Zoning

Del. Code tit. 9, ch. 69
in effect

Del. Code tit. 9, § 6901 Definitions.

All definitions used in § 6801 of this title shall apply to this subchapter, and as used in this subchapter, unless the same shall be inconsistent with the context: (1) “Nonconforming structure” means a structure or part of a structure manifestly not designed to comply with the applicable use provisions in a zoning regulation or amendment heretofore or hereafter enacted, where such structure lawfully existed prior to the enactment of such ordinance or code or amendment by reason of its location. Such nonconforming structures include nonconforming signs. (2) “Nonconforming use” means a use, whether of land or of a structure, which does not comply with the applicable use provisions in a zoning regulation or amendment heretofore or hereafter enacted, where such use was lawfully in existence prior to the enactment of such ordinance or code or amendment, or prior to the application of such ordinance or code or amendment by reason of its location. (3) “Structure” means any man-made object having an ascertainable stationary location on or in land or water whether or not affixed to the land. The word “structure” includes the word “building.”

Del. Code tit. 9, § 6902 Power and jurisdiction of county government.

(a) The county government may, in accordance with the conditions and procedure specified in this subchapter, regulate the location, height, bulk and size of buildings, parking areas, and other structures, the percentage of lot which may be occupied, the size of yards, courts and other open spaces, the density and distribution of population, the location and uses of buildings, parking areas, and structures for trade, industry, residence, parking, recreation, public activities or other purposes and the uses of land for trade, industry, residence, recreation, public activities, water supply conservation, soil conservation or other similar purposes, in that portion of Sussex County which is not included within the corporate limits of any city or town, unless any territory within such corporate limits is included upon request made by the governing body or authority of such city or town, notwithstanding any provision of other titles or chapters of this Code to the contrary. Any real property proposed to be used for an agritourism activity as defined in this title shall be given an expedited review before the County Council. (b) Notwithstanding subsection (a) of this section, no such regulation or regulations shall apply to any land, building, greenhouse or other structure proposed to be devoted to any agricultural use, or which is devoted at the time of such proposal to agricultural use, or to any land, building, greenhouse or other structure owned by a cooperative agricultural associations or a corporation which is or is proposed to be devoted to agricultural use. For the purposes of this subsection, any land, building, greenhouse or structure shall be deemed to be devoted to agricultural use if: (1) The land, building, greenhouse or structure is assessed pursuant to § 8335 of this title; (2) The land, building, greenhouse or structure is within an Agricultural Preservation District pursuant to Chapter 9 of Title 3; (3) The person who owns, leases or otherwise controls the land, building, greenhouse or structure is required to implement a nutrient management plan or agricultural waste management plan for the same and the land, building, greenhouse or structure itself is devoted to or used in the production for sale of plants and animals useful to man, including but not limited to: a. Forages and sod crops; b. Grains and feed crops; c. Dairy animals and dairy products; d. Poultry and poultry products; e. Livestock, including beef cattle, sheep, swine, horses, ponies, mules or goats, including the breeding and grazing of any or all of such animals; f. Bees and apiary products; g. Fish, hydroponic and aquacultural products; h. Fur animals; and i. Trees and forest products; (4) The land, building, greenhouse or structure is devoted to and meets the requirements and qualifications for payments or other compensation pursuant to a soil conservation program under an agreement with an agency of the federal government; and (5) The land, building or structure is a farm market or roadside stand provided: a. The products offered for sale are grown or produced on the subject farm or lands in agriculture production associated with such farm operation; or b. The products are grown or produced on a local regional farm, and such farm market or roadside stand shall comply with the following provisions: 1. All buildings, structures and associated canopies shall comply with the building height setback requirements established by the local jurisdiction within its zoning ordinances. All construction shall conform to applicable building codes and building permit requirements as enacted by the local jurisdiction; 2. Off street customer parking shall be provided in accordance with the provisions of the zoning ordinance of the local jurisdiction provided that at least 1 parking space shall be provided for each 100 square feet of floor area of the establishment. The area of 1 parking space shall be equivalent to a standard parking stall of 9′ x 18′; 3. If a new vehicular entrance is proposed to support a farm market or roadside stand, an entrance permit shall be obtained from the Delaware Department of Transportation prior to the start of construction; and 4. Signage shall comply with signage provisions and permitting requirements established by the local jurisdiction within its zoning ordinances. (c) Notwithstanding subsection (a) of this section, no such regulation or regulations shall apply to the agricultural uses of conducting hayrides, horseback riding, guided tours, barn parties and petting zoos.

Del. Code tit. 9, § 6903 Zoning map and regulations.

(a) For any or all of the purposes specified in § 6902 of this title, the county government may divide the territory of Sussex County into districts or zones of such number, shape, or area as it may determine, and within such districts, or any of them, may regulate the erection, construction, reconstruction, alteration, and the nature and extent of use of buildings and structures, and the nature and extent of the use of land. (b) All such regulations shall be uniform for each class or kind of buildings throughout any district, but the regulations in 1 district may differ from those in other districts. (c) The county government shall provide for the manner in which regulations shall be enforced, prescribe penalties for violations and shall designate the administrator of the regulations. The administrator so designated shall have authority to act as such throughout the County.

Del. Code tit. 9, § 6904 Purposes of regulations.

(a) Regulations adopted by the county government, pursuant to the provisions of this subchapter, shall be in accordance with the approved comprehensive development plan and shall be designated and adopted for the purpose of promoting the health, safety, morale, convenience, order, prosperity or welfare of the present and future inhabitants of Sussex County, including, amongst other things, the lessening of congestion in the streets or roads or reducing the waste of excessive amounts of roads, securing safety from fire, flood, and other dangers, providing adequate light and air, preventing on the one hand excessive concentration of population and on the other hand excessive and wasteful scattering of population or settlement, promoting such distribution of population and such classification of land uses and distribution of land development and utilization as will tend to facilitate and provide adequate provisions for public requirements, transportation, water flowage, water supply, water and air pollution abatement, drainage, sanitation, educational opportunities, recreation, soil fertility, food supply, protection of the tax base, securing economy in governmental expenditures, fostering the State’s agricultural and other industries, and the protection of both urban and nonurban development. (b) The regulations shall be made with reasonable consideration, among other things, of the character of the particular district involved, its peculiar suitability for particular uses, the conservation of property values and natural resources and the general and appropriate trend and character of land, building and population development.

Del. Code tit. 9, § 6905 Planning and Zoning Commission; appointment; term and qualifications.

In order to avail itself of the powers conferred by this subchapter, the county government shall appoint a permanent commission of 5 members which shall be known as the County Planning and Zoning Commission of Sussex County and who shall be the same voting members appointed under § 6803 of this title and its organization, meeting, office of the Commission, Secretary of the Commission, and other personnel shall be the same as in §§ 6804 and 6805 of this title.

Del. Code tit. 9, § 6906 Assistance from and cooperation with other agencies.

