CHAPTER 175

FORMERLY HOUSE SUBSTITUTE NO. 2

FOR HOUSE BILL NO. 300

AS AMENDED BY

HOUSE AMENDMENTS NO. 1, 2, 8, 11, 12,

13, 14, 15, 18, 19, 22, 23 and 24

AN ACT CREATING A NEW CHAPTER 70, TITLE 7, DELAWARE CODE TO ESTABLISH A COASTAL ZONE IN DELAWARE; TO PROHIBIT OR LIMIT CERTAIN USES THEREIN; TO CREATE A STATE COASTAL ZONE INDUSTRIAL CONTROL BOARD.

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

Section 1. Title 7, Delaware Code, is amended by creating a new Chapter 70 to read as follows:

CHAPTER 70. COASTAL ZONE ACT

§ 7001. Purpose

It is hereby determined that the coastal areas of Delaware are the most critical areas for the future of the State in terms of the quality of life in the State. It is, therefore, the declared public policy of the State of Delaware to control the location, extent and type of industrial development in Delaware's coastal areas. In so doing, the State can better protect the natural environment of its bay and coastal areas and safeguard their use primarily for recreation and tourism. Specifically, this chapter seeks to prohibit entirely the construction of new heavy industry in its coastal areas, which industry is determined to be incompatible with the protection of that natural environment in those areas. While it is the declared public policy of the State to encourage the introduction of new industry into Delaware, the protection of the environment, natural beauty and recreation potential of the State is also of great concern. In order to strike the correct balance between these two policies, careful planning based on a thorough understanding of Delaware's potential and her needs is required. Therefore, control of industrial development other than that of heavy industry in the Coastal Zone of Delaware through a permit

system at the State level is called for. It is further determined that off-shore bulk product transfer facilities represent a significant danger of pollution to the Coastal Zone and generate pressure for the construction of industrial plants in the Coastal Zone, which construction is declared to be against public policy. For these reasons, prohibition against bulk product transfer facilities in the Coastal Zone is deemed imperative.

§ 7002. Definitions

(a) 'The Coastal Zone' is defined as all that area of the State of Delaware, whether land, water or subaqueous land between the territorial limits of Delaware in the Delaware River, Delaware Bay and Atlantic Ocean, and a line formed by certain Delaware highways and roads as follows:

Beginning at the Delaware-Pennsylvania line at a place where said line intersects U.S. Route 13; thence southward along the said U.S. Route 13 until it intersects the right-of-way of U.S. Route 1-495; thence along said 1-495 right-of-way until the said 1-495 right-of-way intersects Delaware Route 9 south of Wilmington; thence along said Delaware Route 9 to the point of its intersection with Delaware Route 273; thence along said Delaware Route 273 to U.S. 13; thence along U.S. 13 to Maintenance Road 409; thence along Maintenance Road 409 to Delaware Road 71; thence along Delaware Road 71 to its intersection with Delaware Road 54; thence along Delaware Road 54 to Delaware Road 896; thence along Delaware Road 896 to Maintenance Road 396; thence along Maintenance Road 396 to Maintenance Road 398; thence along Maintenance Road 398 to the Maryland State Line; thence southward along the Maryland State Line to Maintenance Road 433; thence along Maintenance Road 433 to Maintenance Road 63; thence along Maintenance Road 63 to Maintenance Road 412; thence along Maintenance Road 412 to U.S. 13; thence along U.S. 13 to Delaware 299 at Odessa; thence along Delaware Route 299 to its intersection with Delaware Route 9; thence along Delaware Route 9 to U.S. 113; thence along U.S. Route 113 to Maintenance Road 8A; thence along Maintenance Road 8A to Maintenance Road 7 to the point of its intersection with Delaware Route 14; thence along Delaware Route 14 to Delaware Route 24; thence along Delaware Route 24 to Maintenance Road 331; thence along Maintenance Road 331 to Maintenance Road 334; thence along Maintenance Road 334 to Delaware Route 26; thence along

Delaware Route 26 to Maintenance Road 365; thence along Maintenance Road 365 to Maintenance Road 84; thence along Maintenance Road 84 to Maintenance Road 384; thence along Maintenance Road 384 to Maintenance Road 382A; thence along Maintenance Road 382A to Maintenance Road 389; thence along Maintenance Road 389 to Maintenance Road 58; thence along Maintenance Road 58 to Maintenance Road 395; thence along Maintenance Road 395 to the Maryland State Line.

