Attachment

CITY OF DOVER BOARD OF ADJUSTMENT AGENDA Wednesday, October 15, 2014 at 9:00 AM City Hall Council Chambers 15 Loockerman Plaza, Dover, Delaware ROLL CALL APPROVAL OF AGENDA APPROVAL OF MINUTES of August 20, 2014 Meeting APPROVAL OF MINUTES OF EXECUTIVE SESSION of July 23, 2014 Meeting NEW BUSINESS Applicant #V-14-11 1084-1086 South State Street. Dover Family Properties, LLC has requested a variance from the requirements of Article 6 §3.1 and §3.11 of the Zoning Ordinance for parking as related to the maximum allowed parking for the proposed use. Subject property is zoned C-2A (Limited Central Commercial Zone). The Tax Parcels are ED-05-077.17-07-19.00-000 and ED-05-086.05-02-21.00-000. The owner of record is Dover Family Properties, LLC . In its meeting of August 6, 2014 the Planning Commission approved a Site Development Plan (S-14-16) which includes a Minor Lot Line Adjustment Plan. Applicant #V-14-12 200 Garrison Oak Drive. (Lot 12 Garrison Oak Technical Park). Uzin Utz Manufacturing North America, Inc., has requested a variance from the requirements of Article 5 §7.5 of the Zoning Ordinance related to the height of fencing in the required front yard. Subject property is zoned IPM-2 (Industrial Park Manufacturing Zone – Technology Center). The Tax Parcel is LC-05-068.00-02-12.00-000. The owner of record is Uzin Utz Manufacturing North America, Inc. Applicant #V-14-10 Lands of Mathew E. Mitten, South Side of Lafferty Lane. Mathew E. Mitten has appealed the decision of the City Planner to the Board of Adjustment regarding the interpretation of the Zoning Ordinance pertaining to the definitions of allowed uses in the IPM (Industrial Park Manufacturing) Zone in Article 3 §20 as related to a citation to cease operations pending the approval of a Site Development Plan pursuant to Article 3 §20.6 and Article 10 §2. Subject properties zoned IPM (Industrial Park Manufacturing Zone). The Tax Parcels are ED-05-077.00-01-26.00-000 and ED-05-077.00-01-27.00- 000. The owner of record is Mathew E. Mitten. ADJOURN 29 Del.C. § 10004(e)(2) THE AGENDA ITEMS MAY NOT BE CONSIDERED IN SEQUENCE. THIS AGENDA IS SUBJECT TO CHANGE TO INCLUDE THE ADDITION OR THE DELETION OF ITEMS, INCLUDING EXECUTIVE SESSIONS.

CITY OF DOVER BOARD OF ADJUSTMENT MINUTES August 20, 2014 A Regular Meeting of the City of Dover Board of Adjustment was held on Wednesday, August 20, 2014 at 9:00 A.M. with Chairman Sheth presiding. Members present were Mr. Hufnal, Colonel Ericson, Mr. Senato, and Mr. Keller. Staff members present were Mrs. Townshend, Mrs. Purnell, Mr. Cook, Mrs. Harvey, and City Solicitor William Pepper. APPROVAL OF AGENDA Mr. Hufnal moved to approve the agenda as submitted, seconded by Mr. Senato and unanimously carried 5-0. APPROVAL OF THE REGULAR BOARD OF ADJUSTMENT MEETING MINUTES OF JULY 23, 2014 Mr. Keller moved to approve the meeting minutes of July 23, 2014 with the necessary corrections, seconded by Mr. Hufnal and unanimously carried 5-0. OPENING REMARKS CONCERNING DEVELOPMENT APPLICATION Mrs. Townshend, Director of Planning and Community Development stated that the meeting would be conducted in accordance with the approved agenda. There is one item on the agenda; one item under new business. The application file will be read, and the floor will be opened for questions of the applicant by the Board and for public testimony. If the Board needs to consult the City Solicitor they will adjourn to discuss legal matters. If the applicant must leave, they can contact the Planning Office at 736-7196 to learn of the Board’s decision. A formal notice of the decision will be mailed to the applicants. Approved variances expire after one year if the approved project has not commenced. All public notice for the application on this agenda was completed in accordance with code requirements. The meeting agenda was posted in accordance with Freedom of Information Act requirements. NEW BUSINESS Applicant #V-14-09: 10 Maggies Way. Ferguson Enterprises, Inc., has requested a variance from the requirements of Article 4 §4.15 of the Zoning Ordinance for parking as related to the definition of “floor area” in Article 12 of the Zoning Ordinance. Subject property is zoned C-3 (Service Commercial Zone). The Tax Parcel is ED-05-078.00-01-10.01-000. The owner of record is Chung Sing, LLC, to be conveyed to Ferguson Enterprises, Inc. Mr. Bill Cook, Planner, submitted the following items for the record: staff report, application and plans submitted by the applicant.

