Town of Elsmere Code - Zoning (cont.)

(d) No area on the lot which is required for the movement of vehicles in and about the buildings and facilities shall be used for complying with the parking requirements of this section.

(6) Accessory goods for sale may be displayed out-of-doors on the pump island and building island only and shall be stored in a suitable rack or container.

E. Clubs or lodges for fraternal or social purposes operated by chartered membership organizations for the benefit of their members, and not for profit, may be permitted in the R-1, R-2 or R-GA District, subject to the following:

(1) In addition to the material required for the application as specified in ~ 225-29, the application shall be accompanied by the existing or proposed certificate of incorporation and by-laws of the organization. Such material shall guaranty to the satisfaction of the Board of Adjustment the following:

(a) The organization is or will be a bona fide nonprofit group organized solely for the benefit and enjoyment of its members.

(b) The organization will not engage in sales of materials to the general public or otherwise engage in activities normally carried on as a business or commercial activity, except that the premises may be made available on a rental basis for meetings or other groups, private social functions and the like. The maximum membership and guest limit of the organization is fixed at a level which is commensurate with the scale of facilities to be provided. No further membership expansion will take place without prior approval of the Board of Adjustment.

(c) The hours of use are fixed in a manner in which the property rights of nearby property owners will not be adversely affected.

(d) All activities of the organization will be carried on within an enclosed building.

(2) The proposed use is located on a primary or secondary street as established by the Comprehensive Plan.

(3) The area of the lot on which the use is proposed shall have a minimum of two (2) acres and is not less than one hundred (100) feet wide.

(4) The coverage of the lot by structures will not exceed twenty percent (20%).

(5) No building will be located within thirty (30) feet of any property or street line.

(6) Off-street parking space shall be provided, at a rate of one (1) for each four (4) memberships over the age of seventeen (17) permitted. Such parking space shall not be located within thirty (30) feet of a property or street line and shall otherwise comply with general requirements of this chapter concerning parking areas. In addition, landscape plantings shall be provided in sufficient quantity and locations to preclude the transmission of headlight glare or other lighting to adjacent property.

F. Planned unit developments in R-1 or R-2 Districts, subject to the following:

(1) Site requirements.

(a) The minimum required land area for a planned unit development shall be forty (40) contiguous acres.

(b) The tract shall be serviced by a system of sanitary sewers, water mains, fire hydrants, storm sewers, easements and rights-of-way for utilities, shade trees, streetlighting and public utilities placed underground, all of which shall be constructed so as to conform with the applicable statutes, ordinances and regulations of the State of Delaware and the Town of Elsmere.

(2) Application of Comprehensive Master Plan. Any planned unit development shall be based on and interpreted in relation to the Comprehensive Plan for the development of the Town of Elsmere. Every application for approval of a planned unit development shall be based on and interpreted in relation to such Comprehensive Plan.

(3) Permitted uses.

(a) Single-family detached dwellings.

(b) Townhouse.

(d) Common, public or private open space, park or recreation area, including playgrounds, woodland, conservation areas, walkways, trails, stream crossing and drainage control areas, golf courses, swimming pools, tennis courts, ice-skating rinks and other similar recreational uses, but which may not include any such uses or activities which produce noise, glare, odor, air pollution, fire hazard or other safety hazards, smoke, fumes or any use or activity which is operated for a profit or other things detrimental to existing or prospective adjacent structures or to existing prospective development of the neighborhood.

(e) Municipal, church or philanthropic use.

(f) Educational use.

(g) Model home exhibits, temporary sales and construction office and uses accessory thereto for use solely in conjunction with planned unit development in the Town of Elsmere.

(h) Neighborhood retail sales and service facilities.

(i) Accessory use on the same lot with, and customarily incidental to, any of the foregoing uses.

[1] In residential areas, these accessory uses include:

[a] Off-street parking facilities.

[b] Swimming pools.

[c] Garages.

[d] Storage facilities for landscape and building maintenance and equipment.

[2] In commercial areas, these accessory uses include:

[a] Off-street parking facilities.

[b] Off-street loading facilities.

[c] Garages for vehicles necessary for the proper functioning of commercial operations.

[d] Storage areas for trash and refuse.

(4) Area design standards.

(a) Area limitations for various uses. Within a planned unit development, the following percentage of the total land area shall be devoted to the specific uses:

[1] A maximum of eighty percent (80%) for the residential uses and other uses permitted in Subsection F(3) above, excluding the open space and recreation uses in Subsection F(3)(d), and the space devoted to streets and parking within and exclusively servicing such open space or recreation use. Said maximum shall include all of the recreational, playground and athletic activity areas which are part of a school site.

[2] A minimum of twenty percent (20%) for common or public open space and recreational uses as defined in Subsection F(3)(d) above. This area shall include space devoted to streets and parking, provided that such facilities are within and service exclusively an open space or recreation area.

