CHAPTER 186

FORMERLY

SENATE BILL NO. 65

AS AMENDED BY

SENATE AMENDMENT NOS. 2 & 3, HOUSE AMENDMENT NO. 2

AND

SENATE AMENDMENT NO. 4

AN ACT TO AMEND TITLES 9 AND 29 OF THE DELAWARE CODE RELATING TO LAND USE PLANNING.

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

Section 1. Strike Chapter 92, Title 29 in its entirety and replace it with a new Chapter 92 to read as follows:

“Subchapter I. Findings, Purpose and Definitions

§ 9201. Findings; purpose.

a) Some 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 must apply to a local jurisdiction for approval to proceed with a project which requires a local jurisdiction to take a land use planning action.

b) ‘Comprehensive development plan’ means a municipal or county comprehensive land use plan, master plan or comprehensive plan as provided in Title 9, 22 or 29.

c) ‘Local land use planning action’ means any action involving: (1) the adoption or amendment of a Comprehensive Development Plan; (2) the zoning or re-zoning of land; (3) the subdivision or partioning of one parcel of land into two or more parcels of land or the combining of two or more parcels of land into one or more new parcels of land if required by local subdivision review ordinances; or (4) the review or approval of one or more parcels of land for development if required by local site plan review ordinances.

d) ‘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.

e) ‘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.

f) ‘Rezoning’ means any modification of zoning classification of property based upon local zoning codes adopted as provided in Title 9 or 22.

g) ‘Final Decision’ means any legislative, administrative, or quasi-judicial action that establishes the final determination of a local jurisdiction concerning any land use planning action

h) ‘Site Plan’ means a plan, to scale, showing uses, structures, and any other improvements for a parcel as required by a local jurisdiction’s land use regulations.

i) ‘Subdivision’ means the division of land into two or more lots.

Subchapter II Pre-application Reviews

§ 9203. Local land use planning actions subject to review process.

a) All projects meeting any one of the following criteria shall undergo a pre-application meeting and review process as set forth in this Chapter:

(1) Major residential subdivisions with internal road networks and more than 50 units, excluding previously recorded residential subdivisions of any size which have not been sunsetted.

(2) Any non-residential subdivision involving structures or buildings with a total floor area exceeding 50,000 square feet, excluding any previously approved and recorded non-residential subdivision regardless of floor area size, or any site plan review involving structures or buildings with a total floor area exceeding 50,000 square feet, excluding any previously approved and recorded non-residential site plan review regardless of floor area size.

(3) Rezonings, conditional uses, site plan reviews and/or subdivisions, within environmentally sensitive areas, as identified within any local jurisdiction’s comprehensive plan as certified under Title 29, §9103.

(4) Annexations inconsistent with the local jurisdiction’s comprehensive plan as certified under Title 29, §9103.

(5) Applications for rezoning if not in compliance with the local jurisdiction’s comprehensive plan as certified under Title 29, §9103.

(6) Any other project which is required to be referred to the State for pre-application review by local jurisdiction regulations.

(7) Any local land use regulation, ordinance or requirement referred to the Office of State Planning Coordination by a local jurisdiction for the purpose of providing the jurisdiction with advisory comments. The land use regulations, ordinances or requirements that are to be referred to the Office of State Planning Coordination may be specified in a jurisdiction's Memorandum of Understanding.

(8) County and municipal comprehensive plans as required by Titles 9 and 22 of the Delaware Code.

b) Any applicant may voluntarily request to participate in the pre-application review process and shall make such requests in writing to the Office of State Planning Coordination.

§ 9204. Pre-Application Review Process

a) Pre-application reviews shall be conducted and concluded, unless otherwise provided for herein, prior to the formal submission of any document required by the first step under any local jurisdiction's land use review regulation, including, but not limited to, a 'preliminary' or 'sketch' subdivision or site plan, or a written request for a re-zoning, conditional use, or annexation by an applicant to the local jurisdiction. The applicant may elect to initiate the pre-application review process simultaneously with the formal submission or application to any local jurisdiction with an approved Memorandum of Understanding as provided for in § 9205 (c) of this Act. The applicant is responsible for complying with any and all local regulations and is strongly encouraged to meet with local officials prior to initiating the pre-application review process. The applicant shall be responsible for requesting a pre-application review under this Chapter.

b) The Office of State Planning Coordination shall develop an application and procedures for review and shall be responsible for scheduling and coordinating all pre-application review meetings. Meeting dates shall be designated for one or more days certain each month and held in accordance with procedures outlined by the Office of State Planning Coordination. Projects shall be heard at a pre-application meeting within 45 calendar days of receipt of a request by the Office of State Planning Coordination. The Office of State Planning Coordination shall give public notice of all pre-application review meetings by following the requirements of §10004(e) of this Title.

c) Within 20 business days following the date of the pre-application meeting with the applicant, the Office of State Planning Coordination shall furnish to the applicant and the local jurisdiction a written compilation of all comments received at the meeting. Failure of Office of State Planning Coordination to meet the 20 business day requirement will result in the State forfeiting the opportunity to comment on the local land use planning action. The length of review may be extended by mutual consent of the Office of State Planning Coordination and the applicant. The local jurisdiction shall be notified immediately of any mutually acceptable delays.

d) Following the pre-application review process and upon filing of an application with the local jurisdiction, the applicant shall provide to the local jurisdiction and the Office of State Planning Coordination a written response to comments received as a result of the pre-application process, noting whether comments were incorporated into the project design or not and the reason therefore.