CITY OF DOVER BOARD OF ADJUSTMENT AUGUST 20, 2014 The legal notice was published in the Delaware State News on August 10, 2014, and the public was notified in accordance with the regulations. Chairman Sheth questioned if there was any member present who had a conflict of interest and there was none. Representative: Mr. John Paradee, Attorney at Prickett Jones & Elliott PA. Mr. Paradee apologized that his client’s principal engineer was not able to be present today due to a scheduling conflict, but he is available via telephone for any questions. Mr. Paradee explained before you today is a fairly simple and straight forward application for an Area Variance as indicated by Mr. Cook. The applicant is seeking an Area Variance from the requirements of Article 4 §4.15 of the Zoning Ordinance for parking. In this particular instance the code creates a bit of an anomaly because of the unusual configuration of the property. Adding outdoor storage space under the code would require the addition of one parking space per 300 feet of additional outdoor storage space because the code includes the outdoor storage space in the definition of floor area. In order to use the outdoor space for outdoor storage, the business would have to compete with parking. Therefore, they are competing for storage and parking at the same time. The property is simply not large enough. The staff report indicates under the code that the parking requirement would be 90 spaces. Given the nature of this business, a wholesale plumbing supply distribution facility,the business does not have a lot of traffic or customers. There is really no need for that many parking spaces nor is there any need for the 14 parking spaces. If you review the application and the staff report it lays out why this application meets the criteria for an Area Variance very nicely. First, the requested variance is consistent with the nature of the zone in which the property lies. It is zoned C-3. Second, the requested variance does not change the character of the immediate vicinity. Third, granting the Area Variance would not seriously affect neighboring properties and uses in any manner. Fourth, if the literal parking restrictions here were enforced it would create an Exceptional Practical Difficulty for the owner in its efforts to make normal improvements in the character of that use of the property which is in fact a permitted use under the code. He would submit respectfully that this is a classic case that cries out for an Area Variance and it is an Exceptional Practical Difficulty, and would therefore be a geographical or dimensional requirement of the code that technically cannot be met. Responding to Mr. Hufnal’s question the total number of employees, Mr. Paradee stated that there would be 3-5 employees with a minimum of three (3) and a maximum of five (5). The business also anticipates no more than 5-6 wholesale customers at any given time. So there would be a total of 8-12 people on the property at any given time. Responding to Mr. Hufnal’s comment that the Zoning Ordinance indicates that it gives the option of one (1) parking space per 300 S.F. floor area or one (1) parking space per employee, Mrs. Townshend stated that whichever is greater. Mr. Paradee stated that the wording is strange in the code, because if you want to use the outdoor storage space for every 300 S.F. you would need to add a parking space and in this case it does 2

CITY OF DOVER BOARD OF ADJUSTMENT AUGUST 20, 2014 not make any sense. He could imagine where there are instances it would make sense, but not in this case. Mrs. Townshend stated that in the staff report it was indicated that the same use would be permitted in the IPM Zone where the parking requirement is one (1) per 800 S.F. of floor area. The issue is the parking in the zone and not the parking for the use. It would not diminish the character of the area because it could be done with less parking in another zone. Responding to Colonel Ericson’s question if the 14 spaces were exceeded where would the overflow park; Mr. Paradee stated the applicant indicated that any overflow parking could be accommodated in the outdoor storage space which would not be completely covered. The area would be fenced in and there would have to be some area to allow for inventory to be moved. Responding to Colonel Ericson’s question whether they were going to establish parking spaces in the storage area for employees which would free up more space out front and is it the intent to amend the request to make it twenty (20) parking spaces since there will be designated storage area for employees, Mr. Paradee stated that he did not know the answer to that question because he was not sure that they were able to calculate exactly how many spaces there would be in the overflow area. They would need to get into a fairly specific site plan. Colonel Ericson commented as he referred to the staff response that states “the applicant has indicated that the enclosed outdoor sales and storage area will continue to be used for employee parking, thus further reducing demand on the fourteen (14) spaces that they propose providing on the site” therefore; this would indicate if you take the five (5) employees it would then be nineteen (19) spaces. If there are going to be nineteen (19) spaces then it should be designated. Responding to Colonel Ericson, Mr. Paradee stated that he did not think it would be a huge problem if what is being suggested that there would need to be a minimum of five (5) spaces available for employees in the overflow area. He thought that would be fine. Responding to Colonel Ericson’s question of how they came up with customers due to the wholesale business though he was not very familiar with the wholesale business process, but from the few visits with wholesale that he had majority of the time wholesale business has a maximum of six (6) customers at any given time, Mr. Paradee stated that he could do a conference call to the applicant. Conference Call Andrae Vian was sworn in by Mr. Pepper. Mr. Paradee reiterated the questions by the Board of Adjustment Question: How many parking spaces will be designated for employees parking in the overflow in the outdoor storage area and can you accommodate five (5) overflow parking spaces for employees only; Mr. Vian stated yes, the outdoor storage space is reserved by parking space, it will be a revolving area. 3

CITY OF DOVER BOARD OF ADJUSTMENT AUGUST 20, 2014 Mr. Paradee stated that Colonel Ericson suggested that a minimum of five (5) parking spaces be designated to be available at all times for employees. Responding to Mr. Paradee if the above statement was a fair characterization, Colonel Ericson concurred. Mr. Paradee stated that the question below was critical to the application because there is not going to be a huge demand for parking because you have a low number of employees and a low number of customers. Question: How can you determine and commit to a number of 5-6 wholesale customers on site at any given time that would be the maximum; Mr. Vain stated that it is based on the character of their plumbing wholesale business as well as other similar properties they have around the nation. Generally, on average they only have 5-6 customers at any given time. They are not a Home Depot or Lowes type of retailer. They do not have homeowners coming in to buy plumbing products. It is contractors and others who are engaged in very large projects. Question: the way the parking spaces would play out is that there would be fourteen (14) spaces dedicated for customers and five (5) spaces for employees and if that would be more than sufficient, Mr. Vain concurred. Responding to Colonel Ericson’s question whether the number exceeded to twenty (20) where would the other five (5) vehicles park; Mr. Vain stated that normally an outdoor storage yard is created and if that was the case this would be opened for the additional parking. Responding to Mr. Paradee’s question if this would be foreseen as a likely prospect, Mr. Vian stated absolutely not. Responding to Mr. Paradee’s question that it was comforting for the Board of Adjustment to understand that there will be sufficient space within the outdoor storage area to accommodate any overflow parking that you would foreseeably experience, Mr. Vian concurred. Responding to Colonel Ericson’s question whether there was a copy (drawing) of the site, Mrs. Townshend stated that it was included in the packet. Responding to Mr. Keller’s question whether the operation is intended to be clearly a wholesale operation with no retail customers coming to the site, Mr. Paradee and Mr. Vian concurred. Responding to Mr. Keller’s question whether in the event of a year-end sale public parking is permitted on Maggies Way, Mrs. Townshend stated that Maggies Way is not a city street, but it is the Bryan Business Park and there are other tenant spaces in the area that would have parking if there was some type of mass rush on plumbing wholesale. Responding to Mr. Keller’s question whether they were aware of any condition that would prohibit someone stopping and walking into the wholesale business for questions, etc. to prohibit parking on Maggies Way, Mrs. Townshend stated that she has seen parking throughout the 4

