CHAPTER 207

FORMERLY

HOUSE SUBSTITUTE NO. 1

FOR

HOUSE BILL NO. 391

AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 2

AND SENATE AMENDMENT NOS. 1, 2, 3 AND 4

AN ACT TO AMEND TITLE 9, CHAPTERS 26, 49, AND 69, DELAWARE CODE RELATING TO COUNTIES AND COMPREHENSIVE PLANNING AND LAND DEVELOPMENT.

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

Section 1. Amend Chapter 26, 49 and 69 of Title 9 of the Delaware Code by a new

sub-heading at the beginning of said Chapters to read "Subchapter I" and by adding a new Subchapter II being new Sections 2651 through 2657, Sections 4951 through 4957, and Sections 6951 through 6957 to Chapter 26, 49 and 69 respectively of Title 9 of the Delaware Code which shall read as follows:

"SUBCHAPTER II. THE QUALITY OF LIFE ACT

§01. Short Title; Intent and Purpose

This Chapter shall be known and may be cited as the Quality of Life Act of 1988. It is the purpose of this Act to utilize and strengthen the existing role, processes, and powers of County governments in the establishment and Implementation of

comprehensive planning programs to guide and control future development. It is the Intent of this Act to encourage the most appropriate use of land, water, and resources, consistent with the public Interest and to deal effectively with future problems that may result from the use and development of land within their jurisdictions. Through the process of comprehensive planning, It Is Intended that units of County government can preserve, promote, and Improve the public health, safety, comfort, good order, appearance, convenience, law enforcement and fire prevention, and general welfare; facilitate the adequate and efficient provision of transportation, water, sewerage, schools, parks, recreational facilities, housing, and other requirements and services; and conserve, develop, utilize, and protect natural resources within their jurisdictions.

It is also the intent of this Act to encourage and assure cooperation between and among municipalities, counties and the State and to encourage and assure coordination of planning and development activities of units of County government, municipalities, regional agencies and state government In accord with applicable provisions of law. A growth management plan or policy plan that meets the standards and requirements of this Act shall be an acceptable comprehensive plan. The land use map or map series forming part of the comprehensive plan as required by this Act shall have the force of law, and no development, as defined in this Act, shall be permitted except in conformity with the and use map or map series and with County land development regulations enacted to Implement the other elements of the adopted comprehensive plan.

W. Definitions

(I) 'Area' or 'area of jurisdiction' means the t cal area qualifying under the provisions of this Act, being all unincorporated lands within a county.

(2) 'Comprehensive plan' or 'comprehensive development plan' shall mean, from and after the respective dates by which the counties must be in compliance with this Act, a plan that meets the requirements of this Act. Wherever in this chapter land use
regulations are required to be in accordance with the comprehensive plan, such requirements shall mean only that such regulations must be in conformity with the applicable maps or map series of the comprehensive plan. Whenever in this chapter land use orders, permits, or zoning district changes are required to be in accordance with the comprehensive plan, such requirements shall mean only that such orders, permits, and changes must be in conformity with the map or map series of the comprehensive plan and county land use regulations enacted to implement the other elements of the adopted comprehensive plan,

(3) 'County' means Kent, New Castle, or Sussex County.

(4) 'Developer' means any person, including a governmental agency, undertaking any development as defined In this Act.

(5) 'Development' means any construction or reconstruction of any new or existing commercial or residential building(s) or structure(s) upon lands which are not owned by the State or its agencies or Its political subdivisions, or are not within the jurisdictional control of the State or Its agencies or its political subdivisions.

(6) 'Development order' means any order granting, denying, or granting with conditions an application for a development permit.

(7) 'Development permit' Includes any building permit, zoning permit, subdivision approval, rezoning, certificate of occupancy, special exception, variance, or any other official action of local government having the effect of permitting the development of land.

(8) 'Governing body' means the chief governing body of County government, however designated, or the combination of such bodies where joint utilization of the provision of this Act Is accomplished as provided herein.

(9) 'Governmental agency' means:

(a) The United States or any department, commission, agency, or other instrumentality thereof.

