CHAPTER 266 - REGIONAL PLANNING

AN ACT TO AMEND CHAPTER 168 OF THE REVISED CODE OF DELAWARE, 1935, ENTITLED "REGIONAL PLANNING", BY PROVIDING FOR REORGANIZATION OF THE REGIONAL PLANNING COMMISSION OF NEW CASTLE COUNTY AND FOR THE ALTERATION, ENLARGEMENT AND EXTENSION OF ITS DUTIES, POWERS AND FUNCTIONS.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:

Section 1. That 5787 to 5802, inclusive, being Sections 1 to 16, inclusive, of Chapter 168 of the revised Code of Delaware, 1935, be and the same are hereby repealed and new sections substituted in lieu thereof, as follows:

5787. Sec. 1. WORDS AND PHRASES CONSTRUED:—

The words and phrases used in this Chapter, unless the same shall be inconsistent with the context, shall be construed as follows: (1) "Commission" shall refer to and mean "Regional Planning Commission of New Castle County" created by this Chapter; (2) "District" shall refer to and mean "Regional Planning District of New Castle County" created by this Chapter; (3) "Levy Court" shall refer to and mean "Levy Court of New Castle County"; (4) "Recorder's Office" shall refer to and mean "Recorder of Deeds in and for New Castle County"; (5) "Road" shall include any "road", "street", "highway", "bridge", "viaduct", "tunnel", "parkway", "freeway" or other public thoroughfare; (6) "Subdivision" shall mean the division of a lot, tract or parcel of land into two or more lots, plots, sites, tracts, parcels or other divisions for the purpose, whether immediate or future, of sale or building development, and includes resubdivision and, when appropriate to the context, relates to the process of subdividing or to the land or area subdivided; provided that the definition of subdivision shall not include a partition of exclusively agricultural land into parcels none of which is less than ten acres in area.

For the purpose of promoting the public health, safety, morals, comfort, convenience, prosperity, and general welfare in that portion of New Castle County which is not included within the corporate limits of any City or Town, unless any territory within such corporate limits is included upon request made by the governing body or authority of any such City or Town, a department to be known as the Regional Planning Commission of New Castle County is hereby created to perform the duties set forth in this Chapter with the right to exercise all powers granted to it in this Chapter and all powers incident thereto; and the said area in which said Commission shall exercise jurisdiction, shall be known as Regional Planning District of New Castle County.

5789. Sec. 3. MEMBERS; TERMS; VACANCIES; COMPENSATION; EXISTING MEMBERS:—

On and after the effective date of this Act the said Regional Planning Commission of New Castle County shall consist of nine members as follows:

The Chief Engineer of the Street and Sewer Department of the City of Wilmington, The Chief Engineer of the Board of Water Commissioners of the City of Wilmington, The Engineer and Superintendent of the Board of Park Commissioners of the City of Wilmington, the County Engineer of New Castle County (formerly and sometimes now called "County Road Engineer of New Castle County"), and five members to be appointed during the month of June, A. D. 1941, one of whom shall be appointed by the State Highway Department of the State of Delaware, one of whom shall be appointed by the State Board of Health of the State of Delaware, two of whom shall be appointed by the Levy Court of New Castle County, and one of whom shall be appointed by the Mayor of The Mayor and Council of Wilmington.

The terms, as members of the Commission, of the Chief Engineer of the Street and Sewer Department of the City of Wilmington, Chief Engineer of the Water Commissioners of the City of Wilmington, Engineer and Superintendent of the Board of Park Commissioners of the City of Wilmington, and County Engineer of New Castle County, shall come to an end at the end of the respective terms for which they were chosen as such Chief Engineer of the Street and Sewer Department of the City of Wilmington, Chief Engineer of the Water Commissioners of the City of Wilmington, Engineer and Superintendent of the Board of Park Commissioners of the City of Wilmington and County Engineer of New Castle County. The members of the Commission appointed by the State Highway Department and by the State Board of Health shall serve at the pleasure of said State Highway Department and said State Board of Health, respectively.

