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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsOctober 2015

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7 DE Admin. Code 5102
7 DE Admin. Code 5102 Regulation Governing Beach Protection and the Use of Beaches
7 Del.C. §6803(c)
The hearing record on the proposed changes to 7 DE Admin. Code 5102 Regulations Governing Beach Protection and the Use of Beaches will be open October 1, 2015. Individuals may submit written comments regarding the proposed changes via e-mail to Lisa.Vest@state.de.us or via the USPS to Lisa Vest, Hearing Officer, DNREC, 89 Kings Highway, Dover, DE 19901 (302) 739-9042. A public hearing on the proposed amendment will be held on November 7, 2015 beginning at 10:00 AM at the Lewes Fire Department, Station 2, 32198 Janice Road, Lewes, DE 19958. Please note that all comment submitted to the Department in this matter should be limited to the scope of this proposed regulatory promulgation, to wit: only regarding the proposed amendments to the aforementioned regulations found at 7 DE Admin. Code 5102.
1.1 As used in these Regulations, tThe following words and terms, when used in this regulation, shall have the following meanings indicated below, unless the context clearly indicates otherwise:
Accidental Event” means a sudden, unintended, and unexpected occurrence that results in damage or loss of property
“Act” means the Beach Preservation Act of 1972, (Title 7, Del.C. Ch. 68).
Act of God” means a sudden and inevitable occurrence caused by natural forces and not by the agency of man, such as a flood, earthquake, or a similar catastrophe.
“Beach” means that portion of the shore of any body of water which extends from the mean high water mark inland one thousand feet, or to a roadway for automobiles, whichever is closer means that area from the Delaware/Maryland line at Fenwick Island to the Old Marina Canal immediately north of Pickering Beach, which extends from the mean high water line of the Atlantic Ocean and Delaware Bay landward 1,000 feet and seaward 2,500 feet, respectively.
Beach Access Facility Structure means any structure, improvement or facility constructed, installed or maintained for the primary purpose of obtaining or facilitating access to and from the berm and foreshore of the beach over, on or across the primary coastal dune.
Beach Enhancement means the process of improving or increasing the recreational and/or storm protection value of a beach.
Beach Erosion” means the wearing away of a beach by water or the elements.
Beach Nourishment” means the process of replenishing a beach with material (usually sand) obtained from another location.
Beach Preservation means the process of maintaining the recreational and/or storm protection value of a beach means the protection and control of the beach by the conduct and regulation of work and activities likely to affect the physical condition of the beach or shore, and includes, but is not limited to, erosion control, hurricane protection, coastal flood control, shoreline and offshore rehabilitation.
Beach Protection means the process of preventing the decrease of recreational and/or storm protection values of a beach.
Berm means the nearly horizontal part of the beach between the foreshore and primary dune formed by the deposit of material by wave action.
Breakwater means a marine structure constructed to protect a shore area, harbor, anchorage, or basin from the undesirable effects of wave action.
Buildable Lot” means a lot upon which construction of a structure is permissible by all State, Federal, and local codes and regulations.
Building means any roofed and walled structure built for permanent or semi-permanent use.
Building Line means the line generally paralleling the coast, set forth on maps prepared by the Division with reference to the National Geodetic Vertical Datum (NGVD) and the Delaware State Plane Coordinate System, and based upon information provided by topographic survey means a line generally paralleling the coast, seaward of which construction of any kind shall be prohibited without a permit or letter of approval from the Department. The Building Line shall be set forth on maps prepared by the Department with reference to a vertical datum commonly used by land surveyors, the Delaware State Plane Coordinate System and topographical surveys. The Building Line is located as follows:
b. Along beaches extending from the tip of Cape Henlopen to the southernmost limit of Rosemary Street in Primehook Prime Hook Beach - 100 feet landward of the adjusted seawardmost 7 6-foot elevation contour above NGVD NAVD;
c. Along beaches extending from the southernmost limit of Rosemary Street in Primehook Prime Hook Beach to the Old Marina Canal north of Pickering Beach - 75 feet landward of the adjusted seawardmost 7 6-foot elevation contour above NGVD NAVD;
d. oOr at the landward limits of the Beach, as defined in these Regulations, whichever is most seaward.
Within the corporate limits of Rehoboth Beach and Bethany Beach, in commercial areas containing boardwalks and where no natural dune exists, the Building Line shall be along the westerly edge of the boardwalk.