In performing its zoning function the Commission may make use of the expert advice and information which may be furnished by appropriate state, federal, or other officials, departments and agencies. All officials, departments, and agencies within the State having information, maps and data pertinent to county zoning shall make the same available for the use of the Commission, as well as furnish such other technical assistance and advice as they may have available for such purpose.

Del. Code tit. 9, § 6907 Tentative zoning proposal preparation by Commission.

(a) The Commission shall make, as promptly as possible, for certification to the county government, a zoning proposal based upon and in full accordance with the adopted comprehensive development plan including both the full text of the zoning regulation or regulations and the maps for the regulation by districts or zones of the location, height, bulk, and size of buildings and other structures, percentage of lot which may be occupied, size of lots, courts, and other open spaces, density and distribution of population; for the use of buildings and structures for trade, industry, residence, recreation, public activities or other purposes, and for the uses of land for trade, industry, recreation, public activities, soil conservation, water supply conservation or other similar purposes. (b) After the creation of the Commission and prior to the creation of the adopted comprehensive development plan and prior to the tentative zoning proposal described in subsection (a) of this section, an interim holding zone proposal to control the development of land may be instituted by Sussex County pursuant to § 6909 of this title as a temporary measure, but in no case shall the interim zoning be effective beyond December 31, 1970.

Del. Code tit. 9, § 6908 Public hearing and notice.

Any public hearing required by this subchapter shall be held in accordance with § 6812 of this title.

Del. Code tit. 9, § 6909 Commission’s powers in conduct of public hearings.

For the purpose of any public hearing under this subchapter, the Commission shall have power to summon witnesses, administer oaths and compel the giving of testimony. A taped recording or written transcript shall be made and become a part of the Commission’s public records.

Del. Code tit. 9, § 6910 Adoption by county government of zoning map and regulations; public hearings and notice; consultative hearings; resubmission to Commission.

(a) Before the adoption of any zoning proposal or zoning regulations, the county government shall hold a public hearing in accordance with § 7002(m) of this title. (b) The county government may conduct consultative hearings prior to the required public hearing to aid it in determining the desirability of contemplated or recommended regulations. (c) No change in or departure from text or maps, as certified by the Commission, shall be made unless such change or departure shall first be submitted to the Commission for its approval or disapproval or suggestions. The Commission shall have 45 days from and after such submission within which to send its report to the county government, but the county government shall not be bound by the report.

Del. Code tit. 9, § 6911 Changes in zoning district; map or regulations; procedure.

(a) The county government may, from time to time, make amendments, supplements, changes or modifications (herein called “changes”) in accordance with the comprehensive development plan with respect to the number, shape, boundary or area of any district or districts, or any regulation of, or within, such district or districts, or any other provision of any zoning regulation or regulations, but no such changes shall be made or become effective until the same shall have been proposed by or be first submitted to the Commission. (b) With respect to any proposed changes, the Commission shall hold at least 1 public hearing pursuant to § 6812 of this title. (c) Unless the Commission shall have transmitted its report upon the proposed changes within 45 days after the submission thereof to it, the county government shall be free to proceed to the adoption of the changes without further awaiting the receipt of the report of the Commission. In any event, the county government shall not be bound by the report of the Commission. Before finally adopting any changes, the county government shall hold a public hearing thereon pursuant to § 7002(m) of this title. Additionally, notice of the hearing by the county government shall be posted on the property itself.

Del. Code tit. 9, § 6912 Zoning coordination.

The Commission may cooperate with other planning and zoning commissions within Sussex County and within other counties and states, and with legislative and administrative authorities of incorporated or unincorporated municipalities, either within or without such County, with a view to coordinating and integrating the zoning of the County with the planning and zoning of other counties or states or of municipalities. The Commission shall also have power to appoint such committee or committees, and adopt such rules for the conduct of its business, as it may deem proper to effect such cooperation or to more expeditiously and effectively perform its functions.

Del. Code tit. 9, § 6913 Board of Adjustment — Appointment, terms and qualifications; removal; vacancies; compensation.

The county government shall appoint a Board of Adjustment of 5 members, subject to the same terms and qualifications as indicated in § 6803(c) of this title.

Del. Code tit. 9, § 6914 Board of Adjustment — Office and personnel.

The county government shall furnish the Board of Adjustment with necessary office space and other facilities. Subject to the approval of the county government, the Board may employ such secretarial and technical assistants as may be required to perform its functions properly.

Del. Code tit. 9, § 6915 Board of Adjustment — Rules governing organization, procedure and jurisdiction.

The county government shall provide and specify in its zoning or other regulations, general rules to govern the organization, procedure and jurisdiction of the Board of Adjustment, which rules shall not be inconsistent with this subchapter, and the Board of Adjustment may adopt supplemental rules of procedure not inconsistent with this subchapter or such general rules.

Del. Code tit. 9, § 6916 Appeals to the Board of Adjustment — Who may take; procedure.

(a) Appeals to the Board of Adjustment may be taken by any person refused a building permit, or from the decision of any administrative officer or agency based upon or made in the course of the administration or enforcement of the provisions of the zoning regulations. Appeals to the Board of Adjustment may be taken by any property owner, officer, department, board or bureau of the county affected by the grant or refusal of a building permit or by other decision of an administrative officer or agency based on or made in the course of the administration or enforcement of the provisions of the zoning regulations. (b) The time within which such appeal must be made, and the effect, form, or other procedure relating thereto, shall be as specified in the general rules provided by the county government to govern the procedure of the Board of Adjustment or in the supplemental rules of procedure adopted by the Board. (c) Appeals taken to the Board of Adjustment may be referred by the Board of Adjustment to the Commission for its review and recommendations.

Del. Code tit. 9, § 6917 Appeals to the Board of Adjustment — Powers upon appeals.

Upon appeals, the Board of Adjustment shall have the power to: (1) Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative official or agency based on or made in the enforcement of the zoning regulations; (2) Hear and decide, in accordance with the provisions of any zoning regulation, requests for special exceptions or for interpretation of the map or for decisions upon other special questions upon which the Board is authorized by any zoning regulation to pass; (3) Hear and decide requests for variances. The Board may grant a variance in the application of the provisions of the zoning ordinance or code only if all of the following findings are made: a. That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that the unnecessary hardship or exceptional practical difficulty is due to such conditions, and not to circumstances or conditions generally created by the provisions of the zoning ordinance or code in the neighborhood or district in which the property is located; b. That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance or code and that the authorization of a variance is therefore necessary to enable the reasonable use of the property; c. That such unnecessary hardship or exceptional practical difficulty has not been created by the appellant; d. That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; and e. That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue. In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter and the zoning ordinance or code. The Board is empowered in no case, however, to grant a variance in the use of land or structures thereon.

Del. Code tit. 9, § 6918 Superior Court review of decision of Board of Adjustment; procedure.

