General Provisions

Del. Code tit. 17, ch. 1
in effect

Del. Code tit. 17, § 101 Definitions.

(a) As used in this title, unless the context indicates a different intent: (1) “Construction” means the first complete building or rebuilding of a highway after it has been converted into a state highway upon a modern engineering design with a permanent foundation of cement, concrete or other equally hard and permanent material and a top dressing of suitable material to economically withstand the wear of the particular traffic to which such highway will probably be subject with an adequate drainage system so that such highway, with reasonable maintenance, can reasonably be expected to endure for upwards of 40 years. (2) A “Delaware byway” is a transportation route which is adjacent to or runs along or next to an area that has particular intrinsic scenic, historic, recreational, cultural or archaeological qualities and for which such transportation route is managed in order to protect such characteristics and to encourage development of tourism and recreational resources. (3) “Department” means the Department of Transportation. (4) “Express highway” means a state highway especially designed for through traffic over which owners of abutting property shall have no easement or right of direct access, light or air, by reason of the fact that this property abuts on such highway, and it shall have only such public entrances or exits as shall be designated by the Department and may be with or without service roads in the discretion of the Department. (5) “Maintenance,” as applied to constructed or reconstructed highways, is the upkeep and support thereof with true surfaces in a hard, smooth condition as when such highways were constructed or reconstructed and with proper and adequate drainage systems; as applied to state highways not constructed or reconstructed, is the upkeep and support thereof in as high a condition of perfection as is consistent with the character of such unconstructed or unreconstructed highway and shall include the keeping of the right-of-way of all state highways clear of underbrush and debris which might interfere with the drainage or injure the foundation of such highways and the setting out and preserving of trees where desirable along such right-of-way. (6) “Public carrier” includes every individual, partnership, association, corporation, joint stock company, agency or department of this State, or any association of individuals engaged in the prosecution in common of a productive enterprise (commonly called a “cooperative”), their lessees, trustees, or receivers appointed by any court whatsoever, that now operates or hereafter may operate, within this State, any railroad, street railway, traction railway, motor bus or electric trackless trolley coach service, system, plant or equipment for public use. (7) “Railroad” means a road, the cars, carriages and coaches on which are propelled by steam power, electricity, cable, motor or any improved motive power. (8) “Reconstruction” is the first extensive repairing of an improved road converted into a state highway, and before the Department has constructed such highway, as in the opinion of the Department and the Secretary of Transportation, will result in a state highway of such permanency that there will be a net saving of reconstruction. (9) “Road” and “highway” include any public way or road or portion thereof and any sewer, drain or drainage system connected therewith and any bridge, culvert, viaduct or other construction or artificial way used in connection therewith and anything which is accessory to any of the same or to the use thereof. (10) “Secretary” means the Secretary of Transportation. (11) “State highway” includes any road or highway or portion thereof which the Department has constructed or of which the Department has taken or assumed control or jurisdiction. (b) As used in this title, “construct” and “constructed” shall be defined in accordance with the definition of “construction”; “reconstruct” and “reconstructed” shall be defined in accordance with the definition of “reconstruction”; “maintain” and “maintained” shall be defined in accordance with the definition of “maintenance.”

Del. Code tit. 17, § 111 Secretary of Transportation; powers and duties; Chief Engineer.

(a) The Secretary of Transportation shall, immediately upon assuming the duties of office and from time to time, recommend to the Department a program for the improvement of state highways and for the inclusion of additional roads or portions of roads in the state highway system, the probable cost of the construction or reconstruction of such roads or portions of roads and the roads or portions of roads which should first be improved and the probable amount of construction which could be undertaken. (b) The Secretary shall employ, promote and discharge all persons hired by the Department, including a Chief Engineer, for the performance of work for which the Secretary is responsible. All such employment, promotion and discharge shall comply with the laws applicable to the Department. (c) The Chief Engineer shall be not less than 30 years of age; the Chief Engineer shall be a civil engineer registered or eligible for registration as such in Delaware and shall have been in active practice of the profession for at least 10 years; the Chief Engineer shall have had responsible charge of road engineering work for at least 5 years; and the Chief Engineer shall be qualified to design as well as direct road engineering work. Graduation from a school of engineering of recognized reputation shall be considered as equivalent to 2 years of active practice. The total compensation to be paid to the Chief Engineer and the allocation thereof between the Department and any other public agency or office for services performed for the Department and any other public agency shall be determined by the Department.

Del. Code tit. 17, § 112 Liability insurance for Department employees.

The Department shall enter into a contract with a reliable insurance company or companies doing business in this State to insure the employees of the Department against injury or death incurred while performing their duties as employees of the Department. The Department shall be the sole judge of the kind of insurance and the amount thereof which will best execute such purpose.

Del. Code tit. 17, § 113 Appointment and powers of notaries public.

In addition to the notaries public now provided by law in the several counties, the Governor shall appoint 4 employees of the Department, 1 residing in New Castle County, 1 residing in Kent County and 2 residing in Sussex County, notaries public to hold office not exceeding 2 years. Such notaries public may not exercise their office or take affidavits or acknowledgments except on documents and papers for the benefit of the Department, and for which they shall make no charge. Whenever any such person appointed notary public ceases to be an employee of the Department, the notary public’s authority as such notary public shall cease, and thereupon the Governor may appoint another employee of the Department a notary public in the person’s place. The Governor may appoint additional employees of the Department as notaries public as may be deemed necessary, to which the requirements of this section shall apply.

Del. Code tit. 17, § 131 General jurisdiction.

(a) All the public roads, causeways, highways and bridges in this State which have been or may hereafter be constructed, acquired or accepted by the Department of Transportation shall be under the absolute care, management and control of the Department. (b) All roads and streets situate in unincorporated suburban communities throughout the State which were built or created between July 1, 1935, and July 1, 1951, whether paved or unpaved, shall henceforth be under the absolute care, management and control of the Department and shall be maintained, repaired and reconstructed by the said Department. (c) The Department shall immediately commence the necessary preliminary work in order to bring these roads up to proper standards as soon as possible with due consideration for the immediate needs of certain areas. (d) The general jurisdiction conferred upon the Department by this section shall be exercised by it by the establishment and supervision of any and all policies which may be necessary or appropriate to implement such jurisdiction. (e) All roads and streets not dedicated to the public use and intended to be private, as indicated on the filing plan, situated in an unincorporated suburban community within the State, shall be constructed in accordance with rules and regulations adopted by the county in which such road or street is located. Such rules and regulations for construction of private subdivision streets and roads shall, in addition to specifying standards for the design and construction of such private streets and roads, establish a mechanism to provide for the perpetual maintenance of such private streets and roads, but in no event shall the State or county be responsible for such maintenance. In addition, the following provisions shall apply to all such streets and roads: (1) In the event that the county has not adopted rules and regulations for construction of private subdivisions, streets and roads or such rules and regulations have been established and there is no mechanism contained therein to provide for the perpetual maintenance of private subdivision streets or roads, all such roads or streets shall be constructed in accordance with standards set forth by the Department of Transportation, Division of Highways, for streets and roads dedicated to public use. (2) Private roads or streets shall not be accepted for maintenance by the State until: a. The right-of-way for the streets and roads has been dedicated to the public use, accepted by the State and the streets and roads constructed or reconstructed at the expense of the property owners in accordance with the standards established by the Department of Transportation, Division of Highways, for streets and roads dedicated to public use in accordance with Chapter 5 of Title 9; and b. The Department’s Division Engineer, Maintenance Engineer and Subdivision Engineer, if applicable, for the division in which the roads are situated have each certified that the roads to be accepted by the State have been constructed or reconstructed in accordance with the construction plans approved by the Department; and c. Copies of such certifications have been forwarded to the members of the General Assembly in whose districts the roads to be accepted are situated. (3) In the event any real property with road frontage or a private road or street, constructed or reconstructed pursuant to this section, which road or street is not to be maintained by the State, is conveyed subsequent to such construction or reconstruction, the deed conveying such real property shall contain a statement that such private street or road is not maintained by the State. (4) Any private road, street or thoroughfare in the State shall be constructed either in accordance with state standards and pursuant to department rules and regulations or pursuant to rules and regulations established by the county. In either event, a mechanism for perpetual maintenance must be established. The State and county shall have concurrent jurisdiction to enforce the requirements of this section by legal or equitable means. The county shall withhold the issuance of building or occupancy permits for any structure abutting such road, street or thoroughfare to insure compliance with the requirements of this section. (f) The Department of Transportation, Division of Highways, is hereby authorized to inspect all suburban community street construction and to establish and collect fees for the inspection of said street construction in amounts deemed necessary to defray costs of administering this section. All fees collected shall be placed to the credit of the Department of Transportation, Division of Highways. (g) All roads and streets situated in unincorporated suburban communities throughout the State which were built between July 1, 1951, and July 1, 1975, whether paved or unpaved, shall, upon dedication of a right-of-way to public use, henceforth be under the absolute care, management and control of the Department of Transportation, Division of Highways, and shall be maintained, repaired and reconstructed by the said Department of Transportation, Division of Highways. Said right-of-way shall be determined by the Department of Transportation, Division of Highways, in accordance with physical conditions, but in no case shall be less than 30 feet in width. Dedication of the right-of-way must occur prior to June 30, 1978, to qualify for the aforementioned responsibilities under the auspices of this section. (h) The Department of Transportation, Division of Highways, is hereby authorized and directed to immediately inventory all streets which may fall within this category and upon completion begin the necessary maintenance. Work to bring these roads up to proper standards, with due consideration for the immediate needs of certain areas, shall be undertaken as time and funds permit. (i) In connection with the Department’s review of subdivision proposals affecting the transportation system, it is authorized to collect fees for the costs of administering the subdivision approval process. The fees for such purposes shall be as follows: Initial stage fee: 1. Plan review, residential subdivisions of 5 lots or more: $400 plus $10 per lot; 2. Plan review, nonresidential property: $500 plus $20 per lot or $20 per 1,000 square feet of gross floor area, whichever is greater. Construction stage fee: 1. Residential subdivisions of 5 lots or more: 125% of initial stage fee; 2. Nonresidential property: 150% of initial stage fee. For review of residential subdivisions of 4 lots or less, in lieu of the staged fees set forth above, there shall be a single fee of $100. If all or a portion of the property subject to this fee is re-subdivided within 10 years of the payment of this fee, that subdivision shall be treated for fee purposes as if planned for 5 lots or more. All fees collected shall be deposited to the credit of the Transportation Trust Fund, established in Title 2.

Del. Code tit. 17, § 132 General powers and duties.

