CHAPTER 521

FORMERLY

SENATE BILL NO. 358

AS AMENDED BY

SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 29, DELAWARE CODE, RELATING TO A PROCESS FOR INTER-GOVERNMENTAL COORDINATION IN LAND USE PLANNING AND TO CHANGE THE NAME OF THE STATE PLANNING OFFICE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Chapter 91, Title 29, Delaware Code, is amended by changing "State Planning Office" to "Office of Management, Budget and Planning' wherever the same appears in said Chapter. All other references to the "State Planning Office" in the Delaware Code are hereby amended in accordance with the Section.

Section 2. Title 29, Delaware Code, is amended by inserting a new Chapter 92 to be entitled "Land Use Planning" to read as follows:

"CHAPTER 92. LAND USE PLANNING

SUBCHAPTER I. FINDINGS, PURPOSE AND DEFINITIONS §9201. Findings and Purpose

(a) Land use decisions are far-reaching, complex determinations involving the commitment of finite resources by many levels of government and private investment. Such decisions must be coordinated so as to achieve efficient, effective and timely use of finite resources.

(b) The resource investment, both public and private, in land use decisions is long term and therefore a process which provides a certain and stable climate for decision-making is necessary to foster rational investment of these resources.

(c) A method of achieving consistency and coordination between the levels of government, and between government and private enterprise is essential to achieve these goals.

(d) Economic activity should be enhanced by coordinating and simplifying the various State regulatory and review processes required prior to development. It is declared, therefore, that a process for streamlining such processes be established.

§9202. Definitions

For the purpose of this Chapter:

(a) 'Applicant' means any person who has requested or applied to a local jurisdiction for approval to proceed with a project which requires a local jurisdiction to take a land use planning action.

(a) 'Capital Improvements Program' means that schedule of public investment which guides capital expenditures for major public facilities, including infrastructure and community facilities.

(a) 'Comprehensive Development Plan' means a comprehensive land use plan, master plan or comprehensive plan as provided in Titles 9, 22 or 29, Delaware Code.

(a) 'Critical Area' means an area wherein the establishment or maintenance of a viable physical, economic, or social environment is of more than local concern; or the physical, economic, or social characteristics of said area are of primary importance or uniquely sensitive, including, but not limited to wetlands, major port facilities, and historic areas. Critical Areas, however, do not include agricultural lands in productive use.

(a) 'Facilities Plan' means a long term plan for the location, timing, and sizing of public services and utilities based upon an evaluation of future and existing land use, technology and cost.

(a) 'Land Use of More Than Local Benefit' means any use or combination of uses of land or water whose economic, social, or environmental benefits extend beyond the local jurisdiction in which the use or uses take place.

(a) 'Land Use Planning Decision' means any action adopting, amending, or revising a Comprehensive Development Plan, or portion thereof.

(a) 'Local Jurisdiction' means the County of New Castle, the County of Kent, the County of Sussex, municipalities within the State, or any other political subdivision of the State, or any instrumentality of any political subdivision of the State.

(a) 'Person' means any individual, partnership, firm, association, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, local jurisdiction, any interstate body, or any other legal entity.

(j) 'Agricultural Lands in Productive Use' means those lands which are both:

(1) delineated as 'Prime Farmlands', /Unique Farmlands' or 'Additional Farmlands of Statewide Importance', by the Soil Conservation Service of the U. S. Department of Agriculture on maps entitled, 'Important Farmlands' and dated January, i977 for New Castle and Kent Counties and January, 1978, for Sussex County; and

(2) currently used for the commercial production of livestock, trees or nursery stock, food or fiber.

(k) 'State Agency' means the Executive Office of the Governor; the Office of Management, Budget and Planning; the State Treasurer; the Department of Administrative Services; the Department of Agriculture; the Department of Community Affairs and Economic Development; the Department of Correction; the Department of Finance; the Department of Health and Social Services; the Department of Labor; the Department of Natural Resources and Environmental Control; the Department of Public Instruction; the Department of Public Safety; the Department of State; the Department of Transportation; and all institutions of post-secondary education supported in whole or in part by State funds.