(a) Any persons jointly or severally aggrieved by a decision of the Board of Adjustment or any taxpayer or any officer, department, board or bureau of the County may present to the Superior Court in and for Sussex County, a petition duly verified, setting forth that such decision is illegal in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the Court within 30 days after the filing of the decision in the office of the Board. (b) Upon the presentation of the petition, the Court may allow a writ of certiorari, directed to the Board of Adjustment, to review the decision of the Board of Adjustment, and shall prescribe therein the time within which a return thereto must be made and served upon the petitioner’s attorney, which shall not be less than 10 days and may be extended by the Court. (c) The allowance of the writ shall not stay proceedings upon the decision appealed from, but the Court may, on application, on notice to the Board and on due cause shown, grant a restraining order. (d) The Board of Adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof, or of such portions thereof as may be called for by the writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified. The cost of the transcript of the hearing appealed from shall be the responsibility of the person appealing the decision unless said costs are allowed against the Board as provided in subsection (g) of this section. (e) If, upon the hearing, it shall appear to the Court that testimony is necessary for the proper disposition of the matter, it may take evidence, or appoint a referee to take such evidence as it may direct and report the same to the Court with the referee’s findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the Court shall be made. (f) The Court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. (g) Costs shall not be allowed against the Board, unless it shall appear to the Court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.

Del. Code tit. 9, § 6919 Violations of regulations; enforcement; remedies and penalties.

(a) No person shall erect, construct, reconstruct, alter, maintain or use any building or structure or use any land in violation of any regulation in, or of any provision of, any zoning regulation, or any change thereof, enacted or adopted by the county government under the authority of this subchapter. (b) Whoever violates any such regulation, provision or change of this subchapter, shall be fined not more than $100 or imprisoned not more than 10 days, or both. (c) Each and every day during which such illegal erection, construction, alteration, maintenance or use continues shall be deemed a separate offense. (d) In case any building or structure is or is proposed to be erected, constructed, reconstructed, altered, maintained or used, or any land is or is proposed to be used in violation of this subchapter or of any regulation or provision of any regulation or change thereof, enacted or adopted by the county government under the authority granted by this subchapter, the county government, the attorney thereof, or any owner of real estate within the county in which such building, structure or land is situated, may, in addition to other remedies provided by law, institute injunction, mandamus, abatement or any other appropriate action or actions, proceeding or proceedings to prevent, enjoin, abate or remove such unlawful erection, construction, reconstruction, alteration, maintenance or use.

Del. Code tit. 9, § 6920 Nonconforming uses of land or structure.

(a) Nonconforming uses of land or structure may, except as provided in subsection (b) of this section, be continued although such use does not conform with the provisions of such regulations or change thereof, provided no structural alteration of such structure is proposed or made for the purpose of such continuance. (b) If the County acquires title to any property by reason of tax delinquency and such properties are not redeemed as provided by law, the future use of such property shall be in conformity with the then existing provisions of the zoning regulations of the County, or with any change of such regulations, equally applicable to other like properties within the district in which the property acquired by the County is located.

Del. Code tit. 9, § 6921 List of nonconforming structures and uses.

Immediately after the adoption of any zoning regulations or changes by the county government, the Commission shall prepare and publish a complete list of all nonconforming structures and uses in the affected area and existing at the time of the adoption of the regulations. Such lists shall contain the names and addresses of the owner or owners of such nonconforming structures and uses and of any occupant, other than the owner, and list the nonconforming structure or use and applicable section of the zoning regulation. Any necessary corrections shall be made under a procedure prescribed by the county government, and copies of such list shall, when approved by the county government, be filed for record in the offices of the Commission and the Board of Adjustment.

Del. Code tit. 9, § 6922 Appropriations.

The county government may appropriate out of the general county fund such moneys, otherwise unappropriated, as it may deem fit to finance the work of the Zoning Commission and of the Board of Adjustment, and may enforce the zoning regulations and restrictions which are adopted, and may accept grants of money and service for these and other purposes, in accordance with this chapter, from either private or public sources, state or federal.

Del. Code tit. 9, § 6923 Conflict between zoning regulations and other laws.

Whenever any regulations made under authority of this subchapter require a greater width or size of yards, courts or other open spaces, or require a lower height of buildings or smaller number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required in or under any other statute or local regulation, the provisions of the regulations made under authority of this subchapter shall govern. Whenever the provisions of any other statute or local regulation require a greater width or size of yards, courts or other open spaces, or require a lower height of buildings or a lesser number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required by any regulations made under authority of this subchapter, the provisions of such statute shall govern. Whenever the provisions of any other statute shall derogate from the provisions of this subchapter, unless it be a statute granting powers to the State Planning Office, the provisions of this subchapter shall govern.

Del. Code tit. 9, § 6924 Notice to local school districts of residential zoning changes.

With respect to any proposed residential zoning change, the county government shall notify the local school district for the area at least 7 days prior to the initial hearing upon such residential zoning change.

Del. Code tit. 9, § 6925 Changes in zoning.

In the case of a rezoning application the county government shall determine its voting requirement necessary to take action thereon, which shall not be less than a majority of all members elected to county council.

Del. Code tit. 9, § 6926 Notice to property owners of zoning changes.

With respect to any proposed zoning change, unless the owner applies for the change or consents to the change, the county government shall notify the owner of the property and all property owners to the extent and in the manner the county by ordinance so provides as of June 28, 2000, mailed at least 7 days prior to the initial hearing upon such zoning change. 72 Del. Laws, c. 415, shall become effective for zoning changes initiated after July 13, 2000.

Del. Code tit. 9, § 6927 Emergency Communication Systems [Effective until Feb. 1, 2027].

The zoning ordinance and regulations adopted pursuant to this chapter shall provide that newly constructed buildings of 25,000 square feet of gross floor area or more, shall be designed, constructed and/or equipped in accordance with the provisions set forth in § 2616 of this title.

Del. Code tit. 9, § 6951 Short title; intent and purpose.

(a) This subchapter shall be known and may be cited as the “Quality of Life Act of 1988.” It is the purpose of this subchapter to utilize and strengthen the existing role, processes and powers of county governments in the establishment and implementation of comprehensive planning programs to guide and control future development. It is the intent of this subchapter to encourage the most appropriate use of land, water and resources consistent with the public interest and to deal effectively with future problems that may result from the use and development of land within their jurisdictions. Through the process of comprehensive planning, it is intended that units of county government can preserve, promote and improve the public health, safety, comfort, good order, appearance, convenience, law enforcement and fire prevention and general welfare; facilitate the adequate and efficient provision of transportation, water, sewage, schools, parks, recreational facilities, housing and other requirements and services; and conserve, develop, utilize and protect natural resources within their jurisdictions. (b) It is also the intent of this subchapter to encourage and assure cooperation between and among municipalities, counties and the State and to encourage and assure coordination of planning and development activities of units of county government, municipalities, regional agencies and state government in accord with applicable provisions of law. A growth management plan or policy plan that meets the standards and requirements of this subchapter shall be an acceptable comprehensive plan. The land use map or map series forming part of the comprehensive plan as required by this subchapter shall have the force of law, and no development, as defined in this subchapter, shall be permitted except in conformity with the land use map or map series and with county land development regulations enacted to implement the other elements of the adopted comprehensive plan.

Del. Code tit. 9, § 6952 Definitions.

