CHAPTER 754

AN ACT TO AMEND TITLE 17, DELAWARE CODE, CHAPTER 1, RELATING TO THE PRESERVATION OF LAND FOR FUTURE HIGHWAY RIGHTS-OF-WAY REQUIREMENTS; TITLE 9, DELAWARE CODE, SECTIONS 1154, 4809 AND 6809 RELATING TO MAPS OF NEW CASTLE, KENT AND SUSSEX COUNTIES REQUIRING THE COUNTIES TO ADVISE THE STATE HIGHWAY DEPARTMENT OF THE LOCATION OF FUTURE HIGHWAY RIGHTS-OF-WAY; TITLE 9, DELAWARE CODE, SECTIONS 3005, 4816 AND 6302 RELATING TO THE ISSUANCE OF BUILDING PERMITS IN NEW CASTLE, KENT AND SUSSEX COUNTIES FOR CONSTRUCTION WITHIN THE LINES OF ANY FUTURE HIGHWAY RIGHTS-OF-WAY.

WHEREAS, the right-of-way requirements involved in the long range plans for highway construction or reconstruction cannot be determined precisely prior to the approval of alignment of such projects; and

WHEREAS, land development on prospective rights-of-way, prior to alignment determination, may adversely affect the procurement of needed land; and

WHEREAS, inability to secure required rights-of-way may result in excessive costs for the construction or reconstruction of certain highways throughout the State; and

WHEREAS, the public disclosure of limits preserved for future right-of-way requirements would provide for orderly planning and private development of land adjacent to highways of this State;

NOW, THEREFORE,

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Subchapter III, Chapter 1, Title 17, Delaware

Code, is amended by adding a new Section 147, to read as follows:

§ 147. Corridor Routes

(1) The provisions of this section will be applicable only to highways classified as corridor routes; such classification shall be based upon a definition of "Corridor Routes" established jointly by the Highway Department and the State Planning Office.

(2) The Department may determine, and from time to time, redetermine, upon recommendations of the Director of Operations, the State's anticipated future needs for rights-of-way, based upon a long range comprehensive plan, for State highways not in existence at the time of such determination or redetermination.

(3) The Department shall, upon making any determination of future rights-of-way needs under subparagraph (2) above, refer such determination to the State Planning Office for review.

(3.a) The State Planning Office shall, within forty-five (45) days after referral of the future requirements to that office, indicate in writing to the Director of Operations, its position relative to the proposed rights-of-way requirements; the Department shall consider this position before making a final decision on the tentative determination.

(3.b) If after consideration of the position assumed by the State Planning Office the Department decides to proceed with the determination, it shall make through a public location hearing, disclosure of the same including the approximate location and route of any proposed future right-of-way upon a Department Map to be designated "Future Right-of-Way Map — Tentative", which shall be maintained currently and shall constitute a public record to which the public at large shall have access.

(4) The Department shall, after incorporating a determination of future rights-of-way requirements on a "Future Right-of-Way Map — Tentative", refer such determination for review to the local governing bodies of the several counties and municipalities in which such highway right-of-way shall be located or shall affect.

(4.a) The local governing bodies of the several counties and municipalities to whom referred shall have the right, within 90 days of such referral, to request a hearing before the members of the Department and/or submit statements of position relative to the tentative requirements. If a hearing, of which the public shall be given notice and which the public may attend, is requested the members of the Department shall conduct such hearing.

(4.b) After consideration of the proceedings of the hearing and/or statements submitted by the local governing bodies of the several counties and municipalities, the members of the Department shall render a written decision relative to the determination of future rights-of-way requirements and may thereafter adopt such determination and any amendment thereto as to future right-of-way needs and make public disclosure of the same, including location and route of said future Right-of-Way upon a Department map to be designated "Future Right-of-way Map —Final" which map shall be maintained currently with such modifications and adjustments as may, from time to time, be required as a result of design refinements and shall constitute a public record to which the public-at-large shall have access.

(4.c) Copies of the "Future Right-of-Way Map — Final" established by the Department shall be filed with the several local governing bodies and shall be utilized by them in determination of future land use, development, or improvement; such copies shall be maintained currently and shall constitute a public record to which the public-at-large shall have access.

(5) Land so designated under subparagraph (4.c) above upon the "Future Right-of-Way Map — Final" shall thereafter, and so long as it remains upon said map, be set aside for highway purposes, except that the Department may, at its discretion, authorize temporary use of such land for non-highway purposes which will not interfere with highway planning or construction. Department authorization for temporary use of land shall be required only in those instances in which such use, in the opinion of the Department, would increase the cost to the State in the future procurement of such land for highway purposes. Nothing in this section shall preclude the owner or owners of land set aside for highway purposes in accordance with the provisions of this section from utilizing said land as they may desire, prior to procurement by the State, provided such utilization of the land does not increase the potential cost to the State at the future date of negotiations for procurement.