Bulkhead means an upright structure or partition built parallel or nearly parallel to the shoreline, primarily to retain or prevent land from sliding and secondarily, to protect upland from beach erosion and damage from wave action. A bulkhead is generally of lighter construction than a seawall.
Coastal Engineering Standards of Storm Protection” means level of protection for a location that consists of at least 100 feet of vegetated dune landward of the seawardmost 9-foot elevation contour above NAVD from the Delaware/Maryland line to the tip of Cape Henlopen, 100 feet landward of the seawardmost 6-foot elevation contour above NAVD from the tip of Cape Henlopen to Rosemary Street in Prime Hook Beach, and 75 feet landward of the seawardmost 6-foot elevation contour above NAVD from Rosemary Street in Prime hook Beach to the Old Marina Canal north of Pickering Beach.
Complete Destruction means the damage or destruction of any structure by any means whatsoever to the extent that, in the judgment of the Division, 75% or more of the original structure, or if a building, more than 50% of the original foundation pilings, are unsuitable for incorporation into reconstruction of the structure.
“Construction” means any work or activity which is likely to have a substantial physical effect on existing coastal conditions or natural shore processes. Construction as used in these Regulations shall also include reconstruction, restoration, repair, alteration and placement if said terms are not otherwise included for clarification a material physical effect on existing coastal conditions or natural shore and inlet processes.
Deck” means an open platform extending from a house or other building.
Department means the Department of Natural Resources and Environmental Control.
Dike means a wall or mound built around a low lying area to prevent flooding.
Division means the Division duly authorized by the Secretary as responsible for administering these Regulations.
Dune means a mound, hill or ridge of windblown sand, either bare or covered with vegetation, naturally or artificially accumulated.
Dune Zone means that area lying between the Building Line and elevation contours, which are used as a basis for determining the location of the Building Line. (See Building Line definition.)
Emergency means the existence of beach conditions unreasonably dangerous to persons or property any unusual incident which endangers the health safety or resources of the general public, including damages or erosion of any shoreline resulting from a hurricane, storm or any such natural disturbance.
Excavation means the process of digging out material.
Expansion means the enlargement of a structure.
Filling means the process of depositing or placing material to raise the level of a certain area.
Foreshore means the part of the shore lying between the crest of the seaward berm (or upper limit of wave action at high tide) and the ordinary low water mark, that is ordinarily traversed by the uprush and backrush of the waves as the tides rise and fall.
Geology means the relationship of the earth and the materials of which it is composed, to the changes which it has undergone, is undergoing, or is likely to undergo.
Geomorphology means the form and general configuration of the earth's surface and the changes that take place in the evolution of land forms.
Groin means a shore protection structure built (usually perpendicular to the shoreline) to trap littoral drift or retard erosion of the shore.
Hydraulics means the effects of water or other fluids in motion.
Improve” means to change an existing structure in order to enhance its integrity or value.
Jetty means a structure extending into a body of water, and designed to prevent shoaling of a channel by littoral materials, and to direct and confine the stream or tidal flow.
Littoral” means pertaining to the shore of a sea.
Littoral Current means a longshore current generated by waves breaking at an acute angle to the shoreline, and which moves generally parallel and adjacent to the shoreline within the surf zone.
Littoral drift” means material such as sand and stones moved near the shore in the littoral zone under the influence of waves and currents.
Lowest Living Floor means the lowest portion of the lowest horizontal support member of the lowest enclosed space used for living purposes, which includes working, sleeping, eating, cooking, recreation, or combination thereof. A floor used only for storage shall not be considered a living floor.
Maintenance means any work aimed at keeping a structure in an efficient operating and usable condition. Maintenance does not mean expansion or modification of a structure. Maintenance does not mean changing the general form or extent of the structure.
Material Physical Effect” means, including, but not limited to, any alteration to the existing characteristics of the beach or dune that could significantly, increase the danger of erosion, storm damage or flooding and includes the moving, digging, or removal of beach or the erection of any temporary or permanent structure.
Meteorology means the atmosphere and its phenomena especially as relating to weather.
Modernizing” means the act of updating portions of a structure to give a new character or appearance.
Modification” means a partial change in the form of a structure.
National Geodetic American Vertical Datum (NGAVD) means a fixed reference adopted by the U. S. Government as a standard geodetic datum for vertical elevations.