The members first appointed by the said Levy Court shall be appointed for the terms of one year and three years, respectively, and the member first appointed by the said Mayor shall be appointed for a term of two years. Thereafter, said members appointed by the said Levy Court and by the said Mayor shall be appointed for the term of three years as follows:

During the month of June, A. D. 1942, and every third year thereafter, the said Levy Court shall appoint a member to said Commission. During the month of June, A. D. 1943, and every third year thereafter, the said Mayor shall appoint a member to said commission. During the month of June, A. D. 1944 and every third year thereafter, the said Levy Court shall appoint a member to said Commission. The members so appointed shall be resident of New Castle County and their terms of office shall commence on the first day of July following their appointment. When any vacancy occurs in said Commission, either by death, resignation, expiration of term of office, removal, or otherwise, of any person so appointed, the vacancy shall be filled for the unexpired term by the body or person which appointed the member to the office in which such vacancy occurred. The members of said Commission shall serve without compensation, but shall be paid their necessary expenses incurred in the performance of their duties. Each member shall serve until his successor is appointed and qualified.

Any member of said Commission serving as such at the time when this Act shall take effect and whose term does not expire on or before the first day of July, A. D. 1941, shall continue to be a member of said Commission until the expiration of his term of office.

5790. Sec. 4. ORGANIZATION; OATH; RULES; RECORDS; OFFICE; SPECIAL SURVEYS; SECRETARY, OTHER ASSISTANCE:—

On the second Monday in July of each year the said Commission shall convene and organize by selecting a chairman. Before entering upon the duties of the office, each member shall take and subscribe the oath or affirmation as prescribed by the Constitution. The Commission may create and fill such other offices in addition to Chairman as it may determine. It shall adopt rules for the transaction of business and shall keep a record of its resolutions, transactions, findings and determinations, which record shall be a public record. The Public Building Commission for the City of Wilmington and New Castle County shall provide suitable and convenient office space for the use and occupancy of the Commission, and the Levy Court of New Castle County shall furnish and supply all necessary equipment for the said office.

The Commission shall appoint a Secretary who shall serve for such time, and perform such duties and receive such compensation as the Commission may prescribe. He shall give bond if required by the Commission in such amount as the Commission may require. The Commission may appoint, discharge at pleasure and fix the compensation of such employees and staff or may contract for the services of such persons, firms, or corporations as, from time to time, in its judgment may be necessary to the exercise of its powers under this Chapter, and may require any employee to give bond with surety approved by it in a sum to be fixed by the Commission.

The said Levy Court of New Castle County, or the Mayor or Council of the City of Wilmington may, from time to time, upon request of the Commission and for the purpose of special surveys, assign or detail to the Commission any members of the administrative staffs or agencies of said County or City, or may direct any such staff or agency to make for the Commission special surveys or studies requested by the Commission.

5791. Sec. 5. MASTER PLAN; AMENDMENT OF PLAN; APPROVAL:—The Commission shall make or cause to be made and adopt and may, from time to time, amend, extend, add to or carry into greater detail, a master plan for the development of the District. Such master plan, including maps, plats, charts and descriptive matter, shall show the Commission's recommendations for the development of the District, which may include, among other things, such matters as the location, arrangement, character and extent of roads, public reservations, railways, parks, parkways, playgrounds, civic centres, water supplies, waterways, waterfronts, beaches, docks and wharves, forests, squares, aviation fields, airways, wildlife refuges, open development areas and other ways, grounds and open spaces, sewers and sewage disposal, drainage, the general location of public, including Federal, buildings and other public properties, the general location and extent of public utilities and terminals, whether publicly or privately owned or operated (excepting, however, privately owned public utilities engaged in furnishing light, heat, power, transportation, or communication by telephone, or by telegraph or otherwise, as to which the provisions of this act shall not apply), the preservation and development of forest and natural scenery, the general location and extent of water conservation works, the general location and extent of housing and community projects and developments, the major uses of land, the distribution and density of population and other factors of urban, suburban, rural and regional planning.