SUBCHAPTER II. PROCESS FOR INTERGOVERNMENTAL COORDINATION IN LAND USE PLANNING

§9211. Local Land Use Planning Actions Subject to the Process

Local land use planning actions subject to this subchapter are ones of more than local concern and include but are not limited to: (1) the adoption or amendment of Comprehensive Development Plans or portions thereof; (2) the adoption or amendment of Capital Improvement Programs; (3) a Critical Area; (5) land use planning actions having a significant impact upon more than one local jurisdiction.

§9212. Preparation of Critical Areas Plans

A plan designating Critical Areas shall be prepared by each local jurisdiction and forwarded to the State Office of Management, Budget and Planning. The State Office of Management, Budget and Planning shall prepare a statewide plan designating Critical Areas with due consideration of local input.

§9213. Existing Local Comprehensive Development Plans

(a) Notwithstanding any provision of this Chapter or other law, local jurisdictions shall review their respective

Comprehensive Development Plans for the purpose of determining whether such plans arbitrarily exclude land uses of more than local benefit. The local interest in excluding uses of more than local benefit shall be one factor which may be considered in the determination of whether such exclusion is arbitrary.

(b) If any local jurisdiction determines its Comprehensive Development Plan arbitrarily excludes a use of more than local benefit, it shall amend such Plan, within three (3) months of such determination, to remedy the arbitrary exclusion.

(c) If a State agency determines that a Comprehensive Development Plan arbitrarily excludes a land use of more than local benefit, the State Office of Management, Budget and Planning shall, within six (6) months from the effective date of this Chapter, notify the appropriate local jurisdiction of such determination and the reasons therefor.

(d) The local jurisdiction shall, within three (3) months, thereafter determine if it agrees with any determination made pursuant to Subsection (c). If the local jurisdiction agrees, it shall amend the Comprehensive Development Plan in accordance with Subsection (b). If the local jurisdiction disagrees, the decision to retain the Plan shall constitute a land use planning decision, and shall be subject to the feferrals process set forth in 69221; provided, however, that the Plan shall remain in effect until all referrals filed pursuant to this Subchapter are completed.

§9214. Notification to State of Proposed Land Use Planning Actions

(a) A local jurisdiction shall provide the State Office of Management, Budget and Planning with a timely written notice of any proposed local land use planning action subject to this Subchapter before local action is taken.

§9215. State Office of Management, Budget and Planning Responsibility to Other Levels of Government

The State Office of Management, Budget and Planning shall transmit a timely notice of the proposed land use planning action to interested regional and federal agencies.

§9216. State Agencies' Responsibilities to Each Other

(a) The State Office of Management, Budget and Planning shall, upon receipt of any notice provided pursuant to §9214, notify all State agencies of such notice forthwith and without delay.

(b) Each State agency, upon receipt of any notice provided in Subsection (a), shall review the proposed land use planning action, make written comments on the proposed land use planning action, and forward such written comments to the State Office of Management, Budget and Planning.

(c) When notice is received pursuant to §9214, each State agency shall provide whatever information the applicant will need to understand readily the State agency's requirements, policies and approval processes related to the proposed plan.

(d) State agency comments on any proposed local land use planning action shall expressly consider as applicable:

(1) The policy recommendations of the Delaware Tomorrow Commission as stated in the Commission's January 29, 1976, Final Report.

(2) The Delaware Comprehensive Development Plan adopted pursuant to Chapter 91, Title 29, Delaware Code.

(3) The impact of the proposed action upon the economic environment, including but not limited to matters of employment and taxation.

(4) The impact of the proposed action upon the physical environment, including but not limited to air and water quality, and natural resources.

(5) The impact of the proposed action upon the social environment, including but not limited to equal opportunity for employment, housing, education and health care.

(6) The fiscal impact of the proposed action, including capital, operating and maintenance costa.