“Parcel of Real Property” means a single lot, the boundaries of which are set forth in a single deed or similar document.
“Person” means any legal entity including individual, firm, association, organization, partnership, business trust, corporation, company, contractor, user, operator, owner, or any State of local governmental agency (except as noted in Section 2.3) or public district or any officer or employee thereof any individual, partnership, corporation, association, institution, cooperative enterprise, municipality, commission, political subdivision or duly established legal entity.
Porch” means a roofed open or screened area adjoining an entrance to a building.
“Primary Dune” means that dune which roughly parallels the shoreline in a more or less continuous fashion and is generally the first and largest dune encountered moving landward from the shoreline.
Private Beach” means any beach which is not a public beach as defined in these regulations.
“Public Beach” means any beach owned in fee simple title by the Federal or State government or any county, city, town or municipality; or any beach for which the State has obtained an easement or agreement for public use.
Regulated Area” means the specific area within the defined beach that the Department is directed to regulate construction to preserve dunes and to reduce property damage. The regulated area shall be from the seaward edge of the beach as defined above to the landward edge of the third buildable lot in from the mean high water line.
Regulation means, unless stated otherwise, means the Regulations Governing Beach Protection and the Use of Beaches, promulgated pursuant to the Beach Preservation Act of 1972 (7 Del.C. Ch. 68) and all amendments thereto.
Repair means the act of restoring a structure to good condition after it has been damaged. Repair does not mean expansion or modification of a structure.
Revetment means a facing of stone, concrete, or similar material built to protect a shore, or shore structure against erosion by wave action or currents.
Roadway means any improved (hot-mix bituminous concrete or Portland cement concrete) public roadway (maintained by any governmental agency for use by the general public) in existence on the effective date of these Regulations.
Sand Fence means a barrier made of posts, wires and boards or synthetic materials including plastic, nylon and polyester intended primarily to trap and collect wind-blown sand, but which may also be used to channel human and vehicular traffic.
Seawall means an upright structure separating land and water areas, primarily designed to prevent erosion and other damage to upland areas due to wave action. A seawall is generally of heavier or more massive construction than a bulkhead.
Secretary means the Secretary of the Department of Natural Resources and Environmental Control.
Shoreline means the line of intersection of a body of water with the land.
Smallest Subset of Lots” means smallest identifiable group of lawfully subdivided, contiguous lots that exist within a subdivision, development or community separated by either roads or subdivision boundaries. If there are no roads or subdivision boundaries separating groups of lots, the smallest set of lots shall be seven lots.
Structure means any building, pipeline, dock, pier, wharf, boat ramp, groin, jetty, seawall, bulkhead, revetment, or any other piece of work artificially built.
Subdivide means the lawful division of any parcel of land into smaller parcels.
Substantial Amount means any amount, the moving, alteration, or removal of which could significantly increase danger of erosion, storm, damage or flooding.
Substantial Change means any alteration in the existing characteristics of the beach, as determined by the Secretary, that could significantly increase the danger of erosion, storm damage or flooding and including the moving, digging, or removal of beach material or the erection of any permanent of semi-permanent structure.
Substantial Damage” means the damage or destruction of any structure by an act of God to the extent that, in the judgment of the Department, 75% or more of the original structure, or if a building, more than 50% of the original foundation pilings, are unsuitable for incorporation into reconstruction of the structure.
Substantially Improved” means any reconstruction, rehabilitation, addition or other improvement to a structure, the total cost of which equals or exceeds 50% of the market value of the structure before the start of construction of the improvement.
Temporary Structure” means any not permanent, non-habitable structure that can be easily removed from the site within a short time frame using minimal equipment and man power. Examples include, but are not limited to, signs, benches, sheds, ramps, steps or walkways.
Update” means a change to an existing structure intended to improve its integrity or value.
2.0 Administrative Principles Permits and Letters of Approval
2.2.1 No person shall commence or conduct construction for which approval is required under these Regulations (see Section 4.0) unless and until a letter of approval or the proper permit has been issued.
2.3.1 The Department shall be subject to all the rules and requirements of these Regulations, except that in the performance of its erosion control duties pursuant to the authority granted by the Beach Preservation Act of 1972 (Title 7, Del.C. Ch. 68), the Department shall be exempt from the permit requirements of these Regulations. The Department shall, however, still be subject to any substantive standards and guidelines generally applicable to the construction and placement of shore protection structures and facilities.