(b) This State or any department, commission, agency, or other Instrumentality thereof.

(c) Any local government, as defined In this Section, or any department, commission, agency, or other instrumentality thereof.

(d) Any school board or other special district, authority, or governmental entity.

(10) 'Land' means the earth, water, and air, above, below, or on the surface, and Includes any improvements or structures customarily regarded as land

(11) 'Land use' means the development that has occurred on the land, the development that is proposed by a developer on the land, or the use that is permitted or permissible on the land under an adopted comprehensive plan.

(12) 'Local government' means any municipality.

(13) 'Local planning agency' means the agency designated to prepare the

comprehensive plan required by this Act.

(14) A 'newspaper of general circulation' means a newspaper published at least on a weekly basis and printed In the language most commonly spoken in the area within which It circulates, but does not Include a newspaper Intended primarily for members of a particular professional or occupational group, a newspaper whose primary function Is to carry legal notices, or a newspaper that is given away primarily to distribute advertising

(15) 'Parcel of land' means any quantity of land capable of being described with such definiteness that its locations and boundaries may be established, which Is designated by Its owner or developer as land to be used, or developed, as a unit or which has been used or de/eloped as a unit

(16) 'Pe,son' means an individual, corporation, governmental agency, business

trust, estate/trust, partnership, association, two or more persons having a joint or COmmon interest, or any other legal entity.

(17) 'Public notice' or_ 'due public notice' as used In connection with the phrase 'public hearing', 'hearing to be held after due public notice' or 'public meeting' means publication of notice of the time, place, and purpose of such hearing at least twice In a newspaper of general- circulation In the area

(18) 'Land development regulation commission' means a commission designated by a Co-ty gove-rment to dede'op and recommend, to the local governing body, and de,eldbment regu'ations which Imp'ement the adopted comprehensive plan and to re,lew land de/e'opme,t regulations, or amendments thereto, for consistency with the adopted p'3' 3nd tp repot tre 1D‘ernIng body regarding its findings 711e responsIbilities of the land development regulation commission may be performed by the local planning agency.

119) 'Land development regulations' means ordinances enacted by governing bodies for the regulation of any aspect of development and includes any County government zoning, rezoning, subdivision, building construction, or sign regulations or any other regulations controlling the development of land.

(20) 'Public facilities' means major capital improvements over which the county has jurisdiction.

§52. Scope of Act

(1) Counties shall have power and responsibility:

(a) To plan for their future development and growth.

(b) To adopt and amend comprehensive plans, or elements or portions thereof, to guide their future developments and growth.

(c) To implement adopted or amended comprehensive plans by the adoption of appropriate land development regulations or elements thereof.

(a) To establish, support, and maintain administrative instruments and
procedures to carry out the provisions and purposes of this Act.

(2) Each County government shall prepare a comprehensive plan of the type and In the manner set out in this Act or amend Its existing comprehensive plan to conform to the requirements of this Act.

§53. Areas under this Act

A county shall exercise authority under this Act for the total unincorporated area -under Its jurisdiction.

§54. Local planning agency

(1) The governing body of each County government shall designate and by ordinance

establish a 'local planning agency.. The governing body may designate itself as the

local planning agency pursuant to this subsection. The local planning agency shall

prepare the comprehensive plan after meetings to be held after due public notice and shall make recommendations regarding the adoption of such plan or element or portion thereof. The agency may be a local planning commission, the planning department of the County government, or other instrumentality, including a countywide planning entity established by special act or council of local government officials, provided the composition of the council is fairly representative of all the governing bodies In the county.

(2) The governing body or bodies shall appropriate funds for salaries, fees, and expenses necessary in the conduct of the work of the local planning agency and shall also establish a schedule of fees to be charged by the agency. To accomplish the
purpose and activities authorized by this Act, the local planning agency, with the approval of the governing body or bodies and in accord with the fiscal practices thereof, may expend all sums so appropriated and other sums made available for use from fees, gifts, state or federal grants, state or federal loans, and other sources:
howeoer, acceptance of loans must be approved by the governing bodies Involved.

