CHAPTER 186

FORMERLY

HOUSE BILL NO. 255

AS AMENDED BY HOUSE AMENDMENT NOS. 1, 3, 4, 6, 8, 10 AND 12

AN ACT TO AMEND TITLE 9, TITLE 22, TITLE 29 OF THE DELAWARE CODE RELATING TO LAND-USE, COMPREHENSIVE PLANS, AND ANNEXATIONS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend §2658(a), Title 9, Delaware Code by striking it in its entirety and inserting in lieu thereof the following:

“(a) The comprehensive plan or amendments or revisions thereto shall be submitted to the Governor or designee at such time as the plan is made available for public review. The County shall provide sufficient copies for review by the Governor’s Advisory Council on Planning Coordination. The Advisory Council, within 30 days of plan submission, shall conduct a public meeting at which time the County shall make a presentation of the plan and its underlying goals and development policies. Following the public meeting the plan shall be subject to the State review and certification process set forth in §9103 of Title 29, Delaware Code.”.

Section 2. Amend § 2660, Title 9, Delaware Code, to add a new §2660(e) to read as follows:

"(e) Within 18 months of the date of adoption of the county comprehensive plan or revisions thereof, New Castle County shall amend its official zoning map(s) to rezone all lands in accordance with the uses and intensities of uses provided for in the future land use element for the county. In the event that the comprehensive plan includes provisions governing the rate of growth of particular planning districts or sub-areas of the county, the County's zoning district regulations shall be amended to reflect the timing elements of the comprehensive plan."

Section 3. Amend §4958(a), Title 9, Delaware Code by striking it in its entirety and inserting in lieu thereof the following:

“(a) The comprehensive plan or amendments or revisions thereto shall be submitted to the Governor or designee at such time as the plan is made available for public review. The County shall provide sufficient copies for review by the Governor’s Advisory Council on Planning Coordination. The Advisory Council, within 30 days of plan submission, shall conduct a public meeting at which time the County shall make a presentation of the plan and its underlying goals and development policies. Following the public meeting the plan shall be subject to the State review and certification process set forth in §9103 of Title 29, Delaware Code.”

Section 4. Amend § 4960, Title 9, Delaware Code, to add a new § 4960(e) to read as follows:

"(e) Within 18 months of the date of adoption of the county comprehensive plan or revision thereof, Kent County shall amend its official zoning map(s) to rezone all lands in accordance with the uses and intensities of uses provided for in the future land use element for the County. In the event that the comprehensive plan includes provisions governing the rate of growth of particular planning districts or sub-areas of the County, the County's zoning district regulations shall be amended to reflect the timing elements of the comprehensive plan."

Section 5. Amend §6958(a), Title 9, Delaware Code by striking it in its entirety and inserting in lieu thereof the following:

“(a) The comprehensive plan or amendments or revisions thereto shall be submitted to the Governor or designee at such time as the plan is made available for public review. The County shall provide sufficient copies for review by the Governor’s Advisory Council on Planning Coordination. The Advisory Council, within 30 days of plan submission, shall conduct a public meeting at which time the County shall make a presentation of the plan and its underlying goals and development policies. Following the public meeting the plan shall be subject to the State review and certification process set forth in §9103 of Title 29, Delaware Code.”

Section 6. Amend § 6960, Title 9, Delaware Code, to add a new § 6960(e) to read as follows:

"(e) Within 18 months of the date of adoption of the county comprehensive plan or revisions thereof, Sussex County shall amend its official zoning map(s) to rezone all lands in accordance with the uses and intensities of uses provided for in the future land use element for the County. In the event that the comprehensive plan includes provisions governing the rate of growth of particular planning districts or sub-areas of the County, the County's zoning district regulations shall be amended to reflect the timing elements of the comprehensive plan."

Section 7. Amend § 702 of Title 22, Delaware Code, by adding to § 702(c) the following after the period:

“Should a jurisdiction exercise its authority to establish municipal zoning regulations pursuant to Chapter 3 of this Title, it shall, within 18 months of the adoption of a comprehensive development plan or revision thereof, amend its official zoning map to rezone all lands within the municipality in accordance with the uses of land provided for in the comprehensive development plan.