§ 9205. State agency authorities, roles and responsibilities.

a) All state agencies shall participate in the preapplication review process if requested by the Office of State Planning Coordination and shall provide such assistance and advice as requested by the Office of State Planning Coordination.

b) In special circumstances, the Office of State Planning Coordination may waive the pre-application requirements of this Chapter. Where such waiver is granted, the Office of State Planning Coordination shall provide a written explanation of the causes for the waiver to the relevant local jurisdiction and the applicant. These circumstances may include, but are not limited to, local governments that impose a more stringent review of projects enumerated in §9203(a) than required by this Chapter, or for projects which will provide an extraordinary benefit to the State and the local jurisdiction through economic development, job creation, educational opportunities, public services or facilities, agricultural preservation, or protection and enhancement of the natural environment.

c) In order to more effectively coordinate with the local land-use process, the Office of State Planning Coordination shall, through a Memorandum of Understanding agreed to by both parties, exempt the local jurisdiction from the provisions of this Act or modify the pre-application review process specified herein when the local jurisdiction has a Certified Comprehensive Plan and imposes a more stringent review of projects enumerated in § 9203 (a) than required by this Chapter.

d) The Office of State Planning Coordination shall coordinate, where possible, the other state review processes including but not limited to the transportation agreements specified in Title 9, and other state land use review and permitting processes.

§ 9206. Local jurisdiction authorities, roles and responsibilities

a) Nothing in this subchapter shall be construed to deny local jurisdictions their final decision-making authority over proposed local land use planning actions.

b) The local jurisdiction shall, in accordance with this chapter, make its final decision and notify the Office of State Planning Coordination of such decision as soon as possible.

Section 2. Amend Title 29, Delaware Code by striking § 10307 in its entirety.

Section 3. Amend Title 9, Chapter 26, Subchapter II, of the Delaware Code by striking the phrase “Cabinet Committee on State Planning Issues” wherever it appears and substituting in lieu thereof the phrase “Governor's Advisory Council on Planning Coordination”.

Section 4. Amend Title 9, §2657 (b), of the Delaware Code by deleting said subsection in its entirety and substituting a new § 2657 (b) to read as follows:

“(b) The State, through the Office of State Planning Coordination, shall provide to the County, for use in the comprehensive planning process, State land use and development goals and policies, state regulatory requirements, estimates of future state financial capabilities, the State Capital Improvements Budget and Plan, State facility location plans, estimates of existing quantity of natural resources, economic development strategies and any other information which might reasonably influence the county's future land use decisions. The State shall provide the County with long-range plans, performance standards, land development polices, facility siting criteria and infrastructure impact assessment standards (necessary to ensure the availability of public facilities and the adequacy of those facilities), so as to enable the county to prepare the plan elements required by § 2656 of this title and to clearly set forth the criteria the State will use to review such elements. The Governor’s Advisory Council on Planning Coordination’s review shall be pursuant to §9103 of Title 29. During preparation of the county comprehensive plan, the county and the State shall jointly establish guidelines for the location and arrangement of public facilities, such as public schools, health care facilities, public safety and correctional institutions, libraries and other public buildings. Such guidelines shall be used to coordinate between the various levels of government so as to ensure that public buildings and facilities are located in a manner which are consistent with State and county development goals. ”

Section 5. Amend Title 9, § 2658 (c) by deleting the phrase “Cabinet Committee and its Advisory Panel” and substituting therefore the phrase “Governor's Advisory Council on Planning Coordination”.

Section 6. Amend Title 9, § 2658 (f) of the Delaware Code by deleting it in its entirety.

Section 7. Amend Title 9, § 2660 (d), of the Delaware Code by striking the phrase “Cabinet Committee on State Planning Issues for review pursuant to § 9211 of Title 29.” substituting in lieu of the following: “Governor's Advisory Council on Planning Coordination for review and certification pursuant to § 9103 of Title 29.”

Section 8. Amend Title 9, Chapter 49, Subchapter II of the Delaware code by striking the phrase “Cabinet Committee on State Planning Issues” wherever it appears and substituting in lieu thereof the phrase “Governor's Advisory Council on Planning Coordination”.

