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Delaware Code

9 Del. C. § 1313 (2026)

Jurisdiction of Board of Adjustment

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(a) The Board of Adjustment shall be empowered to hear and decide:

(1) Appeals in zoning matters where error is alleged in any order, requirement, decision or determination made by an administrative officer or agency in the enforcement of any zoning ordinance, code, regulation or map;

(2) Applications for special exceptions or special permits or other special questions in accordance with any zoning ordinance, code or regulation, or applications for interpretation of any zoning ordinance, code, regulation or map upon which the Board of Adjustment is empowered to pass; and

(3) In specific cases, such variance from any zoning ordinance, code or regulation that will not be contrary to the public interest, where, owing to special conditions or exceptional situations, a literal interpretation of any zoning ordinance, code or regulation will result in unnecessary hardship or exceptional practical difficulties to the owner of property so that the spirit of the ordinance, code or regulation shall be observed and substantial justice done, provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of any zoning ordinance, code, regulation or map.

(b) A variance which permits a use otherwise prohibited by any zoning ordinance, code or regulation shall not be valid unless approved by resolution of the County Council. Use variances to be approved by the County Council shall be advertised and affected state agencies, including but not necessarily limited to the departments of Transportation and Natural Resources and Environmental Control, shall be notified by registered mail, return receipt requested, at least 30 days prior to hearing scheduled before the Board of Adjustment. Said use variance shall thereafter be presented to the County Council at the next scheduled meeting following approval by the Board of Adjustment, advertisement and notification as provided herein.

(c) The County Council shall approve or disapprove the use variance or return the matter to the Board of Adjustment for further hearings and findings consistent with this section.

(d) Appeals from decisions of the County Council shall be to Superior Court as heretofore provided for appeals from decisions of the Board of Adjustment.

(e) In the exercise of its powers, the Board of Adjustment may reverse or affirm, wholly or partly, or modify the order, requirement, decision or determination appealed from, and make such order, requirement, decision or determination as ought to be made, and, to that end, it shall have all powers of the officer or agency from whom the appeal was taken.

(f) Notwithstanding the provisions of subsection (a) of this section, the Department of Land Use may administratively grant a dimensional variance for existing conditions that do not exceed 1 foot of the required dimension restrictions without the application being considered by the Board of Adjustment.

9 Del. C. 1953, §  1352;  55 Del. Laws, c. 85, §  2;  66 Del. Laws, Sp. Sess., c. 197,, §  1;  71 Del. Laws, c. 401, §  59;  72 Del. Laws, c. 302, §  1; 
Notes of Decisions
Cited in 8 cases (4 in the last 5 years), 2008–2024 · leading case: New Castle Cnty. v. Wilmington Hosp., LLC, 963 A.2d 738 (Del. 2008).
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New Castle Cnty. v. Wilmington Hosp., LLC, 963 A.2d 738 (Del. 2008). “…Decision, Appellant's Appendix, A 222-25. 12 . Campbell v. Rainbow City, Alabama, 434 F.3d at 1316 . 13 . See: 9 Del.C. §§ 1313, 2511.”
Ballard Wagner v. J & B Contractors, LLC, No. N19A-09-003 CEB (Del. Super. Ct. Aug. 27, 2021). · cites it 2× “9 Del. C. § 1313 expressly states that the Board is empowered to grant a variance from any zoning law “that will not be contrary to the public interest, where, owing to special conditions or exceptional situations, a literal interpretation of any zoning ordinance, code or…”
Rapp v. New Castle Cnty. Bd. of Adjustment, No. N21A-11-006 FWW (Del. Super. Ct. May 26, 2022). · cites it 2× “New Castle County’s Board of Adjustment receives its jurisdiction over variance claims from 9 Del. C. § 1313, which describes the standard by which the Board reviews an application for a dimensional variance.”
Wagner v. J & B Contractors, LLC, 279 A.3d 355 (Del. 2022). · cites it 2× “Pursuant to 9 Del. C. § 1313(a), the Board is vested with the power to hear and decide: In specific cases, such variance from any zoning ordinance, code or regulation that will not be contrary to the public interest, where, owing to special conditions or exceptional situations,…”
Snyder, No. 14A-05-003 (Del. Super. Ct. Aug. 24, 2015). · cites it 2× “9 Del. C. § 1313 provides, in relevant part, that The Board of Adjustment shall be empowered to hear and decide:… [i]n specific cases, such variance from any zoning ordinance, code or regulation that will not be contrary to the public interest, where, owing to special conditions…”
FMC Corp. v. New Castle Cnty. Special Servs. Dep't, No. N16A-10-010 AML (Del. Super. Ct. Feb. 27, 2018). “Additionally, under the home rule doctrine, counties and municipalities “exercise the power of the sovereign except as limited by either the State Constitution or State Statute.”
Nepa v. Bd. of Adjustment of the City of Lewes, No. S17A-06-003 ESB (Del. Super. Ct. Apr. 11, 2018). “The current statute is located at 9 Del. C. § 1313(a)(3), and it remains unchanged.”
SU-BE, LLC v. New Castle Cnty. Dep't of Land Use, No. N22A-12-004 CEB (Del. Super. Ct. July 3, 2024). “”11 As to zoning disputes, 9 Del. C. §1313 authorizes a County Board of Adjustment, which “shall be empowered to hear and decide .”
9 Del. C. § 1313(a): 2 cases
Wagner v. J & B Contractors, LLC, 279 A.3d 355 (Del. 2022). “Pursuant to 9 Del. C. § 1313(a), the Board is vested with the power to hear and decide: In specific cases, such variance from any zoning ordinance, code or regulation that will not be contrary to the public interest, where, owing to special conditions or exceptional situations,…”
FMC Corp. v. New Castle Cnty. Special Servs. Dep't, No. N16A-10-010 AML (Del. Super. Ct. Feb. 27, 2018). “Additionally, under the home rule doctrine, counties and municipalities “exercise the power of the sovereign except as limited by either the State Constitution or State Statute.”
9 Del. C. § 1313(a)(3): 4 cases
Nepa v. Bd. of Adjustment of the City of Lewes, No. S17A-06-003 ESB (Del. Super. Ct. Apr. 11, 2018). “The current statute is located at 9 Del. C. § 1313(a)(3), and it remains unchanged.”
Ballard Wagner v. J & B Contractors, LLC, No. N19A-09-003 CEB (Del. Super. Ct. Aug. 27, 2021). “9 Del. C. § 1313 expressly states that the Board is empowered to grant a variance from any zoning law “that will not be contrary to the public interest, where, owing to special conditions or exceptional situations, a literal interpretation of any zoning ordinance, code or…”
Rapp v. New Castle Cnty. Bd. of Adjustment, No. N21A-11-006 FWW (Del. Super. Ct. May 26, 2022). “New Castle County’s Board of Adjustment receives its jurisdiction over variance claims from 9 Del. C. § 1313, which describes the standard by which the Board reviews an application for a dimensional variance.”
Snyder, No. 14A-05-003 (Del. Super. Ct. Aug. 24, 2015). “9 Del. C. § 1313 provides, in relevant part, that The Board of Adjustment shall be empowered to hear and decide:… [i]n specific cases, such variance from any zoning ordinance, code or regulation that will not be contrary to the public interest, where, owing to special conditions…”
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