Section 8. Amend §702(f) of Title 22, Delaware Code, by striking it in its entirety and inserting in lieu thereof the following:

“(a) The comprehensive plan or amendments or revisions thereto shall be submitted to the Governor or designee at such time as the plan is made available for public review. The municipality shall provide sufficient copies for review by the Governor’s Advisory Council on Planning Coordination. The Advisory Council, within 30 days of plan submission, shall conduct a public meeting at which time the municipality shall make a presentation of the plan and its underlying goals and development policies, except when the Advisory Council determines that the comprehensive plan, amendments, or revisions are fully consistent with Statewide land development goals, policies and criteria as adopted by the Governor or Cabinet Committee on State Planning Issues. Following the public meeting the plan shall be subject to the State review and certification process set forth in §9103 of Title 29, Delaware Code. If the Advisory Council determines that a public meeting is not required as provided above, the plan shall be submitted directly to the Governor or his or her designee for certification provided in §9103. Any proposed comprehensive plan, that has been submitted to the Office of State Planning Coordination prior to the effective date of this Act for review, shall be exempt from the requirements of this subsection.”

Section 9. Further amend §702 of Title 22, Delaware Code, by adding a new part (g) to read as follows:

“(g) Municipalities shall provide to the Office of State Planning Coordination by December 31 of each year a report describing implementation of their comprehensive plan and identifying development issues, trends, or conditions since the plan was last adopted or amended.”

Section 10. Amend §101 of Title 22, Delaware Code by deleting it in its entirety and replacing it with the following:

Ҥ 101 Annexation by city or town:

Any city or town proposing to extend its boundaries, irrespective of any municipal charter provisions, whether such extension is proposed by action of the General Assembly or pursuant to the provisions of a home rule charter, except any proposed annexation that has been submitted to the Office of State Planning Coordination prior to the effective date of this Act for review, shall conform to the following provisions:

(a) All annexations must be consistent with the most recently adopted municipal comprehensive plan meeting the requirements of Title 22, Chapter 7, Delaware Code. The area(s) being considered must be depicted as area(s) for future annexation on the adopted plan. If a municipality does not have an adopted comprehensive plan, or if its adopted comprehensive plan does not depict areas for future annexation, it shall prepare and adopt a plan or plan amendment within 12 months of the effective date of this Act. The municipality shall not approve any annexations until such plan or plan amendment is adopted, notwithstanding any other charter provisions; except that during the 12-month period a municipality may consider an annexation of already developed parcels where the proposed use(s) will not change from that currently authorized in the adjacent jurisdiction and where the primary purpose of the annexation is to address existing public health or safety issues such as, but not limited to, failing on-site wastewater disposal systems or contaminated or inadequate drinking water. In such cases the provisions of §101(b) through (f) of this section shall not apply.

(b) A city or town shall prepare a plan of services indicating those services it expects to provide to the newly annexed area, how such services will be provided, and the fiscal and operating capabilities of the municipality to provide such services. Should any services be provided by another jurisdiction or a public utility regulated by the Delaware Public Service Commission, the written comments of such provider on the provider's ability to provide the necessary services for the proposed annexation shall be obtained and included in the plan of services. The study shall be conducted in accordance with standards or criteria established by the Cabinet Committee on State Planning Issues as administered by the Office of State Planning Coordination.

(c) At the time of annexation the jurisdiction shall by ordinance rezone the area being annexed to a zoning classification consistent with the adopted comprehensive plan or development strategy.

(d) A municipality proposing annexation must fully comply with the provisions of Chapter 92, Title 29, Delaware Code as to State notice, and must demonstrate that it has notified all other affected jurisdictions, conducted a public hearing, and provided a comment period of at least 30 days before formal annexation. The city or town proposing annexation shall file with the State Office of Planning Coordination any written comments received concerning such proposed annexation together with any response(s) thereto.

(e) The Advisory Council on Planning Coordination shall establish a mechanism for resolving disputes between jurisdictions regarding annexations. The mechanism developed by the Council shall address:

1. determination of how the costs for the dispute resolution process are born among the parties;

2. timeline for the dispute resolution process; and

3. extent to which the dispute resolution process will be enforceable."

Section 11. Amend Chapter 91 of Title 29, Delaware Code, to add a new §9103 to read as follows:

Ҥ9103. Comprehensive Plan Review and Certification Process.