(a) The Department shall acquire full information concerning the roads of this State, the nature and improvement thereof, the needs thereof and the character and amount of traffic thereon and such other details as may be necessary or desirable for the Department to have in the performance of its duty of determining upon and laying out, without regard to any personal advantage or disadvantage or bias toward any person or persons, community or political party or organization, consistent and congruous route or routes of state highways with a view to establishing such a consistent, congruous, comprehensive and permanent system of state highways along the route or routes of travel as will accommodate the greatest needs of the people of this State. (b) The Department shall: (1) Determine upon, lay out, construct or reconstruct state highways so as to make roads which, with reasonable maintenance, shall be permanent; (2) Maintain all state highways under its jurisdiction; (3) Maintain a system of accounting adequate to give in detail the expenditures of the Department and the costs of its works; (4) Keep full and accurate minutes of all meetings and records of all proceedings of the Department, which minutes and records shall be public records; (5) Reimburse the owner thereof for the expense (as hereinafter defined) of the relocation of public utility facilities necessitated by any project where the State is to be reimbursed by at least 90% of the cost of such project from federal funds or by the federal government or any agency thereof, such expense to be the amount paid by such owner properly attributable to such relocation after deducting therefrom any increase in the value of the new facilities and any salvage value derived from the old facilities; (6) Install on state land the tile necessary, in the opinion of the Department, to provide adequate entrances and exits to and from the property of adjoining landowners provided: a. The tile is supplied by the adjoining landowners; b. The tile conforms to the specifications established from time to time by the Department; and c. The property is a single residential lot occupied or to be occupied by the land owners and intended for residential use only; or d. The property is agricultural use land. “Agricultural use land” shall mean land devoted to the production for sale of plants and animals useful to humans, including but not limited to: Forages and sod crops; grains and feed crops; dairy animals and dairy products; poultry and poultry products; livestock, including beef cattle, sheep, swine, horses, ponies, mules or goats, including the breeding and grazing of any or all of such animals; bees and apiary products; fur animals; trees and forest products; or when devoted to and meeting the requirements and qualifications for payments or other compensation pursuant to soil conversation program under an agreement with an agency of the federal government. Nothing contained in this subsection shall relieve the Department from the responsibility for replacing tile originally installed by the Department or any governmental agency and subsequently damaged by operations of the Department; (7) Maintain the Van Buren Street Bridge over the Brandywine Creek; (8) Provide relocation assistance to persons displaced as a result of the acquisition for highway purposes of real property upon which they live or conduct a business or farm operation in accordance with Chapter 91 of Title 29. (c) To these ends the Department may do the following: (1) Determine upon and lay out a system of state highways. (2) Take over and convert into state highways any public road by whatever name such road or part thereof, or under whatever authority or control such road or part thereof, may have theretofore existed. (3) Lay out, open, widen, straighten, grade, extend, construct, reconstruct, and maintain any state highway or proposed state highway for the purpose of the improvement of state highways. (4) Acquire by condemnation or otherwise any land, easement, franchise, material, or property, which, in the judgment of the Department, shall be necessary therefor, provided that the Department may not reconstruct a highway unless there will result a net saving or reconstruction, further provided that § 145 of this title may not be deemed to be inconsistent with the provisions under this paragraph (c)(4). (5) Have access to and make copies of maps, surveys, data, or information which any state agency may possess concerning any road in the State. (6) Employ and discharge professional or technical experts, surveyors, agents, assistants, clerks, employees and laborers, skilled and unskilled, and also such advisers and consultants as may be required to accomplish the purposes of the chapter and the other responsibilities of the Department. In the event that the size of the Capital Transportation Program requires overtime to administer in a timely manner, or in the event that: (i) The federal government makes available additional funding for transportation projects which are part of the Department’s Capital Transportation Program; and (ii) use of these funds in a particular federal fiscal year is required to access these funds; and (iii) overtime is required to administer the program within that federal fiscal year to assure the use of these funds, then for these purposes the Department may pay overtime moneys to those employed under this subsection, any relevant Delaware law, rule, or regulation to the contrary notwithstanding. (7) Secure and furnish offices and quarters for the Department. (8) Exclusively grant franchises and licenses to public service corporations or to corporations furnishing gasoline or petroleum products to the air field installation operated by the federal government in Kent County, to use the state highways, in whole or in part, for a term not exceeding 50 years; provided, however, that any franchise or license granted to any such corporation furnishing gasoline or petroleum products to said air field installation shall restrict the use of said state highways to the transmission of gasoline or petroleum products to said air field installation. Any franchise or license owned by any public service corporation on April 2, 1917, is not be affected by this chapter. (9) Make and enter into any and all contracts, agreements or stipulations for the execution of the purposes of this chapter. (10) Purchase all machinery, tools, supplies, material, and instrumentalities whatsoever which may be necessary for the full performance of its duties. (11) Call upon the Attorney General for the Attorney General’s opinion or advice touching its duties or powers. (12) Accept lands by easement or lease in the name of the State in areas where it is deemed necessary to establish dumping areas for the use of the public, supervise and control all areas so accepted and provide suitable passageways to the dumping areas and further, police the areas in order to prevent the spread of pests and disease and make such other regulations and rules as shall be deemed necessary for the purpose of carrying out the intent and purpose of this paragraph. (13) Enter upon the lands or waters of any person for the purpose of surveys, repairs, reconstruction, and operation of publicly financed improvements but subject at all times to responsibility for all and any damages which shall be done to the property of any such person or persons. Water levels to be maintained back of publicly financed sluices, water control structures, dams, and similar structures shall be at a level that will not cause damage to adjoining property, such as seepage of water into basements and wells, and that no lands may be flooded without the owners’ full consent. (14) Place vending machines or other items that will enable drivers to be more rested and refreshed in safety roadside rest areas, unless prohibited by federal laws, rules, or regulations. Any profits derived from such items must be credited to the Department of Transportation Safety Roadside Rest Area Fund. a. There is hereby created within the State Treasury a special fund to be designated as the Department of Transportation Safety Roadside Rest Area Fund which must be used in the operation and maintenance of the roadside rest areas under the jurisdiction of the Department. b. Any profits realized by the Department from items available at existing roadside rest areas that are for the purpose of enabling drivers to be more rested and refreshed must be deposited in the State Treasury to the credit of said Department of Transportation Safety Roadside Rest Area Fund. Such profits must be used by the Department for the operation and maintenance of the safety roadside rest area facilities within its jurisdiction. (d) The Department may also do whatever is incidental and germane to the scope of the duties and powers conferred on it by law. (e) The general powers and duties conferred upon the Department by this section shall be exercised by it by the establishment and supervision of any and all policies pursuant to which such powers and duties shall be carried out. (f) Whenever the Department of Transportation widens, constructs or reconstructs any major arterial, minor arterial, collector road or proposed road in an urbanized area of this State, the Department shall incorporate within such plans, layout, widening, construction or reconstruction the construction of sidewalks, provided there is a need for sidewalks or that it can be reasonably anticipated that the need for sidewalks will exist. The Department shall have the responsibility for determining whether such need for sidewalks does or will exist for all or any part of any such project and, before arriving at a decision as to the need of such sidewalk construction, shall consult with the county department of planning, the State Planning Office, the Department of Education and the local school district in which the proposed new road construction or road widening construction is to take place. The cost of such sidewalk construction shall be included in the total cost of the new road construction or road widening project. This subsection shall apply only to projects funded pursuant to acts authorizing the State to borrow money and issue bonds and notes for capital improvements, enacted after January 1, 1973. (g) The Department shall have exclusive original supervision and regulation of all public carriers and also over their property, property rights, equipment, facilities, franchises, rates, fares, tariffs, regulations, practices, measurements and services. (h) The Department may work in conjunction with any political subdivision of the State and with any private organization to plan and construct such bicycle and pedestrian transportation facilities as may be appropriate. In carrying out this portion of its overall program, the Department may take into consideration in scheduling its projects those in which the affected local community is willing to contribute a matching share (whether in cash, rights of way, or other in-kind services) in order to accomplish the project. (i) (1) The Department shall deploy, operate, and maintain technological systems for the automated monitoring, analysis, and management of transportation infrastructure and traffic operations, including the continued operation of the Delaware Public Crash Database. (2) The technological systems required under paragraph (i)(1) of this section may include intelligent transportation systems, automated traffic monitoring devices, roadway condition sensors, digital imaging systems, artificial intelligence - based analytical tools, and other technologies designed to improve the efficiency, safety, and performance of the transportation network.

Del. Code tit. 17, § 133 Road improvements; additions to state system.

With respect to roads or portions thereof, the Department shall determine which if any, shall be improved and which, if any, shall be added to the state highway system.

Del. Code tit. 17, § 134 Authority in incorporated towns and cities; construction and maintenance of highways; local authority.

(a) The Department shall have no power, authority or jurisdiction of the streets of any incorporated city or town, except as otherwise provided in this section, unless such power, authority and jurisdiction shall be voluntarily given and surrendered by such city or town to the Department and then only upon such terms as the Department shall prescribe. (b) When in the judgment of the Department the route for the construction or reconstruction of any state highway should continue through any incorporated city or town, the Department shall construct and maintain the highway through such incorporated city or town, such construction and maintenance to be at the sole expense of the Department. Whenever the Department shall construct a state highway through any incorporated city or town, it shall not change the widths of the streets of the city or town, except with the consent of the duly constituted governing body of the city or town. (c) Whenever the Department shall construct a state highway through an incorporated city or town, it shall have the whole and sole control over such construction and over the maintenance of the highway through the city or town, and such highway shall not be undermined, broken open or anywise torn up for any purpose, except by the permit in writing of the Department. (d) With respect to state highways within their corporate limits, incorporated cities and towns in the State may erect and maintain such traffic control signals as shall be authorized by proper ordinance of the city or town and by the Department. (e) Local authorities, on the basis of an engineering study and traffic investigation within their respective jurisdictions, may prohibit the operation of trucks or other commercial vehicles or impose limitations as to the weight thereof on designated highways which prohibitions and limitations shall be posted as set forth in § 4505 of Title 21; except that the alteration of weights or the prohibitions of trucks or other commercial vehicles shall not be effective on any state-maintained highway until such alteration has been approved by the Department. (f) Local authorities, within their respective jurisdictions, may create “historic districts” which encompass 1 or more state-maintained roads, and the standards for traffic signs and traffic markings on any such road may be altered by the Department of Transportation to be more compatible with the time period of the historic district, unless: (1) The posted speed limit on the road is above 25 miles per hour; (2) There are more than 2 through-travel lanes on the road; (3) The road is a U.S. or Delaware route; or (4) The road has no reasonable alternative route which can adequately handle the traffic. Any traffic signs or traffic markings that are proposed under this subsection must be approved by the Department of Transportation. (g) Each rule and regulation adopted pursuant to this section shall be in the form of a resolution signed by the Secretary or the Secretary’s designee. A permanent record of these shall be kept by the Department and at the time of adoption a copy of each shall be forwarded to the Department of Safety and Homeland Security, to the New Castle County Police, if within their jurisdiction, and to the incorporated city or town in which the highway lies. (h) Pursuant to this section, the Department is authorized to perform all engineering studies and traffic investigations necessary to implement this section and Chapter 41 of Title 21, and to install, maintain, operate and remove all traffic-control devices necessary to comply with this section and Chapter 41 of Title 21. Where concurrent authority is granted, the incorporated town or city shall have the responsibility for traffic-control devices. (i) Nothing in this section shall be construed as granting to the Department or to the local jurisdiction the right to make any rules and regulations respecting the use of highways in incorporated areas contrary to the Code.