(7) The energy implications of said action, including but not limited to resource development and utilization.

§9217. State Office of Management, Budget, and Planning's Responsibility to Applicant

The State Office of Management, Budget and Planning shall transmit to the applicant timely copies of any information it receives pursuant to §9216(b) from other State agencies, as well as pertinent information, if any, regarding State Office of Management, Budget and Planning's requirements related to the proposed use, which the applicant will need

to understand readily the State requirements, policies and approval processes related to the proposed plan.

§9218. State Office of Management, Budget and Planning's Responsibility to Local Jurisdictions

The State Office of Management, Budget and Planning shall transmit copies of all State agency comments on the proposed land use planning action, including its own, if any, to the appropriate local jurisdiction within twenty (20) working days of receipt of notice pursuant to 49214; provided, however, that the local jurisdiction may grant reasonable extensions to the comment period.

§9219. Local Jurisdiction Hearings

(a) Any State, regional or federal agency shall be permitted to comment on any proposed local land use planning action subject to this Subchapter at any public hearing provided by the local jurisdiction which has the final local decision-making authority over the proposed action. The local jurisdiction shall provide the State agency with a timely notice of any such hearing.

(b) Where no hearing by a local jurisdiction is provided for a proposed local land use planning action subject to this Subchapter, the State Office of Management, Budget and Planning may, within twenty (20) working days of receipt of the notice provided pursuant to §9214, require, by providing a written notice to the appropriate local jurisdiction, that the local jurisdiction provide a public hearing on the proposed local land use planning action; provided, that no such hearing shall be required unless the proposed land use planning action significantly affects the interests of more than local concern.

§9220. Local Jurisdiction Consideration, Decision and Notice

(a) Nothing in this Subchapter shall be construed to deny local jurisdictions the final decision-making authority, which such jurisdictions presently possess over proposed local land use planning actions.

(b) Local jurisdictions which have final authority for approving any proposed local land use planning action subject to this Subchapter shall not make any final decision on any such proposal until the State has had an opportunity to comment on the proposed action in accordance with this Subchapter; provided, however, that any final decision may be made if:

(1) The presctibed period for State comment or

any extensions thereof granted pursuant §9218, has expired and the State Office of Management, Budget and Planning has not submitted comments pursuant to §9218 or required a hearing pursuant to §9219; or

(2) The State Office of Management, Budget and Planning has indicated it has no comments and does not require a hearing pursuant to the provisions of this Subchapter.

(c) If timely comments are submitted by the State Office of Management, Budget and Planning, the local jurisdiction shall consider such comments prior to making any decisions.

(d) If a public hearing is required by the State Office of Management, Budget and Planning, pursuant to §9219, the local jurisdiction shall consider the comments offered at such hearing prior to making any decisions.

(e) The local jurisdiction shall, in accordance with the provisions of this Subchapter, make its final decision and notify the State Office of Management, Budget and Planning of such decision as soon as possible. The local jurisdiction shall provide a written rationale for its decision to accompany such notice. The rationale shall include a discussion of State comments and recommendations; provided, however, that no such rationale or notice shall be required unless the State Office of Management, Budget and Planning has submitted comments pursuant to §9218.

(f) The final decision and rationale required pursuant to this section shall be filed with the appropriate office of the local jurisdiction and be made available for public review.

§9221. Referral to Council on State Planning

(a) The State Office of Management, Budget and Planning may, within ten (10) working days following the receipt of the notice provided pursuant to §9220 refer a final decision made under §9220 or §9213 to the Council on State Planning, established pursuant to Chapter 91, Title 29, Delaware Code, (hereinafter referred to as ' the Council'), by filing a Notice of Referral with the Council, the local jurisdiction and the applicant, on a form prescribed by the Council setting forth the grounds for the referral.

(b) Except for Capital Improvements Programs, no final decision made pursuant to §9220 shall take effect if:

(1) The ten (10) working day referral period

established by this Section has not expired and the State Office of Management, Budget and Planning has not waived the right to referral; or

(2) The State Office of Management, Budget and Planning refers the final decision pursuant to this Section.