(1) The local planning agency shall have the general responsibility for the conduct of the comprehensive planning program. Specifically, the local planning agency shall:

(a) Be the agency responsible for the preparation of the comprehensive plan and shall make recommendations regarding the adoption of such plan or element or portion thereof consistent with existing county laws or regulations. During the preparation of the plan, and prior to any recommendation for adoption, the local planning agency shall hold at least one public hearing or public meeting, on the proposed plan or element or portion thereof. The local planning agency, may designate any agency, committee, department, or person to prepare, revise. monito, and oversee the effectiveness and status of the comprehensive plan or any element thereof. Prior to adoption of the proposed comprehensive plan, tne governing bcpiy shall hold at least one public hearing, with due public notice, on tne propoieJ plan or element thereof. Final recommendation of the adoption of such plan to the

governing body shall be in accordance with existing County proceedures, or absent

such proceedures, shall be the responsibility of the local planning agency.

(b) Review proposed land development regulations, land development codes, or amendments thereto, and make recommendations to the governing body as to the consistency of the proposal with the adopted comprehensive plan.

(c) Perform any other functions, duties, and responsibilities assigned to it by the governing body or special law.

§55. Required and optional elements of comprehensive plan; studies and surveys

(I) The comprehensive plan shall consist of materials in such descriptive form, either written or graphic, as may ire appropriate to the prescription of principles, guidelines, and standards for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area.

(2) Coordination of the several elements of the local comprehensive plan shall be a major objective of the planning process.

(3) A capital Improvements plan covering at least a five year period shall be developed In accordance with the adoption of, and be consistent with, the comprehensive plan. The capital improvements plan shall be designed to consider the need for and the location of public facilities in order to encourage the efficient utilization of such facilities and set forth:

(a) Principles for construction, extension, or Increase In capacity of public facilities, as well as principles for correcting existing public facility
deficiencies, which are necessary to Implement the comprehensive plan.

(b) Estimated public facility costs, Including a delineation of when facilities will be needed, the general location of the facilities, and projected revenue sources to fund the facilities.

(c) Standards to ensure the availability of public facilities and the adequacy of those facilities.

(dl The capital Improvements plan shall be reviewed on an annual basis and modified as necessary. Correctlons, updates, and modifications concerning costs; revenue sources; acceptance of facilities pursuant to dedications which are consistent with the plan; or the date of construction of any facility enumerated In the capital Improvements plan may be accomplished by ordinance and shall not be deemed to be amendments to the local comprehensive plan. All proposed improvements to public facilities shall be consistent with the capital Improvements plan.

(4) Coordination of the comprehensive plan with the comprehensive plans of municipalities within the county, adjacent counties, and applicable state regulations and policy shall be an objective of the comprehensive planning process. To that end, In the preparation of a comprehensive plan or element thereof, and In the comprehensive plan or element as adopted, the planning agency shall include a specific policy statement or coordinated mapping element indicating the relationship of the proposed development of the area to the comprehensive plans of municipalities within the county, adjacent counties, and applicable state regulations and policy as the case may require.

(5) The comprehensive plan and Its elements shall contain policy recommendations for the implementation of the plan and Its elements

(6) The comprehensive plan shall Include

(a) A future land use plan element designating proposed future general distribution, location, and extent of the uses of land for such activities as residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities, and other categories of the public and private uses of land. The plan shall include standards to be followed In the control and distribution of population densities and building and structure intensities. The proposed distribution, location, and extent of the various categories of land use shall be shown on a land use map or map series which shall be supplemented by goals, policies, and measurable

objectives Each land use category shall be defined In terms of the types of uses Included and standards for the density or intensity of use. The future land use plan shall be based upon surveys, studies, and data regarding the area, including
the amount of land required to accommodate anticipated growth; the projected

population of the area; the character of undeveloped land; the availability of public services. The future land use plan may designate areas for future planned development use involving combinations of types of uses for which special regulations may be necessary to ensure development in accord with the principles and standards of the comprehensive plan and this Act. The land use maps or map series shall generally identify and depict historic district boundaries and shall designate historically significant properties meriting protection.