Del. Code tit. 17, § 135 Authority to construct dual and express highways.

(a) The Department may divide or separate any state highway into separate roadways wherever there is particular danger to the travelling public of collision between vehicles proceeding in opposite directions or from cross traffic, by constructing curbs, central dividing parkways or other physical separations, or by signs, marks or other devices, in or on the roadway, appropriate to designate the dividing line. (b) The Department may designate as express highways, and control public or private access thereto, the westerly approach or approaches to the Delaware Memorial Bridge and any road or roads heretofore or hereafter constructed by the Department for the purpose of connecting such Bridge or its westerly approach or approaches with any existing highway in this State.

Del. Code tit. 17, § 135A Authority to construct low-speed local streets and local roads.

(a) The Department may plan, designate, construct, operate, and maintain low-speed local streets or roads to improve safety in accordance with a safe system approach by implementing proven safety countermeasures, including the following: (1) Implementing roadway reconfigurations. (2) Narrowing travel lanes or edge line striping. (3) Constructing raised medians, pinch points, chicanes, speed humps, speed tables, roundabouts, traffic circles, or diverters. (4) Implementing corridor access management. (5) Reducing clear zone conflicts. (6) Altering the operation of signals. (7) Other means found appropriate by the Department. (b) The Department shall design such designated low-speed streets or roads so that they have no more than 2 through-travel lanes for motor vehicles and with a goal that the free-flowing eighty-fifth percentile motor vehicle traffic speeds are 25 miles per hour or less in municipalities and 35 miles per hour or less in unincorporated areas. Such designated local streets and local roads shall be especially designed for local traffic to safely access abutting properties at low speed. In addition, the Department shall develop and implement design standards for low-speed streets or roads in accordance with a safe system approach to meet the goals of this section, including traffic calming, diversion of motor vehicle through traffic, and the protection of vulnerable users to reduce or eliminate safety risks on designated low-speed local streets and roads. (c) The Department shall publish annually county specific maps and lists identifying locations of fatal and serious injury crashes in all primary emphasis areas included in the Strategic Highway Safety Plan. (d) As used in this title, “safe system approach” means working in a comprehensive way and in cooperation with other Delaware state agencies, county, and local governments to improve all aspects of roadway safety through the following 5 initiatives: (1) Safe road users. — Providing education and training programs to improve behavior for all users of the road. (2) Safe vehicles. — In addition to the requirements under Title 21, implementing technologies in the roadway infrastructure that can prevent crashes or lessen their severity. (3) Safe speeds. — Setting and enforcing speed limits based on what the road and surrounding environment can safely accommodate for all roadway users. (4) Safe roads. — Designing and maintaining all elements of the State’s roadway infrastructure to be forgiving of user mistakes and minimize the impact of crashes on human life. (5) Post-crash care. — Implementing emergency response systems on the State’s roadway network and technology infrastructure to enable efficient delivery of critical care to those involved in crashes.

Del. Code tit. 17, § 136 Improvements of roads leading to institutions.

The Department may widen, straighten, grade, reconstruct and otherwise improve and maintain any road, lane or entrance leading from any public road to any institution which is owned or controlled in whole or in part by the State. The Department shall have the same rights, powers and privileges for the purpose of performing and carrying out the duty hereby imposed as it has for the purpose of constructing state highways in general.

Del. Code tit. 17, § 137 Acquisition and sale of real property.

(a) (1) The Department, in the name of the State, is authorized by law to acquire property and property rights, including rights to access, air, view, and light, for the purposes set forth in this section and within its jurisdiction. The Department may only acquire private or public property and property rights needed for the purposes listed in paragraph (a)(1)a. of this section and through the means listed in paragraph (a)(1)b. of this section. Property rights so acquired must be in fee simple absolute or such lesser interest as the Department may deem appropriate. Except as provided in paragraph (a)(2) of this section, no acquisition of real property or property rights may be made without Department approved final right-of-way plans by parcel depicting the proposed acquisitions and that approval coming only after the project has been developed and plans prepared in accordance with all applicable governing laws, rules and regulations pertaining to the development of transportation projects. a. The Department, in the name of the State, may only acquire private or public property and property rights needed for the following purposes: 1. To provide public throughfares such as pathways, roads, streets, or highways. 2. To preserve the traffic capacity in existing thoroughfares in accordance with § 145(d) of this title. 3. For sidewalks, bus shelters, parking areas in support of public transit, maintenance yards, and similar public transportation related facilities. b. The Department, in the name of the State, may acquire private or public property rights through any of the following means: 1. By gift. 2. By devise. 3. By purchase. 4. By the exercise of the power of eminent domain where the private or public property and property rights may be acquired by condemnation by proceeding in the manner prescribed in Chapter 61 of Title 10. 5. Be authorized by law to acquire such property or property rights for the purposes set forth in this section and within its jurisdiction. (2) The acquisition of real property by the Department in advance of final right-of-way plan approval, shall be reviewed by a committee consisting of the Secretary of the Department of Natural Resources and Environmental Control, the Secretary of the Department of Transportation, the Secretary of the Department of Agriculture, the Director of the Division of Small Business, the Governor’s Chief of Staff, a member of the Senate designated by the President Pro Tempore of the Senate, a member of the House of Representatives designated by the Speaker of the House of Representatives, a member of the public designated by the President Pro Tempore of the Senate and a member of the public designated by the Speaker of the House of Representatives to determine the consistency of such action with the State’s overall goals for land use planning. If it determines that the acquisition will be inconsistent with State planning goals, the committee may disapprove the acquisition. (3) The Department shall provide to the Governor and General Assembly, on or before December 31 of each year, a report identifying all properties acquired in the preceding 12 month period in connection with acquisitions made pursuant to paragraph (a)(2) of this section. (4) For the purposes of acquiring real property for pathways that go through dedicated open space in a recorded residential subdivision, where the proposed pathway is not adjacent to the existing right of way, the Department is not authorized to exercise its eminent domain power to acquire land for such pathway, unless a majority of the residents of the recorded residential subdivision vote to approve within 90 days of notice of its intent to exercise its eminent domain power by the Department. There will be 1 ballot per residence and the ballot may be cast by paper ballot, by proxy, by signing a petition, or electronically from a confirmed valid email address for a resident. (b) When any property heretofore or hereafter acquired by the Department by gift, devise, purchase or condemnation is no longer needed for transportation purposes the Department shall attempt to dispose of the property as follows: (1) If at the time of the Department’s determination to dispose of the property, the property is subject to a revenue producing lease agreement which has been in force for a period of at least 5 years, the Department shall, in writing, notify the tenant that the property is no longer needed for transportation purposes. Such notice shall inform the tenant of the Department’s desire to sell the property, and include a copy of the Department’s approved appraisal and a purchase agreement containing the terms and conditions for sale to the tenant. The sale price shall not be less than the approved appraised value. If the tenant elects to purchase the property, the tenant shall execute and return the purchase agreement to the Department within 30 days of such notice. Such notice is not required if the tenant has, in writing, waived any desire to purchase the property, or if the property is subject to multiple leases. Failure of the tenant to respond to the notice within 30 days shall constitute a waiver of the tenant’s rights hereunder. (2) If the provisions of paragraph (b)(1) of this section do not apply, or were forfeited through lack of response, or were waived by the tenant, or the tenant fails to comply with the terms and conditions of the purchase agreement, the Department shall, in writing, notify the owner from whom the property was acquired, if the property had been acquired within the immediately preceding 5 years, that the property is no longer needed for transportation purposes. In the event that the previous owner is deceased, the Department may proceed with the provisions for sale identified in paragraph (b)(3) of this section. Such notice shall inform the prior owner of the Department’s desire to sell the property at the approved appraised value, and shall include a copy of the Department’s approved appraisal and a purchase agreement containing the terms and conditions for the sale to the prior owner. The sale price shall not be less than the approved appraised value. If the prior owner elects to purchase the property, the prior owner shall execute and return the purchase agreement to the Department within 30 days of such notice. Such notice is not required if the prior owner has, in writing, waived his/her right to repurchase the property. Failure of the prior owner to respond to the notice within 30 days shall constitute a waiver of their rights hereunder. (3) If the provisions of paragraphs (b)(1) and (2) of this section have been satisfied without sale, the Department shall determine if the property has independent utility and in such cases shall offer the property for sale to the general public at a public auction sale. The Department shall notify the public of the sale by posting a “Notice of Sale” on the property at least 2 weeks before the sale and by publishing a “Notice of Sale” for at least 1 day a week for 2 consecutive weeks in a newspaper having general circulation in the county where the property is located. The “Notice of Sale” shall describe the property to be sold, state the date, time, location of the sale, terms and conditions, and amount of the minimum acceptable bid. The public sale may be conducted by Department personnel or the Department may retain an outside contractor to handle the sale. At the conclusion of the sale, the Department’s representative shall announce the name of the highest bidder and the amount of the bid. The Department’s representative shall record the results of the sale including the name and amount of the next highest bid. The Department shall have the authority to accept or reject the highest bid as long as such bid is equal to or greater than 85 percent of the approved appraised value. The Department shall offer the property for sale at a price not less than 85 percent of the approved appraised value and shall reject any bid of a lesser amount. The Department may reject any bid for due cause. If the sale is confirmed and the highest bidder defaults, the Department may proceed to the next highest acceptable bidder. In the event that the Department does not receive an acceptable bid, the public sale shall be deemed concluded. The Department may proceed to dispose of the property through absolute auction for whatever price can be obtained, subject, however, to unanimous written approval of the selling price from the Controller General and the Director of the Office of Management and Budget. (4) Notwithstanding any other provisions of this section, the Department may determine that the property has minimal independent utility for reasons such as, but not limited to, lack of access, irregular shape, poor topography or hydrology, small size and nominal value (less than $25,000, or current approved threshold determined by the Federal Highway Administration, in the opinion of the Department’s Chief Review Appraiser or qualified independent appraiser). In such event the Department may, without having to perform an appraisal of the property, sell or otherwise convey such property to an adjoining property owner or an organized community civic association or maintenance association for use as community open space at a price to be negotiated by the parties. The Department shall notify all adjoining property owners in writing of the property availability and provide 2 weeks for adjoining property owners to express interest in purchasing the property. In cases where more than 1 adjoining property owner indicates an interest in purchasing the property, the Department may elect to offer the property for sale via sealed bid to the highest bidder, or to divide the property to accommodate the interests of all interested owners. (5) Notwithstanding any other provisions of this section, the Department may convey property by direct sale or trade to an owner of other property which is being acquired for transportation purposes. Such sale shall not abridge the provisions of paragraphs (b)(1) and (2) of this section. The Department shall receive in return a price and/or compensatory property valued at not less than the approved appraised value. (6) Notwithstanding any other provisions of this section, the Department may convey property by direct sale to a public utility company when such property is needed for public utility purposes, provided the Department receives in return a price not less than the approved appraised value. (7) a. Notwithstanding any other provisions of this section, the Department may convey property to other governmental entities for public purposes, on terms acceptable to the Department and other agency. b. Notwithstanding any other provisions of this section or Chapter 9 of Title 3, the Department may convey property to the Delaware Agricultural Lands Preservation Foundation on terms acceptable to the Department and the Foundation. c. Notwithstanding any other provisions of this section or Chapter 75 of Title 7, the Department may convey property to the Delaware Open Space Council on terms acceptable to the Department and the Council. (8) As used in this subsection, “approved appraised value” means: a. When the estimated value of the property is not more than $25,000, as determined by the Department’s Chief Review Appraiser or qualified independent appraiser. b. When the estimated value of the property exceeds $25,000, as determined by a qualified independent appraiser, reviewed and approved by a qualified Department review appraiser. (9) Property rights disposed of pursuant to this section may be in fee simple absolute or such lesser interest as the Department may deem appropriate. (10) “Notice,” as required in paragraphs (b)(1) and (2) of this section, shall be sent by certified mail, return receipt requested, addressed to the tenant or previous owner at the last known postal address obtained after diligent inquiry. If after diligent inquiry a postal address cannot be found, the Department shall publish a notice for at least 1 day a week for 2 consecutive weeks in a newspaper having general circulation in the county in which the property is located. Such published notice shall set forth the name or names of the tenant or previous owner to whom it is directed, that the Department desires to sell the property, a brief description of the property to be sold and the date by which the Department must receive a response. The return receipt of the notice, whether signed, refused or unclaimed, or a copy of the published newspaper notice shall be held and considered to be prima facie evidence of the service of the notice. (11) The Department shall provide to the Governor and the General Assembly on or before December 31 of each year, a report identifying by size and location all properties being held for projects, properties deemed surplus or excess properties, dates of acquisition, purchase price, previous owner, date the property was determined to be excess or surplus, dates and nature of actions undertaken to dispose of such surplus or excess properties, and approximate fair market value of each. If properties are deemed nonmarketable they must be identified as such. The report must further identify all properties disposed of during the previous year by size and location, date of disposition, appraised value if appraised, amount received from disposition and name of the purchaser, purchasers or owners, including equitable owners.

