The Town of Elsmere
Board of Adjustment
The Board of Adjustment for the Town of Elsmere is established under the authority of Chapter 223, Section 40 of the Code of the Town of Elsmere. The Board consist of five persons who shall be residents of the Town of Elsmere and who shall have knowledge of the problems of urban and rural development and who, at the time of their appointment and throughout the term of their office, shall not be candidates nor members for elective office in the Town of Elsmere, nor employees of the Town of Elsmere.
The Mayor appoints the members of the Board of Adjustment, and all appointments are confirmed by a majority vote of the elected members of the Council. Each member serves a term of three years or until his successor has been appointed.
The Board of Adjustment has the following powers and duties:
(1) To hear and decide appeals where it is alleged there is an error in any order, requirement decision or determination made by an administrative official in the enforcement of appropriate laws and codes of the State of Delaware and any amendment thereto or of chapter 225.
(2) To hear and decide special exceptions to the terms of this chapter upon which the Board is required to pass under chapter 225.
(3) To authorize upon appeal, in specific cases, such variance from the terms of chapter 225 as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of chapter 225 will result in unnecessary hardship and so that the spirit of this chapter shall be observed and substantial justice done.
(4) In exercising the above-mentioned powers, it may reverse or affirm, wholly or partially, or may modify the order of requirement, decision or determination appealed from and may make such order, requirement, decision or determination as, in its opinion, ought to be made. Notices of such decision shall forthwith be given to all parties in interest.
(1) Board meetings are held on the fourth Tuesday of each month whenever the Board has business pending. All meetings begin at 6:30 pm and are posted on this site under the “Meeting Schedules” link.
(2) All meetings of the Board shall be open to the public.
The Chairman or, in his absence, the Acting Chairman may administer oaths and compel the attendance of witnesses.
Appeals to the Board of Adjustment:
Appeals to the Board of Adjustment may be taken by any person aggrieved or by an officer, department, board or bureau of the Town affected by any decision of the Building Official and Building Committee. Such appeals shall be taken within a reasonable time as provided by the rules of the Board by filing with the officer from whom the appeal is taken and with the Board of Adjustment a notice of appeal specifying the grounds thereof. The officer or committee from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
(1) An appeal stays all proceedings in furtherance of the action in respect of which the decision appealed from was made, unless the officer or committee from whom the appeal is taken certifies to the Board of Adjustment, after the notice of appeal shall have been filed with him or the committee, that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by action of the Board of Adjustment or by a court of competent jurisdiction on application on notice to the officer or committee from whom the appeal is taken and on due cause shown.
(2) The Board of Adjustment shall fix a reasonable time for the hearing of the appeal. The Board of Adjustment shall give public notice, as well as due notice to the parties in interest, of the time of the hearing of the appeal and the time of the hearing of the Town Planning Commission regarding the appeal application. Any party may appear in person, by agent or attorney, at the appeal hearing or the hearing before the Town Planning Commission, or both.
(a) The Town shall thereupon, at least 10 days prior to the time appointed for the earlier of the appeal hearing or the hearing of the Town Planning Commission, give personal notice of the time of the appeal hearing before the Board of Adjustment and the time of the hearing on the appeal application by the Town Planning Commission to all property owners within 200 feet of the property to be affected by said appeal. Such notice shall be given either by handing a copy thereof to the property owners or by leaving a copy thereof at the usual place of abode of said property owners, if said property owners are the occupants of the property affected by such appeal or are residents of the Town of Elsmere.
(b) Whenever said owners are nonresidents of the Town, such notice may be given by sending written notice thereof by registered or certified mail to the last known address of the property owner or owners, as shown by the most recent tax lists of said municipality.
(c) Where the owner is a partnership, service upon any partner as above outlined shall be sufficient.
(d) Where the owner is a corporation, service upon any officer, as above set forth, shall be sufficient.
(e) The appellant shall by affidavit present satisfactory proof to the Board of Adjustment at the time of the hearing that said notices have been duly served as aforesaid.
(3) Whenever an appeal is taken pursuant to chapter 225, the Board of Adjustment shall refer a copy of the application and all pertinent data to the Town Planning Commission, which Commission shall submit a report to the Board of Adjustment with respect to the effect which approval of the application would have upon the comprehensive planning and the Comprehensive Plan of the Town of Elsmere. The Board of Adjustment shall not make a recommendation on such an appeal until such report is received or until 30 days have passed since referral to the Planning Commission.
(4) Whenever an appeal shall be taken to the Board of Adjustment under the provisions of chapter 225, said Board shall render its decision upon such appeal within 30 days from the date of hearing of such appeal and, in any event, within 60 days from the date of the filing of the appeal as herein provided, and, upon failure to do so, such appeal at the expiration of such time shall be deemed to be decided adversely to the appellant in such same manner as though the Board had rendered a decision to that effect.
Any exception or variation from this chapter granted by the Board of Adjustment to an application shall expire by limitation if no construction, alteration or conversion has been commenced within one year from the date of granting such variation or exception, if no building permit is issued.
Appeals of the Board of Adjustment Decision:
Any person or persons jointly or severally aggrieved by any decision of the Board of Adjustment or any taxpayer or any officer, department, board or bureau of the Town may present to a court of record a petition duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within 30 days after the filing of the decision in the office of the Board.