2.4.2 An extension to the time limits of a permit or letter of approval that was issued after the effective date of these Regulations may be granted by the Division. Before any such extension may be granted, the person who was issued the letter of approval or permit shall submit a written request for the extension. The written request must be received by the Division at least fifteen (15) days prior to the expiration date of the letter of approval or permit and shall contain a detailed explanation of why the extension is necessary, and the date when the project will be completed. In determining whether such an extension will be granted the Division may consider the following: (1) whether reasonable progress is being made toward completion of the project; and (2) any changes that may have occurred in state, federal and local laws, regulations, rules, requirements or administrative policy, which are contrary to aspects of the project that had been originally approved by the Division. In lieu of an extension of the time limits in a letter of approval or permit, the Division may require a person to reapply for a letter of approval or a permit if the Division determines that the facts and circumstances relating to a previously approval approved project require a re-evaluation by the Division.
2.4.2.1 An extension to a letter of approval or permit shall not be granted more than three times.
2.5.1 At those locations where dune reconstruction has been approved by permit prior to the Regulations promulgated and effective date of these Regulations on August 13, 1981 and a construction setback line mutually agreed upon in writing between an owner/developer and the Division to be the landward toe of the reconstructed dune, that agreed upon line shall prevail over the current Building Line for the purposes of initial construction of a structure upon each affected parcel. Any subsequent additions to, or replacements of, the initially approved structure shall be subject to the Building Line as established pursuant to these Regulations and the appropriate sections thereof. Regardless of the developmental status of the parcels affected by this Section, all construction activities shall be subject to the Building Line upon its future re-establishment pursuant to Ssubsection 2.13 of these Regulations.
2.6.1 Except as otherwise provided in Ssubsections 2.6.2 and 2.6.3, any Person intending to commence any maintenance or repair work on any structure located in part or entirely seaward of the Building Line, shall apply in writing to the Division for a letter of approval or a permit. No person shall commence such maintenance or repair work until after being issued a letter of approval or a permit by the Division. (See also the provisions of Section 3.0 - Prohibited Activities and Section 4.0 - Activities Requiring a Permit or Letter of Approval from the Division).
2.6.2.23 The maintenance or repair work is to a structure, and is necessary because of damage being caused to the structure by some means other than wave action, a flood or erosion.
2.6.2.34 In the event of an extreme emergency, or warning thereof, which may involve grave and imminent danger of substantial property loss and/or personal injuries (e.g., an impending coastal storm), a person may perform work on a structure that is related to the protection of persons and said structure. However, before a person can commence any such emergency protection work, the person owning the structure on which such work shall be performed, or any agent thereof, shall contact the Division to request approval to perform the emergency protection work. The Division's approval or disapproval may be given to the owner, or agent thereof, either orally or in writing. After the emergency, or emergency warning period, the Division may require the removal of any emergency protection work performed pursuant to the provisions of this Section.
2.97 Other Requirements and Approvals
2.97.1 A person who is issued a permit or letter of approval by the Division pursuant to these Regulations is not exempted from obtaining any other permit or approval required by Federal, State or local laws, rules, regulations, and building and zoning ordinances.
2.108 General Permit Considerations
2.108.1 The Division, in considering applications, shall take into account the geology, geomorphology, meteorology and hydraulics of the area.
2.119 Sole Jurisdiction
2.119.1 All structures, devices and facilities for the enhancement, preservation or protection of beaches shall be under the sole jurisdiction of the Department. None of these shall be changed in any way except as provided in these Regulations.
2.120 Building Line Format
2.120.1 The Building Line shall be shown on topographic maps at a scale of one (1) inch equals fifty (50) feet for all shoreline areas of Delaware Bay and the Atlantic Ocean Coast from, and including, Pickering Beach to the Delaware-Maryland line at Fenwick Island, where privately owned structures, either existing or potential, may be affected by the establishment of the Building Line. The Building Line shall be shown as a series of straight lines connected together at points whose locations are identified by reference to the Delaware State Plane Coordinate System. No point shall be located more than 500 feet from an adjoining point.
2.131 Building Line Re-establishedment
2.131.1 When, in the opinion of the Secretary, storms or other natural phenomena cause a substantial permanent long term change in the seaward contour used to establish the Building Line, the Division may, following public hearing, re-establish the Building Line in its entirety or for the portions of the coast where the natural phenomena have caused substantial long term changes from information provided by topographic survey.