Del. Code tit. 17, § 138 Acquisition of uneconomic remnants of land along right-of-way.

In addition to the powers now vested in the Department for the acquisition of lands or rights therein by virtue of any statute, the Department may, in its discretion, acquire by gift, devise, purchase or in the exercise of the power of eminent domain, acquire by condemnation by proceeding in the manner prescribed in Chapter 61, Title 10, an entire lot, block or tract of land, if by so doing the interest of the public will be best served even though said entire lot, block or tract is not needed for the right-of-way proper, but only if the portion outside the normal right-of-way is landlocked or is so situated so as to give rise to claims or litigation concerning severance or other damage, the cost of acquisition to the State will be practically equivalent to the total value of the whole parcel of land and the parcel remaining is of little value to the owner.

Del. Code tit. 17, § 139 Notice to landowners; written claim for damages.

After the Department has determined upon the road or roads which shall be maintained as state highways, it shall cause notice thereof to be sent by mail, a record of which shall be preserved, to all persons owning property abutting upon or contiguous to such road or roads, and any such owner or the legal representative of any such owner, who after such notice has been given shall construct any building within 60 feet of the center line of any such road, shall be allowed no compensation for such building, upon the condemnation thereof, or the land upon which it is situated, unless such owner shall serve written notice upon the Department within 3 months from the time that the owner receives such notice that the owner claims damages.

Del. Code tit. 17, § 140 Educational and safety campaigns.

(a) The Department may conduct throughout the State an educational campaign on street and highway safety. (b) Such campaign shall be conducted by the Department in the manner which it deems most beneficial to accomplish the purpose thereof, and the Department may use and employ the facilities of the Delaware Safety Council, Delaware Automobile Association and any similar organization.

Del. Code tit. 17, § 141 Regulation of traffic; exceptions.

(a) The Department shall have jurisdiction and control of all state highways of this State outside of the limits of incorporated cities and towns for the purpose of regulating traffic and for the use and operation of all vehicles thereover, and may adopt any and all rules and regulations respecting the use of such highways and the operation of all vehicles upon the same. (b) Each rule and regulation adopted pursuant to this section shall be in the form of a resolution signed by the Secretary or the Secretary’s designee. A permanent record of these shall be kept by the Department and at the time of adoption a copy of each shall be forwarded to the Department of Safety and Homeland Security and to the New Castle County police, if within their jurisdiction. (c) (1) Under this section, the Department may perform all engineering studies and traffic investigations necessary to implement this section and Chapter 41 of Title 21, and to install, maintain, operate, and remove all traffic control devices necessary to implement Chapter 41 of Title 21 and regulations adopted under Chapter 41 of Title 21. (2) An engineering study or traffic investigation conducted by the Department under paragraph (c)(1) of this section may include automated or continuous data collection systems, remote sensing technologies, digital imaging, algorithmic analysis of traffic patterns, and other technological methods used to evaluate roadway safety, traffic operations, and infrastructure conditions. (d) The Department, on the basis of engineering studies and traffic investigations, may prohibit the operation of trucks or other commercial vehicles or impose limitations as to the weight thereof on designated highways which prohibitions and limitations shall be posted as set forth in § 4505 of Title 21. (e) Nothing in this section shall be construed as granting the Department the power to make any rules and regulations respecting the use of highways contrary to Delaware law.

Del. Code tit. 17, § 142 Automobile for use of Governor.

The Department shall provide an automobile to the Governor of the State, suitable and befitting the office of Governor, for the use of the Governor. The Department shall provide a new automobile for such use during each biennium beginning with the biennium beginning July 1, 1959. The Department shall dispose of any automobiles replaced pursuant to this section in the same manner as are disposed other Department vehicles.

Del. Code tit. 17, § 143 Expenses of alteration or relocation of facilities or structures of public utilities.

(a) As used in this section: (1) “Facility” includes, but is not limited to, structures and appliances and their appurtenances, poles, wires, conductors, transformers, substations, manholes, vaults, valves, conduits, sewer pipes, gas mains, regulator stations, water pipes, water distribution facilities, and service lines; (2) “Public utility” means a utility defined in § 102(2) and (8) of Title 26. (b) If required by reason of the construction, reconstruction, relocation, repair, or maintenance of a public highway, the Department of Transportation shall, at its sole expense, make any necessary alteration or relocation of the facilities owned and/or operated by a public utility of a municipality or of any governmental body or political subdivision of the State. (c) The Department may enter into an agreement with a nonmunicipal or other nongovernmental public utility to reimburse it for up to 50 percent of the cost of the public utility facility’s alteration or relocation as part of a highway construction, reconstruction, relocation, repair, or maintenance project if: (1) The existing public utility facility is located within a highway or public right-of-way by grant of franchise; and (2) The alteration or relocation is necessitated by special circumstances, including, but not limited to: a. A major economic development project in which the public utility’s cooperation is critical to accomplishing the project in a timely manner; b. Recovery from natural disasters such as storms or floods; or c. Compelling benefit to the traveling public. (d) The determination of whether special circumstances exist under paragraph (c)(2) of this section vests solely with the Secretary. The Secretary shall make written findings detailing the nature of the special circumstances and the costs and benefits to the State in altering or relocating a public utility facility. The determination of the Secretary is a public record. The Secretary shall forward a copy of the determination to the Public Service Commission for filing with the public records of the Commission. (e) If construction specifications for the alteration or relocation of a nonmunicipal or other nongovernmental public utility facility, authorized by the Department as part of a highway construction, reconstruction, relocation, repair, or maintenance project, require the use of unique materials or supplies, the Department may enter into an agreement with the public utility for the use of the unique materials or supplies in advance of the construction contract. If the public utility is required to store the unique materials or supplies for more than 60 days prior to their incorporation into the construction work, the Department shall enter into an agreement with the public utility to reimburse the public utility for all or a portion of the actual cost incurred for the storage of the unique materials or supplies. (f) If the Department determines that it is beneficial to enter into an agreement with a nonmunicipal or other nongovernmental public utility for the alteration or relocation of its facilities in advance of the commencement of a highway construction, reconstruction, relocation, repair, or maintenance project, the agreement may include provisions for the Department to reimburse the public utility for increased expenses incurred as a result of the advanced move, including, but not limited to, expenses for the maintenance of traffic, tree and vegetation removal, grubbing, grading, test holes, and surveying. (g) (1) The Department shall reimburse a nonmunicipal or other nongovernmental public utility for the cost of altering or relocating its facility due to a highway construction, reconstruction, relocation, repair, or maintenance project under each of the following circumstances: a. The Department requires a second alteration or relocation of the same public utility facility within 10 years from the date of completion of the initial alteration or relocation; b. The Department alters its plan of construction for the project at any time before its completion, in a manner that requires the public utility to alter or relocate its facility that has already been fully or partially altered or relocated in connection with the project; c. The Department cancels or does not commence a highway construction, reconstruction, relocation, repair, or maintenance project within a period of 2 years from the date of authorization; d. The Department requests a temporary alteration or relocation of the public utility facility. (2) The amount of reimbursement to be paid to a public utility under this subsection is the entire cost of alteration or relocation minus any increase in the value of the altered or new facility and any salvage value derived from the old facility. (h) The Department and a nonmunicipal or other nongovernmental public utility may agree to include in a construction contract between the Department and the Department’s contractor or subcontractor a provision to identify specific facility alteration or relocation construction items which will be performed by the Department’s contractor or subcontractor instead of by the public utility. The construction items may include, but are not limited to, adjusting manholes and installing conduits, valve boxes, and concrete pads. As part of the agreement, the public utility must agree to reimburse the Department or the Department’s contractor or subcontractor for the construction items. (i) The Secretary may enter into an agreement with a nonmunicipal or other nongovernmental public utility that owns or maintains poles in public rights-of-way to attach Department road signs to the poles under such terms and conditions as the public utility considers necessary in order to provide for the safety of the public utility’s employees and contractors and to avoid interference with the public utility’s operations. The authority given to the Department in this subsection does not alter the public utility’s right to refuse access to its poles if it believes that such access would create a safety hazard or interfere with its operations. If the Department attaches a sign to a pole owned or maintained by a public utility, a person alleging injury to person or property as a result of the attachment has no cause of action against the public utility. (j) The Department may enter into an agreement with a nonmunicipal or other nongovernmental public utility regarding the alteration or relocation of the public utility’s facilities to reimburse the public utility for the public utility’s additional expenses incurred due to the enhancement of the public utility’s facilities or of its equipment design, location, placement, or specification, if, in the judgment of the Department, the enhancement will result in net cost savings to the Department, will expedite the project, or will otherwise result in increased public benefit and convenience.