CITY OF DOVER BOARD OF ADJUSTMENT AUGUST 20, 2014 business park for events that happened at Fordham Brewery Company. There seems to be some precedent that people park wherever parking is available if the businesses are not open. Responding to Mr. Keller’s question in response to the question regarding any serious affect to neighboring properties and the statement made by staff if “the majority of properties on Maggies Way have less parking provided than the one (1) space per 300 S.F. of floor area required in the C-3 zone” how did this come about and is it legal non-conforming, in violation of zoning or have they otherwise been permitted, Mrs. Townshend stated that the assumption would be that perhaps that overtime the zoning changed, either the requirements within the Zoning Ordinance or the zoning of the property could have changed. It could predate the current requirements and in that case it would be legal non-conforming. It was all constructed within the site plan, but the site plan probably goes back twenty (20) or more years. Responding to Mr. Keller’s question that you don’t necessarily know for a fact that “the parking provided at surrounding properties appears more than adequate for their uses” gleaming from comments and testimonies this property would have without a doubt more than adequate for their intended use and as well would be fair to say, Mrs. Townshend concurred. Responding to Mr. Senato’s question that the business would be strictly plumbing wholesale with no retail, but there are other wholesale plumbing businesses within the City of Dover and occasionally the general public (retail traffic) will walk in knowing that the business is there. It was mentioned by Mr. Vian that this would not happen, but if it does happen there would be a parking issue, he could not understand or believe that there would not be any general public buying an item on a retail basis, what assurances can be offered to the Board of Adjustment that it will not become a significant problem, Mr. Vian stated the nature of the products sold are wholesale and not the type of products that you would fine at Lowes or Home Depot. While there may be retail customers who wander in from time to time it is not the type of products that retail customers would be looking for. Chairman Sheth stated that normally average business would require parking that is needed. If there was a big sale on plumbing it would only happen one or two days in a year. It does not happen every day as he compared it to other big events that only happen once or twice a year. Mr. Paradee stated that if you appreciate the type of customers that this business would appeal too it would take quite a mad rush indeed for all of the contractors in Kent County to show up at this business at the same and this is just not going to happen. The audience for this particular business is very limited. Chairman Sheth stated that even if it did happen it would be a good sign for the business. Generally, most of the contractors come before regular hours. Responding to Mr. Keller’s question that the applicant and owner are listed as Chung Sing LLC to be conveyed to Ferguson Enterprises Inc., and the application was signed by a Mr. Kirk D. Wall, Senior Director of Facilities; is this for Chung Sing LLC or is he the Senior Director of Facilities for Ferguson Enterprises Inc., Mr. Paradee stated that the applicant is Ferguson Enterprises Inc., Equitable Owner and they are purchasing the property, the current title owners 5

CITY OF DOVER BOARD OF ADJUSTMENT AUGUST 20, 2014 are Chung Sing LLC who is present today. They can be asked if consent is given for this application. Ms. Kam –Yin Yeung was sworn in by Mr. Pepper. Ms. Kam –Yin Yeung principal of the LLC, owner of the property, gave consent to the application. Chairman Sheth opened a public hearing and after seeing no one wishing to speak closed the public hearing. Chairman Sheth questioned if there was any additional correspondence for the record. There was none. Chairman Sheth questioned if there was any member present who had a conflict of interest and there was none. Mr. Keller moved that Application V-14-09 be approved as submitted based on the testimony heard today and staff recommendations for approval with regards to all of the expectable responses with regard to the character of the zone and the surrounding areas, the similar types and uses in the business park noted, acceptable response to questions regarding parking and comments made regarding very similar circumstances within IPM (Industrial Park Manufacturing) zone uses. The motion was seconded by Mr. Hufnal and unanimously carried 5- 0. Colonel Ericson moved to amend the current motion to include the additional five (5) spaces will be reserved within the outdoor storage area for employee parking. The motion was seconded as amended by Mr. Senato and unanimously carried 5-0. Responding to Mr. Senato’s question whether the discussion that happened over a year ago regarding applicants coming before the Board of Adjustment with mistakes or oversight on plan review, engineering, or site plans, for example the library, that was occurring rather frequently that some form of an additional fee would be added and he wanted to know the status, Mrs. Townshend stated that she have been working on a fee review and at one point it was taken to Council Committee and it was sent back to staff. She cannot levy any fees administratively. Part of the fee proposal that she put together was deferrals or reoccurrence. At this point it is in a proposal that is in limbo. The Legislative, Finance, and Administration Committee sent it back to staff to work with the business community. She has been in discussions with the Chamber since it has been in limbo. Mr. Keller stated that he wanted to raise a question with regard to the reasoning for his questioning of the fee holder today and the applicant making the application, etc. He thought that one (1) to two (2) years ago there was an incident or two (2) where the applicant was not the fee owner, Responding, Mrs. Townshend stated that the application specifically states that “I (name) do affirm that I am the property owner on which the variance is sought and that the information provided in this application is accurate to the best of my knowledge and belief.” So, 6

CITY OF DOVER BOARD OF ADJUSTMENT AUGUST 20, 2014 with an LLC the office does not know who the principals are who are permitted to sign, so they have to accept it. The owner should be signing and not the equity owner. She stated that she would speak with Mr. Paradee in regards to that because she wants the owner signature on the application. Mr. Keller stated that from a staff perspective to keep this in mind because once a variance is approved it attaches to the property and not an individual and sometimes sale agreements fall apart. Mrs. Townshend concurred and stated that she had the same observation as it was being discussed. Mrs. Townshed stated that there have been times where items were being held up because they were waiting on the owner signature. Mr. Senato moved to adjourn the meeting, seconded by Mr. Hufnal and unanimously carried 5-0. Meeting adjourned at 9:42 A.M. Sincerely, Maretta Savage-Purnell Secretary 7

