the area shall be defined by a projected, enclosed, four-side (straight sides) geometric shape which most closely outlines said sign.

           SIGN, IDENTIFICATION -- Any sign which shall be used to advertise and identify the business conducted on the premises where the sign is located.

          SINGLE AND SEPARATE OWNERSHIP -- The ownership of a lot by one (1) or more persons, partnerships or corporations, which ownership is separate and distinct from that of any adjoining lot.

           SITE PLAN -- A plan of a lot or subdivision on which is shown topography, location of all existing and proposed buildings, structures, roads, rights-of-way, boundaries, all essential dimensions and bearings and any other information deemed necessary by the Planning Commission in unusual or special cases.

          SPECIAL EXCEPTION USE -- A use which by virtue of its own peculiar characteristics may be permitted in particular areas only after review public hearing and approval by the Board of Adjustment.

          SPECIFIED SEXUAL ACTIVITIES and SPECIFIED ANATOMICAL AREAS -- Defined as those terms are defined in Title 24 of the Delaware Code, ~ 1602(17) and (18). [Added 12-8-1992 by Ord. No. 292]

           START OF CONSTRUCTION -- For other than new construction or substantial improvements under the Coastal Barrier Resources Act (Pub. L. 97-348), includes substantial improvement and means the date the building permit was issued, provided that the actual start of construction, repair, reconstruction, placement or other improvement was within one hundred eighty (180) days of their permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns or any work beyond the stage of excavation, or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers or foundations or the erection of temporary forms; nor does it include excavation for a basement, footings, piers or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. [Added 1-13-1977 by Ord. No. 124; amended 7-9-1987 by Ord. No. 212]

           STORE -- An establishment located in a permanent structure where goods are regularly offered for sale. [Added 5-11-1993 by Ord. No. 301]

           STORY -- That portion of a building included between the surface of any floor and the surface of the next floor above it or, if there is no floor above it, then the space between any floor and the ceiling next above it. A split-level story shall be considered a second story only if its floor level is six (6) feet or more above the floor of the level next below it.

          STORY, HALF -- That portion of a building under a gable, hip or gambrel roof, the wall plates of which on at least two (2) opposite exterior walls are not more than two (2) feet above the floor of such "half-story." A basement shall also be included as a "half-story."

          STREAM BED -- The limits of the land area covered by the waters in a stream under conditions of an average twenty-five-year storm.

          STREET LINE -- The dividing line between a lot and the outside boundary of a public street, road or highway legally open or officially plotted by the town or between a lot and a private street, road or way over which the owners or tenants of two (2) or more lots held in single and separate ownership have the right-of-way.

          STRUCTURE -- Anything constructed or erected, the use of which requires location on or in the ground or attachment to something having location on or in the ground.

          SUBSTANTIAL DAMAGE -- Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before-damaged condition would equal or exceed fifty percent (50%) of the market value of the structure before the damage occurred. [Added 10-22-1991 by Ord. No. 276]

          SUBSTANTIAL IMPROVEMENT -- Any repair, reconstruction or improvement of a structure, the cost of which equals or exceeds fifty percent (50%) of the market value of the structure either before the improvement or repair is started or if the structure has been damaged and is being restored, before the damage occurred. For the purposes of this definition "substantial improvement" is considered to occur when the first alteration of any wall, ceiling, floor or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure. The term does not, however, include either any project for improvement of a structure to comply with existing state or local health, sanitary or safety code specifications which are solely necessary to assure safe living conditions or any alteration of a structure listed on the National Register of Historic Places or a State of Delaware Inventory of Historic Places. [Added 1-13-1977 by Ord. No. 124]

          SWIMMING POOL, PRIVATE -- A swimming pool operated as a secondary use to a residential dwelling unit or units and located on an individual residential lot.

          TOWNHOUSE -- A building designed and occupied exclusively as a residence for one (1) family and one (1) of a group of three (3) or more attached dwellings, placed side-by-side, separated by party walls, each containing one (1) or two (2) stories and each having separate front and rear or side entrances from the outside.

          TRAILER CAMP -- A lot or premises used for occupancy by two (2) or more trailers or any other vehicles used for living or sleeping purpose.

          TRAVEL TRAILER and RECREATIONAL VEHICLE -- A vehicular, portable structure built on a chassis, designed as a temporary dwelling for travel, recreation and vacation, having a body width not exceeding eight (8) feet and its body length not exceeding twenty-nine (29) feet.

           USE -- The specific purpose for which land or a building is designed, arranged, intended or for which it is or may be occupied or maintained.