Del. Code tit. 17, § 144 Millsboro Pond Dam; construction and maintenance.

The Department may construct, reconstruct, maintain and repair a dam across the Millsboro Pond at the site of a presently existing dam adjacent to the Indian River.

Del. Code tit. 17, § 145 Corridor capacity preservation.

(a) Application. — This section is applicable only to transportation routes categorized as corridor capacity preservation projects as described herein. (b) Definitions. — As used in this section: (1) “Comprehensive development plan” means a comprehensive land use plan, master plan or comprehensive plan as provided in Title 9, 22, or 29. (2) “Corridor” means a particular route of 1 or more highways of this State, serving predominantly statewide and/or regional travel at a high level of service at the time of the analysis conducted under subsection (d) of this section. (3) “Corridor capacity” means the ability of a corridor to sustain its level of service for a period of at least 10 years and for up to 20 years. (4) “Department” means the Department of Transportation. (5) “Preservation” means to maintain corridor capacity. (c) Findings. — (1) Pursuant to federal and state law, the Department is required to develop long-range plans and principles to consider the various appropriate means of meeting the transportation needs of the State. This work is coordinated with the planning efforts of metropolitan planning organizations pursuant to 23 U.S.C. § 134 et seq. As part of these long-range plans and principles, the Department may identify transportation routes requiring corridor capacity preservation in order to: a. Focus development toward existing locations; b. Reduce the need for expansion of the transportation system; and c. Otherwise advance the quality of life of Delawareans and the development policies adopted by the Cabinet Committee on State Planning Issues. (2) Pursuant to the Quality of Life Act of 1988, Chapters 26, 49, and 69 of Title 9, as well as the Land Use Planning Act, Chapter 92 of Title 29, each county of this State is required to adopt a comprehensive development plan to guide and control future development. Each plan, which is to have the force and effect of law, includes among its purposes the facilitation of the adequate and efficient provision of transportation. These plans are reviewed by the Cabinet Committee on State Planning Issues to determine their compliance with the State’s development policies, including the Department’s long-range plans and principles. The State is under no obligation to provide infrastructure improvements to support land use or development actions where a county’s comprehensive plans are inconsistent with the State’s policies. In addition, pursuant to Chapter 3 of Title 22, municipalities are also required to develop comprehensive development plans, with relief of congestion constituting one of the goals of such plans. As part of this coordinated process, therefore, the comprehensive development plans adopted by the counties and municipalities should incorporate the Department’s designation of transportation routes requiring corridor capacity preservation. (3) This legislation is intended to facilitate the acquisition of property interests sufficient to provide corridor capacity preservation in keeping with these comprehensive development plans and the Department’s long-range plans. (d) Implementation. — On or before October 1, 1996, and every 3 years thereafter, under 23 U.S.C. § 134 et seq., the Department’s long-range plans shall propose transportation routes requiring corridor capacity preservation, if any. The determination of these routes shall be based upon the following criteria: Level of service analysis; input and comment from the counties and municipalities to the need within growth areas; development trends; traffic growth; additional threats to roadway integrity; safety; support for long range planning goals of the Department and any relevant metropolitan planning organization; deliverability; economic impacts; social or environmental impacts; and air quality. The location of these routes shall be submitted to the local government bodies of the counties and municipalities for review and then presented to the public at a public hearing. The local governing bodies shall have 90 days to review the locations and respond to the Department. The Department shall, after considering public comments and the responses of the local governing bodies of the municipalities and counties, determine those routes requiring corridor capacity preservation. Each county and municipality shall incorporate these determinations into their comprehensive development plans or amendments thereto. Any subsequent Departmental corridor capacity preservation projects shall be subject to the same approval process as other capital projects. When approved by the Council on Transportation and adopted by the General Assembly, the Department may then proceed to pursue these projects as set forth each year in the Department’s Capital Transportation Program. Property interests acquired for these projects under this section shall be in fee simple absolute or such lesser interest as the Department may deem appropriate. Acquisition of such property interests may be obtained by gift, devise, purchase, or in the exercise of the power of eminent domain, by condemnation in the manner prescribed in Chapter 61 of Title 10, subject to the provisions of Chapter 95 of Title 29. (e) Effect on other powers. — The powers conveyed to the Department by this section are in addition to and not in derogation of any other powers it may have related to corridor capacity preservation, including but not limited to the power to seek voluntary compliance with its policies, to regulate subdivision streets intended for state maintenance, and the power to regulate access to and from state-maintained highways.

Del. Code tit. 17, § 146 Access to state-maintained highways.

(a) (1) Subject to paragraph (a)(2) of this section, the Department shall adopt standards, regulations, and fees for the location, design, construction, reconstruction, maintenance, use, and control of vehicular and pedestrian access to and from any state-maintained highway in order to protect public safety, to maintain smooth traffic flow, to maintain highway right-of-way drainage, to regulate drainage from property leading into or carried by the highway drainage system, and any other public purpose, as determined by the Department. (2) The standards and regulations adopted by the Department under paragraph (a)(1) of this section must include the following: a. That the Department’s threshold for determining if a traffic impact study is required for a proposed land use change or development, or new access for an existing land use, with access to and from any state-maintained highway, must be based on peak-hour trips, not vehicle trips per day, and must at least meet the following: 1. For a residential development, 500 peak-hour trips. 2. For all other development, 500 peak-hour trips, excluding pass-by trips. b. That if a proposed land use change or development, or new access for an existing land use, with access to and from any state-maintained highway requires a traffic impact study under standards and regulations adopted by the Department, any required off-site improvement must be credited against the transportation impact fee required under § 507(b) of this title. c. That a traffic impact study is not required for a proposed land use change or development, or new access for an existing land use, with access to and from any state-maintained highway in a “Downtown Development District” or “Downtown Development Corridor,” as defined under § 1902 of Title 22. (b) No person, firm, or corporation shall construct, open, reconstruct, maintain, modify or use any crossing or entrance onto a state-maintained highway, street or road, including any drainage modifications leading into or carried by the highway drainage system, without first having complied with standards and regulations adopted by the Department and having obtained a permit issued by the Department. (c) Any person, firm, or corporation who constructs, opens, reconstructs, maintains, uses or modifies an entrance onto or an exit from a state-maintained highway, street or road without first having complied with standards and regulations adopted by the Department and having obtained a permit from the Department for such entrance or exit shall be punished by a fine of not less than $100 nor more than $1,000 for each offense, and a further sum in an amount equal to the amount fined for the initial offense for each and every day such violation exists. (d) For purposes of this section, whenever the use to which a property is being put is changed such that there will be a significant alteration in the character, flow or volume of traffic, as determined within the sole discretion of the Department, a new permit shall be required. (e) The Justice of the Peace Courts shall have jurisdiction over violations of subsections (b), (c), and (d) of this section. (f) In addition to whatever legal or equitable remedies are available, the Department may install barricades across or remove any entrance or exit constructed, opened, reconstructed, maintained, modified or used in violation of this section and the standards or regulations adopted pursuant thereto, at the expense of the property owner. (g) (1) An applicant who has submitted an accepted entrance plan for review and obtained an erosion and sediment control permit may request, and the Department must issue within 10 business days, a temporary entrance permit to perform on-site permitted construction activities for any commercial or economic development project. An applicant who obtains such a temporary entrance permit and performs such on-site permitted construction activities does so at its own risk and the State, including all of its agencies, shall not be responsible for any harm to the applicant including denial of the project, required modifications to plans or work, and permits not being issued. No certificate of occupancy shall be issued prior to entrance plan approval and entrance construction being substantially complete. (2) For purposes of this subsection, “economic development project” means a development project creating full-time jobs, that is consistent with an adopted local government comprehensive plan and local land development and zoning ordinances. (h) (1) Any residential subdivision defined as a Level I or Level II project by the Department in the most recent version of the DelDOT Development Coordination Manual from which access is provided to a state-maintained highway shall be eligible to receive a credit for construction of off-premises improvements to a state-maintained highway. The credited amount shall be a percentage of the cost of the improvements equal to the percentage of the affordable housing lots that are set aside for affordable housing. The developer shall be relieved of the requirement to provide improvements consistent with the credited percentage. The Department shall administer this section and may promulgate regulations for that purpose. (2) For purposes of this subsection, “affordable housing lots” means a lot on which a residential dwelling is intended to be constructed for a household whose income does not exceed 100% of the median income for the area as defined by the United States Department of Housing and Urban Development. (i) Along existing highways, the Department may exercise its authority under § 137 of this title to acquire property rights for consolidating commercial entrances or to create new commercial interconnections, when the Department determines such consolidation or interconnection would likely improve safety in accordance with a “safe system approach,” as defined in § 135A of this title. Private properties made nonconforming under local zoning codes as a result of Delaware state acquisitions to consolidate entrances for traffic safety reasons are exempt from variance requirements under any county or municipal zoning code.

Del. Code tit. 17, § 147 Authority to establish standards for traffic-control devices.

(a) The Department shall adopt a uniform standard for each type of traffic-control device to be used on all highways open to the public in this State. Such standard shall correlate with, and so far as practical, conform to the standards used in other states, except that the Department is authorized to adopt different standards and types of devices or applications if the Department determines that, based on engineering judgment, different standards or types of devices or applications are needed in order to reduce fatal or serious injury crashes or improve safety in accordance with a “safe system approach,” as defined under § 135A of this title. For purposes of this subsection, “standards” includes publications, policies, guidelines, or memoranda. (b) The standards shall be recorded in a manual to be known as the Delaware Manual on Uniform Traffic-Control Devices for Streets and Highways. The manual shall have separate chapters setting individual standards for signs, signals and markings. (c) Any traffic-control device erected in violation of the manual, except experimental devices erected by the Department, shall be unofficial, unauthorized and unenforceable. (d) A person or corporation shall not sell or offer for sale in this State any traffic-control device or other device intended to regulate, warn or guide traffic unless it conforms with the state manual and specifications adopted under this section.

Del. Code tit. 17, § 148 Trust fund.

All moneys received pursuant to this title as proceeds from the sale, lease or rental of land with or without improvements, regardless of the source of funding for the original purchase of the aforesaid land or improvements, shall be credited to a special fund established by the State Treasurer and transferred quarterly to the Transportation Trust Fund. Such revenues shall be utilized by the Department to carry out the general purposes of this title. Moneys received pursuant to this section that originate from federal funding will be credited to the proper projects/accounts in accordance with established federal guidelines.

Del. Code tit. 17, § 149 Authority to adopt regulations governing state land.