(6) The adoption of the map referred to under paragraph (5) and the inclusion and location thereon of any future highway right-of-way route or lines, shall not, in and of itself, constitute and be deemed to constitute the establishment of any highway and acceptance of any land for highway purposes, and shall not constitute the taking or application for public use. However, to the extent lands so designated under paragraph (5) above may be judicially determined to be taken or applied to public use under the Delaware Constitution, Article 1, Section 8, the Department may, in the exercise of its power of eminent domain, acquire the same by condemnation and in the manner prescribed in Chapter 61, Title 10, Delaware Code, if the Department cannot reach agreement with the owner as to the value thereof.

Section 2. Section 132 (c) (4) of Subchapter III, Chapter I, Title 17, Delaware Code, is amended by adding thereto the following immediately following the ";" at the end thereof:

further provided, that the provisions of Section 147 of this chapter shall not be deemed to be inconsistent with the provisions hereof.

Section 3. Section 3005, Title 9, Delaware Code, is amended by adding thereto a new subparagraph (aa) to read as follows:

(aa) Except in instances in which the State Highway Department, or its successor has indicated authorization for temporary use of land set aside for future right-of-way needs, as provided in Section 147, Title 17, Delaware Code, no building permit shall be issued for the erection of any building, or for the construction of any improvement, or structure on any part of any land which lies or is located within the lines of any land designated and set aside for future highway right-of-way needs as appears on the State Highway Department's Future Right-of-Way Map — Final except as hereinafter provided in subparagraph (c).

Section 4. Section 3005, Title 9, Delaware Code, is further amended by adding thereto a new subparagraph (c) to read as follows:

(c) A building permit, otherwise issuable except for subparagraph (aa) above, shall be issued notwithstanding the provisions of subparagraph (aa) unless the State Highway Department, after being given written notice thereof by the Commission shall (1) within 60 days of receipt of such notice, file with the Commission a declaration (i) that the issuance of said permit will be detrimental to future highway planning and construction; and (ii) that the land described in said permit application is needed for future highway purposes; and (2) within 180 days of the giving of such notice, institute condemnation proceedings under Chapter 61, Title 10, Delaware Code, to acquire all of the land described in said building permit application as may be located within said future highway right-of-way.

Section 5. Section 4816, Title 9, Delaware Code, is amended by adding a new subparagraph (aa) to read as follows:

(aa) Except in instances in which the Highway Department has indicated authorization for temporary use of land set aside for future right-of-way needs, as provided in Section 147, Title 17, Delaware Code, no building permit shall be issued by the County for the erection of any building or for the construction of any improvement, or structure on any part of any land which lies, or is located within the lines of any land designated and set aside for future highway right-of-way needs as appears on the Highway Department's Future Right-of-Way Map — Final except as hereinafter provided in subparagraph (c).

Section 6. Section 4816, Title 9, Delaware Code, is further amended by adding a new subparagraph (c) to read as follows:

(c) A building permit, otherwise issuable except for subparagraph (aa) above, shall be issued notwithstanding the provisions of subparagraph (aa) above unless the Highway Department, after being given written notice thereof by the Commission shall (1) within 60 days of receipt of such notice, file with the Commission a declaration (i) that the issuance of said permit will be detrimental to future highway planning and construction; and (ii) that the land described in said permit application is needed for future highway purposes; and (2) within 180 days of the giving of such notice, institute condemnation proceedings under Chapter 61, Title 10, Delaware Code, to acquire all of the land described in said building permit application as may be located within said future highway right-of-way.

Section 7. Section 6302, Title 9, Delaware Code, is amended by adding thereto a new subparagraph (c), to read as follows:

(c) Except in instances in which the Highway Department has indicated authorization for temporary use of land set aside for future right-of-way needs, as provided in Section 147, Title 17, Delaware Code, no permit shall be issued for the erection of any building or for the construction of any improvement or structure on any part of any land which lies or is located within the lines of any land designated and set aside for future highway right-of-way needs as appears on the Highway Department's Future Right-of-Way Map — Final except as hereafter provided in subparagraph (d).

Section 8. Section 6302, Title 9, Delaware Code, is further amended by adding thereto a new subparagraph (d) to read as follows:

(d) A building permit, otherwise issuable except for subparagraph (c) above, shall be issued notwithstanding the provisions of (c) above unless the Highway Department, after being given written notice thereof by the Commission shall (1) within 60 days of receipt of such notice, file with the County a declaration (i) that the issuance of said permit will be detrimental to future highway planning and construction; and (ii) that the land described in said permit application is needed for future highway purposes; and (2) within 180 days of the giving of such notice, institute condemnation proceedings under Chapter 61, Title 10, Delaware Code, to acquire all of the land described in said building permit application as may be located within said future highway right-of-way.

Approved July 23, 1970.