As the work of making the said master plan progresses, the Commission may, from time to time, adopt a part or parts thereof, any such part to cover one or more sections of the District or one or more of the aforesaid or other functional subjects matter to be included in the plan. Before adopting the plan or any substantial part thereof or any substantial extension, enlargement or amendment thereof or addition thereto, the Commission shall hold at least one public hearing thereon, at least fifteen days' notice of the time and place of which shall be given by one publication in a newspaper of general circulation in the District. The adoption of the plan or any part thereof or amendment, extension, enlargement or addition thereof or thereto shall be by resolution of the Commission carried by the affirmative votes of not less than five members of the Commission. The resolution shall refer expressly to the maps and descriptive and other matter intended by the Commission to form the whole or part of the plan and the action taken shall be recorded on the map, plan or descriptive matter by the identifying signature of the Chairman and Secretary of the Commission. Whenever the said Commission shall have adopted a master plan or any part thereof or any amendment, extension, enlargement or addition thereof or thereto, it shall submit the said master plan or part thereof or such amendment, extension, enlargement or addition thereto to the said Levy Court for its approval. If said master plan, part thereof, or amendment, extension, enlargement or addition thereto, shall pertain to the road system of or any road in New Castle County, said master plan or part thereof of such amendment, extension, enlargement or addition thereto shall also be submitted to the State Highway Department for its approval as to the roads shown thereon. The failure of either the said Levy Court or the said State Highway Department to act upon the said master plan or part thereof or any such amendment, extension, enlargement, or addition thereof within sixty days after the same shall have been submitted to the said Levy Court or State Highway Department, shall be deemed an approval of the said master plan or part thereof or amendment, extension, enlargement or addition thereto, unless the said Levy Court or State Highway Department shall notify the Commission in writing that a longer period, but not exceeding thirty additional days, is required for consideration thereof.

5792. Sec. 6. COOPERATION WITH OTHER AGENCIES:—

The said master plan may cover areas within the corporate limits of any City or Town in New Castle County, to the extent that such areas shall be deemed, in the judgment of the Commission, to be related to the planning of the District; provided, however, that the master plan shall have no legal effect in such areas except as in pursuance of a request for the inclusion of such area within the District as provided in Section 2. The Commission shall encourage the cooperation of the Cities and Towns within New Castle County in any matter concerning the said master plan and, if requested, shall advise the governing body or authority of any City or Town in New Castle County with respect thereto.

Upon the request of the said Levy Court or the Mayor or the Council of the City of Wilmington or the said Highway Department or the said State Board of Health or any other State, County or Municipal agency, board, department, commission or authority, it shall be the duty of the Commission, upon such terms as may mutually be agreed upon to prepare plans and supply information relating to any of the matters set forth in this Chapter.

In exercising the powers conferred by this Act the Commission is further empowered to act in conjunction and cooperation with representatives, agencies or officers of the United States Government, the State of Delaware, any other State, or any County, City or Town within or without the State of Delaware.

5793. Sec 7. SUBMISSION OF PROPOSED ACTION TO COMMISSION:—From and after the time when the Commission shall have adopted the master plan of the District or any part thereof and such master plan or any part thereof shall have been approved by the said Levy Court, then and thenceforth no road, park or other public way or ground, no public (including Federal or State) building or structure, and no public utility, whether publicly or privately owned (excepting, however, privately owned utilities exempted from the provisions of this act by 5791. Sec. 5. hereof), shall be located, constructed or authorized in the District or in the part thereof covered by such master plan or part thereof, until and unless the proposed location and extent thereof shall have been submitted to and approved by the Commission; provided, however, that in the event of disapproval, the Commission shall communicate its reasons to the State, federal, county or municipal board, body or official proposing to and having the authority to determine the location and extent of such public way, ground, building, structure or utility and thereupon such board, body or official shall have the power to overrule such disapproval by a vote of not less than two-thirds of its entire membership and upon such overruling, such board, body or official in charge of the proposed construction or authorization may proceed therewith. The widening, extension, relocation, narrowing, vacation, abandonment or change of use of any road, park or other public way or ground in the District, or the acquisition or sale of any land in the District by any public board, body or official shall be subject to similar submission and approval, and the failure to approve may be similarly overruled. The failure of the Commission to act within forty days from and after the date of official submission to it shall be deemed an approval, unless a longer period be granted by the submitting board, body or official.