City of Dover Board of Adjustment October 15, 2014 V-14-11 Location: 1084-1086 South State Street Applicant/Owner: Dover Family Properties, LLC c/o Venetia N. Dover Tax Parcels: ED-05-077.17-07-19.00-000 ED-05-086.05-02-21.00-000 Application Date: August 15, 2014 Present Zoning: C-2A (Limited Central Commercial Zone) Present Use: Vacant lots Proposed Use: Office Building (Medical Office – Dentist) Reviewed By: Bill Cook, Planner I Variance Type: Area Variance Variance Requested: To increase the parking on site above the maximum number of spaces permitted by Zoning Ordinance. Project Description At its meeting of August 18, 2014, The Planning Commission approved application S-14-16 to permit construction of a new 2,730 S.F. medical office and associated site improvements for Dover Family Cosmetic Dental. The plan includes a Minor Lot Line Adjustment Plan to consolidate two parcels to form a single 23,214 S.F. parcel. This project will construct a one story building for the proposed use as a dental office. The plan proposes a site entrance/exit onto South State Street. The parking lot is shown on the east and south sides of the proposed building. The applicant is requesting an area variance from the requirements of Zoning Ordinance, Article 6 §3.11 for parking.

V-14-11 1084-1086 South State Street Board of Adjustment Report Page 2 of 5 Adjacent Land Uses The subject property is zoned C-2A (Limited Central Commercial Zone), located on the west side of South State Street between Wyoming Avenue and South DuPont Highway. Surrounding properties to the north and fronting South State Street are also zoned C-2A. Properties across South State Street to the north and south are zoned C-4 (Highway Commercial Zone) and SC-2 (Shopping Center Development). The properties bordering the west (rear) and south (left) property lines of the final assembled subject parcel are outside City limits. Code Citations The proposed use as a dental office would be classified as a type of business/professional office and is permitted in the C-2A (Limited Central Commercial Zone) as outlined in Zoning Ordinance Article 3 §14.1(b). The Zoning Bulk and Parking Regulations found in Zoning Ordinance Article 4 §4.14 for parking in the C-2A zoning district requires the greater of one (1) off-street parking space per 300 S.F. of floor area or one (1) parking space per employee. Calculations under the provisions of Article 6 §3.1 for “Medical Offices-All types” are the same as the zoning district regulations for parking. Zoning Ordinance Article 6 §3.11 states that “the maximum number of parking spaces shall not exceed 25 percent over the number of parking spaces required by the code.” Table 1 shows a summary of the required, maximum, and requested parking provisions for the site under the proposed development scenario for the site. Table 1 Off-Street Parking Calculations 1084-1086 South State Street (V-14-11) Proposed Condition Parking Spaces Required By Floor Area Proposed Structure (S.F.) 2,730 Required Parking* 10 Maximum Parking Permitted 13 Requested Parking 23 Required by Employee Count Number of Employees 12 Required Parking* 12 Maximum Parking Permitted 15 Requested Parking 23 * Code requi res the grea ter of ei ther ca l cul a ti on method

V-14-11 1084-1086 South State Street Board of Adjustment Report Page 3 of 5 Exceptional Practical Difficulties Tests Zoning Ordinance Article 9 §2 dictates the specific powers and duties of the Board of Adjustment with regard to granting variances. Specifically the Board must determine: 2.1 Variance – The board shall have the authority to authorize variances from provisions of the Zoning Ordinance that are not contrary to public interest where the board determines that a literal interpretation of the Zoning Ordinance would result in undue hardship or exceptional practical difficulties to the applicant. In granting variances, the board shall determine that the spirit of the Zoning Ordinance is observed and substantial justice is done. 2.11 Area Variance. A variance shall be considered an area variance if it relates to bulk standards, signage regulations, and other provisions of the Zoning Ordinance that address lot layout, buffers, and dimensions. In considering a request for an area variance, the board shall evaluate the following criteria and document them in their findings of fact: (a) the nature of the zone in which the property lies; (b) the character of the immediate vicinity and the contained uses therein; (c) whether, if the restriction upon the applicant’s property were removed, such removal would seriously affect neighboring properties and uses; and (d) whether, if the restriction is not removed, the restriction would create unnecessary hardship or exceptional practical difficulty for the owner in his efforts to make normal improvements in the character of that use of the property that is a permitted use under the provisions of the Zoning Ordinance. Review of Application As part of the application, the applicant was asked to summarize how the requested variance relates to the criteria. The applicant’s response is provided below along with a staff assessment of the application in accordance with the required criteria. 1. The nature of the zone in which the property lies. Applicant Responses: “The property is in a C-2A zone. The proposed use as a dental office is permitted and is classified as a business/professional office.” Staff Response: The requested variance is consistent with the nature of the zone in which the property lies. The property is zoned C-2A (Limited Central Commercial Zone) which is a mixed- use zone characterized by a wide variety of retail, office, and service uses for the general public. Residential uses, including single-family and multi-family dwellings are also permitted and found in C-2A zones. All such uses are found within a short radius of the subject property, including residential uses, as well as business and professional uses located in converted single-family structures. 2. The character of the immediate vicinity and the contained uses therein. Applicant Responses: “The property is located on the west side of S. State Street between Wyoming Avenue and US. 13. The property is bounded by CNMRI on the north; S. State Street on the east; a tattoo parlor on the south; and a woodland on the west.”