2.142 Re-establishment Effects on Lot Status
2.142.1 Re-establishment of the Building Line may place parcels of land, lawfully subdivided after the effective date of these Regulations, in a position of having insufficient space to construct a structure landward of the newly established Building Line. These parcels shall be subject to the appropriate permit requirements of Section 4.0 of this regulation.
2.153 Savings Clause
2.153.1 If any provision of these Regulations, or the application of such provision to any person or circumstances, is held invalid, the remainder of these Regulations, and the application of such provision to persons or circumstances other than those to which it shall have been held invalid, shall not be affected.
3.1.1.2 That the dimensions and location of the structure, or portions thereof, as proposed and other design aspects of the proposed construction project, including, but not limited to, parking lots and landscaping, cannot be modified or redesigned in order to have the final structure or portion thereof located either less seaward or completely landward of the Building Line in accordance with the four-step process outlined in subsections 3.1.1.2.1 through 3.1.1.2.4 of this regulation. (See 5.0 Section subsection 5.3.2 of this regulation for further explanation of what the Division will examine when a permit application is processed and whether or not the proposed structure, or portion thereof, may have to be modified or redesigned). However, the Division's determination as to the adequacy of the area of the parcel of land located landward of the Building Line, or as to any modification or redesign shall not conflict with any Federal, County or local laws, regulations or planning, zoning and building ordinances. (Note that this exception shall not apply if the provisions of subsection 3.1.1 of this regulation are applicable to the parcel of land in issue.) A person is not required to follow the requirements of the four-step process if they demonstrated through the submission of a sealed survey of the lot that all construction will be located entirely landward of the Building Line. In this case, the applicant must apply for a letter of approval as required by subsection 4.8 of this regulation.
3.1.1.3 Whenever a deck or porch is being constructed along with a new building, and said deck or porch is located at or above the lowest living floor of the building, said deck or porch is also making use of the foundation of said building (i.e. cantilevering) and said deck or porch shall not extend beyond the most seaward point that is the average distance seaward of the Building Line of any lawfully constructed building, or deck or porch of a similar nature that is already existing on any immediately adjacent parcels of real property located within the smallest subset of lots, within the same subdivision as the parcel of real property on which the building, or deck or porch is proposed. Future enclosure of the cantilevered deck or porch is prohibited and the area underneath the deck shall remain open and free of all obstructions.
3.1.1.4 The Division has made a written determination that the proposed structure, or a portion thereof, must be located seaward of the Building Line on a parcel of land in order that the intended purpose of the structure, or a portion thereof, will be achieved. The provisions of this Section and subsection may apply to the following types of structures: pipelines, docks, piers, wharves, boat ramps, and other harbor structures, as well as other types of structures that have the purpose of protecting the beach or shore, preventing beach erosion, and carrying out the purposes of the Act and the Regulations. However, for purposes of this Section and subsections, a building, patio, deck, swimming pool, carport, driveway or similar type of structure shall not be considered by the Division as being the type of structure that must be located seaward of the Building Line on a parcel of land in order to achieve the intended purpose of the structure. The Division may require that these latter types of structures, or portions thereof, be constructed landward of the Building Line, or not constructed at all.
3.2.1 Before any person shall commence construction of any modification or expansion pursuant to the provisions of this Section, said person shall apply for and be issued a letter of approval or a permit from the Division.
3.2.2 A person is prohibited from modifying or expanding any structure, or portion thereof, seaward of the Building Line, including those structures, or portions thereof, that were (1) constructed prior to the effective date of these Regulations, or (2) were constructed pursuant to the provisions of Ssubsection 2.4 of these this Regulations, unless one or more of the following exceptions apply to the proposed modification or expansion at issue:
3.2.21.1 The provisions of subsection 3.1.1.4 of the Regulations should be applied to the proposed modification or expansion because the intended purpose of the structure, or portion thereof, that is to be modified or expanded must be achieved. A permit shall be required for work under this Section. See Section 4.0 of these Regulations.