For the purposes of this subchapter: (1) “Area” or “area of jurisdiction” means the total area qualifying under the provisions of this subchapter, being all unincorporated lands within a county. (2) “Comprehensive plan” or “comprehensive development plan” shall mean, from and after the respective dates by which the counties must be in compliance with this subchapter, a plan that meets the requirements of this subchapter and that is reviewed and certified in accordance with § 9103 of Title 29. Wherever in this subchapter land use regulations are required to be in accordance with the comprehensive plan, such requirements shall mean only that such regulations must be in conformity with the applicable maps or map series of the comprehensive plan. Whenever in this subchapter land use orders, permits or zoning district changes are required to be in accordance with the comprehensive plan, such requirements shall mean only that such orders, permits and changes must be in conformity with the map or map series of the comprehensive plan and county land use regulations enacted to implement the other elements of the adopted comprehensive plan. (3 “Coordination” as used in this chapter means, in general terms, to act jointly, concurrently, and/or harmoniously toward a common end or purpose. (4) “County” means Sussex County. (5) “Developer” means any person, including a governmental agency, undertaking any development as defined in this subchapter. (6) “Development” means any construction or reconstruction of any new or existing commercial or residential building(s) or structure(s) upon lands which are not owned by the State or its agencies or its political subdivisions, or are not within the jurisdictional control of the State or its agencies or its political subdivisions. (7) “Development order” means any order granting, denying or granting with conditions an application for a development permit. (8) “Development permit” includes any building permit, zoning permit, subdivision approval, rezoning, certificate of occupancy, special exception, variance or any other official action of local government having the effect of permitting the development of land. (9) “Governing body” means the chief governing body of county government, however designated, or the combination of such bodies where joint utilization of the provision of this subchapter is accomplished as provided herein. (10) “Governmental agency” means: a. The United States or any department, commission, agency or other instrumentality thereof. b. This State or any department, commission, agency or other instrumentality thereof. c. Any local government, as defined in this section, or any department, commission, agency or other instrumentality thereof. d. Any school board or other special district, authority or governmental entity. (11) “Land” means the earth, water and air, above, below or on the surface, and includes any improvements or structures customarily regarded as land. (12) “Land development regulation commission” means a commission designated by a county government to develop and recommend, to the local governing body, land development regulations which implement the adopted comprehensive plan and to review land development regulations, or amendments thereto, for consistency with the adopted plan and to report to the governing body regarding its findings. The responsibilities of the land development regulation commission may be performed by the local planning agency. (13) “Land development regulations” means ordinances enacted by governing bodies for the regulation of any aspect of development and includes any county government zoning, rezoning, subdivision, building construction or sign regulations or any other regulations controlling the development of land. (14) “Land use” means the development that has occurred on the land, the development that is proposed by a developer on the land or the use that is permitted or permissible on the land under an adopted comprehensive plan. (15) “Local government” means any municipality. (16) “Local planning agency” means the agency designated to prepare the comprehensive plan required by this subchapter. (17) A “newspaper of general circulation” means a newspaper published at least on a weekly basis and printed in the language most commonly spoken in the area within which it circulates, but does not include a newspaper intended primarily for members of a particular professional or occupational group, a newspaper whose primary function is to carry legal notices or a newspaper that is given away primarily to distribute advertising. (18) “Parcel of land” means any quantity of land capable of being described with such definiteness that its locations and boundaries may be established, which is designated by its owner or developer as land to be used or developed as a unit or which has been used or developed as a unit. (19) “Person” means an individual, corporation, governmental agency, statutory trust, business trust, estate/trust, partnership, association, 2 or more persons having a joint or common interest or any other legal entity. (20) “Public facilities” means major capital improvements over which the County has jurisdiction. (21) “Public notice” or “due public notice” as used in connection with the phrase “public hearing,” “hearing to be held after due public notice” or “public meeting” means publication of notice of the time, place and purpose of such hearing at least twice in a newspaper of general circulation in the area.

Del. Code tit. 9, § 6953 Scope of subchapter.

(a) The County shall have power and responsibility: (1) To plan for its future development and growth. (2) To adopt and amend comprehensive plans, or elements or portions thereof, to guide its future development and growth. (3) To implement adopted or amended comprehensive plans by the adoption of appropriate land development regulations or elements thereof. In furtherance of the authority to adopt, amend and implement comprehensive plans or elements or portions thereof to guide and control future growth, counties are expressly granted the authority to develop and adopt regulations governing the transfer of development rights from identified districts, zones or parcels of land to districts, zones or areas designated to receive such development rights. Such regulations may provide for the establishment of development right banking. Whenever a County exercises its authority to provide for the transfer of development rights it shall: a. Comply with all requirements of this subchapter pertaining to the amendment of a comprehensive plan; b. Provide for the transfer of development rights as an option to the use and development of the subject property according to the otherwise applicable zoning ordinance; c. Limit designation of receiving areas to locations where the County has determined that growth should be encouraged and where a transfer of development rights would not result in the inability of either the existing or planned public facilities which serve the area to accommodate such growth; d. Demonstrate that the creation and regulation of both sending and receiving districts are otherwise consistent with promotion of the policies expressed by the comprehensive plan and Statewide Planning Goals and Objectives established pursuant to Chapter 91 of Title 29; and e. Consider appropriate incentives for the transfer of development rights, including bonuses for the use of transferred development rights and intergovernmental agreements with other counties or municipalities which would permit the transfer and use of development rights between counties and municipalities. (4) To establish, support and maintain administrative instruments and procedures to carry out the provisions and purposes of this subchapter. (b) Each county government shall prepare a comprehensive plan of the type and in the manner set out in this subchapter or amend its existing comprehensive plan to conform to the requirements of this subchapter.

Del. Code tit. 9, § 6954 Areas under this subchapter.

A county shall exercise authority under this subchapter for the total unincorporated area under its jurisdiction.

Del. Code tit. 9, § 6955 Local planning agency.

(a) The governing body of each county government shall designate and by ordinance establish a “local planning agency.” The governing body may designate itself as the local planning agency pursuant to this subsection. The local planning agency shall prepare the comprehensive plan after meetings to be held after due public notice and shall make recommendations regarding the adoption of such plan or element or portion thereof. The agency may be a local planning commission, the planning department of the county government or other instrumentality, including a countywide planning entity established by special act or council of local government officials, provided the composition of the council is fairly representative of all the governing bodies in the County. (b) The governing body or bodies shall appropriate funds for salaries, fees and expenses necessary in the conduct of the work of the local planning agency and shall also establish a schedule of fees to be charged by the agency. To accomplish the purpose and activities authorized by this subchapter, the local planning agency, with the approval of the governing body or bodies and in accord with the fiscal practices thereof, may expend all sums so appropriated and other sums made available for use from fees, gifts, state or federal grants, state or federal loans and other sources; however, acceptance of loans must be approved by the governing bodies involved. (c) The local planning agency shall have the general responsibility for the conduct of the comprehensive planning program. Specifically, the local planning agency shall: (1) Be the agency responsible for the preparation of the comprehensive plan and shall make recommendations regarding the adoption of such plan or element or portion thereof consistent with existing county laws or regulations. During the preparation of the plan, and prior to any recommendation for adoption, the local planning agency shall hold at least 1 public hearing or public meeting on the proposed plan or element or portion thereof. The local planning agency may designate any agency, committee, department or person to prepare, revise, monitor and oversee the effectiveness and status of the comprehensive plan or any element thereof. Prior to adoption of the proposed comprehensive plan, the governing body shall hold at least 1 public hearing, with due public notice, on the proposed plan or element thereof. Final recommendation of the adoption of such plan to the governing body shall be in accordance with existing county procedures, or absent such procedures, shall be the responsibility of the local planning agency. (2) Review proposed land development regulations, land development codes or amendments thereto, and make recommendations to the governing body as to the consistency of the proposal with the adopted comprehensive plan. (3) Perform any other functions, duties and responsibilities assigned to it by the governing body or special law.