5794. Sec. 8. SUBDIVISION PLATS; RECORDING; FEES; REGULATIONS; No plat of any subdivision of land within the District shall be received or recorded by the Recorder of Deeds in and for New Castle County or filed for recording in the said Recorder's office until the said plat shall have been submitted to and approved by the Commission and such approval be endorsed in writing on the plat by its Chairman or Secretary. The filing or recording of a plat of a subdivision without the approval of the Commission shall be void and shall, upon demand of the Commission, be expunged from the records.

On the basis of the estimated cost of the services to be rendered by it in connection with the consideration of subdivision plats and the work incident thereto, the Commission may fix the scale of fees to be paid to it for its subdivision work and may from time to time amend such scale. In the case of each subdivision plat submitted to the Commission, the fee thus fixed shall be paid before said plat is approved or disapproved, but such fees shall not exceed the actual cost to the Commission of the services and shall be paid by the person requesting the Commission's approval.

Every plat of any subdivision shall be prepared upon cloth of such size and character, with such notations, information and markings, and accompanied by such data and information as the Commission may, by regulation, prescribe. Every subdivision shall have such permanent markers, boundary stones or stations as the Commission shall prescribe, which shall be shown and designated on the plat thereof. The Commission shall prescribe the procedure for the submission of subdivision plats and action in respect thereto.

5795. Sec. 9. ADOPTION OF REGULATIONS GOVERNING SUBDIVISION OF LAND WITHIN DISTRICT; PUBLIC HEARING:—

In exercising the powers granted to it by Sections 8, 9 and 10 of this Chapter the Commission shall adopt regulations governing the subdivision of land within the District. Such regulations shall provide for the harmonious development of the District; for the coordination of roads within the subdivision with other existing planned or platted roads or with other features of the District, or with the Commission's master plan or with the official Map of the District; for adequate open spaces for traffic, recreation, light and air, and for school sites; for the conservation of or production of adequate transportation, water, drainage and sanitary facilities; for the avoidance of population congestion; for the avoidance of such scattered or premature subdivision of land as would involve danger or injury to health, safety or welfare by reason of the lack of water supply, drainage or other public services or necessitate an excessive expenditure of public funds for the supply of such services; or for other benefits to the health, comfort, safety, convenience and welfare of the present and future population of the District.

Such regulations shall include provisions as to the extent and manner in which roads shall be graded and improved, curbs, gutters and sidewalks shall be built, water, sewer and other utility mains, piping, connections and other facilities shall be installed and trees shall be planted as a condition precedent to the approval of a plat. The regulations of the Commission may provide for the tentative approval of a plat previous to such improvements and installations; but any such tentative approval shall not be entered on the plat or entitle the plat to filing or record. In lieu of the completion of such improvements prior to the approval of the final plat, the Commission may require a bond with surety satisfactory to it to secure to the Commission the actual construction and installation of such improvements and installations at a time and according to specifications fixed by or in accordance with the regulations of the Commission. The Commission is hereby granted the power to enforce such bond by all appropriate legal and equitable remedies.

Before adoption of its subdivision regulations or any substantial amendment thereof, a public hearing thereon shall be paid* by the Commission, thirty days' notice of the time and place of which shall be given by one publication in a newspaper of general circulation in the District.

*So enrolled.

5796. Sec. 10. APPROVAL OR DISAPPROVAL OF SUBDIVISION PLAT BY COMMISSION; HEARING:—

The Commission shall approve or disapprove a subdivision plat within forty days after the submission thereof; otherwise such plat shall be deemed to have been approved and a certificate to that effect shall be issued by the Commission upon demand; provided, however, that such period may be extended by mutual agreement between the Commission and the applicant for the Commission's approval. The grounds of disapproval of any plat shall be stated upon the records of the Commission and a copy of such statement shall be furnished to the applicant. No plat shall be acted upon by the Commission without affording a hearing thereon, notice of the time and place of which shall be sent by registered mail to said applicant not less than five days before the date fixed therefor; provided, however, that in his application applicant may waive the requirement of such hearing and notice.

5797. Sec. 11. APPROVAL NOT AN ACCEPTANCE OF DEDICATION OF ROAD OR LAND:—

The approval of a plat by the Commission shall not in and of itself be deemed to constitute or effect an acceptance by the public of the dedication of any road or land shown on the plat.