(a) The Department shall have the authority to adopt rules, regulations or restrictions governing the use of or the conduct on those lands owned, controlled or in the custody of the Department. Such rules, regulations or restrictions adopted pursuant hereto may be adopted to control such behavior as, but not limited to, loud and tumultuous behavior, the sale or consumption of alcoholic beverages, or sales of goods or services for profit or vending operations of any kind without a permit issued by the Department. The Department shall also have the authority to issue rules and regulations to meet its requirements under federal, state and local environmental laws, including but not limited to the National Pollutant Discharge Elimination System (NPDES) permits required by the Clean Water Act [33 U.S.C. § 1342 et seq.]. (b) Any violation of any rule, regulation or restriction adopted pursuant hereto by the Department shall constitute a class B misdemeanor as defined in Title 11 and any person found to be in violation thereof shall receive a penalty in accordance therewith. (c) (1) Legislative findings. — The General Assembly finds that the proliferation of sporting and recreational activity taking place in and adjacent to the State’s public rights-of-way is growing along with the State’s population, and further finds that such mixed-use activity threatens the safety of the recreants as well as members of the motoring public. (2) In keeping with the General Assembly’s legislative findings herein, and in order to promote safe neighborhood recreation, the Department shall make every effort to remove from public rights-of-way devices such as basketball hoops, hockey goals, shuffleboards and the like. The Department is further authorized and directed to establish such regulations as may be necessary and appropriate to enforce this activity. The regulations may include provisions for recreational use agreements with public agencies or other responsible entities for State property under Department control, that the Department may determine as suitable for these activities. Notwithstanding any other provision of state law to the contrary, any repeat offender found in violation of the regulations adopted pursuant to this subsection shall pay a fine of $25 per incident.

Del. Code tit. 17, § 150 Lead paint on outdoor structures.

All provisions of this title must comply with Chapter 30M of Title 16.

Del. Code tit. 17, § 150A Utilities Coordination Council.

The General Assembly creates a permanent Utilities Coordination Council. (1) The council shall consist of the following members, or a designee appointed by the member serving by virtue of position: a. A Representative appointed by the Speaker of the House Representatives. b. A Senator appointed by the President Pro Tempore of the Senate. c. The Secretary of the Department of Transportation. d. A Department of Transportation Utilities Engineer. e. One representative from Delmarva Power Corporation. f. One representative from Delaware Electric Cooperative. g. One representative from Verizon Delaware LLC. h. One representative from Chesapeake Utilities Corporation. i. One representative from Artesian Water Company. j. One representative from Comcast Corporation. k. One representative from the Delaware Municipal Electric Corporation. l. One representative from the Delaware Chapter of the National Association of Water Companies. m. One representative from the American Council of Engineering Companies of Delaware. (2) The Council shall: a. Recommend and review best practices to shorten the total time to coordinate and implement utility relocations on transportation projects on Delaware’s highways. b. Consider all reasonable options for improvement and recommend any combination of proposed agreements, regulations, or legislation for consideration by the General Assembly. c. Ensure that recommendations are implemented and hold the Department and utility companies accountable. d. Resolve issues on specific projects that have or are experiencing utility delays. (3) Meetings; quorum; officers; committees; procedure. a. The Council must meet by December 30, 2021, and thereafter must meet at least 4 times each year. A majority of members present shall constitute a quorum. b. The Secretary of the Department of Transportation will convene the initial meeting of the Council. c. At the initial meeting of the Council, a Chairperson and Vice Chairperson are to be elected by the Council members. Thereafter, the Council will elect a Chairperson and Vice Chairperson biennially at the first meeting of the calendar year to serve a 2-year term. The Chairperson has the duty to convene and preside over meetings of the Council. The Vice Chairperson’s duty is to act as chairperson in the absence of the Chairperson. d. The Council may establish committees composed of Council members and other knowledgeable individuals as deemed advisable to assist in achieving the purposes of the Council. e. The Council must submit a written report of its activities and recommendations to the Governor and General Assembly within 1 year of establishment of the Council and at least once every year thereafter.

Del. Code tit. 17, § 151 Procedure for procurement of materials, equipment or supplies and award of contracts for performance of work.

The Department shall not purchase any materials, equipment or supplies, nor enter into any contract for the performance of any work except in accordance with Chapter 69 of Title 29, except that said Chapter 69 of Title 29 shall not apply, when in the best interests of the State, as determined by the Secretary and approved by the Budget Commission, the Department enters into agreements with other states, counties, municipalities, other governmental agencies or private entities to have such work or services supplied pursuant to contracts entered into by such other public authorities or private entities.

Del. Code tit. 17, § 152 Supervision by Secretary of Transportation.

The execution and performance of all contracts awarded by the Department shall be under the charge of the Secretary of Transportation, and the Secretary’s decision shall be final in all matters concerning the performance of the work and compliance with the terms of the contract.

Del. Code tit. 17, § 153 Border crossing agreements.

(a) The General Assembly finds as follows: (1) There are over 150 locations at which public roads cross Delaware’s border with either Maryland or Pennsylvania. (2) Several of these roads include portions that cross into Maryland or Pennsylvania from Delaware with no intersections with such roads from within the other state. (3) Some public roads move back and forth across the state border, while others continue from 1 state to the other. (4) These border crossings raise several difficult issues concerning potential liability, appropriate continuity of pavement maintenance policies and practices, snow removal responsibilities, and oversight of subdivision development and entrance permit regulations applicable to each jurisdiction. (5) Therefore, it is appropriate to direct the Department of Transportation to enter into such border crossing agreements as it deems fitting and proper, to obtain cooperation with the responsible jurisdictions in other states to deal with the issues caused by the interplay of the state’s borders with the public road transportation network. (b) The Department of Transportation is authorized and directed to enter into border crossing agreements with counties, townships, other states, and such other government agencies as are responsible for those public roads that cross between, intersect with, or are adjacent to the Delaware border with Maryland or Pennsylvania, and which are connected to the road system for which the Department is responsible under this chapter. Such agreements may include provisions for pavement reconstruction and maintenance, sharing of snow removal and other responsibilities, joint subdivision review and entrance permit approval processes, adoption of uniform traffic control policies, road segment responsibility designations, reimbursement provisions for expenditures made on these roads, and for other purposes as the Department may deem fitting and proper. Chapter 69 of Title 29 shall not apply to such agreements or to the purchase of materials, equipment, supplies, or the performance of any work on the road segments included within these agreements, except that the provisions of § 6960 of Title 29, thereof shall apply to any work contracted for performance within Delaware. (c) The provisions of this section shall be limited to those public roads located within 1 / 2 mile of the Delaware border, measured perpendicularly from the border.

Del. Code tit. 17, § 171 Declaration of policy.

The General Assembly finds, determines and declares that this subchapter is necessary for the immediate preservation of the public peace, health and safety and for the promotion of the general welfare.

Del. Code tit. 17, § 172 Definition of a controlled-access facility.

For the purposes of this subchapter, a controlled-access facility is defined as a highway especially designed for through motor vehicle traffic, and over, from or to which owners or occupants of abutting land or other persons have no right or easement or only a controlled right or easement of access, light, air or view by reason of the fact that their property abuts upon such controlled-access facility or for any other reason. Such highways may be freeways open to use by all customary forms of highway traffic, or they may be parkways from which trucks, buses and other commercial vehicles shall be excluded, or they may be multi-modal corridors where the absence or restriction of turning vehicle movements enables safer movement of people and goods via multiple modes of travel.

Del. Code tit. 17, § 173 Authority to establish controlled-access facilities.

The Department, acting alone or in cooperation with any other governmental agency or political subdivision of this State or with any federal, state or local agency of any other state having authority to participate in the construction and maintenance of highways, may plan, designate, establish, regulate, vacate, alter, improve, maintain and provide controlled-access facilities for public use wherever the Department is of the opinion that traffic conditions, present or future, will justify such special facilities, provided that within cities and towns such authority shall be subject to such municipal consent as may be provided by law. The Department, in addition to the specific powers granted in this subchapter, shall also have and may exercise, relative to controlled-access facilities, any and all additional authority now or after June 22, 1956, vested in it relative to highways or streets within its jurisdiction. The Department may regulate, restrict or prohibit the use of such controlled-access facilities by the various classes of vehicles or traffic in a manner consistent with § 172 of this title.

Del. Code tit. 17, § 174 Design of controlled-access facility.

The Department may so design any controlled-access facility and so regulate, restrict or prohibit access as to best serve the traffic for which such facility is intended. In this connection the Department may divide and separate any controlled-access facility into separate roadways by the construction of raised curbings, central dividing sections or other physical separations or by designating such separate roadways by signs, markers, stripes and the proper lane for such traffic by appropriate signs, markers, stripes and other devices. No person shall have any right of ingress or egress to, from or across controlled-access facilities to or from abutting lands, except at such designated points at which access may be permitted, upon such terms and conditions as may be specified from time to time.

Del. Code tit. 17, § 175 Acquisition of property and property rights.

For the purpose of this subchapter, the Department may acquire private or public property and property rights for controlled-access facilities and service roads, including rights of access, air, view and light, by gift, devise, purchase or condemnation in the same manner as such units are now or may, after June 22, 1956, be authorized by law to acquire such property or property rights in connection with highways and streets within its jurisdiction. All property rights acquired under this subchapter shall be in fee simple. In connection with the acquisition of property or property rights for any controlled-access facility or portion thereof or service road in connection therewith, the Department may, in its discretion, acquire an entire lot, block or tract of land, if, by so doing, the interest of the public will be best served, even though said entire lot, block or tract is not immediately needed for the right-of-way proper.

Del. Code tit. 17, § 176 New and existing facilities; grade-crossing eliminations.

The Department may designate and establish controlled-access highways as new and additional facilities or may designate and establish an existing highway as a controlled-access facility. The State or any of its subdivisions shall have authority to provide for the elimination of intersections at grade of controlled-access facilities with existing state roads by grade separation or service road or by closing off such roads and streets at the right-of-way boundary line of such controlled-access facility; and after the establishment of any controlled-access facility, no highway or street which is not part of said facility shall intersect the same at grade, except as a temporary expedient, for which a separate resolution for each individual location shall be approved by a duly executed resolution of the Department. No city or town street, state highway, or other public way shall be opened into or connected with any such controlled-access facility without the consent and previous approval of the Department. Such consent and approval shall be given only if the public interest shall be served thereby.

Del. Code tit. 17, § 177 Authority of local units to consent.

The Department may enter into agreements with other states, counties, towns or with the federal government respecting financing, planning, establishment, improvement, maintenance, use, regulation or vacation of controlled-access facilities or other public ways in its jurisdiction to facilitate the purposes of this subchapter.

Del. Code tit. 17, § 178 Local service roads.