[3] A maximum of five percent (5%) for neighborhood retail sales and service facilities, but in no event to exceed ten (10) acres. Said maximum shall include the parking and service areas exclusively servicing such facilities.

(b) Design standards. The following minimum requirements shall apply:

[1] Area, width, height and yard regulations.[1]

[2] Additional requirements that apply to townhouses:

[a] There shall be no continuous group of townhouses consisting of more than eight (8) dwelling units.

[b] For the purpose of avoiding developments resembling what have been customarily referred to as "row houses," there shall be within any continuous group of townhouses at least three (3) different architectural plans having substantially different designs, building materials and exterior elevations. In addition, no more than three (3) continuous townhouses shall have the same front setback, and the variations in front setbacks shall be at least four (4) feet.

[c] Notwithstanding the requirements of Subsection F(4)(b)[1] above, no group of townhouses shall be closer than sixty (60) feet as to facing walls and thirty (30) feet as to end walls, from any other group of such dwellings, nor closer than sixty (60) feet from any boundary line of a designated townhouse area of which the group is a part.

[d] The minimum width of any side yard abutting a street, driveway or parking area within the townhouse area shall not be less than thirty (30) feet.

[3] Additional requirements that apply to apartment houses:

[a] Notwithstanding the requirements of Subsection F(4)(b)[1] above, no apartment house shall be closer than sixty (60) feet from any other apartment house, nor closer than eighty (80) feet from any boundary line of the designated apartment house area of which the apartment house is a part.

[4] Off-street parking requirements. Adequate parking areas shall be provided for townhouses and apartment houses within the areas designated for the same, and there shall be at least two (2) parking spaces, each ten by twenty (10 x 20) feet minimum in size, per dwelling unit, in addition to the driveways, roadways, turning and access areas within the designated housing area.

[5] Location of structures. The proposed location and arrangement of structures shall not be detrimental to existing or prospective development of the neighborhood.

[6] Protection of open spaces. All recreation areas designated on the development plan shall be improved and equipped initially by the developer in accordance with plans approved by the Planning Commission and shall be protected by adequate covenants running with the land or by conveyances or dedications of same to the Town of Elsmere as the Town Council shall determine.

[7] Open space and recreation areas shall be designed to be primarily for the benefit of the residents of the planned unit development, and to this end the developer shall have as many dwelling units (all types) as is feasible abut or be near an open space area.

[8] Roads and parking areas. The dimensions and construction of roads and parking areas within the development, whether or not dedication of them to the Town of Elsmere is contemplated, shall conform with all applicable town ordinances and regulations.

(5) Creation of an organization to own and maintain a common open space and recreation area within a planned unit development.

(a) The developer and landowner of every planned unit development shall prepare and present at the time of submission of the final development plan for the approval of the Town Council of the Town of Elsmere documents creating and governing a property owner's organization and containing the declarations of covenants, restrictions, easements, charges and liens deemed necessary to own and maintain the common open space and recreation areas within the planned unit development.

(b) In addition to the foregoing, these documents shall contain the following minimum essential provisions with respect to such organization:

[1] Powers and duties in maintaining and administering open space and recreation facilities, administering and enforcing all covenants and restrictions and in the levying, collecting and disbursing of assessments and charges.

[2] Membership and voting rights.

[3] Rights and duties of the Town of Elsmere, members of the organization and residents of the planned unit development in the event of a breach of the covenants and restrictions.

[4] Establishment of bond in the amount of one hundred twenty percent (120%) of the estimated construction with surety of guarantee the construction and installation of all recreation facilities within the common open space and recreation areas initially.

[5] If such organization is abandoned or abolished or if such organization proposes to dispose of the common open space and recreation areas, said open space and recreation areas shall be first offered for dedication to the Town of Elsmere before it is otherwise disposed of.

G. Cluster residential development.

(1) Tract requirements.

(a) A tract under single ownership of an area and of dimensions not less than those prescribed by the appropriate district schedule shall be required for a cluster development. The tract may be divided by an existing public street which may be retained as a part of the plan for the development or relocated in accordance with an approved site plan. The minimum yard requirements of the schedule shall apply only to the periphery of the tract.

(b) There shall be no access from the tract to existing public roads other than by interior streets at minimum intervals of four hundred (400) feet, and no dwelling unit shall front upon a collector or arterial street incorporated into or created within a planned residential development.

(c) Every dwelling unit shall be connected to and properly served by public water and public sanitary sewer and by a storm drainage system.

(d) All improvements within a cluster development shall be installed in accordance with an approved site plan and with the specifications of the Subdivision Regulations of the Town of Elsmere.[2]

(e) The gross density of the project shall not exceed the maximum units per acre permitted by the appropriate district schedule.

(2) Only single-family detached dwellings shall be permitted within a cluster development.