(b) A circulation element which examines transportation routes and has been received and reviewed by the Department of Transportation. The element shall contain a map series depicting the locations of existing and proposed major thoroughfares and transportation routes as proposed by the Delaware Department of Transportation's long-range plan.

(c) A water and sewer element correlated to principles and guidelines for future land use, indicating ways to provide for future potable water, and wastewater disposal for the area. County government, in conjunction with the state, shall assess their current, as well as projected, water needs and sources. The element shall describe the problems and needs and the general facilities that will be required for solution of the problems and needs. The element should be consistent with approved areawide wastewater treatment plans.

(d) A conservation element for the conservation, use, and protection of natural resources In the area and which results in the identification of these resources. At a minimum, the element shall consist of such natural area

classifications as wetlands, wood uplands, habitat areas, geological areas, hydrological areas, floodplains, aquifer recharge areas, ocean beaches, soils, and slopes. The land use map or map series contained in the future land use element shall generally identify and depict natural areas classifications, such as those enumerated in this section. The land uses identified on said maps shall be

consistent with applicable State laws and regulations. Identification and depiction of the above shall be based on the best topographic maps and other information available from state and federal agencies or other sources that the County deems appropriate.

(e) A recreation and open space element indicating a comprehensive system of public and private sites for recreation including, but not limited to nature preserves, parks and playgrounds, parkways, water bodies including beaches and public access to beaches, open spaces, and other recreational facilities. A County recreation and open space plan is acceptable in lieu of a recreation and open space element. Said County recreation and open space plan should be consistent, however, with the comprehensive land use plan.

(f) A housing element that is consistent with County housing plans, standards, and principles. Such housing plans shall be in accordance with State and Federal rules and regulations and the housing plan or housing element of the Comprehensive Plan shall include the following:

(I) The provision of housing for existing residents and the anticipated

growth of the area.

(2) The elimination of substandard dwelling conditions.

(3) The structural and asethetic improvement of existing housing.

(4) The provision of adequate sites for future housing, including housing for low-income and moderate-Income families, group home facilities and foster care facilities, with supporting Infrastructure and public facilities.

(1) Provision for relocation housing and identification of historically
significant and other housing for purposes of conservation, rehabilitation, or replacement.

(2) The formulation of housing implementation programs.

(g) An intergovernmental coordination element of the comprehensive plan shall demonstrate consideration of the particular effects of the plan, when adopted, upon the development of municipalities within the county, adjacent counties, or on the applicable state regulations.

(8) The comprehensive plan may Include the following additional elements. of PortIon or phases thereof:

(a) A public buildings and related facilities element showing locations and arrangements of civic and community centers, public schools, hospitals, libraries, police and fire stations, and other public buildings. This plan element should
show particularly how it Is proposed to effect coordination with governmental units, such as school boards or hospital authorities, having public development and service responsibilities, capabilities, and potential but not having land
development regulatory authority. This element may Include plans for architecture and landscape treatment of their grounds.

(b) A recommended community design element which may consist of design recommendations for land subdivision, neighborhood development and redevelopment, design of open space locations, and similar matters to the end that such recommendations may be available as aids and guides to developers In the future planning and development of land in the area.

(c) A general area redevelopment element consisting of plans and programs for community redevelopment, including housing sites, business and industrial sites, public buildings sites, recreational facilities, and other purposes authorized by law.

(d) A safety element for the protection of residents and property of the area from fire, hurricane, or man-made or natural catastrophe, including such necessary features for protection as evacuation routes and their control In an emergency, water supply requirements, minimum road widths, clearances around the elevations of structures, and similar matters.

(a) A historical and scenic preservation element setting out plans and programs for those structures of lands In the area having historical, archaeological, architectural, scenic, or similar significance.