In connection with the development of any controlled-access facility, the Department may plan, designate, establish, use, regulate, alter, improve, maintain and vacate local service roads and streets or may designate as local service roads and streets any existing road or street and may exercise jurisdiction over service roads in the same manner as is authorized over controlled-access facilities under the terms of this subchapter, if, in their opinion, such local service roads and streets are necessary or desirable. Such local service roads or streets shall be of appropriate design, and shall be separated from the controlled-access facility proper by means of all devices designated as necessary or desirable by the proper authority.

Del. Code tit. 17, § 179 Restrictions on use of controlled-access facilities.

The Department may prohibit the use of specific classes of motor-driven vehicles or of other vehicles on controlled-access highways either all the time or during such times as necessary for safety. Notice of such prohibition shall be posted on traffic-control devices at the entrance to the controlled-access facilities.

Del. Code tit. 17, § 180 Certain commercial establishment prohibited.

No automotive service station or other commercial establishment for serving motor vehicle users, except telephone facilities, shall be constructed or located within the right-of-way of, or on publicly owned or publicly leased land acquired or used for, or in connection with a controlled-access facility.

Del. Code tit. 17, § 190 Statement of intent.

The General Assembly finds that certain portions of the state highway system are notable for their scenic, historic, recreational, cultural or archaeological value and worthy of designation as Delaware byways to provide special consideration of their unique features and special role in the highway system. The General Assembly further finds that the public interest would be served by the formation of a coordinated scenic highway program to enhance recreational, cultural and archaeological resources, encourage development through tourism, and educate residents and visitors on the history, culture and natural beauty of this State.

Del. Code tit. 17, § 191 Delaware Byways Program.

The Secretary shall establish within the Department a program to be known as the Delaware Byways Program (hereinafter referred to as “byways program,” or “program”) to encourage and coordinate state actions and the activities of others which relate to the development, protection, promotion, operation and management of byways. In order to carry out the purposes of the program, the Secretary is authorized to: (1) Plan, design and develop the Delaware byways system and to designate such highways as the Department may deem appropriate as “Delaware Byways.” The process for such designation shall ensure that Delaware byways are selected and managed through a process that balances equity for property owners with the desire of the community to have a specific highway designated under this program; (2) Ensure to the extent possible that all byway designations are continuous; (3) Make safety improvements to a highway designated as a byway under this article to the extent such improvements are necessary to accommodate increased or reduced traffic as well as any changes necessary as a result of the types of vehicles using the highway due to such designation; (4) Construct along such byways such improvements as may be necessary for the use and enjoyment of motorists, pedestrians and bicyclists; (5) Improve the highway to enhance access to areas utilized for the purpose of recreation, including but not limited to youth-related activities and water-related recreation; (6) Protect scenic, historical, natural, archaeological and cultural resources in areas adjacent to the highway; (7) Develop and provide tourist information to the public, including interpretive information about the byway; (8) Apply for funding from any appropriate source to further the purposes of the program, including but not limited to federal grants or private contributions; and (9) Enter into contracts with qualified and responsible not-for-profit organizations involved in byway activities for services relating to the development of the byways program or services relating to the operation, development or promotion of a specific byway.

Del. Code tit. 17, § 192 Regulations.

The Secretary is authorized to promulgate such regulations as may be necessary or desirable to implement the Delaware Byways program, consistent with departmental policy and this subchapter. Such regulations may also: (1) Encourage counties, towns and municipalities to work with the Department to designate Delaware byways within their jurisdictions and to petition for the inclusions of these highways into the byways program. Such inclusion shall enable the municipality to participate in federal funding that may be available under the National Scenic Byways Program of the Transportation Equity Act of the 21st Century of 1998 (23 U.S.C. § 162). (2) Develop criteria for Delaware byway designation based upon its scenic, historic, natural, recreational, cultural or archeological qualities; (3) Encourage and assist in fostering public awareness, understanding and participation in the objectives and functions of the Delaware Byways Program; (4) Provide participants with tools and ideas for enhancement and protection of designated byways; (5) Provide operation and management standards for highways designated as Delaware byways, including strategies for maintaining or improving the qualities for which a byway is so designated, for protecting and enhancing the landscape and scenic view and for minimizing traffic congestion as much as possible on such byways; (6) Provide standards for byway-related signs, including those which identify Delaware byways; (7) Develop and implement a byways corridor management plan that specifies the actions, procedures, controls, operational practices and administrative strategies to maintain the scenic, historic, cultural, recreational, archaeological and natural qualities of the byway; and (8) Develop planning and design standards for development of official byways.

Del. Code tit. 17, § 194 Outdoor advertising exemptions.

(a) Nothing in this subchapter shall authorize any removal or restriction on outdoor advertising erected or approved by the appropriate governmental authority to be erected before July 18, 2000. (b) Outdoor advertising signs, displays, and devices to be erected along a designated Delaware byway or within the 660 ft. control zone of a designated Delaware byway, provided they are in accordance with the provisions listed in Chapter 11 of this title, shall be limited to the following: (1) Directional and other official signs and notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic and historic attractions as authorized or required by the laws of this State; (2) Signs, displays and devices advertising the sale or lease of the real property upon which they are located; (3) Signs, displays and devices advertising activities conducted on the real property upon which they are located; (4) Gateway signs as defined by § 1102 of this title; (5) Beautification/landscape planting sponsorship signs located within the right-of-way of a Delaware byway; (c) For the purposes of this section “outdoor advertising” has the same meaning as defined by § 1102 of this title.

Del. Code tit. 17, § 201 Legislative intent.

It is declared that increases in forested land in the State, together with landscape features such as trees, shrubs and ground covers other than or in addition to grass, not only improve the aesthetic value of our State, but carry with them valuable benefits to the health and welfare of our citizens and our environment. It is likewise declared that the Department of Transportation is a leader in replacing forestlands that are required to be cleared for such projects and in providing travelers throughout the State with scenic vistas along its roadways while maintaining safe design and construction standards. Therefore, this subchapter is intended to more precisely reflect a policy requiring the incorporation of landscaping and reforestation in the projects developed by the Department of Transportation for road construction and improvements in the State. This subchapter is intended to provide minimum standards for the volume of landscaping or reforestation that must take place, for how those activities must be planned, and for how much must be allocated to ensure those activities can take place. The Department of Transportation bears the responsibility for providing specific standards that are needed through regulations developed pursuant to this subchapter.

Del. Code tit. 17, § 202 Definitions.

For the purposes of this subchapter: (1) “An acre of trees” means a contiguous acre of land on which there are situated at least 50 trees or woody plants with a trunk measuring at least 4 inches in diameter at 4 feet above the ground. Partial acres and individual parcels will be added together to determine the total acreage within the project scope. (2) “Canopy tree” means any tree or other woody plant that when fully grown will provide shade and/or shelter for the land beneath while allowing passage of people, animals and/or vehicles upon the land beneath. Canopy trees are classified in 1 of 3 categories: a. “Lower canopy.” — “Lower canopy trees” include all species of trees and woody plants that when fully grown reach an average height of not more than 30 feet when measured vertically in a straight line from the uppermost branches to the ground immediately below. b. “Medium canopy.” — “Medium canopy trees” include all species of trees and woody plants that when fully grown reach an average heights of not less than 30 feet nor more than 50 feet when measured vertically in a straight line from the uppermost branches to the ground immediately below. c. “Upper canopy.” — “Upper canopy trees” include all species of trees and woody plants that when fully grown reach an average height of not less than 50 feet when measured vertically in a straight line from the uppermost branches to the ground immediately below. (3) “Construction project” means any activity undertaken, authorized or required by the Department of Transportation through which any expressway, arterial or collector road is: a. Constructed on a new alignment; or b. Widened by adding 1 or more through travel lanes. (4) “Forest” means a biological community dominated by trees covering a contiguous area of land and includes any definition thereof developed by the Department of Agriculture Forest Service. A “forest” may be identified by the diversity of the tree species composing it or by its type. A “forest type” is a forest composed of associations of tree species that have similar ecological requirements. (5) “Landscape improvements” means living trees and shrubs planted for the purpose of enhancing the aesthetic value or wildlife habitat of the land, including, but no limited to, organized or planned arrangements of living plants as well as naturally occurring or wild growth of living plants. These improvements shall be made in a manner prescribed by the Department of Transportation’s landscape policies, as amended from to time. In establishing and modifying these policies, the Department of Transportation shall seek the advice of the Department of Agriculture and the Department of Natural Resources and Environmental Control and such other public or private agencies as may be deemed appropriate by the Department. (6) “Landscaping and planting activities” means the placement of landscape improvements. Landscaping and planting activities do not include the erection of fences, structures or other nonliving barriers or borders. (7) “Reforestation activities” means landscaping and planting activities according to advice provided by the Department of Agriculture Forest Service on lands within rights-of-way owned or controlled by the Department of Transportation on which no forest currently exists, or on which a forest exists that is less dense than recommended by the Department of Agriculture Forest Service, to a density that will reasonably ensure the establishment of a mature forest of a particular type once fully grown.

Del. Code tit. 17, § 203 Duty to incorporate cost of landscaping, planting and reforestation activities.

Whenever the Department of Transportation undertakes any construction project in this State covered by this subchapter, it shall incorporate into the cost of such project sufficient funds to complete all landscaping, planting and/or reforestation activities required by this subchapter. If upon the completion of all landscaping, planting and/or reforestation activities required by this subchapter, and upon the completion of any funds transfers authorized by this subchapter, there remain funds in the budget of a construction project that had been designated specifically for landscaping, planting and/or reforestation activities, the Department shall use the remaining unobligated funds to perform or pay for other landscaping, planting and/or reforestation activities in the State.

Del. Code tit. 17, § 204 Reclamation of dedicated funds.

If upon the completion of all landscaping, planting and/or reforestation activities required by this subchapter, and upon the completion of any funds transfers authorized by this subchapter, there remain funds in the budget of a construction project that had been designated specifically for landscaping, planting and/or reforestation activities, the Department shall use the remaining unobligated funds to perform or pay for other landscaping, planting and/or reforestation activities in the State.

Del. Code tit. 17, § 205 Duty to minimize removal, cutting or clearing of landscape improvements.

Whenever the Department of Transportation undertakes any construction project in this State, it shall make every reasonable effort to preserve large, mature trees. Additionally, it shall make every reasonable effort to remove, cut or clear only the minimum number of trees and shrubs that are necessary to complete the project and remain consistent with safe design practices.

Del. Code tit. 17, § 206 Duty to complete landscaping, planting and reforestation activities; modification of project plans.

(a) The Department of Transportation shall complete all landscaping, planting and reforestation activities required by this subchapter, or cause the same to be completed, and shall complete all funds transfers authorized by this subchapter within 1 year of the expiration of any guarantee or warranty period. (b) Wherever practicable, the Department of Transportation shall modify or alter construction projects and plans to include landscaping, planting or reforestation activities within median areas and along roadside affected thereby. This includes but is not limited to modifications resulting in the increased use of earthen berms or, if necessary, metal or cement roadside barriers without compromising safety.