(c) The Council shall provide the applicant, the local jurisdiction, the State and other interested parties an opportunity to submit comments on the proposed land use planning action.

(d) The Council shall have thirty (30) working days following receipt of any Notice of Referral filed pursuant to this Section to render its decision.

(e) The Council may adopt rules and regulations, as necessary, to carry out the provisions of this Section.

§9222. Council Decision

(a) The only grounds for requiring a reconsideration of a final decision of the local jurisdiction shall be that the decision:

(1) Is unreasonable; or

(2) Fails to adequately consider State comments.

(b) If the Council determines that the local jurisdiction's final decision issued pursuant to 59220 or 59213, is unreasonable or fails to adequately consider the State comments, the Council shall refer the decision to the local jurisdiction for reconsideration.

(c) If the Council refers the decision for reconsideration pursuant to Subsection (b), the local jurisdiction shall, within thirty (30) working days, but no sooner than ten (10) days, reconsider its action and render a final decision thereon. Notice of such final decision shall be sent as soon as possible to the Council, the State Office of Management, Budget and Planning and the applicant.

§9223. Waiver of Requirement

The State Office of Management, Budget and Planning, with the concurrence of all other State agencies, may, for good cause, stated in writing, waive the requirements of this Subchapter for the purpose of expediting a proposed land use planning action.

§9224. Relationship to Other State and Local Review, Comment and Permitting Provisions

This Subchapter shall not reduce any authority exercised by any State agency as it may relate to the proposed land use planning action, the applicant, or the procedural requirements relating to an application for State approval.

§9225. State Land Use Planning Actions Sublect to the Process

State land use planning actions subject to this Subchapter are ones of local concern which include, but are not limited to: (1) adoption or amendment of the Delaware Comprehensive Development Plan or portion thereof; (2) the adoption or amendment of Capital Improvement Programs as defined herein; (3) the adoption or amendment of facilities plans; (4) actions relating to planning or construction of major facilities for public and private institutions; and (5) any land use planning action involving a Critical Area as defined herein.

§9226. Existing State Comprehensive Development Plan

(a) Notwithstanding any provision of this Chapter or other law, the State shall review its respective Comprehensive Development Plan, Capital Improvements Program and facilities plans for the purpose of determining whether such plans and actions arbitrarily affect local jurisdictions. socially, economically, fiscally or environmentally. The State's interest which affect local jurisdictions shall be one factor which may be considered in the determination of whether such action is arbitrary.

(b) If any State agency determines its plan or program arbitrarily affects local jurisdictions, it shall amend such plan or program within three (3) months of such determination to remedy the arbitrary action.

(c) If a local jurisdiction determines that a State plan arbitrarily affects a jurisdiction, the local jurisdiction shall, within six (6) months from the effective date of this Chapter, notify the appropriate State agency of such determination and the reasons therefor.

(d) The State agency shall, within three (3) months, determine if it agrees with any determination made pursuant to Subsection (c). If the State agency agrees, it shall amend the plan or program in accordance with Subsection (b). If the State agency disagrees, the decision to retain the plan or program shall constitute a land use planning decision and shall be subject to the referral process set forth in 19232; provided, however, that the plan or program shall remain in effect until all referrals filed pursuant to this Subchapter are completed.

§9227. Notification to Local Jurisdiction of Proposed State Action

Any State agency, as defined herein, undertaking a land use planning action as defined herein shall notify the local jurisdiction thirty (30) working days prior to said action. The State agency shall notify the appropriate local jurisdiction which will be impacted by said action. Such notice shall be transmitted to the appropriate office of each affected local jurisdiction.

§9228. Local Jurisdiction's Responsibility to the State Agencies

(a) The local jurisdiction shall, upon receipt of any notice, review the proposed land use planning action and make written comments, as it deems necessary, on the proposed land use planning action.