Del. Code tit. 9, § 6956 Required and optional elements of comprehensive plan; studies and surveys [Effective until Nov. 15, 2026].

(a) The comprehensive plan shall consist of materials in such descriptive form, either written or graphic, as may be appropriate to the prescription of principles, guidelines and standards for the orderly and balanced future economic, social, physical, environmental and fiscal development of the area. (b) Coordination of the several elements of the local comprehensive plan shall be a major objective of the planning process. (c) A capital improvements plan covering at least a 5-year period shall be developed in accordance with the adoption of, and be consistent with, the comprehensive plan. The capital improvements plan shall be designed to consider the need for and the location of public facilities in order to encourage the efficient utilization of such facilities and set forth: (1) Principles for construction, extension or increase in capacity of public facilities, as well as principles for correcting existing public facility deficiencies, which are necessary to implement the comprehensive plan. (2) Estimated public facility costs, including a delineation of when facilities will be needed, the general location of the facilities and projected revenue sources to fund the facilities. (3) Standards to ensure the availability of public facilities and the adequacy of those facilities. (4) To the extent provisions of the Capital Improvements Plan anticipate state financial assistance, involvement or cooperation, such provisions shall be developed in conjunction with the State Capital Improvement Plan and Annual Capital Budget. (d) The capital improvements plan shall be reviewed on an annual basis and modified as necessary. Corrections, updates and modifications concerning costs, revenue sources, acceptance of facilities pursuant to dedications which are consistent with the plan, or the date of construction of any facility enumerated in the capital improvements plan may be accomplished by ordinance and shall not be deemed to be amendments to the local comprehensive plan. All proposed improvements to public facilities shall be consistent with the capital improvements plan. (e) Coordination of the comprehensive plan with the comprehensive plans of municipalities within the county, adjacent counties and applicable state regulations and policy shall be an objective of the comprehensive planning process. To that end, in the preparation of a comprehensive plan or element thereof, and in the comprehensive plan or element as adopted, the planning agency shall include a specific policy statement or coordinated mapping element indicating the relationship of the proposed development of the area to the comprehensive plans of municipalities within the county, adjacent counties and applicable state regulations and policy as the case may require. Such policy statement or coordinated mapping element shall specifically identify the coordination process undertaken and the official action taken by affected municipalities regarding the county comprehensive plan. Such statement or element shall also set forth the procedures to be followed to ensure continuing coordination with municipalities, regional agencies and the State. In addition, the comprehensive plan shall provide for coordination with state agencies regarding land use and development policies and shall provide for review and consideration by the Cabinet Committee on State Planning Issues at such times as required by this subchapter. (f) The comprehensive plan and its elements shall contain policy recommendations and a timeline for the implementation of the plan and its elements. (g) The comprehensive plan shall include: (1) A future land use plan element designating proposed future general distribution, location and extent of the uses of land for such activities as residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities and other categories of the public and private uses of land. The plan shall include standards to be followed in the control and distribution of population densities and building and structure intensities. The proposed distribution, location and extent of the various categories of land use shall be shown on a land use map or map series which shall be supplemented by goals, policies and measurable objectives. Each land use category shall be defined in terms of the types of uses included and standards for the density or intensity of use. The future land use plan shall be based upon surveys, studies and data regarding the area, including the amount of land required to accommodate anticipated growth, the projected population of the area, the character of undeveloped land and the availability of public services. The future land use plan may designate areas for future planned development use involving combinations of types of uses for which special regulations may be necessary to ensure development in accord with the principles and standards of the comprehensive plan and this subchapter. The land use maps or map series shall generally identify and depict historic district boundaries and shall designate historically significant properties meriting protection. Population, demographic, environment and economic data and projections used to determine present conditions, future land use and public facility requirements shall be developed in conjunction with the State and municipalities, and shall, as a minimum, be based on [consistent with] projections officially adopted by the Delaware Population Consortium. The sources and assumptions used to develop such projections shall be clearly identified. (2) A mobility element which is consistent with the approved Area-wide Transportation Plan and has been developed in conjunction with the Delaware Department of Transportation. The mobility element shall provide a balanced transportation system addressing the movement of people and goods while showing existing and proposed rights-of-way, sidewalks, bikeways, rail facilities, terminals and related facilities. The mobility element shall include recommendations for land use regulations that promote a range of sustainable transportation choices for future transportation needs. The mobility element shall be consistent with the State Implementation Plan (SIP) for air quality attainment. (3) A water and sewer element correlated to principles and guidelines for future land use, indicating ways to provide for future potable water, and wastewater disposal for the area. County government, in conjunction with the State, shall assess their current, as well as projected, water needs and sources. The element shall describe the problems and needs and the general facilities that will be required for solution of the problems and needs. The water and sewer element shall be developed in consultation with and reviewed by the Delaware Department of Natural Resources and Environmental Control. The water and sewer element shall include an assessment of fiscal considerations and shall be consistent with approved Area-wide Wastewater Treatment Plans. (4) A conservation element for the conservation, use and protection of natural resources in the area and which results in the identification of these resources. At a minimum, the element shall consist of such natural area classifications as wetlands, wood uplands, habitat areas, geological areas, hydrological areas, floodplains, aquifer recharge areas, ocean beaches, soils and slopes. The land use map or map series contained in the future land use element shall generally identify and depict natural areas classifications, such as those enumerated in this section. The land uses identified on said maps shall be consistent with applicable state laws and regulations. Identification and depiction of the above shall be based on the best topographic maps and other information available from state and federal agencies or other sources that the County deems appropriate. The conservation element shall also consider areas most suited for agricultural uses, silvacultural uses and watershed protection. The conservation element shall be developed in consultation with and reviewed by the Delaware Department of Agriculture and the Delaware Department of Natural Resources and Environmental Control. (5) A recreation and open space element indicating a comprehensive system of public and private sites for recreation including, but not limited to, nature preserves, parks and playgrounds, parkways, water bodies including beaches and public access to beaches, open spaces and other recreational facilities. A county recreation and open space plan is acceptable in lieu of a recreation and open space element. The recreation and open space element shall be consistent with the Comprehensive Land Use Plan. The element shall be developed in consultation with and reviewed by the Delaware Department of Natural Resources and Environmental Control and shall reflect the State’s open space preservation and outdoor recreation planning activities. (6) A housing element that is consistent with county housing plans, standards and principles. Such housing plans shall be in accordance with state and federal rules and regulations and the housing plan or housing element of the comprehensive plan shall include the following: a. The provision of housing for existing residents and the anticipated growth of the area. b. The elimination of substandard dwelling conditions. c. The structural and aesthetic improvement of existing housing. d. The provision of adequate sites for future housing, including housing for low-income and moderate-income families, group home facilities and foster care facilities, with supporting infrastructure and public facilities. e. Provision for relocation housing and identification of historically significant and other housing for purposes of conservation, rehabilitation or replacement. f. The formulation of housing implementation programs. g. Demonstrated coordination with the State Housing Authority including but not limited to guidelines to insure that sites for publicly assisted housing are located where adequate transportation opportunities, health and social services and other community services are available. h. An affordable housing plan that complies with subchapter III of Chapter 92 of Title 29. (7) An intergovernmental coordination element of the comprehensive plan shall demonstrate consideration of the particular effects of the plan, when adopted, upon the development of municipalities within the County, adjacent counties or on the applicable state regulations. (8) A recommended community design element to assist in the achievement of the objectives of the comprehensive plan which may consist of design recommendations for land subdivision, neighborhood development, neighborhood redevelopment, design of open space locations and similar matters. To that end, such recommendations may be made available as aids and guides to developers in the future planning and development of land in the area. (9) An historical preservation element which sets out plans and programs for those structures or lands in the area having historical, archaeological, architectural or similar significance. The historical preservation element shall be developed in consultation with and reviewed by the Division of Historical and Cultural Affairs of the Delaware Department of State. (10) An economic development element setting forth principles and guidelines for the commercial and industrial development, if any, and the employment and personnel utilization within the area. The element may detail the type of commercial and industrial development sought while correlating the present and projected employment needs of the area to other elements of the plan and may set forth methods by which a balanced and stable economic base will be pursued. The economic development element shall include a general area redevelopment component consisting of plans, criteria and programs for community redevelopment, including reuse of housing sites, business sites, industrial sites, central business districts, public building sites, recreational facilities and other locations. The economic development element shall be developed in consultation with and reviewed by the Division of Small Business. (11) An educational element consistent with the plans of the local school districts which guide the construction and allocation of school facilities within the districts, if such plans exist. This element will be developed with input from the local school districts, the Department of Education, and the Office of State Planning and Coordination. The educational element shall include recommendations for promoting coordination between residential development and adequate school capacity and must take into account any adequate public facilities ordinance or other county code provisions related to school capacity. (h) The comprehensive plan may include such other elements as may be peculiar to and/or necessary for the area concerned and as are added by the governing body upon the recommendation of the local planning agency. (i) Transferred.