Del. Code tit. 17, § 207 Lands held for duration of construction project and thereafter; limitation upon transfer and development.

(a) Any other provision of law not withstanding, all lands, and all rights therein, on which landscaping, planting or reforestation activities take place pursuant to this subchapter shall remain in the possession and control of the Department of Transportation for the duration of the construction project and shall remain so thereafter until such time as the Department of Transportation determines that such lands no longer meet its existing or projected needs. At such time, the Department of Transportation may transfer any or all of said lands to any agency, instrumentality or political subdivision of the State for the purposes of preserving them for the public good. (b) At no time may the Department of Transportation, or any other agency, instrumentality or political subdivision of the State transfer any right in or to lands on which reforestation activities take place that would in any way change the nature of the lands from forestland or that would permit development of any kind on said lands other than for the purposes of establishing or expanding a local, state or federal park, natural area, or preserve. (c) The Department of Transportation may perform maintenance activities such as pruning or the selective removal of diseased or dead trees as it deems necessary for the safe operation of the transportation system.

Del. Code tit. 17, § 208 Regulations.

(a) The Department of Transportation shall promulgate such rules and regulations as it deems necessary for implementing this subchapter. (b) All policies, standards and general specification relating to landscaping, planting and reforestation activities, as well as the planting and placement of trees, shrubs, groundcover, sod and grass, must appear within the Department of Transportation’s design standards and/or regulations and must be developed in conjunction with the Department of Agriculture and the Department of Natural Resources and Environmental Control or such other public or private agencies as may be deemed appropriate by the Department. (c) All rules and regulations promulgated pursuant to this section shall meet the requirements of the Administrative Procedures Act (Chapter 101 of Title 29).

Del. Code tit. 17, § 209 Mitigation needs analysis.

(a) Before the Department of Transportation removes, cuts or clears any landscape improvement, tree or forest from the site of a construction project, it shall conduct an analysis, or cause the same to be conducted, to determine the total area of landscape improvements, individual trees up to 50, or if more than 50, the total acres of trees that will be removed, cut or cleared in order to complete the project. (b) Whenever the Department of Transportation constructs or widens any major arterial, interstate connector, minor arterial, collector road or proposed road in an urbanized area of this State, the Department shall incorporate in the plans therefore provision for all costs incurred in replacing, wherever possible, shade trees to be removed in order to execute the plan. Replacement shade trees shall be a minimum height of 16 feet, balled and burlapped nursery-grown stock, and all planting work shall be done in accordance with § 728 of the Delaware Department of Transportation Standard Specifications (January 1, 1974, or latest revised edition). The place of planting trees shall be in compliance with federal law and regulations relating to the distance such trees must be planted from the edge of the roadway. (c) If the Department of Transportation determines that it will not remove, cut or clear any trees in order to complete the construction project, it shall incorporate into the construction plans landscape improvements to improve the rights of way within the project area only, in accordance with the Department’s standards as set forth herein. (d) If the Department of Transportation determines that it will remove, cut or clear landscape improvements of 10 or fewer trees in order to complete the construction project, it shall incorporate into the construction plans requirements for landscape mitigation through the performance of landscaping and planting activities to improve the rights-of-way within the project area at a ratio of at least 1 new tree or shrub for every tree or shrub removed. (e) If the Department of Transportation determines that it will remove more than 10 but fewer than 50 trees in order to complete the construction project, regardless of the number of acres on which those tree are situated, it shall incorporate into the construction plans requirements for landscaping and planting activities in Part II of this subchapter that will result in the planting of at least 2 trees for every tree to be removed, cut or cleared in order to complete the construction project. (f) If the Department of Transportation determines that it will remove 50 or more trees in order to complete the construction project, it shall incorporate into the construction plans requirements for activities that will result in the reforestation of at least 1 acre of land for every acre of trees to be removed, cut or cleared in order to complete the construction project. The ratio of land on which reforestation activities occur to land from which 50 or more trees have been removed, cut or cleared shall apply equally to complete acres as well as fractions thereof. (g) The Department of Transportation shall itself undertake the reforestation activities required pursuant to this section or shall cause the same to be undertaken.

Del. Code tit. 17, § 210 Inability to meet minimum requirements; alternate landscaping and planting activities.

(a) If the Department of Transportation is unable to meet the minimum requirements for landscaping and planting activities set forth in Part II within the rights-of-way of the construction project with which the landscaping and planting activities are associated, it must first complete the balance of those landscaping and planting activities within other: (1) State-owned rights-of-way which are along the same road and geographically closest to the construction project requiring landscaping and planting activities and thereafter moving outward in all directions until it has met the minimum requirements for landscaping and planting activities set forth in this part; or (2) Within conservation easements approved and maintained by the Department of Natural Resources and Environmental Control that are within the same or an adjacent watershed. (b) If, thereafter, the Department of Transportation remains unable to meet the minimum requirements for landscaping and planting activities set forth above within any rights-of-way it owns or controls in the State, it shall determine the number of acres of landscaping and planting activities it has been unable to mitigate and: (1) Perform landscaping and planting activities in the State (or cause the same to be performed) at locations recommended by the Department of Agriculture Forest Service or the Department of Natural Resources and Environmental Control; or (2) If the Department of Agriculture or the Department of Natural Resources and Environmental Control are unable to identify any locations in the State for the performance of landscaping and planting activities, transfer to either the Department of Agriculture Forest Service or the Department of Natural Resources and Environmental Control an amount equal to the dollar value per square yard necessary to plant seedlings in the area it has been unable to mitigate to be used by either Department for conducting landscaping and planting activities in the State under programs administered by those Departments.

Del. Code tit. 17, § 211 Planting standards.

(a) All landscaping and planting activities undertaken as part of the Department of Transportation’s obligation to mitigate the removal, cutting or clearing of landscape improvements pursuant to this part must be conducted pursuant to a landscape plan prepared by the Delaware licensed and registered landscape design professional or by the Delaware Department of Transportation, and must be conducted: (1) To promote transplant survival; (2) In compliance with federal law and regulation; (3) In compliance with any Department of Transportation design specifications relating to obstructions in the right-of-way, and the distance that landscape improvements must be planted from the travel lanes of the roadway for safety purposes and corresponding to any policies related to context sensitive design; (4) In compliance with the Department of Transportation’s landscape and reforestation policies developed in conjunction with the Department of Agriculture and the Department of Natural Resources and Environmental Control or other such public or private agencies as the Department of Transportation may deem appropriate; and (5) To be maintainable with resources available to the Department at the time of planting, to include any permanent agreements entered into relating to maintenance. (b) A landscape plan prepared by a Delaware-licensed and registered landscape design professional or by the Delaware Department of Transportation for use in completing the minimum landscaping and planting activities required by this part may include whatever components the Department of Transportation determines are necessary or appropriate for the area in which the activities will take place, but must at a minimum: (1) Screen, while maintaining transportation safety standards, at least 50 percent of the frontage of industrial properties and the back sides of nonagricultural, commercial properties; (2) Use an appropriate combination of trees, shrubs, groundcovers, and grass or sod, both within median areas and along all roads, for aesthetic and screen purposes; and (3) Select from upper, medium and lower canopy trees, both within median areas and along all roads where space is safely available, that: a. Are no less than 1 inch in diameter, as measured 6 inches above the established ground level when planted; b. Are planted in sufficient quantities to achieve an aesthetically pleasing view and/or, if outside the right-of-way, wildlife habitat when fully grown. (c) All landscaping and screening shall be in conformance with any context sensitive design and vegetative policies that are in effect at the time of the project. (d) No landscape improvement determined to be an invasive species shall ever be knowingly planted, authorized or required by the Department of Transportation.

Del. Code tit. 17, § 220 Findings and intent.

(a) The Brandywine Valley National Scenic Byway (the “National Scenic Byway”), which includes Delaware Route 52 within the State of Delaware from Rodney Square to the Pennsylvania Line and Delaware Route 100 from its intersection with Delaware Route 52 to the Pennsylvania line, was designated in 2005 as the first National Byway in the State of Delaware. The General Assembly hereby finds that the historic, cultural and scenic qualities of National Scenic Byway are unique and worthy of special consideration. (b) In recognition of the foregoing, it is the intent of the General Assembly to establish a permanent, interdisciplinary advisory board comprised of such individuals as provided below, to assist policymakers and other stakeholders in preserving, maintaining and enhancing the National Scenic Byway.

Del. Code tit. 17, § 221 Establishment of Board.

(a) There is hereby established a Brandywine Valley National Scenic Byway Advisory Board, which shall be chaired by the Secretary or the Secretary’s designee and comprised of members serving for terms of 3 years each. The following organizations shall be entitled to appoint a representative to the Board: (1) Department of Natural Resources and Environmental Control; (2) Department of State; (3) Delaware Tourism Office; (4) New Castle County; (5) City of Wilmington and/or the Wilmington Convention and Visitors Bureau; (6) Kennett Pike Association; (7) Delaware Greenways; (8) Delaware Nature Society; (9) Centreville Civic Association; (10) Brandywine Conservancy; (11) Maintenance Corporation of Westover Hills; (12) Westover Hills Woods Association; and (13) The Harriett Tubman Underground Railroad Byway. (b) In addition to the foregoing, the Board shall also include a representative of the hospitality industry; a representative of the Brandywine Valley museum community (including but not limited to the Hagley Museum, Longwood Gardens, Winterthur Museum and Gardens and the Brandywine River Museum); a representative of the Greenville, Centreville or Montchanin business community; and such other members as shall be nominated and appointed from time to time. Members appointed pursuant to this subsection (b) shall be nominated by a majority vote of the existing members and appointed by the Secretary. (c) The Board shall adopt bylaws that provide for operating procedures such as election of officers, appointment of committees, designation of a quorum, conducting of meetings, and other matters that will promote the efficient operation of the Board in the performance of its duties under this chapter.

Del. Code tit. 17, § 222 Duties and responsibilities of Board.

The Board shall assist in and make recommendations regarding the protection, preservation, designation, development, operation, management and promotion of the National Scenic Byway. In connection with the foregoing, the responsibilities and powers of the Board shall include: (1) In an advisory capacity, reviewing and participating in the development of regulations and laws that impact the National Scenic Byway, at all levels of government; (2) Securing funding to operate programs that enhance and preserve the National Scenic Byway for residents and visitors; (3) Recommending policies and standards related to the National Scenic Byway; (4) Participating in the update and implementation of the Corridor Management Plan and any associated reports, studies and plans; and (5) Preparing and submitting the biennial report described in § 223 of this title hereunder; and (6) Such other responsibilities and powers consistent with the Board’s role as an advisory body as shall be determined from time to time.

Del. Code tit. 17, § 223 Reports.

The Board shall prepare and submit a report of its activities and accomplishments to the General Assembly no later than June 30, 2014, and every second year thereafter.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title17/c001/sc01/index.htmlFetched: 10/4/2026