V-14-11 1084-1086 South State Street Board of Adjustment Report Page 4 of 5 Staff Response: The requested variance does not change the character of the immediate vicinity at the present time. Other medical offices (CNMRI) are located on the adjacent property to the north and rear of the subject property. Surrounding properties are typically one or two- story structures. A shopping center is across South State Street housing several retail businesses. Paved surface parking lots are typical of most commercial properties. 3. Whether, if the restriction upon the applicant’s property were removed, such removal would seriously affect neighboring properties and uses. Applicant Responses: “The proposed project will have a dedicated entrance on S. State Street with no interconnection to any adjacent properties. The additional 8 spaces requested will not have an effect on neighboring properties and uses.” Staff Response: The subject property has sufficient space to allow for additional parking on site. The provision of additional parking would not impact adjacent properties, and would reduce the likelihood of visitors of the subject property seeking parking on adjacent properties. The landscape plan approved as part of the approved Site Plan shows plantings of evergreen and deciduous trees, shrubs, other plants and grass along the South State Street frontage. This approximately 20 foot deep landscaping strip between the right-of-way and the edge of the parking lot will likely enhance the corridor and reduces the visual impact of any parking lot development. 4. Whether, if the restriction is not removed, the restriction would create unnecessary hardship or exceptional practical difficulty for the owner in his efforts to make normal improvements in the character of that use of the property that is a permitted use under the provisions of the Zoning Ordinance. Applicant Responses: “Parking facilities are very important for both staff and patients. Convenient parking can have a favorable influence on patients' perceptions of a dental office. Dental offices typically require more parking spaces due to the frequency of appointments throughout the day. A rule of thumb for determining the number of parking spaces needed for a dental office is to multiply the number of treatment rooms by 1.5 and add in the number of staff parking spaces. There are seven (7) treatment rooms and 12 staff members for a total requirement of 23 parking spaces. A parking count less than 23 spaces will not allow the business to operate efficiently nor meet the demand of patient traffic. This would negatively impact the long term sustainability of the practice.” Staff Response: Staff concurs with the applicant’s argument regarding the need for parking due to the volume of patients and relatively fast “turnover” of patients in a dental office compared

V-14-11 1084-1086 South State Street Board of Adjustment Report Page 5 of 5 to other types of medical offices and general types of offices. The space demands of a dental office may be different than other medical offices, meaning that staff may be able to serve many more patients in a smaller space than would be required by other types of medical specialties, thus creating a more intensive but efficient utilization of the facility. The Zoning Ordinance parking calculations make no distinction regarding medical specialties or operational differences, thus the conventional calculation method based on building square footage may be insufficient compared to actual parking demand. Variance Recommendations: Staff recommends approval of the variance for the increase in parking to a total of 23 spaces for reasons as follows: • The proposed variance would not be out of character for the zone and the surrounding uses. • The parking proposed by the applicant is reasonable considering the demands of the business. The Zoning Ordinance does not differentiate between dental offices and other types of medical or professional offices. • Parking can be accommodated on the property without impacting the ability of the property to comply with lot coverage and bulk standards of the Zoning Ordinance.

City of Dover Board of Adjustment October 15, 2014 V-14-12 Location: 200 Garrison Oak Drive Garrison Oak Technical Park Applicant/Owner: Uzin Utz MFG North America, Inc. Tax Parcel: LC-05-068.00-02-12.00-000 Application Date: September 12, 2014 Present Zoning: IPM-2 (Industrial Park Manufacturing – Technology Park) Present Use: Manufacturing Facility – under development Proposed Use: Manufacturing Facility Reviewed By: Ann Marie Townshend, AICP Variance Type: Area Variance Variance Requested: Elimination of the 4-foot restriction of a fence in the front yard Project Description The applicant is requesting to erect a 6-foot-tall fence within the front yard of the property. The required front yard is 60 feet. The applicant requests a variance to located the fence 15 feet into the setback, or 45 feet from the property line. Adjacent Land Uses The subject property is located within the Garrison Oak Technology Park, which is zoned IPM-2. The adjacent lots are undeveloped.

V-14-12 Uzin Utz MGF North America, Inc. – 200 Garrison Oak Drive Board of Adjustment Report Page 2 of 4 Code Citations Zoning Ordinance, Article 5 – Supplemental Regulations, Section 7.5: 7.5 Fences. Fences or walls shall be limited to a maximum height of four feet above the ground when situated within front yard areas, and shall be limited to a maximum height of eight feet above the ground when situated within side and rear yard areas. Fences situated on corner lots shall be subject to the provisions of article 5, section 1.3. For the purposes of this provision, on lots with dual street frontage that are not corner lots, a fence situated to the rear of the principal structure shall be limited to a maximum height of eight feet above ground. Fences or walls with a height in excess of eight feet above the ground shall conform to the setback requirements for dwelling buildings as set forth in article 4 of this Appendix. Fence material commonly referred to as "barbed wire" and/or "razor wire," or any similar material shall be prohibited along property lines which adjoin residential zones. Exceptional Practical Difficulties Tests Zoning Ordinance Article 9 §2 dictates the specific powers and duties of the Board of Adjustment with regard to granting variances. Specifically the Board must determine: 2.1 Variance – The board shall have the authority to authorize variances from provisions of the Zoning Ordinance that are not contrary to public interest where the board determines that a literal interpretation of the Zoning Ordinance would result in undue hardship or exceptional practical difficulties to the applicant. In granting variances, the board shall determine that the spirit of the Zoning Ordinance is observed and substantial justice is done. 2.11 Area Variance. A variance shall be considered an area variance if it relates to bulk standards, signage regulations, and other provisions of the Zoning Ordinance that address lot layout, buffers, and dimensions. In considering a request for an area variance, the board shall evaluate the following criteria and document them in their findings of fact: (a) the nature of the zone in which the property lies; (b) the character of the immediate vicinity and the contained uses therein; (c) whether, if the restriction upon the applicant’s property were removed, such removal would seriously affect neighboring properties and uses; and (d) whether, if the restriction is not removed, the restriction would create unnecessary hardship or exceptional practical difficulty for the owner in his efforts to make normal improvements in the character of that use of the property that is a permitted use under the provisions of the Zoning Ordinance. Review of Application As part of the application, the applicant was asked to summarize how the requested variance relates to the criteria. The applicant’s response is provided below along with a staff assessment of the application in accordance with the required criteria. 1. The nature of the zone in which the property lies. Applicant Responses: “Industrial Park Manufacturing 2 (IPM 2)” Staff Response:

V-14-12 Uzin Utz MGF North America, Inc. – 200 Garrison Oak Drive Board of Adjustment Report Page 3 of 4 The property is located within the Garrison Oak Technology Park, which is zone IPM-2 (Industrial Park Manufacturing – Technology Center). 2. The character of the immediate vicinity and the contained uses therein. Applicant Responses: “The property, for which this variance is applied for, is located on Lot #12 on Garrison Oak Technical Park. Lot #12 is going to have the future street address 200 Garrison Oak Drive. Lot #12 is surrounded by Lot #11 to the north, which is a parcel on Garrison Oak Technical Park and currently not occupied, but a future lot for industrial use. To the south, Lot #12 is surrounded by a stormwater management pond and to the west by a swale and Route 1 in extension of the property. To the east, Lot #12 is connecting to Garrison Oak Drive, which is a loop road into and out of the Industrial Park.” Staff Response: The Garrison Oak Technology Park is largely undeveloped, with only the Dover Sun Park, the active construction on the Garrison Energy Center, and the subject site. Delaware Route 1 is located immediately west of the subject property. Garrison Oak Drive is the internal street serving all lots within the Garrison Oak Technology Park. 3. Whether, if the restriction upon the applicant’s property were removed, such removal would seriously affect neighboring properties and uses. Applicant Responses: “The applicant plans to move the fence inside the front yard (60’ B.R.L.), which reduces the maximum height of fence to four (4) feet above ground according to the CoD Zoning Ordinance Article 5, Section 7.5. With the variance been granted, the applicant plans to build a six (6) foot fence above ground inside front yard in order to be consistent with the fence height to the north, west and south of the property, which is uniformly a 6 ft fence. To the front of Lot #12 there is no direct neighbor, only a man made ditch. Therefore the applicant does not see any negative effect on the property of neighbors and their uses The applicant has already contacted Public Works, as the front yard is designated being a 60’ wide utility and drainage easement area. An application for a variance to build a structure inside a utility easement has been filed with Public Works already.” Staff Response: The removal of the restriction and the allowance of a 6-foot-tall fence within the 60-foot front yard would not seriously affect neighboring properties and uses. The fence would still be located at least 40 feet inside the property line. This fence is located along the Garrison Oak Drive frontage of the property. 4. Whether, if the restriction is not removed, the restriction would create unnecessary hardship or exceptional practical difficulty for the owner in his efforts to make normal improvements in the character of that use of the property that is a permitted use under the provisions of the Zoning Ordinance.

V-14-12 Uzin Utz MGF North America, Inc. – 200 Garrison Oak Drive Board of Adjustment Report Page 4 of 4 Applicant Responses: “In order to allow incoming and outgoing truck traffic sufficient space to maneuver vehicles up to a length of 73’ to the loading docks and production tower for unloading raw materials and loading finished product, the applicant identified by simulating truck paths and turning radii, that the fence has to be moved at least 15 feet inside the front yard (to the East) in order to provide additional space for the trucks to turn and revers to the loading docks and production tower (see attachments 1 and 2). The need for additional maneuvering space was caused by moving the entrance 12 ft south due to a potential collision of the trucks with an electricity pole located north of the entrance (see attachment 3). Also, the trucks do only have approximately 12 ft distance from the trucks sitting in the loading dock area, when leaving the loading dock area straight towards the edge of the paving/current fence line, which is not enough space for a 73’ tractor trailer to maneuver (see attachment 4). If the restriction would not be removed the applicant would not have sufficient protection of property stored on site and outside of the build, as a four food high fence is easy to climb over. Since Garrison Oak Technical Park is located in a remote location in Dover and currently not fully developed, the applicant would strongly prefer to have a fully fenced property which also represents a certain level of security by the height of the fencing.” Staff Response: The site is an industrial site. A four-foot fence would not provide adequate security, and locating the fence at or beyond the 60-foot setback would provide inadequate space for trucks to turn around. This was determined after the building was under construction and could not be moved. This situation presents and exceptional practical difficulty for the applicant make planned improvements and operate the manufacturing facility. Refer to A Variance Recommendations: Staff recommends approval of the variance for to allow a 6-foot-tall fence in the front yard (refer to Attachment 2 for proposed location) based on the following comments: • The variance would be in keeping with the character of the zone and the surrounding area, and it would not seriously affect neighboring properties. • The applicant has demonstrated exceptional practical difficulty in that placing the fence at or beyond the setback line would interfere with the need for trucks to turn around. • The applicant has indicated the need for a variance of “at least” 15 feet. The applicant shall determine the actual dimension of the variance request, as the Board will need to specify the required setback for the fence under the variance, if the variance is approved.

City of Dover Board of Adjustment October 16, 2014 V-14-10 Location: South side of Lafferty Lane, Dover, Delaware ED-05-077.00-01-26.00-000 ED-05-077.00-01-27.00-000 Applicant/ Property Owner: Mathew E. Mitten Application Date: Appeal Received August 15, 2014 Request for September 17, 2014 Meeting. Meeting was rescheduled for October 15, 2014. Present Zoning: IPM (Industrial Park Manufacturing Zone) Appeal Requested: Regarding the interpretation of the Zoning Ordinance pertaining to the definitions of allowed uses in the IPM (Industrial Park Manufacturing) Zone in Article 3 §20. Appeal of the determination of the City Planner to cease operations at the site pending approval of a Site Development Plan. Request for Appeal The applicant has filed an Appeal of a determination by the City Planner regarding the use of Lands of Mitten properties on the south side of Lafferty Lane and the interpretation of Zoning Ordinance, Article 3 Section 20 regarding the definitions of allowed uses in the IPM zone and Zoning Ordinance, Article 10 Section 2 regarding the requirement for a Site Development Plan. Property Description The property located on the south side of Lafferty Lane consists of two parcels of land.1 There are activities in cleared areas on the site near the access drive from Lafferty Lane and also large areas of existing woodland. There are no buildings located on the properties. From aerial photographs (dating 2006-2012) there are a number of storage trailers and other materials on the properties. 1 The Appeal application lists one parcel of 4.9 acres on the south side of Lafferty Lane identified as ED-05-077.00- 01-26.00-000. Staff has also included the adjacent property also held in the same ownership and identified as ED- 05-077.00-01-27.00. This second property is also involved in the City Planner’s determination.