(b) An economic element setting forth principles and guidelines for the commercial and industrial development, if any, and the employment and manpower utilization within the area. The element may detail the type of commercial and
industrial development sought, correlated to the present and projected employment needs of the area and to other elements of the plans, and may set forth methods by which a balanced and stable economic base will be pursued.

(a) A mass transit element showing proposed methods for the moving of people, rights-of-way, existing and proposed rail facilities, terminals, related
facilities, and fiscal considerations for the accomplishment of the element.

(a) Such other elements as may be peculiar to, and necessary for, the area concerned and as are added to the comprehensive plan by the governing body upon the recommendation of the local planning agency.

OD All elements of the comprehensive plan shall be based upon data appropriate to the element Involved. State agencies shall provide to each County upon request existing data or information necessary to expedite the development and preparation of the comprehensive plan and elements of this section. Surveys and studies utilized In the preparation of the comprehensive plan shall not be deemed a part of the comprehensive plan unless adopted as a part of It. Copies of such studies, surveys, and supporting documents shall be made available to public inspection, and shall be made available to the public upon payment of reasonable charges for reproduttion. The county shall be relieved of any requIrment to comply with the data and information requirements of this Act when the State IS unable to supply the necessary data and information to Implement that requirement, except when such data or information is currently available or readily accessible to the County within budgetary limitations.

§56. Evaluation and appraisal of comprehensile_plans

(1) The planning programs shall he a continuous and ongoing process. The local

planning agency shall prepare periodic reports on the comprehensive plan, which shall be sent to the Cabinet Committee on State Planning Issues once every two (2) years after the adoption of the comprehensive plan The Cabinet Committee and Its Advisory Panel shall meet no later than six months after receipt of such reports to consider land use trends and changing condltIons as they Impact upon existing pertinent County and State policies It Is the Intent of this Act that periodic updates on amendments to and the impleentation of adopted comprehensive plans be communicated through the evaluation and appraisal reports to ascertain trends, monitor implementation and foster on-going coordination

(2) The report shall present an assessment and evaluation of the success or failure of the comprehensive plan or element or portion thereof, and shall contain appropriate statements (using words, maps, illustrations, or other forms) related to

(a) The major problems of development, physical deterioration, and the location of land uses and the social and economic effects of such uses In the area.

(b) The condition of each element in the comprehensive plan at the time of adoption and at date of report.

(c) The comprehensive plan objectives as compared with actual results at date of report.

(d) The extent to which unanticipated and unforeseen problems and opportunities occurred between date of adoption and date of report.

(3) The report shall include reformulated objectives, policies, and standards in the comprehensive plan or elements or portions thereof.

§57. Legal status of comprehensive plan

(a) After a comprehensive plan or element or portion thereof has been adopted by County Council or Levy Court in conformity with this Act, the land use map or map series forming part of the comprehensive plan as required by this Act shall have the force of law, and no development, as defined in this Act, shall be permitted except in conformity with the land use map or map series and with land development regulations enacted to implement the other elements of the adopted comprehensive plan.

(b) Nothing In this Act shall serve to invalidate any comprehensive plan, land development regulation, land use, development, development order or development permit which presently exists or which hereafter validly comes into existence prior to the date when full compliance with this Act Is required.

(c) Any application for a development permit flied or submitted prior to adoption or amendment under this Act of a comprehensive plan or element thereof shall be processed under the comprehensive plan, ordinances, standards and procedures existing at the time of such application.

(d) All development permits and development orders heretofore or hereafter validly issued or approved by County government and not thereafter limited, rescinded or restricted shall automatically be incorporated Into and become part of the present and all future comprehensive plans, subject to whatever time limitations may otherwise apply to such permits and orders at the time of Issuance or approval.

(e) In the event that any comprehensive plan or element required to comply with this Act shall be determined as falling to comply, herewith, such failure shall not Invalidate those elements of the plan which do comply with the Act, nor invalidate any previously Issued development permit or order that was not specifically and timely challenged In the legal action In which such non-compliance was determined."

Section 2. If any provision of this Act or the application thereof to any person or

circumstance Is held Invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Approved February 3, 1988