3.2.21.2 The modification or expansion consists of only a deck or porch located at or above the lowest living floor of a building, and the modification or expansion makes use of the foundation of said building (i.e. cantilevering) that existed prior to said modification or expansion. However, any deck or porch or portion thereof, that is modified or expanded pursuant to any provision of this Section shall not extend beyond the most average distance seaward point of the Building Line of any existing lawfully constructed buildings or decks or porches of a similar nature that is already existing on any immediately adjacent parcels of real property that is are located within the smallest subset of lots, within the same subdivision as the parcel of real property on which the modification or expansion is proposed. A letter of approval shall be required for work under this the Section. See Section 4.0 of these Regulations.
3.37 Other Prohibited Activities
3.37.1 The following activities are prohibited:
3.37.1.1 The operation of any motorized vehicle or machine on, over or across the primary dune on any State-owned or maintained beach except at those locations specified by the Department for such use (see current State Parks Rules and Regulations for additional rules);
3.37.1.23 Pedestrian traffic on, over or across the primary dune on any State-owned or maintained beach except at those locations specified by the Department for such use;
3.37.1.34 The alteration, moving or removal of any facility, improvement or structure installed or maintained by the Department for enhancement, preservation or protection of any beach; and
3.37.1.45 The damaging, destruction or removal of any trees, shrubbery, beach grass or other vegetation growing on any State-owned or maintained beach seaward of the Building Line.
4.2.1 Any person applying for a permit pursuant to the provisions of Section 4.0 of the Regulations must apply to the Division on an application form provided by the Division. Any person submitting a permit application form to the Division pursuant to the provisions of Section 4.0 of the Regulations shall at the same time submit an application fee of $150.00 for each permit application.
4.5.1 Except as provided pursuant to the provisions of Ssubsections 4.3, 4.4, or 4.5.3 of the Regulations, before any person commences the construction of any structure, or portion thereof, that would be located seaward of the Building Line, said person must have been issued a permit for the construction by the Division.
4.5.2 Before any permit is issued by the Division pursuant to Ssubsection 4.5.1 of the Regulations for the construction of any structure, or portion thereof, seaward of the Building Line, the person applying for the permit must provide the Division with written documentation that the proposed structure, or portion thereof, will be constructed in accordance with Division requirements relating to location and design criteria, which are intended to prevent or minimize any damage to the beach, and also all the provisions of the Act and the Regulations.
4.5.3 A person is not required to follow the requirements of Ssubsection 4.5.1 or 4.5.2 of the Regulations if a person intends to construct a structure, or portion thereof, that is going to be used only for the purpose of providing pedestrian access to and from the berm and foreshore across the dune zone. However, before any person commences the construction for such a beach access structure, or any portion thereof, that would be located seaward of the Building Line, said person must have been issued a letter of approval for the construction by the Division. A person may receive said letter of approval after applying to the Division on an application form that shall be made available by the Division. The Division shall process said application form pursuant to the procedures set forth in the provisions of Ssubsection 4.8 of the Regulations.
4.7.1 In rendering its decision on requests for permits and letters of approval pursuant to these Regulations, the Division shall make a determination regarding the potential adverse effects of the proposed structure or activity. If, in the opinion of the Division the potential for damage to the beach seaward of the Building Line is increased as a result of the proposed structure or activity, the Division may require the applicant to take mitigating measures (including, but not limited to beach nourishment, dune construction, and/or dune maintenance) to reduce such damage potential. When the Division requires such mitigating measures, the applicant, his their successors, heirs and assigns, shall be required to maintain these measures for the life of the structure or activity. Failure to comply with the mitigating measures prescribed by the Division shall be cause for removal of the structure or termination of the activity and restoration of the beach, as nearly as possible, to its original condition at the expense of those persons owning the structure or conducting the activity, or for the Division to take the necessary actions to bring the owner into compliance and to place a lien on such property for all reasonable costs and expenses incurred by the Division, whichever action the Division deems most appropriate.
5.3.1 In addition to the general categories of information that are provided for pursuant to Section 2.10 subsection 2.8 of the Regulations whenever the Division is deciding to issue a Permit pursuant to the Regulations, the Division shall take into consideration any relevant information relating to the following:
5.3.2 In determining if the Division shall require that the dimensions or location of a proposed structure, or portion thereof, or other design aspects are to be modified or redesigned pursuant to the provisions of Ssubsection 3.1.1.2 of the Regulations, the Division, in addition to what is required in Sections 2.10 subsections 2.8 and 5.3.1, shall balance the actual and potential hardships or benefits that may be experienced by the person owning the structure or portion thereof against the actual and potential hardships or benefits that the State, the public and adjacent landowners may experience. The Division while carrying out the balancing test may take into consideration the following factors:
5.3.4 In addition to the provisions of Ssubsection 4.7 of the this Regulations, the Division may establish special permit conditions, and/or require modification of any proposed structure or activity in order to (1) prevent increased erosion damage to the parcel of real property in issue, nearby parcels or real property, or public lands, and/or (2) reduce public expenditures for beach protection.