(a) Local jurisdiction comments on any proposed State land use planning action shall expressly consider matters subject to its purview, including but not limited to:

(1) The policy recommendations of the Delaware Tomorrow Commission as stated in the Commission's January 29, 1976, Final Report;

(2) The local jurisdiction's Comprehensive Development Plan;

(3) The impact of the proposed action upon the economic environment, including but not limited to matters of employment and taxation;

(4) The impact of the proposed action upon the physical environment, including but not limited to air and water quality, and natural resources;

(5) The impact of the proposed action upon the social environment, including but not limited to equal opportunity for employment, housing, education and health care;

(6) The fiscal impact of the proposed action, including capital, operating and maintenance costs;

tion.

§9229. Local Jurisdiction's Responsibility to State Agencies

The local jurisdictions shall transmit comments on the proposed land use action to the State Office of Management, Budget and Planning within twenty (20) working days of receipt of notice pursuant to §9227; and thereafter the Office of Management, Budget and Planning shall transmit such comments to all other State agencies forthwith and without delay; provided, however, that the State Office of Management, Budget and Planning may grant reasonable extensions to the comment period.

§9230. State Hearings

(a) Any local, regional, or federal agency shall be permitted to comment on any proposed State land use planning action subject to this Subchapter at any public hearing provided by the State agency. The State agency shall provide the local jurisdictions with a timely notice of any such hearing.

(b) Where no hearing by the State agency is provided for a proposed State land use planning action subject to this Subchapter, the local jurisdictions may, within twenty (20) working days of receipt of the notice provided pursuant to §9227, require, by providing a written notice to the appropriate State agency, that the State agency provide a public hearing on the proposed State land use planning action.

§9231. State Agency Consideration, Decision and Notice

(a) Nothing in this Subchapter shall be construed to deny State agencies the final decision-making authority, which such jurisdictions presently possess over proposed State land use planning actions.

(b) State agencies which have final authority for approving any proposed State land use planning action subject to this Subchapter shall not make any final decision on any such proposal until the local jurisdictions have had an opportunity to comment on the proposed action in accordance with this Subchapter; provided, however, that any final decision may be made if:

(1) The prescribed period for local jurisdictional comment and any extensions thereto granted pursuant to §9229 has expired and the local jurisdiction has not submitted comments pursuant to §9229 or required a hearing pursuant to §9230; or

(2) The local jurisdiction has indicated it has no comments and does not require a hearing pursuant to the provisions of this Subchapter.

(c) If timely comments are submitted by the local jurisdiction, the State agency shall consider such comments prior to making any decisions.

(d) If a public hearing is required by the local jurisdiction pursuant to §9230, the State agency shall consider the comments offered at such hearing prior to making any decision.

(e) The State agency shall, in accordance with the provisions of this Subchapter, make its final decision and notify the local jurisdiction of such decision as soon as possible. The State agency shall provide a written rationale for its decision to accompany such notice. The rationale shall include a discussion of local jurisdictional comments and' recommendations; provided, however, that no such rationale or notice shall be required unless the local jurisdiction has submitted comments pursuant to §9229.

(a) The final decision and rationale required pursuant to this section shall be filed with the State Office of Management, Budget and Planning and be made available for public review.

§9232. Referral to Council on State Planning

(a) The local jurisdiction may, within ten (10) working days following the receipt of the notice provided pursuant to §9227, refer a final decision made under §9231 or §9226 to the Council on State Planning, established pursuant to Chapter 91, of this Title, by filing a Notice of Referral to the Council, with the State Office of Management, Budget and Planning, on a form prescribed by the Council setting forth the grounds for its referral.

(b) Except for Capital Improvements Programs, no final decision made pursuant to §9231 shall take effect if:

(1) The ten (10) working day referral period established by this section has not expired and the local jurisdiction has not waived the right to referral; or

(2) The local jurisdiction refers the final decision pursuant to this Section.

(c) The Council shall provide the applicant, the local jurisdiction, State agencies and other interested parties an

opportunity to submit comments on the proposed land use planning action.