5798. Sec. 12. UNLAWFUL TO DISPOSE OF LAND IN UNAPPROVED SUBDIVISION:—

The promotion or negotiation of the sale, or the agreement to sell or lease, or the conveyance or the lease or other disposition, of any land within any subdivision within the District unless and until a plat of such subdivision has been approved by the Commission and filed or recorded in the Recorder's Office, is hereby declared a misdemeanor and punishable as other misdemeanors are punishable under Section 16 of this Chapter, and the description of such lands by metes and bounds in the instrument of conveyance or other document used in the process of selling, leasing, conveying or other disposition shall not exempt the transaction from such penalties or from the remedies provided in this Chapter. The Commission may enjoin such prohibited sale conveyance, agreement, lease or other disposition by court action.

5799. Sec. 13. UNLAWFUL TO RECORD OR TO FILE FOR RECORDING:—

The receipt for filing or recording or the recording by the said Recorder's office or the filing for recording in said Recorder's office of any plat of a subdivision of land within the District which shall not have received the approval of the Commission duly endorsed on the plat is hereby declared a misdemeanor and punishable as other misdemeanors are punishable under Section 16 of this Chapter.

5800. Sec. 14. OFFICIAL MAP OF THE DISTRICT; AMENDMENTS; PERMITS; PROHIBITIONS AND RESTRICTIONS:—

There is hereby established an Official Map of the District. The Commission shall be the maker and custodian of said map. Said map shall show the locations and lines of the roads within the District existing and established by law as public roads at the time of the preparation and setting up of the map by the Commission; also the locations of the lines of roads on subdivision plats which shall have been approved by the Commission at or previous to said time. The map shall be deemed made and shall be in effect as the official map when the aforesaid road lines shall have been placed thereon.

The Commission shall cause the said Map and all amendments thereof to be recorded in the office of the Recorder of Deeds in and for New Castle County. Thereafter there shall be placed upon the official map from time to time and become a part thereof the lines of the roads in accordance with and as shown upon each subdivision plat as approved by the Commission.

The Levy Court may order, from time to time, other additions or modifications of the Official Map; provided, however, that before taking any such action, said Levy Court shall hold a public hearing thereon, notice of the time and place of which shall be given not less than thirty days previous to the time fixed therefor by one publication in a newspaper of general circulation in the District, and, insofar as their addresses appear in a current directory for the District or on county official records, by mail to the record owner of the land on or abutting which the proposed road lines are located; and provided further that such proposed addition to or modification of the Official Map shall first be submitted, for approval or disapproval, to the Commission, and, in the event of such Commission's disapproval, the order for such addition or modification shall require the favorable vote of not less than two-thirds of the entire membership of the Levy Court. Any road line location determined by the Commission's surveys authorized by Section 15 of this Chapter, shall be deemed approved by the Commission. The Commission shall place the road lines thus ordered by the Levy Court upon the Official Map and they shall become a part thereof.

The placing of any road or road line upon the Official Map shall not in and of itself constitute or be deemed to constitute the opening or establishment of any road or the taking or acceptance of any land for road purposes.

From and after the time when the Official Map shall have been recorded, no building shall be erected within the District on any lot of three acres or less in area and no permit shall be issued for the erection of any such building unless the road giving access to such lot shall have been duly placed on the Official Map.

The governing body of any City or Town within the District or the said Levy Court or any State, County, District, Municipal or local board, body, bureau, board, department or official authorized by law to accept, construct, establish, lay out, open, improve, grade, pave, curb or light or lay or to authorize or construct water mains or sewers or other utilities or facilities or connections in, on, over or under any road in the District shall not accept, construct, establish, lay out, open, improve, grade, pave, curb or light any such road within the District or lay, construct, or authorize any water mains or sewers or other utilities or facilities or connections to be laid in any road within the District unless and until such road shall have been duly placed on the Official Map.