Del. Code tit. 9, § 6957 State responsibilities to local planning agencies.

(a) All elements of the comprehensive plan shall be based upon data appropriate to the element involved. State agencies shall provide to each county upon request existing data or information necessary to expedite the development and preparation of the comprehensive plan and elements of this section. Surveys and studies utilized in the preparation of the comprehensive plan shall not be deemed a part of the comprehensive plan unless adopted as a part of it. Copies of such studies, surveys and supporting documents shall be made available to public inspection, and shall be made available to the public upon payment of reasonable charges for reproduction. The County shall be relieved of any requirement to comply with the data and information requirements of this subchapter when the State is unable to supply the necessary data and information to implement that requirement, except when such data and information is currently available or readily accessible to the county within budgetary limitations. (b) The State, through the Office of State Planning Coordination, shall provide to the County, for use in the comprehensive planning process, state land use and development goals and policies, state regulatory requirements, estimates of future state financial capabilities, the State Capital Improvements Budget and Plan, state facility location plans, estimates of existing quantity of natural resources, economic development strategies and any other information which might reasonably influence the county’s future land use decisions. The State shall provide the County with long-range plans, performance standards, land development polices, facility siting criteria and infrastructure impact assessment standards (necessary to ensure the availability of public facilities and the adequacy of those facilities), so as to enable the County to prepare the plan elements required by § 6956 of this title and to clearly set forth the criteria the State will use to review such elements. The review by the Cabinet Committee on State Planning Issues shall be pursuant to § 9103 of Title 29. During preparation of the county comprehensive plan, the county and the State shall jointly establish guidelines for the location and arrangement of public facilities, such as public schools, health care facilities, public safety and correctional institutions, libraries and other public buildings. Such guidelines shall be used to coordinate between the various levels of government so as to ensure that public buildings and facilities are located in a manner which are consistent with state and county development goals.

Del. Code tit. 9, § 6958 Evaluation and appraisal of comprehensive plan.

(a) The comprehensive plan or amendments or revisions thereto shall be submitted to the Governor or designee at such time as the plan is made available for public review. The County shall provide sufficient copies for review by the Cabinet Committee on State Planning Issues. Within 30 days of plan submission, the Cabinet Committee on State Planning Issues shall conduct a public meeting, at which time the County shall make a presentation of the plan and its underlying goals and development policies. Following the public meeting the plan shall be subject to the state review and certification process set forth in § 9103 of Title 29. (b) This State shall not be obligated to provide state financial assistance or infrastructure improvements to support land use or development actions by the county where the county’s adopted comprehensive plan or portions thereof are determined to be substantially inconsistent with State development policies, including policies related to affordable housing. (c) The planning programs shall be a continuous and ongoing process. The local planning agency shall prepare a report on the progress of implementing the comprehensive plan, which shall be sent to the Office of State Planning Coordination each year after adoption of the comprehensive plan. The report shall be due annually no later than on each anniversary of the effective date of the most recently adopted comprehensive plan or plan update until January 1, 2012, and annually no later than July 1 each year thereafter starting on July 1, 2012. The Cabinet Committee shall forward the report to the Office of State Planning Coordination, which will evaluate it in the context of state goals, policies and strategies, and the plans of other jurisdictions. The Office of State Planning Coordination will integrate the information, land use trends, and changing conditions found in the County’s report into the annual report of the Cabinet Committee, which is to be prepared as specified in § 9101(d), Title 29. It is the intent of this subchapter that periodic updates on amendments to and the implementation of adopted comprehensive plans be communicated through the evaluation and appraisal reports to ascertain trends, monitor implementation and foster ongoing coordination. (d) The report shall present an assessment and evaluation of the success or failure of the comprehensive plan or element or portion thereof, and shall contain appropriate statements (using words, maps, illustrations or other forms) related to: (1) The major problems of development, physical deterioration and the location of land uses and the social and economic effects of such uses in the area. (2) The condition of each element in the comprehensive plan at the time of adoption and at date of report. (3) The comprehensive plan objectives as compared with actual results at date of report. (4) The extent to which unanticipated and unforeseen problems and opportunities occurred between date of adoption and date of report. (e) The report shall include reformulated objectives, policies and standards in the comprehensive plan or elements or portions thereof. (f) The Cabinet Committee may prescribe a format and guidelines for the preparation of the County’s report. Should the Cabinet Committee elect to do so, the Office of State Planning Coordination shall assist the Committee in the development and administration of such guidelines.