V-14-10 Lands of Mitten on Lafferty Lane Board of Adjustment Report Page 2 of 6 The adjacent properties to the south are zoned MHP (Manufactured Home Park) for the Kings Cliffe Mobile Home Park; and R-20 (One Family Residence Zone) and IPM (Industrial Park Manufacturing Zone) for properties related to the Dover Air Force Base. The adjacent properties to the north and east are vacant lands zoned IPM (Industrial Park Manufacturing Zone) and M (Manufacturing Zone). A portion of the subject site and adjacent properties are subject to the AEOZ (Airport Environs Overlay Zone) and are located within Noise Zone A and the APZ-1 Accident Potential Zone. Code Citations Procedures The Board of Adjustment procedures for Appeals are outlined in the Zoning Ordinance and within Delaware Code. See the following code citations. Dover Code of Ordinances, Appendix B: Zoning, Article 9. Board of Adjustment: Section 2. Powers and duties: The board of adjustment shall have the powers and duties as specified in Delaware Code Annotated (22 Del. C. § 301 et seq.) and as articulated below: 2.2 Appeal of administrative order, requirement, decision, or determination. The board shall have the authority to hear and decide appeals where it is alleged there is any order, requirement, decision or determination made by an administrative official in the enforcement of the zoning ordinance. Appeals to the board may be made by any person aggrieved or by any officer, department, board or bureau of the municipality affected by any decision of an administrative officer. Zoning Ordinance, Article 9 §3 outlines the procedures for both variances and appeals. Appeals are subject to a Public Hearing which must noticed by publication in the newspaper and by mailed notice to property owners within 200 feet of the subject property. The Appeal must be filed in writing on prescribed forms and is subject to a filing fee. It is noted that this fee may be returned to the applicant (Zoning Ordinance, Article 9 §3.4) under certain provisions: Article 9 §3.4 The board of adjustment may, in its discretion, return to the applicant part or all of the fee paid by him in the event that his appeal under section 2.2 Appeal of administrative order, requirement, decision, or determination hereof is partially or wholly successful. The Appeal (written application and submission items) as filed shall consist of the following per the Zoning Ordinance, Article 9 §3.5: Article 9 §3.5 Each variance application or appeal shall fully set forth the circumstances of the case. Every variance application or appeal shall refer to the specific provision of the ordinance involved, and shall exactly set forth, as the case may be, the interpretation that is claimed, the details of the variance that is applied for and the grounds on which it is claimed that the same should be granted.  A copy of the Appeal as filed by the Applicant is attached as Exhibit 1A and Exhibit 1B. o Exhibit 1A – Application to Board of Adjustment for Appeal

V-14-10 Lands of Mitten on Lafferty Lane Board of Adjustment Report Page 3 of 6 o Exhibit 1B – Letter from the applicant dated August 18, 2014 with Attachment (Appeal Statement) The provisions of Delaware Code (22 Del. C. § 301) also note a procedure for Appeals: 22 Del. C. §324 Appeals to board. Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the municipality affected by any decision of the administrative officer. Such appeal 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 a notice of appeal specifying the grounds thereof. The officer 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.  Copies of materials from the Determination by the City Planner and associated Code Enforcement Case File are attached as Exhibits 2A through 2S. o Exhibit 2A – Email of 6/2/2014 RE: BOA Appeal process o Exhibit 2B – Letter of 6/2/2014 Appeal of Code Enforcement Citation, Case #06-00002574 o Exhibit 2C – Official Citation #06-00002574 of 5/22/2014 with Fourth Notice, and Violation Detail o Exhibit 2D - Letter of 6/5/2013 RE: Expiration of Site Development Master Plan Application: Mitten Industrial Park at Lafferty Lane, Dover Delaware S-10-10 and S-13-14 o Exhibit 2E – Email of 6/25/2012 RE; Mitten Industrial Park o Exhibit 2F – Letter of 6/13/2012 RE: Property Located on the South Side of Lafferty Lane (S-08-06 and S-10-10) o Exhibit 2G – Email of 6/7/2012 RE: Property on Lafferty Lane Owned by Matt Mitten o Exhibit 2H – Letter of 10/3/2007 from Braun Engineering & Surveying, RE; Site Plan Proposal – Mitten Industrial Park o Exhibit 2I – Letter of 9/14/2007 RE: Property Owned by Matthew E. Mitten, Case No. 06-00002574 o Exhibit 2J – Letter of 8/30/2007 RE: Property Owned by Matthew E. Mitten, Case No. 06-00002574 o Exhibit 2K – Letter of 6/3/2007 RE: Site Plan Application for Properties Owned by Matthew E. Mitten o Exhibit 2L – Notes and Sketch Plan from 12/19/2006 Pre-Application Meeting o Exhibit 2M - Letter of 12/4/2006 RE: Property Owned by Matthew E. Mitten, Case No. 06-00002574