(a) All accessory uses permitted with single-family dwellings by the appropriate district schedule shall be permitted with single-family detached dwellings within a cluster development.

(3) Lot area and dimensions for single-family detached units.[3]

District

R-1 or R-2

Minimum lot area 5,000 square feet

Minimum average lot area 6,000 square feet

Minimum lot width 50 feet

Minimum average lot width 60 feet

Minimum lot depth 80 feet

Minimum front yard 20 feet

Minimum side yard:

One 5 feet

Both 10 feet

Minimum rear yard 30 feet

Maximum lot coverage 20%

(4) Open space. All land not included within lots to be conveyed or utilized for required improvements shall be deeded to the town or shall be reserved by a covenant in favor of the municipality or by grant of easement providing that it shall be set aside in perpetuity for the use of residents of the development or it shall be deeded to a homeowner's association, as the Council shall elect, by written instrument to be approved by them. If the Town Council elects to approve a conveyance to a homeowner's association, the landowner shall so organize it that it may not be dissolved, nor dispose of the open space by sale or otherwise (except to an organization conceived and established to own and maintain it) without first offering to dedicate it to the town. Such organization shall be subject to the approval of the Council.

(a) The area to be dedicated for public use shall be so located and of such a shape to be acceptable to the Town Council. In determining the acceptability of proposed open space, the town shall consider future town needs and may require a portion of open space to be designated as the site of a potential future public use, provided that not more than twenty-five percent (25%) of all available open space shall be taken for public buildings.

(b) All open space area shall be graded and seeded by the developer during the course of construction unless the Town Council approves or directs the maintaining of all improvements, in which case it will be disturbed only as necessary to make the specified improvements.

(c) Streets or off-street parking areas. The Town Council may require all streets within the tract which do not directly implement the proposals of the Comprehensive Plan or Official Map and do not provide a direct connection between existing streets outside the tract, to be transferred to the ownership of the homeowners' association for maintenance and repairs. Wherever reverse planting strips, medial grass strips or other landscaped areas are proposed which will be visible to the general public within the development, covenants and/or agreements shall provide for the maintenance of such areas by the homeowners' association even though they may be upon land subdivided into lots.

(d) No single area of less than three (3) acres in size shall be dedicated for public use, unless, due to special conditions that are peculiar to the particular parcel of land or to the public purpose for which the land is to be used, dedication of a smaller area is authorized by the Town Council.

(e) Open space areas may be used as park, playground or recreation areas, including golf courses, swimming pools, equestrian trails and centers, tennis courts, shuffleboard courts, basketball courts and similar facilities; woodland or stream conservation areas; pedestrian walkways, stream-course or drainage control areas; children's nursery or day-care center; or any similar use of benefit to the residents of the development if in the ownership of a homeowner's association or the town if dedicated to and accepted by the town and deemed appropriate by the Town Council.

H. Motels, motor courts or hotels may be permitted in the HD District providing:

(1) The area to be occupied for such use shall be not less than three (3) acres and no rental structure or part thereof shall be placed closer to a street line than one hundred (100) feet or closer to any property line than fifty (50) feet.

(2) Wherever located, a motel, motor court or hotel shall conform to the following additional requirements:

(a) Each rental structure shall contain not fewer than twenty (20) rental units.

(b) One (1) off-street parking space per rental unit shall be provided and the automobile parking lot shall conform with ~ 225-8N; no part thereof shall be closer to any street line than seventy (70) feet.

(d) Sanitary facilities and water supply shall be approved by the State Division of Environmental Protection and any other appropriate governmental agency.

I. Convalescent homes.

(1) Off-street parking shall be in other than the required front yard area and shall be not closer than twenty-five (25) feet to a property line other than a street line. Parking areas shall be provided with illumination. All outdoor illumination shall be so arranged, shielded or otherwise restricted to protect adjacent properties from glare or reflection.

(2) Any outdoor storage of trash, laundry, oxygen tanks or other waste supplies shall be fully enclosed by a fence or wall at least six (6) feet in height.

(3) One (1) externally illuminated identification wall sign may be erected on one (1) facade of the building, provided that the sign shall not exceed an area equal to ten percent (10%) of the area of the facade upon which it is created. And either one (1) comparable identification wall sign, subject to the same regulations, may be erected on each of up to three (3) additional facades of the building, whether or not such facades face a public thoroughfare; or one (1) externally illuminated identification projecting sign which does not exceed twenty (20) square feet in area on either side may be erected on one (1) side of the building. Additionally, one (1) externally illuminated ground directional sign may be erected at each driveway. Such signs shall not exceed four (4) square feet in area or two (2) feet in height above ground level, shall not be closer than fifteen (15) feet to a property line or more than five (5) feet from a driveway. Such signs shall be limited to directions to parking, marking entrances or exits, denoting restricted parking areas or marking emergency entrances.