Del. Code tit. 9, § 6959 Legal status of comprehensive plan.

(a) After a comprehensive plan or element or portion thereof has been adopted by County Council or Levy Court in conformity with this subchapter, the land use map or map series forming part of the comprehensive plan as required by this subchapter shall have the force of law, and no development, as defined in this subchapter, shall be permitted except in conformity with the land use map or map series and with land development regulations enacted to implement the other elements of the adopted comprehensive plan. (b) Nothing in this subchapter shall serve to invalidate any comprehensive plan, land development regulation, land use, development, development order or development permit which presently exists or which hereafter validly comes into existence prior to the date when full compliance with this subchapter is required. (c) Any application for a development permit filed or submitted prior to adoption or amendment under this subchapter of a comprehensive plan or element thereof shall be processed under the comprehensive plan, ordinances, standards and procedures existing at the time of such application. (d) All development permits and development orders heretofore or hereafter validly issued or approved by county government and not thereafter limited, rescinded or restricted shall automatically be incorporated into and become part of the present and all future comprehensive plans, subject to whatever time limitations may otherwise apply to such permits and orders at the time of issuance or approval. (e) In the event that any comprehensive plan or element required to comply with this subchapter shall be determined as failing to comply herewith, such failure shall not invalidate those elements of the plan which do comply with this subchapter, nor invalidate any previously issued development permit or order that was not specifically and timely challenged in the legal action in which such noncompliance was determined.

Del. Code tit. 9, § 6960 County comprehensive plan.

(a) The County shall submit a final comprehensive plan for submission to the Cabinet Committee on State Planning Issues no later than 5 years after the adoption of the current plan; provided, however, that the County may request an extension of such date by forwarding a written request to the Cabinet Committee at least 90 days prior to the deadline. The basis for the request shall be clearly indicated. The decision whether to grant a request an extension, and the duration of such extension, shall be at the discretion of the Cabinet Committee. Upon completion of the comment period set forth in this subchapter, the County shall solicit public comment and adopt a comprehensive plan for zoning, subdivision and other land use decisions. Such plan shall be updated every 10 years thereafter. (b) Once the county government shall have in place said comprehensive plan, the County shall not be permitted to amend such plan without a simple majority of the entire membership thereof voting to do so. (c) Within 1 year of the date of adoption of the county plan, the County shall initiate an implementation program regarding subdivision and development controls. The County shall report the status of the implementation program in the monitoring report as required by this subchapter. This report should include progress to date, problems, issues and opportunities. (d) Subsequent amendments to the county comprehensive plan required by this chapter shall be submitted to the Cabinet Committee on State Planning Issues for review and certification pursuant to § 9103 of Title 29. (e) Within 12 months of the date of adoption of the county comprehensive plan or revisions thereof, Sussex County shall amend its official zoning map or maps to rezone all lands in accordance with the uses and intensities of uses provided for in the future land use element for the County. (1) In the event that the County does not complete the rezoning required under this subsection within the required 12-month period, a rezoning application filed by a property owner shall be approved by the County if the requested zoning classification is consistent with the future land use map or map series and applicable implementing provisions of the comprehensive plan, unless the County makes written findings, based on substantial evidence in the record, that 1 or more of the following apply: a, The requested zoning classification is inconsistent with the future land use map or map series or applicable implementing provisions of the comprehensive plan. b. The application fails to satisfy applicable procedural or submission requirements. (2) The County shall determine whether a rezoning application filed by a property owner under paragraph (e)(1) of this section is complete within 21 days of submission. If the County does not issue a written completeness determination within 21 days, the application is deemed complete. (3) The County shall take final action on the rezoning application within 120 days after the application is determined or deemed complete, unless the applicant agrees in writing to an extension. Final action on any associated site plan is not subject to the 120-day timeline. (4) If the County denies a rezoning application under this subsection, the denial must be in writing and must identify the specific future land use map designation or statutory standard upon which the denial is based. (5) If a public hearing was held in connection with adoption of the comprehensive plan or revision of the comprehensive plan, that hearing shall satisfy all hearing and notice requirements otherwise required under this title. This provision does not prevent a local land use agency from adopting hearing and notice requirements. (f) In the event that the comprehensive plan includes provisions governing the rate of growth of particular planning districts or sub-areas of the County, the County’s zoning district regulations shall be amended to reflect the timing elements of the comprehensive plan.

Del. Code tit. 9, § 6961 Information from state and local agencies and school districts.

(a) All subdivision plans approved by the county government shall be filed with the Office of the Recorder of Deeds, and with such other state and local agencies as the County may by ordinance require. (b) As part of its review of a rezoning or subdivision application, the county government through its designated local planning agency shall request and review information from all state and local agencies and local school districts identified on a list prepared by the County and shall file as part of the record any written information provided by such state and local agencies or local school districts with respect to the rezoning or subdivision application. If the planning agency makes recommendations that are in conflict with the information supplied by state and local agencies or local school districts, it must explain its reasons for doing so in writing. (c) Any state or local agency or local school district which delivers to the head of county government a written request that it be notified of rezoning and subdivision applications shall be included on the County’s list of agencies and school districts from which information shall be requested and reviewed in accordance with subsection (b) of this section. (d) This section shall only apply to residential development and only upon an action by Sussex County Council adopting this section. Prior to recording a major record subdivision plan, as defined by Sussex County, Sussex County may require that the applicant provide certification from the Secretary of the Department of Education after consultation with the superintendent of the appropriate individual school district that the school district has adequate capacity for the proposed development. (1) If so requested, the Secretary shall respond to any request for certification or voluntary school assessments within 60-days’ receipt of a completed request for such certification. That certification shall include the following information: a. Existing classrooms and service levels based upon the Delaware Department of Education Delaware School Construction Manual, September 19, 1996, as may be amended or supplemented from time to time, or based upon other standards accepted as current by the Secretary of the Department of Education. b. Capacity calculations, which shall include the current student population, increased demand resulting from prior certifications from the Department of Education, and the increased demand that will result from the proposed development. The County shall within 20 days provide the Department of Education with all necessary information regarding the number and type of dwelling units proposed and other information which the Secretary may request. (2) Notwithstanding the foregoing provisions of this subsection, no certificate of adequate school capacity shall be required where either: (i) the residential development is restricted by recorded covenants to provide housing or shelter predominantly for individuals 55 years of age or older pursuant to the federal Fair Housing Act (42 U.S.C § 3601 et seq.); (ii) the residential development is for “low-income housing,” which, for purposes of this section, shall be defined to mean any housing financed by a loan or mortgage that is insured or held by the Secretary of Housing and Urban Development or the Delaware State Housing Authority or which is developed by a nonprofit corporation certified under § 501(c)(3) of the United States Internal Revenue Code (26 U.S.C. § 501(c)(3)); or (iii) the applicant has pledged, in a writing recorded and running with the subject property, to pay a voluntary school assessment in an amount determined pursuant to § 103(c) of Title 14, for each lot for which the applicant would otherwise be required to obtain a certificate. (3) Voluntary school assessments will be calculated on a per unit basis as of the time of the issuance of the first building permit, and the assessment shall remain constant throughout the development of the subdivision (and shall not be increased for any reason, including but not limited to any resubdivision); provided, however, that after 5 years the voluntary school assessment amount may be recalculated. Any voluntary school assessments paid under this subsection shall be paid to the Department of Education at the time that a certificate of occupancy is obtained for each unit, and shall be deposited by the Department into an interest-bearing account as set forth below. With the approval of the Secretary, after consultation with the superintendent of the affected school district, an applicant may receive a credit against voluntary assessments to be paid in an amount equal to the fair market value of any lands or properties set aside by the applicant and deeded to the school district for school uses. Any such lands shall not be used for nonschool purposes, other than as parkland or open space. All voluntary assessments paid shall be held in an interest-bearing account by the State for the school district in which the applicant’s project is located until such time as the school district engages in construction activities that increase school capacity, at which time such assessments shall be released to the school district by the State in the amount of the voluntary school assessments paid into an interest-bearing account for such district. It is the intent of this section that lands or properties required to be conveyed by the applicant to Sussex County as a condition to subdivision approval shall not be eligible to be used for purposes of obtaining a credit against the voluntary school assessment notwithstanding the fact that such lands or properties may subsequently be conveyed by the County to a school district. (4) To the extent Sussex County has adopted (or in the future attempts to adopt) any regulations or ordinances linking or tying residential development to school capacity, or otherwise restricting residential development in the absence of school capacity, such regulations and ordinances are hereby preempted and of no force and effect.

