New Castle County
CHAPTER 26. ZONING
Subchapter II. The Quality of Life Act
§ 2651 Short title; intent and purpose.
(a) This subchapter shall be known and may be cited as the "Quality of Life Act of 1988." It is the purpose of this subchapter to utilize and strengthen the existing role, processes and powers of County Councils in the establishment and implementation of comprehensive planning programs to guide and control future development. It is the intent of this subchapter 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 Council 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, sewage, schools, parks, recreational facilities, housing and other requirements and services; and conserve, develop, utilize and protect natural resources within their jurisdictions.
(b) It is also the intent of this subchapter 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 Council, 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 subchapter shall be an acceptable comprehensive plan. The land use map or map series forming part of the comprehensive plan as required by this subchapter shall have the force of law, and no development, as defined in this subchapter, shall be permitted except in conformity with the land use map or map series and with county land development regulations enacted to implement the other elements of the adopted comprehensive plan.
66 Del. Laws, c. 207, § 1; 71 Del. Laws, c. 401, § 15.;
§ 2652 Definitions.
For the purposes of this subchapter:
(1) "Area" or "area of jurisdiction" means the total area qualifying under the provisions of this subchapter, 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 subchapter, a plan that meets the requirements of this subchapter. Wherever in this subchapter 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 subchapter 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) "Coordination" as used in this chapter means, in general terms, to act jointly, concurrently, and/or harmoniously toward a common end or purpose.
(4) "County" means New Castle.
(5) "Developer" means any person, including a governmental agency, undertaking any development as defined in this subchapter.
(6) "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.
(7) "Development order" means any order granting, denying or granting with conditions an application for a development permit.
(8) "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.
(9) "Governing body" means the chief governing body of County Council, however designated, or the combination of such bodies where joint utilization of the provision of this subchapter is accomplished as provided herein.
(10) "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.
(11) "Land" means the earth, water and air, above, below or on the surface, and includes any improvements or structures customarily regarded as land.
(12) "Land development regulation commission" means a commission designated by a County Council to develop and recommend, to the local governing body, land development regulations which implement the adopted comprehensive plan and to review land development regulations, or amendments thereto, for consistency with the adopted plan and to report to the governing body regarding its findings. The responsibilities of the land development regulation commission may be performed by the local planning agency.
(13) "Land development regulations" means ordinances enacted by governing bodies for the regulation of any aspect of development and includes any County Council zoning, rezoning, subdivision, building construction or sign regulations or any other regulations controlling the development of land.
(14) "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.
(15) "Local government" means any municipality.
(16) "Local planning agency" means the agency designated to prepare the comprehensive plan required by this subchapter.
(17) 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.
(18) "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 developed as a unit.
(19) "Person" means an individual, corporation, governmental agency, statutory trust, business trust, estate/trust, partnership, association, 2 or more persons having a joint or common interest or any other legal entity.
(20) "Public facilities" means major capital improvements over which the County has jurisdiction.
(21) "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.
66 Del. Laws, c. 207, § 1; 70 Del. Laws, c. 270, §§ 2, 3; 71 Del. Laws, c. 401, § 15; 73 Del. Laws, c. 329, § 48.;
§ 2653 Scope of subchapter.
(a) The County shall have power and responsibility:
(1) To plan for their future development and growth.
(2) To adopt and amend comprehensive plans, or elements or portions thereof, to guide their future development and growth.