(4) Driveways shall not be closer than twenty (20) feet to any property line other than a street line and shall not be wider than thirty (30) feet at the street line. Two (2) driveways shall be not closer to each other than seventy-five (75) feet.[4]

~ 225-29. Application procedure.

A. Any person seeking a permit for any special exception use shall first make application in the form described by Subsection D to the Building Official for a special use permit.

B. The Building official shall forward the file to the Board of Adjustment for its consideration. A copy of the file shall also be forwarded to the Planning Commission of the Town of Elsmere for a review of the site plan and for an evaluation of the proposed special exception use and its relationship and conformity to the goals and objectives and policies established by the Comprehensive Plan. The Planning Commission shall, within thirty (30) days after receipt of such application, make a written report to the Board of Adjustment setting forth its findings and recommendations concerning the application. In its review, the Planning Commission shall grant the applicant and other interested parties the right to be heard. In its recommendations, the Planning Commission may suggest any revisions to the site plan, landscaping plan or other plans as will, in its opinion, cause the proposed special use to be substantial conformance with the Comprehensive Plan and its principles of land use and development.

C. The Board of Adjustment shall approve or deny such application in accordance with the time limits provided by law. In approving any such applications, the Board of Adjustment may impose any modifications or conditions it deems necessary to carry out the intent of this chapter or to protect the health, safety or welfare of the community. If an application is approved, the Building Official shall be empowered to issue a building permit upon request of the applicant in accordance with the terms and conditions of the Board's approval.

D. The application and all supporting documents shall be made in triplicate and shall include the following plans and information:

(1) The location, use, design, dimensions and height of each proposed building or structure.

(2) The location and arrangement of vehicular accessways and location, size and capacity of all areas to be used for off-street parking, loading and unloading.

(3) The location and dimensions of sidewalks, walkways and all other areas to be devoted to pedestrian use.

(4) The design and treatment of open areas, recreation areas, buffer areas and screening devices to be maintained, including dimensions of all areas devoted to planting lawns, trees or other landscaping devices.

(5) Provisions for water supply, storm drainage and sewer disposal.

(6) Sufficient data to indicate the effects of the proposed use development in producing traffic congestion and safety hazards and sufficient additional data to enable the Board of Adjustment of the Town of Elsmere determine compliance with the design requirements set forth in this and other pertinent sections of this chapter.

~ 225-30. Variances in Floodplain Districts. [Added 1-13-1977 by Ord. No. 124]

A. The Board of Adjustment shall have original jurisdiction and powers to recommend to the Town Council the granting of a variance from the community's floodplain management regulations, provided that such variance is in harmony with, and preserves the spirit of, the general purpose and intent of these regulations.

B. Any person seeking a variance shall first make application in the form described in ~ 225-11, Permit requirements, to the Building Official. The Building Official shall forward the file to the Board of Adjustment for its consideration. The following procedure shall be followed in considering the granting of variances:

(1) Variances may be issued for new construction and substantial improvements to be erected on a lot of one-half (1/2) acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, provided that:

(a) Variances shall only be issued upon a showing of good and sufficient cause, a determination that failure to grant the variance would result in exceptional hardship to the applicant and a determination that the granting of a variance will not result in increased flood heights, additional threats to public safety or extraordinary public expense, create nuisances, cause fraud on or victimization of the public or conflict with existing local laws or ordinances;

(b) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief;

(c) The Building Official shall notify the applicant in writing that the issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as twenty-five dollars ($25.) for one hundred dollars ($100.) of the insurance coverage, and such construction below the base flood level increases risks to life and property. Such notification shall be maintained with a record of all variance actions as required in Subsection B(1)(d) below; and

(d) The Building Official shall maintain a record of all variance actions, including justification for their issuance and report such variances issued in its annual report submitted to the Federal Insurance Administrator.

(2) No variance shall be granted for any construction, development, use or activity within any floodway area that would cause any increase in the one-hundred-year-flood elevation. [Added 7-9-1987 by Ord. No. 213]

C. Variances may be issued by the Building Official for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or a State Inventory of Historic Places, without regard to the procedures set forth in this section.

ARTICLE VI

Nonconforming Uses

~ 225-31. Continuance. [Amended 1-13-1977 by Ord. No. 124]

A. Except as otherwise provided in this Article, the lawful use of land or buildings existing at the date of the adoption of this chapter may be continued although such use or building does not conform to the regulations specified by this chapter for the zone in which such land or building is located; provided, however:

(1) That no nonconforming lot shall be further reduced in size.

(2) That no nonconforming building shall be enlarged, extended or increased unless such enlargement would tend to reduce the degree of nonconformance. In the Floodplain District no nonconforming building shall be expanded unless the applicant has demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one (1) foot at any point within the community.

(3) That no nonconforming use may be expanded.