(d) The Council shall have thirty (30) working days following receipt of any Notice of Referral filed pursuant to this Section to render its decision.

(e) The Council may adopt rules and regulations, as necessary, to carry out the provisions of this Section.

§9233. Council Decision

(a) The only grounds for requiring a reconsideration of a final decision of the State agency shall be that the decision:

(1) Is unreasonable; or

(2) Fails to adequately consider the comments of the local jurisdiction.

(b) If the Council determines that the State agency's final decision issued pursuant to §9231 or §9226, is unreasonable or fails to adequately consider the local jurisdiction's comments, the Council shall refer the decision to the State agency with responsibility for reconsideration.

(c) If the Council refers the decision for reconsideration pursuant to Subsection (b), the State shall, within thirty (30) working days, but no sooner than ten (10) working days, reconsider its action and render a final decidion thereon. Notice of such final decision shall be sent as soon as possible to the Council, the Office of Management, Budget and Planning, the local jurisdiction, and the applicant.

§9234. Waiver of Requirement

The local jurisdiction may, for good cause state in writing, waive the requirements of this Subchapter for the purpose of expediting a proposed land use planning action.

§9235. Relationship to Other State and Local Review, Comment and Permitting Provisions

(a) This Subchapter shall not reduce any authority exercised by any local jurisdiction as it may relate to the proposed land use planning action, the applicant, or the procedural requirements relating to an application for local approval.

(b) No local jurisdiction may submit comments on a proposed State land use planning action subject to this Subchapter if, during a previous State land use planning action regarding the same proposed use and applicant, such local agency chose not to comment; except any local agency may comment if the proposal, or information related thereto, substantially has changed from that presented at the time of the previous actions, or if more than one year has expired since the previous action.

(c) All laws or ordinances inconsistent with the provisions of this Subchapter are hereby superseded to the extent of the inconsistency.

SUBCHAPTER III. PROCESS FOR STREAMLINING STATE REGULATORY AND REVIEW PROCESSES

§9241. Review of Present Processes

The State Office of Management, Budget and Planning and the Department of Community Affairs and Economic Development created pursuant to Chapter 86, Title 29, Delaware Code, shall, with the assistance and cooperation of each other and all other State agencies, review the present State regulatory and review processes required prior to development in the State for the purpose of streamlining such processes to avoid duplication and delay and to clarify and simplify such processes.

§9242. Preparation of Report

(a) The State Office of Management, Budget and Planning and the Department of Community Affairs and Economic Development shall jointly prepare a report detailing the findings of the review conducted pursuant to §9241 and outlining recommendations for achieving the purposes of this Subchapter. The report shall include specific recommendations consistent with the objectives of this Subchapter to the General Assembly for amending the regulatory review process employed by State agencies under present law. In addition, the report shall include specific recommendations, consistent with objectives of this Subchapter, to the State agencies for amending their current practices and procedures within the existing State statutory and regulatory framework.

(b) The report prepared pursuant to this Section, shall be completed and distributed to the General Assembly and all State agencies forthwith.

§9243. Immediate Modification of Current Processes

Where not otherwise prohibited and to the extent practicable, all State agencies are hereby encouraged to immediately, or as soon as possible, provide for:

(a) Joint hearings with local jurisdictions in satisfaction of said agencies' hearing requirements;

(b) Modification of permit application form(s) and procedures in order to expedite their processing of permit applications; and

(c) Consolidation of individual State review, comment and approval processes in order to facilitate State action on permit applications.

§9244. Action Reported

Within six (6) months of the issuance of the report prepared pursuant to §9242(b), all State agencies shall advise the Governor and the General Assembly of the respective actions taken by the agencies pursuant to §9242 and §9243."

Section 3. The provisions of this Subchapter shall be severable and if any phrase, clause, sentence, or provision of this Act is declared to be unconstitutional or the applicability thereof to any legal entity is held invalid, the constitutionality of the remainder of the Act and the applicability thereof to any other legal entity shall not be affected thereby.

Approved July 12, 1978.