(3) To implement adopted or amended comprehensive plans by the adoption of appropriate land development regulations or elements thereof. In furtherance of the authority to adopt, amend and implement comprehensive plans or elements or portions thereof to guide and control future growth, counties are expressly granted the authority to develop and adopt regulations governing the transfer of development rights from identified residential and nonresidential districts, zones or parcels of land to residential and nonresidential districts, zones, parcels or areas designated to receive such development rights; provided that such receiving districts, zones or areas are within the same planning district as defined by the county. Such regulations may provide for the establishment of development right banking. Whenever a county exercises its authority to provide for the transfer of development rights it shall:
a. Comply with all requirements of this subchapter pertaining to the amendment of a comprehensive plan;
b. Provide for the transfer of development rights as an option to the use and development of the subject property according to the otherwise applicable zoning ordinance;
c. Limit designation of receiving areas to locations where the county has determined that growth should be encouraged and where a transfer of development rights would not result in the inability of either the existing or planned public facilities which serve the area to accommodate such growth; and
d. Demonstrate that the creation and regulation of both sending and receiving districts are otherwise consistent with promotion of the policies expressed by the comprehensive plan and statewide planning goals and objectives established pursuant to Chapter 91 of Title 29.
e. Consider appropriate incentives for the transfer of development rights, including bonuses for the use of transferred development rights and intergovernmental agreements with other counties or municipalities which would permit the transfer and use of development rights between counties and municipalities.
(4) To establish, support and maintain administrative instruments and procedures to carry out the provisions and purposes of this subchapter.
(b) Each County Council shall prepare a comprehensive plan of the type and in the manner set out in this subchapter or amend its existing comprehensive plan to conform to the requirements of this subchapter.
66 Del. Laws, c. 207, § 1; 70 Del. Laws, c. 270, § 4; 71 Del. Laws, c. 401, § 15; 72 Del. Laws, c. 122, §§ 1, 2.;
§ 2654 Areas under this subchapter.
A county shall exercise authority under this subchapter for the total unincorporated area under its jurisdiction.
66 Del. Laws, c. 207, § 1.;
§ 2655 Local planning agency.
(a) The governing body of each County Council 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 Department of Land Use of the County Council 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.
(b) 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 subchapter, 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; however, acceptance of loans must be approved by the governing bodies involved.
(c) The local planning agency shall have the general responsibility for the conduct of the comprehensive planning program. Specifically, the local planning agency shall:
(1) 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 1 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, monitor and oversee the effectiveness and status of the comprehensive plan or any element thereof. Prior to adoption of the proposed comprehensive plan, the governing body shall hold at least 1 public hearing, with due public notice, on the proposed plan or element thereof. Final recommendation of the adoption of such plan to the governing body shall be in accordance with existing county procedures, or absent such procedures, shall be the responsibility of the local planning agency.
(2) 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.
(3) Perform any other functions, duties and responsibilities assigned to it by the governing body or special law.
66 Del. Laws, c. 207, § 1; 71 Del. Laws, c. 401, §§ 15, 85.;
§ 2656 Required and optional elements of comprehensive plan; studies and surveys.
(a) The comprehensive plan shall consist of materials in such descriptive form, either written or graphic, as may be 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.
(b) Coordination of the several elements of the local comprehensive plan shall be a major objective of the planning process.
(c) A capital improvements plan covering at least a 5-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:
(1) 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.
(2) 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.
(3) Standards to ensure the availability of public facilities and the adequacy of those facilities.
(4) To the extent provisions of the capital improvements plan anticipate State financial assistance, involvement or cooperation, such provisions shall be developed in conjunction with the state capital improvement plan and annual capital budget.
(d) The capital improvements plan shall be reviewed on an annual basis and modified as necessary. Corrections, 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.
(e) 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. Such policy statement or coordinated mapping element shall specifically identify the coordination process undertaken and the official action taken by affected municipalities regarding the county comprehensive plan. Such statement or element shall also set forth the procedures to be followed to ensure continuing coordination with municipalities, regional agencies and the State. In addition, the comprehensive plan shall provide for coordination with state agencies regarding land use and development policies and shall provide for review and consideration by the Cabinet Committee on State Planning Issues at such times as required by this subchapter.
(f) The comprehensive plan and its elements shall contain policy recommendations for the implementation of the plan and its elements.