(b) `Non-conforming use' means a use, whether of land or of a structure, which does not comply with the applicable use provisions in this chapter where such use was lawfully in existence and in active use prior to the enactment of this chapter.

(c) 'Environmental Impact Statement' means a detailed description as prescribed by the State Planning Office of the effect of the proposed use on the immediate and surrounding environment and natural resources such as water quality, fisheries, wildlife and the aesthetics of the region.

(d) 'Manufacturing' means the mechanical or chemical transformation of organic or inorganic substances into new products, characteristically using power driven machines and materials handling equipment, and including establishments engaged in assembling component parts of manufactured products, provided the new product is not a structure or other fixed improvement.

(e) 'Heavy industry use' means a use characteristically involving more than twenty acres, and characteristically employing some but not necessarily all of such equipment such as, but not limited to, smoke stacks, tanks, distillation or reaction columns, chemical processing equipment scribbing towers, pickling equipment, and waste treatment lagoons; which industry, although conceivably operable without polluting the environment, has the potential to pollute when equipment malfunctions or human error occurs. Examples of heavy industry are oil refineries, basic steel manufacturing plants, basic cellulosic pulppaper mills, and chemical plants such as petro-chemical complexes. Generic examples of uses not included in the definition of 'heavy industry' are such uses as garment factories, automobile assembly plants and jewelry and leather goods manufacturing establishments.

(f) 'Bulk product transfer facility' means any port or dock facility, whether an artificial island or attached to shore by any means, for the transfer of bulk quantities of any substance from vessel to on-shore facility or vice versa. Not included in this definition is a docking facility or pier for a single industrial or manufacturing facility for which a permit is granted or which is a non-conforming use. Likewise, docking facilities for the Port of Wilmington are not included in this definition.

(g) 'Person' shall include, but not be limited to, any individual, group of individuals, contractor, supplier, installer, user, owner, partnership, firm, company, corporation, association, joint stock company, trust, estate, political subdivision, administrative agency, public or quasi-public corporation or body, or any other legal entity, or its legal representative, agent, or assignee.

(h) 'Board' shall mean the Coastal Zone Industrial Control Board.

§ 7003. Uses absolutely prohibited in the Coastal Zone

Heavy industry uses of any kind not in operation on the date of enactment of this chapter are prohibited in the Coastal Zone and no permits may be issued therefor. In addition, offshore gas, liquid, or solid bulk product transfer facilities which are not in operation on the date of enactment of this chapter are prohibited in the Coastal Zone, and no permit may be issued therefor. Provided, that this section shall not apply to public sewage treatment or recycling plants.

§ 7004. Uses allowed by permit only. Non-conforming uses

(a) Except for heavy industry uses, as defined in section 7002 of this chapter, manufacturing uses not in existence and in active use of the date of enactment of this chapter are allowed in the Coastal Zone by permit only, as provided for under this section. Any non-conforming use in existence and in active use on the effective date of this chapter shall not be prohibited by this chapter. All expansion or extension of non-conforming manufacturing uses, as defined herein, and all expansion or extension of uses for which a permit is issued pursuant to this chapter, are likewise allowed only by permit. Provided, that no permit may be granted under this chapter unless the county or municipality

having jurisdiction has first approved the use in question by zoning procedures provided by law.

(h) In passing on permit requests, the State Planner and the State Coastal Zone Industrial Control Board shall consider the following factors:

(1) Environmental impact, including but not limited to, probable air and water pollution likely to be generated by the proposed use under normal operating conditions as well as during mechanical malfunction and human error; likely destruction of wetlands and flora and fauna; impact of site preparation on drainage of the area in question, especially as it relates to flood control; impact of site preparation and facility operations on land erosion; effect of site preparation and facility operations on the quality and quantity of surface ground and sub-surface water resources, such as the use of water for processing, cooling, effluent removal, and other purposes; in addition, but not limited to, likelihood of generation of glare, heat, noise, vibration, radiation, electromagnetic interference and obnoxious odors.

