In preparation for updates to the Comprehensive Plan that will begin after the first of the year, Milford Planning and Zoning Commission began a series of training sessions, led by City Planner Rob Pierce, to provide them with details on their role in land use decisions.
“A lot of this stuff you guys are pretty well-versed because you see these things all the time, but some of it relates to the Board of Adjustment or other boards that you may find interesting,” Pierce said. “I generally try to provide you with a binder with some of this information when you first come on the commission, but the Planning Commission gets their authority to set zoning requirements from Title 22 of the municipalities in Delaware code.”
Pierce provided a list of types of zoning applications, including minor subdivisions, lot line adjustment, lot consolidation, permitted use site plan, conditional use site plan, change of zone and annexation. He then provided details on a few of those land use decisions and the role of Planning and Zoning.
“Minor subdivisions used to come before Planning and Zoning until we made amendments to the subdivision code, about eight years ago,” Pierce said. “These are now administratively reviewed, and we ensure compliance within the zoning code. These are reviewed and approved by the planning director unless there is something that is not code compliant, then they have to go through the Board of Adjustment hearings. They don’t require a public hearing. We do have to review them at the planning committee level. Once the Planning Commission allows it to move forward, the city manager signs the document, but we don’t approve it until we get all agency approvals that are warranted.”
Pierce also pointed out that the commission could not outright deny an application that met all the requirements. Some conditional use site plans require a public hearing because the Planning Commission does have a level of discretion when it makes recommendations to City Council. Pierce stated that the commission could approve the conditional use with conditions, they can approve it as is or they can deny it.
“If you have a major subdivision that meets all the requirements of the code, they’re not asking for any waivers or deviations, the municipality has an obligation to approve that application,” Pierce said.
City Solicitor Greg Morris confirmed that there was current state law that if a development is meeting the code, planning is not allowed to throw in a new requirement and that they must try to avoid denying something if the application is reasonable. The courts watch to be sure that if a development meets code and is denied, that the city did not do something that could not have been anticipated, but planning does have an obligation to confirm that the developer is complying with code.
“Even with the permitted site plans that come before this body, you have a responsibility to review and approve those. You are basically making sure that it is done appropriately,” Pierce said. “Planning Commission makes a recommendation to council and council makes the final decision.”
Pierce also explained that the city has a fairly thorough preliminary review process which sometimes causes issues with applicants as it does require a lot more upfront time before it comes before the commission for a decision. Pierce feels that the extended review process provides the commission and council with accurate information regarding a planned development so that they have the full picture before the make a decision. Pierce also explained that if an applicant receives an unfavorable recommendation from the Planning Commission, the denial can only be overridden with a three-quarter vote of council.
“When it comes to annexation, the state gives us an outline of how we incorporate and expand our territories,” Pierce said. “You can have a written request from the property owner. That request is sent to the annexation committee. They review the request and can make a recommendation to move forward or not. Once it gets out of annexation committee, staff. Has to submit a plan of service to identify how we are going to serve the property with water, police, fire, electric, EMS and more, then get that information back from state planning that they agree with our plan of services.”
Pierce also stated that the property must be contiguous to the city and be consistent with the Comprehensive Plan, including that it is within an urban growth boundary and that requested zoning meets the adopted future land use maps. Pierce stated that the second option for annexation was if a group of property owners wanted to annex, they could hold a special election or referendum to force an area to annex. There is also a process to de-annex, but the process is complicated and it happens rarely.
“There is a section of the zoning code that lays out the responsibilities of the Board of Adjustments,” Pierce stated. “The Board of Adjustments is a quasi-judicial body. Applicants and witnesses are sworn in and decisions by that board are not appealed to City Council. City Council does not have the authority to veto or return a Board of Adjustment decision. Those challenges go to the state court system.”
Pierce outlined that Board of Adjustments decided on variances, administrative appeals and interpretation of zoning ordinances. Pierce also provided a description of the different variances reviewed by the Board of Adjustments and the criteria they were to use to determine approval or denial.
“In considering a request for an area variance, the board shall evaluate the following criteria and document them in their findings of fact,” Pierce said. “The nature of the zone in which the property lies; the character of the immediate vicinity and the contained uses therein; whether, if the restriction upon the applicant’s property were removed, such removal would seriously affect such neighboring properties and uses; and whether, if the restriction is not removed, the restriction would create unnecessary hardship or exceptional practical difficulty for the owner in relation to his efforts to make normal improvements in the character of that use of the property which is permitted use under the provisions of the zoning ordinance.”
Pierce pointed out that approving a variance did not set a precedent as each variance stands on its own merits. Morris agreed, stating that each case is to be decided on the facts set forth in that variance hearing, not on historical decisions. He did point out that if the board has a history of doing X, but suddenly make a decision using Y, it could be challenged, but in most cases, each variance was to be decided on the facts presented at the hearing. Pierce again pointed out that a challenge to a Board of Adjustment decision was filed in Superior Court, not with council.
“When deciding on a request, commissioners should be using the facts presented before them in chambers, not information they are getting on the street,” Morris said. “If you are getting your news from social media and using that to decide, you should not be making the decision.”
Pierce stated that the zoning code was not perfect and in the older parts of town when redevelopment is attempted, there will be a need for a variance.
“Whether it is a front setback relief because lots are small and we want Walnut Street parking,” Pierce said. “It could be a double lot that they now want to combine because they never built on the second lot and are tired of paying two tax bills. It may be a building height request because we limit heights to 35 feet, and yes, we have a 140-foot-tall hospital.”
All land use decisions require a roll call vote from the Board of Adjustment, Planning Commission and City Council with each member stating their reasons for voting the way they chose. Members are permitted to adopt the reasons of other members when stating their own reason.
When there is a public hearing, notices are sent to every property owner within 200 feet. Signs are posted on the property, and notices posted 14 days prior to the hearing. Public hearing comments are limited to three minutes per person at Board of Adjustments, Planning Commission and City Council, but the chairperson or mayor has the authority to extend the time limit.
Comprehensive plan workshops will begin after the first of the year. Pierce stated that they will likely add the workshops to the end of regular meetings.