(g) The comprehensive plan shall include:
(1) 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 and 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 subchapter. The land use maps or map series shall generally identify and depict historic district boundaries and shall designate historically significant properties meriting protection. Population, demographic, environmental and economic data and projections used to determine present conditions, future land use and public facility requirements shall be developed in conjunction with the State and municipalities, and shall, as a minimum, consistent with projections officially adopted by the Delaware Population Consortium. The sources and assumptions used to develop such projections shall be clearly identified.
(2) A mobility element which is consistent with the approved Area-wide Transportation Plan and has been developed in conjunction with the Department of Transportation. The mobility element shall provide a balanced transportation system addressing the movement of people and goods while showing existing and proposed rights-of-way, sidewalks, bikeways, rail facilities, terminals and related facilities. The mobility element shall include recommendations for land use regulations that promote a range of sustainable transportation choices for future transportation needs. The mobility element shall be consistent with the State Implementation Plan (SIP) for air quality attainment.
(3) 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 Council, 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 water and sewer element shall be developed in consultation with and reviewed by the Department of Natural Resources and Environmental Control. The water and sewer element shall include an assessment of fiscal considerations and shall be consistent with approved area-wide wastewater treatment Plans.
(4) 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. The conservation element shall also consider areas most suited for agricultural uses, silvacultural uses and watershed protection. The conservation element shall be developed in consultation with and reviewed by the Department of Agriculture and the Department of Natural Resources and Environmental Control.
(5) 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. The recreation and open space element shall be consistent with the comprehensive land use plan. The element shall be developed in consultation with and reviewed by the Department of Natural Resources and Environmental Control and shall reflect the State's open space preservation and outdoor recreation planning activities.
(6) 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:
a. The provision of housing for existing residents and the anticipated growth of the area.
b. The elimination of substandard dwelling conditions.
c. The structural and aesthetic improvement of existing housing.
d. 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.
e. Provision for relocation housing and identification of historically significant and other housing for purposes of conservation, rehabilitation or replacement.
f. The formulation of housing implementation programs.
g. Demonstrated coordination with the State Housing Authority including, but not limited to, guidelines to insure that sites for publicly assisted housing are located where adequate transportation opportunities, health and social services and other community services are available.
(7) 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) A recommended community design element to assist in the achievement of the objectives of the comprehensive plan which may consist of design recommendations for land subdivision, neighborhood development, neighborhood redevelopment, design of open space locations and similar matters. To that end, such recommendations may be made available as aids and guides to developers in the future planning and development of land in the area.
(9) An historical preservation element which sets out plans and programs for those structures or lands in the area having historical, archaeological, architectural or similar significance. The historical preservation element shall be developed in consultation with and reviewed by the Division of Historical and Cultural Affairs of the Department of State.
(10) An economic development element setting forth principles and guidelines for the commercial and industrial development, if any, and the employment and personnel utilization within the area. The element may detail the type of commercial and industrial development sought while correlating the present and projected employment needs of the area to other elements of the plan and may set forth methods by which a balanced and stable economic base will be pursued. The economic development element shall include a general area redevelopment component consisting of plans, criteria and programs for community redevelopment, including reuse of housing sites, business sites, industrial sites, central business districts, public building sites, recreational facilities and other locations. The economic development element shall be developed in consultation with and reviewed by the Economic Development Office.
(h) The comprehensive plan may include such other elements as may be peculiar to and/or necessary for the area concerned and as are added by the governing body upon the recommendation of the local planning agency.
66 Del. Laws, c. 207, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 270, §§ 5-15; 71 Del. Laws, c. 401, § 15; 74 Del. Laws, c. 186, § 3; 78 Del. Laws, c. 92, § 1.;
§ 2657 State responsibilities to local planning agencies.
(a) 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 reproduction. The County shall be relieved of any requirement to comply with the data and information requirements of this subchapter 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.
(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 review by the Cabinet Committee on State Planning Issues 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.