No building or part thereof shall be constructed within the lines of any road existing or proposed as shown upon the Official map; provided, however, that the Board of Adjustment shall have the power upon an application filed with it by the owner of any such land, by a vote of not less than a majority of its members, to grant a permit for a building or part thereof within such mapped road location in any case in which such Board finds, upon the evidence and arguments presented to in* upon such appeal (a) that the entire property of the applicant of which such mapped road location forms a part cannot yield a reasonable rate to the owner unless such permit be granted, and (b) that the interest of the District in preserving the integrity of the Official Map and the interest of the owner of the property in the use of his property and in the benefits of the ownership thereof, the grant of such permit is required by considerations of justice and equity. Before taking any action upon the appeal, the Board shall give a hearing at which the parties in interest shall have an opportunity to be heard. At least fifteen days' notice of the time and place of such hearing shall be given to the applicant by mail at the address specified by him in his appeal petition and by one publication in a newspaper of general circulation in the District. In the event that the Board grants a building permit upon any such application, it shall specify the exact location, ground, area, height, and other details as to the extent, character and duration of the building or part thereof for which the permit is granted and may impose other reasonable requirements as a condition under a Zoning Law applicable to the District, the Commission shall act in lieu of such board with regard to any application under the provisions of this paragraph and shall follow the procedure with respect to such appeal which is specified in said paragraph. The owner or any other person claiming to be affected by the action of the Commission may, within thirty days after the date of such action, appeal to the Levy Court, whereupon the Commission shall certify its finding with respect to such action to the Levy Court, which shall have the power to affirm or overrule the decision of the Commission.

*So enrolled.

5801. Sec. 15. AUTHORITY TO GO UPON LAND; ACCESS TO RECORDS; SURVEYS:—

In the performance of the functions and duties of the Commission, any member thereof or any employee or agent thereof shall have the right to enter and go upon, at reasonable times (Sundays and holidays excluded) between the hours of 8 a. m. and 5 p. m. any lands in the district, either public or private, and to make surveys and to place and maintain necessary monuments and markers thereon, but such entry shall be made with due care and regard for the protection and preservation of property. Any restraint or hindrance offered to such entry, examination, survey or placing or maintenance of monuments or markers by an owner or tenant or agent of said owner or tenant shall be a misdemeanor punishable under Section 16 of this Chapter. In the performance of the functions and duties of the Commission, any member thereof, or any employee or agent thereof shall have free access, without expense, to all State, County, Municipal and other public records.

The Commission is empowered in pursuance of the development and carrying out of its master plan, to make from time to time surveys for the exact location of the lines of future roads, road relocations, road extensions, road widenings or narrowings in the District or any portion thereof, and to make plats of the areas thus surveyed, showing the Commission's recommendations for the exact locations of such future road lines.

5802. Sec. 16. VIOLATIONS OF CHAPTER; REMEDIES FOR VIOLATIONS; PENALTIES FOR VIOLATIONS:—

The construction, reconstruction, erection, structural alteration or use of any building or other structure or the use of any land in violation of any of the provisions of this Chapter or any of the provisions of any regulation enacted or adopted under this Chapter or of any decision made under this Chapter or under such regulation is hereby declared to be a misdemeanor. The issuance of any permit for any act or purpose which would be in violation of any such provision or decision is hereby declared to be a misdemeanor. In addition to all other remedies provided by law, the Commission, the said Levy Court, the said Mayor and Council of Wilmington, any public official or any municipality or political subdivision within the District, or any neighboring property owner or occupier who would be specially damaged by any such violation, may institute injunction, mandamus or any other appropriate action or proceeding to prevent such unlawful construction, reconstruction, erected*, alteration or use, and any court of competent jurisdiction is hereby granted jurisdiction to issue restraining orders and temporary or permanent injunctions or mandamus or other appropriate forms of remedy or relief.

Every act or omission designated as a misdemeanor in this Chapter shall be punishable before any Justice of the Peace or the Court of Common Pleas for New Castle County, and the offender shall, upon conviction, be subject to a fine not exceeding One Hundred Dollars. Where such act or omission is of a continuing nature or is persisted in, in violation of the provisions of this Chapter or of any regulation enacted or decision made under the powers granted in this Chapter, each and every day during which such act or omission continues or is persisted in shall be deemed a separate misdemeanor.

*So enrolled.

Section 2. This Act shall take effect on the first day of June, A. D. 1941.

Section 3. All acts or parts of acts inconsistent with the provisions of this Chapter are hereby repealed to the extent of such inconsistency.

Approved May 21, 1941.