(0) Economic effect, including the number of jobs created and the income which will be generated by the wages and salaries of these jobs in relation to the amount of land required, and the amount of tax revenues potentially accruing to State and local government.

(1) Aesthetic effect, such as impact on scenic beauty of the surrounding area.

(2) Number and type of supporting facilities required and the impact of such facilities on all factors listed in this subsection.

(3) Effect on neighboring land uses including, but not limited to, effect on public access to tidal waters, effect on recreational areas, and effect on adjacent residential and agricultural areas.

(4) County and municipal comprehensive plans for the development and/or conservation of their areas of jurisdiction.

§ 7005. Administration of this chapter

(a) The State Planning Office shall administer this chapter.

All requests for permits for manufacturing land uses and for the expansion or extension of non-conforming uses as herein defined in the Coastal Zone shall be directed to the State Planner. Such requests must be in writing and must include (I) evidence of approval by the appropriate county or municipal zoning authorities, (2) a detailed description of the proposed construction and operation of the use, and (3) an Environmental Impact Statement. The State Planner shall hold a public hearing and may request further information of the applicant. The State Planner shall first determine whether the proposed use is, according to this chapter and regulations issued pursuant thereto, (1) a heavy industry use under section 7003; (2) a use allowable only by permit under section 7004; or (3) a use requiring no action under this chapter. The State Planner shall then, if he determines that section 7004 applies, reply to the request for a permit within ninety (90) days of receipt of the said request for permit, either granting the request, denying same, or granting the request but requiring modifications; he shall state the reasons for his decision.

(b) The State Planner may issue regulations including, but not limited to, regulations governing disposition of permit requests, and setting forth procedures for hearings before himself and the Board. Provided, that all such regulations shall be subject to approval by the Board.

(c) The State Planner shall develop and propose a comprehensive plan and guidelines for the State Coastal Zone Industrial Control Board concerning types of manufacturing uses deemed acceptable in the Coastal Zone and regulations for the further elaboration of the definition of 'heavy industry' in a manner consistent with the purposes and provisions of this chapter. Such plan and guidelines shall become binding regulations upon adoption by the Board after public hearing. The Board may alter said regulations at any time after a public hearing. Provided, that any such regulations shall be consistent with sections 7003 and 7004 of this chapter.

(d) The State Planning Office and all agencies of State government shall assist the State Coastal Zone Industrial Control Board in developing policies and procedures, and shall provide the Board with such information as it shall require.

§ 7006. State Coastal Zone Industrial Control Board created; composition; conflict of interest; quorum

There is hereby created a State Coastal Zone Industrial Control Board, which shall have ten (10) voting members. Five (5) of these shall be regular members appointed by the Governor and confirmed by the Senate. No more than two (2) of the regular members shall be affiliated with the same political party. At least one regular member shall be a resident of New Castle County, one a resident of Kent County and one a resident of Sussex County, provided that no more than two residents of any county shall serve on the Board at the same time. The additional five (5) members shall be the Secretary of Natural Resources and Environmental Control, the Secretary of Community Affairs and Economic Development, and the Chairmen of the Planning Commissions of each county, who shall be ex-officio voting members. The term of one appointed regular member shall be for one (1) year; one for two (2) years; one for three (3) years; one for four (4) years; and the Chairman, to be designated as such by the Governor, and serve at his pleasure. Thereafter, all regular members shall be appointed for five year terms. The members shall receive no compensation except for expenses. Any member of the Board with a conflict of interest in a matter in question shall disqualify himself from consideration of that matter. A majority of the total membership of the Board less those disqualifying themselves shall constitute a quorum. A majority of the total membership of the Board shall be necessary to make a final decision on a permit request.

§ 7007. Appeals to State Coastal Zone Industrial Control Board

(a) The State Coastal Zone Industrial Control Board shall have the power to hear appeals from decisions of the State Planner made under section 7005. The Board may affirm or reverse the decision of the State Planner with respect to applicability of any provision of this chapter to a proposed use; it may modify any permit granted by the State Planner, grant a permit denied by him, deny a permit, or confirm his grant of a permit. Provided, however, that the Board may grant no permit for uses prohibited in section 7003 herein.