66 Del. Laws, c. 207, § 1; 70 Del. Laws, c. 270, §§ 15, 16; 74 Del. Laws, c. 186, § 4; 78 Del. Laws, c. 92, § 2.;
§ 2658 Evaluation and appraisal of comprehensive plan.
(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 Cabinet Committee on State Planning Issues. Within 30 days of plan submission, the Cabinet Committee on State Planning Issues 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.
(b) The State shall not be obligated to provide state financial assistance or infrastructure improvements to support land use or development actions by the County where the County's adopted comprehensive plan or portions thereof are determined to be substantially inconsistent with state development policies.
(c) The planning programs shall be a continuous and ongoing process. The local planning agency shall prepare a report on the progress of implementing the comprehensive plan, which shall be sent to the Office of State Planning Coordination each year after adoption of the comprehensive plan. The report shall be due annually no later than on each anniversary of the effective date of the most recently adopted comprehensive plan or plan update until January 1, 2012, and annually no later than July 1 each year thereafter starting on July 1, 2012. The Cabinet Committee shall forward the report to the Office of State Planning Coordination, which will evaluate it in the context of state goals, policies and strategies, and the plans of other jurisdictions. The Office of State Planning Coordination will integrate the information, land use trends, and changing conditions found in the county's report into the annual report of the Cabinet Committee, which is to be prepared as specified in § 9101(d) of Title 29. It is the intent of this subchapter that periodic updates on amendments to and the implementation of adopted comprehensive plans be communicated through the evaluation and appraisal reports to ascertain trends, monitor implementation and foster ongoing coordination.
(d) 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:
(1) 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.
(2) The condition of each element in the comprehensive plan at the time of adoption and at date of report.
(3) The comprehensive plan objectives as compared with actual results at date of report.
(4) The extent to which unanticipated and unforeseen problems and opportunities occurred between date of adoption and date of report.
(e) The report shall include reformulated objectives, policies and standards in the comprehensive plan or elements or portions thereof.
(f) The Cabinet Committee may prescribe a format and guidelines for the preparation of the County's report. Should the Cabinet Committee elect to do so, the Office of State Planning Coordination shall assist the Committee in the development and administration of such guidelines.
66 Del. Laws, c. 207, § 1; 70 Del. Laws, c. 270, §§ 15, 17-19; 73 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 186, §§ 3-6; 78 Del. Laws, c. 92, §§ 3-6.;
§ 2659 Legal status of comprehensive plan.
(a) After a comprehensive plan or element or portion thereof has been adopted by County Council in conformity with this subchapter, the land use map or map series forming part of the comprehensive plan as required by this subchapter shall have the force of law, and no development, as defined in this subchapter, 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 subchapter 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 subchapter is required.
(c) Any application for a development permit filed or submitted prior to adoption or amendment under this subchapter 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. All subdivision or land development applications heretofore or hereafter filed or submitted to New Castle County that do not receive final approval from New Castle County government within 5 years from the date of application shall be subject to the environmental standards contained in Chapter 40, Articles 5 and 10, of the New Castle County Code, as may be amended, and the traffic impact standards contained in Chapter 40, Articles 5 and 11, of the New Castle County Code, as may be amended. This section shall not be construed to extend any time limitations pertaining to the expiration of subdivision or land development applications contained in the New Castle County Code.
(d) All development permits and development orders heretofore or hereafter validly issued or approved by County Council and not thereafter limited, rescinded or restricted shall automatically be incorporated into and become part of the present and all future comprehensive plans.
(e) In the event that any comprehensive plan or element required to comply with this subchapter shall be determined as failing to comply herewith, such failure shall not invalidate those elements of the plan which do comply with this subchapter, nor invalidate any previously issued development permit or order that was not specifically and timely challenged in the legal action in which such noncompliance was determined.