(a) The comprehensive plan review and certification process is intended to compare planning goals and development policies among levels of government for the purpose of attaining compatibility and consistency among the interests of State, county and municipal governments. Plan review and certification are necessary to properly address potential burdens on the State government for future infrastructure and public services caused by local land use actions.

(b) Comprehensive plans and amendments or revisions thereto are subject to the provisions of §9211 of this Title. The Office of State Planning Coordination, in addition to soliciting State agency comments as provided therein, shall within the 20 working day review period provided in §9218 of this Title, also conduct a review and comparison of the proposed county or municipal comprehensive plan or amendment or revision with State goals, policies and strategies. The Office of State Planning Coordination shall prepare a report:

(1) documenting the degree to which the county or municipal comprehensive plan has incorporated the State’s goals, policies, and strategies;

(2) including a detailed list of findings, recommendations, and objections, including adverse fiscal impacts;

(3) identifying improvements, revisions or other actions desired to address and resolve inconsistencies;

(4) setting forth a timetable and process for negotiations with the county or municipality for achieving consistency.

The State review shall include an assessment of the potential fiscal impacts of the proposed county or municipal comprehensive plan as they relate to State funded infrastructure and services, including but not limited to transportation, water and sewer systems, public schools, affordable housing and public safety. The State’s review shall be based on such Statewide land development goals, policies and criteria as may have been adopted by the Governor or Cabinet Committee on State Planning Issues, or as set forth in State law or regulation, or in provisions of the State’s most recent capital budgets.

(c) Proposed comprehensive plans or amendments or revisions thereto will be shared with other potentially impacted jurisdictions and the Office of State Planning Coordination will provide for such review and comment, pursuant to the provisions of §9218 of this Title. Other jurisdictions desiring to comment on any inconsistencies with a county or municipal comprehensive plan shall do so by an official action of said government setting forth the nature of any inconsistencies, concerns, issues, conflicts, agreement, and recommended revisions.

(d) Should the Office of State Planning Coordination make objection to any proposed comprehensive plan or amendments or revisions thereto, then the Office of State Planning Coordination shall immediately enter into negotiation with the county or municipality in an attempt to solicit agreement and resolution. Any agreements reached during these negotiations shall be incorporated into the public record and considered by the governing body prior to final action on the comprehensive plan. If the Office of State Planning Coordination and the county or municipality fail to reach agreement after a period of 45 days, the Office of State Planning Coordination shall report the extent of agreement and areas of continued disagreement to the Advisory Council on Planning Coordination for dispute resolution.

(e) The Office of State Planning Coordination shall submit a final comprehensive plan report and recommendation to the Advisory Council on Planning Coordination for its consideration. The Council shall consider the report submitted by the Office of State Planning Coordination, appropriate State land development goals and strategies, comments submitted by any impacted jurisdiction, and such other information as it may determine to be appropriate and in the public interest. The Council may, in its discretion, conduct a public hearing on the proposed comprehensive plan or amendment or revision thereto, except that no hearing shall be held if the proposed plan or amendment or revision thereto is found to be consistent with the state goals, policies and strategies, and not in conflict with plans of other jurisdictions. Within 45 days of the receipt of the report from the Office of State Planning Coordination, the Council shall issue its findings and recommendations, and shall submit the proposed plan to the Governor or designee for certification.

(f) Within 20 days of receipt of the findings and recommendations from the Council, the Governor shall certify the comprehensive plan or return the comprehensive plan to the municipality or county for revision. The municipality or county shall have the right to accept or reject any or all of the recommendations. The final decision on the adoption of the comprehensive plan is that of the municipality or county.”

Section 12. Amend §9101of Title 29, Delaware Code, to add a new part (i) to read as follows:

“(i) The Office of State Planning Coordination shall render local planning technical assistance, and may make grants available, to county and municipal governments for the purposes of coordinating planning activities, promoting liaison between various State agencies and local governments, building capacity through training and sharing of digital and other information, developing infrastructure plans, addressing specific growth and design issues, and such other actions as are appropriate to achieve the purposes of this chapter. The Office of State Planning Coordination shall develop and promote cooperation and coordination among State agencies and local governments to ensure effective and efficient planning and infrastructure investment.”.

Approved July 13, 2001