(b) Any person aggrieved by a final decision of the State Planner under section 7005 (a) may appeal same under this

section. Appellants must file notice of appeal with the State Coastal Zone Industrial Control Board within fourteen (14) days following announcement by the State Planner of his decision. The State Coastal Zone Industrial Control Board must hold a hearing and render its decision in the form of a final order within sixty (60) days following receipt of the appeal notification.

(c) Whenever a decision of the State Planner concerning a permit request is appealed, the Board shall hold a public hearing at which the appellant may be represented by counsel. All proceedings in such a hearing shall be made a matter of record and a transcript or recording of all proceedings kept, and the public may attend and be heard.

(d) The Board shall publicly announce by publication in at least one newspaper of daily publication in the county in which the site designated in the request is wholly or principally located and in at least one newspaper of daily publication and general circulation throughout the State the time, location and subject of all hearings under this section at least ten (10) days prior thereto.

§ 7008. Appeals to Superior Court

Any person aggrieved by a final order of the State Coastal Zone Industrial Control Board under section 7007 may appeal the Board's decision to Superior Court in and for the county of the location of the land in question. Likewise, the State Planner may appeal from any modification by the Board of his ruling. The appeal shall be commenced by filing notice thereof with Superior Court not more than twenty (20) days following announcement of the Board's decision. The Court may affirm the Board's order in its entirety, modify same, or reverse said order. In either case, the appeal shall be based on the record of proceedings before the Board, the only issue being whether the Board abused its discretion in applying standards set forth by this chapter and regulations issued pursuant thereto to the facts of the particular case. The Superior Court may by rule prescribe procedure by which it will receive, hear, and make disposition of appeals under this chapter.

Provided, that no appeal under this chapter shall stay any cease and desist order or injunction issued pursuant to this chapter.

§ 7009. Condemnation

If Superior Court rules that a permit's denial, or restrictions imposed by a granted permit, or the operation of section 7003 or section 7004 of this chapter, is an unconstitutional taking without just compensation, the Secretary of the State Department of Natural Resources and Environmental Control may, through negotiation or condemnation proceedings under Chapter 61 of Title 10, acquire the fee simple or any lesser interests in the land. The Secretary must use this authority within five years from the date of the Court's ruling, for after said five years have elapsed the permit must be granted as applied for if the land has not been acquired under this authority.

§ 7010. Cease and desist orders

The Attorney General shall have the power to issue a cease and desist order to any person violating any provision of this chapter ordering such person to cease and, desist from such violation. Provided, that any cease and desist order issued pursuant to this section shall expire (1) after thirty (30) days of its issuance, or (2) upon withdrawal of said order by the Attorney General, or (3) when the order is superseded by an injunction, whichever occurs first.

§ 7011. Penalties

Any person who violates any provision of this chapter shall be fined not more than $50,000 for each offense. The continuance of an activity prohibited by this chapter during any part of a day shall constitute a separate offense. Superior Court shall have exclusive original jurisdiction over offenses under this chapter.

§ 7012. Injunctions

The Court of Chancery shall have jurisdiction to enjoin violations of this chapter.

§ 7013. Inconsistent laws superseded; all other laws unimpaired; certain uses not authorized

chapter are hereby superseded to the extent. of the inconsistency. Provided, that present and future zoning powers of all counties and municipalities, to the extend that said powers are not inconsistent with this chapter, shall not hereby be impaired; and provided that a permit granted under this chapter shall not authorize a use in contravention of county or municipal zoning regulations.

§ 7014. Severability and savings clause

If any provision of this chapter, or of any rule, regulation, or order promulgated thereunder, or the application of any such provision, regulation, or order to any person or circumstances shall be held invalid, the remainder of this chapter or any regulations or order promulgated pursuant thereto or the application of such provision, regulations, or order to persons or circumstances other than those to which it is held invalid, shall not be affected thereby."

Approved June 28, 1971.