(f) The County Council may by ordinance provide for the sunsetting of any subdivision or land development plan approvals heretofore or hereafter approved by County Council. However, no such plans shall be subject to sunsetting within the first 5 years of approval of such plans by County Council or the first 5 years after adoption of the County sunsetting ordinance, whichever is later.
66 Del. Laws, c. 207, § 1; 70 Del. Laws, c. 270, § 15; 71 Del. Laws, c. 400, §§ 3, 4; 71 Del. Laws, c. 401, §§ 15, 87; 73 Del. Laws, c. 33, § 1.;
§ 2660 County comprehensive plan.
(a) The County shall submit a final comprehensive plan for submission to the Cabinet Committee on State Planning Issues no later than 5 years after the adoption of the current plan; provided, however, that the County may request an extension of such date by forwarding a written request to the Cabinet Committee at least 90 days prior to the deadline. The basis for the request shall be clearly indicated. The decision whether to grant a request an extension, and the duration of such extension, shall be at the discretion of the Cabinet Committee. Upon completion of the comment period set forth in this subchapter, the County shall solicit public comment and adopt a comprehensive plan for zoning, subdivision and other land use decisions. Such plan shall be updated every 10 years thereafter.
(b) Once the County Council shall have in place said comprehensive plan, the County shall not be permitted to amend such plan without a simple majority of the entire membership thereof voting to do so.
(c) Within 1 year of the date of adoption of the county plan, the County shall initiate an implementation program regarding subdivision and development controls. The County shall report the status of the implementation program in the monitoring report as required by this subchapter. This report should include progress to date, problems, issues and opportunities.
(d) Subsequent amendments to the county comprehensive plan required by this chapter shall be submitted to the Cabinet Committee on State Planning Issues for review and certification pursuant to § 9103 of Title 29.
(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 or maps 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.
66 Del. Laws, c. 216, § 1; 70 Del. Laws, c. 270, §§ 15, 20, 21; 71 Del. Laws, c. 401, § 15; 73 Del. Laws, c. 186, § 2; 74 Del. Laws, c. 186, §§ 3, 7; 78 Del. Laws, c. 92, §§ 7, 8; 78 Del. Laws, c. 129, § 1.;
§ 2661 Information from state and local agencies and school districts.
(a) All subdivision plans approved by the County Council shall be filed with the Office of the Recorder of Deeds, and with such other state and local agencies as the County may by ordinance require.
(b) As part of its review of a rezoning or subdivision application, the County Council through its designated local planning agency shall request and review information from all state and local agencies and local school districts identified on a list prepared by the County and shall file as part of the record any written information provided by such state and local agencies or local school districts with respect to the rezoning or subdivision application. If the planning agency makes recommendations that are in conflict with the information supplied by state and local agencies or local school districts, it must explain its reasons for doing so in writing.
(c)(1) This section shall apply only to residential development. Prior to recording a major record subdivision plan, as defined by New Castle County, the applicant shall provide certification to the Department of Land Use from the Secretary of the Department of Education after consultation with the superintendent of the appropriate individual school district that the school district has adequate capacity for the proposed development. The Secretary shall respond to any request for certification or Voluntary School Assessments within 60 days' receipt of a completed request for such certification. That certification shall include the following information:
a. Existing classrooms and service levels based upon the Delaware Department of Education Delaware School Construction Manual, September 19, 1996, as may be amended or supplemented from time to time, or based upon other standards accepted as accurate by the Secretary of the Department of Education; and
b. Capacity calculations, which shall include the current student population, increased demand resulting from prior certifications from the Department of Education, and the increased demand that will result from the proposed development. The Department of Land Use shall within 20 days provide the Department of Education with all necessary information regarding the number and type of dwelling units proposed and other information which the Secretary may request.
This subsection shall apply to all new residential major subdivision plans submitted pursuant to the New Castle County Unified Development Code adopted December 31, 1997, as may be amended.