V-14-10 Lands of Mitten on Lafferty Lane Board of Adjustment Report Page 4 of 6 o Exhibit 2N – Letter of 11/15/2006 RE: Case Number 06-00002574 o Exhibit 2O – Letter of 11/15/2006 RE: Property Owned by Matthew E. Mitten, Case No. 06-00002574 o Exhibit 2P – Notes and Sketch Plan from 7/5/2006 Pre-Application Meeting o Exhibit 2Q – Letter of 5/16/2006 RE: Use of Property, 4.9 Acres on the South side of Lafferty Lane o Exhibit 2R – Letter of 3/9/2006 RE; Use of Property, 4.9 Acres on the South side of Lafferty Lane, Site Plan Approval Required with Attachments of Code Reference and 3 Photographs o Exhibit 2S – Letter of 8/23/2005 RE: Parcel B4.2466 Acres, Lands of Mathew E. Mitten with Attachment of Sketch Plan Action by the Board of Adjustment It is the responsibility of the Board of Adjustment to hear and decide the Appeal where it has been alleged that the determination of the administrative official was in error. This Appeal is regarding the interpretation of the Zoning Ordinance pertaining to the definitions of allowed uses in the IPM (Industrial Park Manufacturing) Zone as outlined in Article 3 §20 and Appeal of the determination of the City Planner to cease operations at the site pending approval of a Site Development Plan as required in Zoning Ordinance, Article 3 Section 20.6 and Article 10 Section 2. Background Information Code Citations: IPM (Industrial Park Manufacturing Zone) Zoning District The description of the IPM (Industrial Park Manufacturing Zone) and the uses permitted within the zone are given in the Zoning Ordinance, Article 3 Section 20 as well as the procedures for establishment of uses on the property.  Exhibit 3A – Zoning Ordinance excerpt for IPM zone. AEOZ (Airport Environs Overlay Zone) The AEOZ (Airport Environs Overlay Zone) establishes additional standards and requirements for properties within the zone including compatibility of land uses, noise attenuation requirements, and height limits in order to project areas impact by aircraft operations of Dover Air Force Base. These provisions are outlined in Zoning Ordinance, Article 3 Section 22.  Exhibit 3B – Zoning Ordinance excerpt for AEOZ zone. Site Development Plan Procedures The procedures for a Site Development Plan are given in the Zoning Ordinance, Article 3 Section 20.6 for activities in the IPM Zone and within the referenced Zoning Ordinance, Article 10 Section 2. (It is noted that Zoning Ordinance, Article 10 Section 2 was amended with the adoption of Ordinance #2011-14 on August 8, 2011 and with the adoption of Ordinance #2014- 08 on July 14, 2014.)  Exhibit 3C – Zoning Ordinance excerpt for Site Development Plan Procedures

V-14-10 Lands of Mitten on Lafferty Lane Board of Adjustment Report Page 5 of 6 Property Information: Lands of Mitten on South Side of Lafferty Lane (Identified as 4.9 ac on Lafferty Lane and as 141 Lafferty Lane), Dover:  Property Ownership: From our records it appears that the ownership of these properties changed in 2003 from Julian Dev. Co. to Mathew E. Mitten.  Business License: o There are no Business Licenses issued for the subject properties on Lafferty Lane. o Mid-Atlantic Dismantlement has an active Business License as a Contractor: however, is associated with outside of City address. License was renewed as #15-00010454 for license year beginning 7/1/2014; this license was initially issued in July 2003 as #04-00010454 and has been renewed yearly.  Building Permits: No Building Permits associated with the properties since 1998 other than a Fence Permit #03-1000 that was withdrawn.  Code Enforcement Case #06-00002574 entered 9/27/2006 – Violation of permitted uses in IPM zone and lack of Site Plan for property. On-going Code Enforcement case activity from 2006 to the present.  Site Development Plan Applications: The following Site Development Plans were filed for review with the Planning Commission for this property. A summary of each application and its status is provided. The complete Application files are available in the Planning Office. o S-07-24 Mitten Industrial Park – Application filed for seven commercial buildings and a processing area. Application held by Development Advisory Committee (DAC) due to compliance issues. Application superseded by Application S-08-06. o Preliminary Land Use Services Review (PLUS): PLUS Review (#2008-01-12) of the Mitten Industrial Park project occurred on January 23, 2008. o S-08-06 Mitten Property: Site Development Master Plan - An application for a Site Development Master Plan (S-08-06) for industrial park and processing area was granted Conditional Site Development Mater Plan Approval by the Planning Commission on March 17, 2008. A one-year extension of approval was granted by the Planning Commission at their March 16, 2009 meeting. This plan expired in 2010 as there was no submission of an Administrative Site Plan for Phase 1 and no there was construction to make site improvements. o S-10-10 Mitten Industrial Park: Site Development Master Plan – An application for a Site Development Master Plan (S-10-10) for nine buildings and a processing area was granted Conditional Site Development Master Plan Approval by the Planning Commission at their May 17, 2010 meeting. The Planning Commission granted the first one-year extension of approval on April 18, 2011 and the final

V-14-10 Lands of Mitten on Lafferty Lane Board of Adjustment Report Page 6 of 6 second one-year extension of approval on April 16, 2012. This Master Plan expired on May 31, 2013 as there was no approval for the Administrative Site Plan for Phase 1 and no submission of a Building Permit and construction to make site improvements did not commence. o S-13-14 Mitten Industrial Park: Phase 1 – Administrative Site Plan filed on 5/14/2013 for Phase 1 of the project and was working through the agency review process. The associated Site Development Master Plan expired 5/31/2013 voiding this Administrative Site Plan. o S-13-16 Mitten Industrial Park: Site Development Master Plan – Application filed on 6/6/2013 for Site Development Master Plan Review to permit the construction of nine 9,600 S. F. buildings for a total of 86,400 SF and a 4.591 acre Processing Area on two parcels of land. The plan also consists of a Parcel Consolidation Plan to consolidate the two parcels of land into one parcel of land. Application was held by Development Advisory Committee (DAC) and Staff due to compliance issues on July 3, 2013; application was not heard by Planning Commission in July 2013. No additional activity with application to date.