Section 9. Amend Title 9, §4957 (b), of the Delaware Code by deleting said subsection in its entirety and substituting a new § 4957 (b) to read as follows:

“(b) The State, through the Office of State Planning Coordination, shall provide to the County, for use in the comprehensive planning process, State land use and development goals and policies, state regulatory requirements, estimates of future state financial capabilities, the State Capital Improvements Budget and Plan, State facility location plans, estimates of existing quantity of natural resources, economic development strategies and any other information which might reasonably influence the county's future land use decisions. The State shall provide the County with long-range plans, performance standards, land development polices, facility siting criteria and infrastructure impact assessment standards (necessary to ensure the availability of public facilities and the adequacy of those facilities), so as to enable the county to prepare the plan elements required by §4956 of this title and to clearly set forth the criteria the State will use to review such elements. The Governor’s Advisory Council on Planning Coordination’s review shall be pursuant to §9103 of Title 29. During preparation of the county comprehensive plan, the county and the State shall jointly establish guidelines for the location and arrangement of public facilities, such as public schools, health care facilities, public safety and correctional institutions, libraries and other public buildings. Such guidelines shall be used to coordinate between the various levels of government so as to ensure that public buildings and facilities are located in a manner which are consistent with State and county development goals.”

Section 10. Amend Title 9, § 4958 (c) by deleting the phrase “Cabinet Committee and its Advisory Panel” and substituting therefore the phrase “Governor's Advisory Council on Planning Coordination”.

Section 11. Amend Title 9, § 4958(f), of the Delaware Code by deleting it in its entirety.

Section 12. Amend Title 9, § 4960 (d), of the Delaware Code by striking the phrase “Cabinet Committee on State Planning Issues for review pursuant to § 9211 of Title 29.” substituting in lieu of the following: “Governor's Advisory Council on Planning Coordination for review and certification pursuant to § 9103 of Title 29.”

Section 13. Amend Title 9, Chapter 69, Subchapter II, of the Delaware Code by striking the phrase “Cabinet Committee on State Planning Issues” wherever it appears and substituting in lieu thereof the phrase “Governor's Advisory Council on Planning Coordination”.

Section 14. Amend Title 9, §6957 (b), of the Delaware Code by deleting said subsection in its entirety and substituting a new § 6957 (b) to read as follows:

“(b) The State, through the Office of State Planning Coordination, shall provide to the County, for use in the comprehensive planning process, State land use and development goals and policies, state regulatory requirements, estimates of future state financial capabilities, the State Capital Improvements Budget and Plan, State facility location plans, estimates of existing quantity of natural resources, economic development strategies and any other information which might reasonably influence the county's future land use decisions. The State shall provide the County with long-range plans, performance standards, land development polices, facility siting criteria and infrastructure impact assessment standards (necessary to ensure the availability of public facilities and the adequacy of those facilities), so as to enable the county to prepare the plan elements required by §6956 of this title and to clearly set forth the criteria the State will use to review such elements. The Governor’s Advisory Council on Planning Coordination’s review shall be pursuant to §9103 of Title 29. During preparation of the county comprehensive plan, the county and the State shall jointly establish guidelines for the location and arrangement of public facilities, such as public schools, health care facilities, public safety and correctional institutions, libraries and other public buildings. Such guidelines shall be used to coordinate between the various levels of government so as to ensure that public buildings and facilities are located in a manner which are consistent with State and county development goals. ”

Section 15. Amend Title 9, § 6958 (c) by deleting the phrase “Cabinet Committee and its Advisory Panel” and substituting therefore the phrase “Governor's Advisory Council on Planning Coordination”.

Section 16. Amend Title 9, § 6958(f), of the Delaware Code by deleting it in its entirety.

Section 17. Amend Title 9, § 6960 (d), of the Delaware Code by striking the phrase “Cabinet Committee on State Planning Issues for review pursuant to § 9211 of Title 29.”, and substituting in lieu of the following: “Governor's Advisory Council on Planning Coordination for review and certification pursuant to § 9103 of Title 29.”

Section 18. Amend Title 29, § 9103 (b) by striking the phrase “9211” and substituting in lieu thereof the phrase “9203” and by striking the phrase “9218” and substituting in lieu thereof the phrase “9204 (d)”.

Section 19. Amend Title 29 § 9103 (c) by striking the phrase “9218” and substituting in lieu thereof the phrase “9204”.

Section 20. Amend Title 9 §6803 (a) by striking it in its entirety and substituting in lieu thereof a new §6803 (a) to read as follows:

“(a) The Commission shall consist of 7 members as follows: 

(1) Two nonvoting, ex officio members, the County Engineer and a member of the county government, and

(2) Five voting members all of whom shall be appointed by the county government.”

Section 21. This act shall take effect six (6) months from the date of enactment.

Approved August 14, 2003