6.1.1 The applicant shall not commence any activity regulated under Section 4.0 of the Regulations until such time as a final determination has been rendered on the matter and the appeal period has expired without an appeal having been taken, or, if appealed, the appeal process has been exhausted.
6.2.1 Any person or persons, jointly or severally, or any taxpayer, or any officer, department, board or bureau of the state, aggrieved by any decision of the Division, many appeal to the Secretary by giving written notice of appeal to the Secretary, and to the applicant if other than the appellant. Such notice shall be by certified or registered mail within twenty (20) calendar days of the Division's decision, and shall specify: (1) the interest of the appellant; (2) the basis of the appeal; and (3) the specific law(s), regulation(s) or other legal authority(ies) alleged to have been violated by the Division's decision. A public hearing may be held on any such appeal, upon request, whenever the Secretary deems the hearing request meritorious. A request for a public hearing shall be deemed meritorious when the appeal is not frivolous and the notice of appeal exhibits a reasonable familiarity with the Division's decision. The public hearing shall be conducted as follows:
6.2.1.1 For any hearing on an application, notification shall be served upon the applicant as summonses are served or by registered or certified mail not less than twenty (20) calendar days before the time of said hearing. Notice shall also be published in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the State not less than twenty (20) calendar days before the time of said hearing.
6.2.1.2 The appellant may appear personally or be represented by counsel at the hearing and produce any competent evidence in his their behalf. The Secretary or his the Secretary’s authorized designee may administer oaths, examine witnesses, and issue, in the name of the Department, notices of hearings or subpoenas requiring the testimony of witnesses and production of books, records or other documents relevant to any matter involved in such hearing.
6.2.1.3 A verbatim transcript of testimony at the hearing shall be prepared and shall, along with the exhibits and other documents introduced by the Secretary or other parties, constitute the record. The Secretary or his the Secretary’s authorized designee shall make findings of fact based on the record. The Secretary shall then enter an order that will best further the purposes of the Act and these Regulations, and the order shall include reasons. The Secretary shall promptly give written notice of the order to parties who participated in the hearing.
8.1.1 The Secretary shall have the power to issue a cease and desist order to any person who violates any provision of the Act or Regulations. Any such cease and desist order shall expire (1) after thirty (30) days from the date of its issuance, or (2) upon withdrawal of said order by the Secretary, or (3) when the order is superseded by an injunction, whichever occurs first.
8.2.1 Any person who violates any provision of the Act, or Regulations, or violates a cease and desist order of the Secretary, shall be fined not less than $100 nor more than $5,000 or imprisoned for not more than two (2) years, or both, and, in addition, shall reimburse the Department for its reasonable expenditures in remedying damage created. Whoever, without authority from the Department, alters, moves or carries away any substantial amount of beach material (including, but not limited to, sand or pebbles), or alters, damages or destroys any groin, jetty, bank, dike, dune, bulkhead, seawall, breakwater or any other facility, improvement or structure installed or maintained by the Department for the enhancement, preservation or protection of the beach, shall be liable for a civil penalty imposed by the Court of Common Pleas of not less than $200 nor more than $5,000 for each completed violation. If the violation has been completed and there is a substantial likelihood that it will recur or if it is a continuing violation, the Department may also seek a permanent or preliminary injunction or temporary restraining order in the Court of Chancery.
9.1.1 The Secretary, or his the Secretary’s authorized designee, shall hold a public hearing on any changes to the Regulations that he shall propose for adoption. For a hearing on the proposed changes to the Regulations, notification shall be published in a newspaper of general circulation in each county of the State and in a daily newspaper of general circulation throughout the State. Such notification shall include (1) a brief description of the proposed changes to the Regulations, (2) the time and place of the hearing, and (3) the time and place where copies of the proposed changes may be examined and/or obtained. Such notice shall also be sent to any person who has requested notification from the Department by providing their name and mailing address.
Last Updated: December 31 1969 19:00:00.
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