(2) Notwithstanding the foregoing provisions of this subsection, no certificate of adequate school capacity shall be required where either: (i) the residential development is restricted by recorded covenants to provide housing or shelter predominantly for individuals 55 years of age or older pursuant to the Federal Fair Housing Act [42 U.S.C. § 3601 et seq.]; (ii) the residential development is for low income housing, which, for purposes of this section, shall be defined to mean any housing financed by a loan or mortgage that is insured or held by the Secretary of HUD or the Delaware State Housing Authority or which is developed by a nonprofit corporation certified under § 501(c)(3) of the United States Internal Revenue Code [26 U.S.C. § 501(c)(3)]; or (iii) the applicant has pledged, in a writing recorded and running with the subject property, to pay a Voluntary School Assessment in an amount determined pursuant to § 103(c) of Title 14, for each lot for which the applicant would otherwise be required to obtain a certificate.
(3) Voluntary School Assessments will be calculated on a per unit basis as of the time of the issuance of the first building permit, and the assessment shall remain constant throughout the development of the subdivision (and shall not be increased for any reason, including but not limited to any resubdivision); provided, however, that after 5 years the Voluntary School Assessment amount may be recalculated. Any Voluntary School Assessments paid under this subsection shall be paid to the Department of Education at the time that a certificate of occupancy is obtained for each unit, and shall be deposited by the Department into an interest-bearing account as set forth below. With the approval of the Secretary, after consultation with the superintendent of the affected school district, an applicant may receive a credit against voluntary assessments to be paid in an amount equal to the fair market value of any lands or properties set aside by the applicant and deeded to the school district for school uses. Any such lands shall not be used for nonschool purposes, other than as parkland or open space. All voluntary assessments paid shall be held in an interest-bearing account by the State for the school district in which the applicant's project is located until such time as the school district engages in construction activities that increase school capacity, at which time such assessments shall be released to the school district by the State in the amount of the Voluntary School Assessments paid into an interest-bearing account for such district. It is the intent of this section that lands or properties required to be conveyed by the applicant to New Castle County as a condition to subdivision approval shall not be eligible to be used for purposes of obtaining a credit against the voluntary school assessment notwithstanding the fact that such lands or properties may subsequently be conveyed by the county to a school district.
(4) To the extent New Castle County has adopted (or in the future attempts to adopt) any regulations or ordinances linking or tying residential development to school capacity, or otherwise restricting residential development in the absence of school capacity, such regulations and ordinances are hereby preempted and of no force and effect.
66 Del. Laws, Sp. Sess., c. 198, § 1; 70 Del. Laws, c. 270, § 15; 71 Del. Laws, c. 401, § 15; 72 Del. Laws, c. 237, § 1; 73 Del. Laws, c. 350, § 108; 74 Del. Laws, c. 308, § 151(a), (b).;
§ 2662 Highway capacity.
The County Council shall not approve any proposed change in the zoning classification for land (i.e., any "rezoning request") without first complying with the following procedures:
(1) As soon as possible, but in any event no later than June 30, 1988, the County Council, through its designated planning agency, shall establish an agreement with the Delaware Department of Transportation (DelDOT) to provide a procedure for analysis by DelDOT of the effects on traffic of each rezoning application.
(2) Each such agreement shall be approved by a resolution or ordinance, consistent with County procedures, and shall establish traffic level of service suitable to the County and DelDOT.
(3) The purpose of the agreement shall be to ensure that traffic analyses are conducted as part of the zoning reclassification process within the County.
(4) The agreement shall provide for the review of traffic impacts according to nationally recognized traffic criteria and shall, at a minimum, consider the effects of existing traffic, projected traffic growth in areas surrounding a proposed zoning reclassification and the projected traffic generated by the proposed site development for which the zoning reclassification is sought.
66 Del. Laws, c. 217, § 1; 70 Del. Laws, c. 270, § 15; 71 Del. Laws, c. 401, § 15.;