Del. Code tit. 9, § 6962 Highway capacity; traffic impact study requirements.

(a) Subject to subsection (b) of this section, the county government shall not approve any proposed change in the zoning classification for land (i.e., any “rezoning request”), a new roadway access associated with site development, or for any other purpose without first complying with either the procedures contained in paragraphs (a)(1)a. through (a)(1)d. of this section or the procedures contained in paragraphs (a)(2)a. through (a)(2)c. of this section: (1) a. As soon as possible, but in any event no later than June 30, 2027, the county government, through its designated planning agency, shall establish an agreement with the Department of Transportation to provide a procedure for analysis by the Department of Transportation of the effects on traffic of each rezoning application. b. Each agreement under paragraph (a)(1)a. of this section shall be approved by a resolution or ordinance, consistent with county procedures, and shall establish traffic level of service suitable to the County and the Department of Transportation. c. The purpose of the agreement under paragraph (a)(1)a. of this section shall be to ensure that traffic analyses are conducted as part of the zoning reclassification process within the County and to allow for analysis to assess whether the County’s approval of a change to the zoning classifications for land, a new roadway access associated with site development, or for any other purpose will create a new financial or infrastructure obligation to this State that is not consistent with the current edition of the Strategies for State Policies and Spending. d. The agreement under paragraph (a)(1)a. of this section shall provide for the review of traffic impacts according to nationally recognized traffic criteria and shall, at a minimum, consider the effects of existing traffic, projected traffic growth in areas surrounding a proposed zoning reclassification, and the projected traffic generated by the proposed site development for which the zoning reclassification is sought. (2) a. The County Council, through its designated planning agency, shall establish an agreement with the Department of Transportation to designate a Complete Community Enterprise District as described in §§ 2103 and 2104 of Title 2. b. The local planning agency shall hold at least 1 public hearing on the proposed agreement created under paragraph (a)(2)a. of this section and public comment must be permitted at the public hearing. c. The local planning agency shall provide due public notice of the public hearing required by paragraph (a)(2)b. of this section at least twice, the first notice at least 60 days prior to the public hearing and the second notice at least 30 days prior to the public hearing. (b) If the county government enacts an ordinance, or a county agency adopts a regulation, that requires a traffic impact study for a proposed change in the zoning classification for land, a new roadway access associated with site development, or for any other purpose, the ordinance or regulation must at least provide the following: (1) That the threshold for determining if a traffic impact study is required must be based on peak hour trips, not vehicle trips per day, and the threshold must at least meet the following: a. For a residential development, 500 peak-hour trips. b. For a commercial development, 500 peak-hour trips, excluding pass-by trips. (2) That the traffic impact study is not required in a “Downtown Development District” or “Downtown Development Corridor,” as defined under § 1902 of Title 22.

Del. Code tit. 9, § 6963 Residential density requirements.

(a) For purposes of this section, “growth area” means an area designated within a county comprehensive plan as a growth area and also consistent with areas identified by the Strategies for State Policies and Spending for growth as Investment Levels 1 and 2, or any successor classifications adopted by this State. (b) Notwithstanding § 6902(a) of this title, this subchapter, or any provision of this Code to the contrary, and subject to subsection (c) of this section, a county government shall adopt zoning ordinances and land development regulations within a growth area that do all of the following: (1) Permit a variety of housing types, including townhouses, multifamily dwellings, stacked flats, apartments, and mixed-use residential developments. (2) Establish bulk, dimensional, and design standards that reasonably accommodate the housing types permitted under paragraph (b)(1) of this section at densities established in paragraph (c)(2) of this section. (3) Encourage development patterns that reduce vehicular trips, increase pedestrian connectivity, support transit-oriented development, and promote mixed-use development consistent with guidance issued by the Department of Transportation. (c) By June 1, 2027, by regulation, or in the county’s comprehensive plan if due that same year, and thereafter at least once every 10 years in the county’s comprehensive plan, a county government shall adopt residential growth area density requirements to do all of the following: (1) Based on the guidance under subsection (e) of this section, develop and periodically update residential density requirements applicable to growth areas throughout the county, beginning with a minimum density threshold of 4 units per acre for single family homes and increasing minimum density thresholds for other housing types. (2) Require residential development meet density requirements while recognizing that varying development densities may be appropriate within different portions of a designated growth area of the county. (3) Encourage compact, infrastructure-efficient, and housing-supportive development patterns within growth areas of the county. (d) Each time the comprehensive plan adopted under subsection (c) of this section is approved, the county government shall issue updated regulations or ordinances effectuating the residential growth area density requirements, which must be developed in consultation with the following, or a designee of the following: (1) The Director of the State Housing Authority. (2) The Secretary of the Department of Transportation. (3) The Director of the Office of State Planning Coordination. (4) The President of the Delaware League of Local Governments. (5) The Governor. (e) The Delaware State Housing Authority shall develop guidance for residential density requirements applicable to growth areas throughout this State starting with a minimum density threshold of 4 units per acre for single family homes and increasing minimum density thresholds for other housing types. The guidance must include all of the following: (1) Recommendations for permitting a variety of housing types, including townhouses, multifamily dwellings, stacked flats, apartments, and mixed-use residential development. (2) Recommendations for establishing bulk, dimensional, and design standards that reasonably accommodate the housing types permitted under paragraph (e)(1) of this section. (3) Recommendations, developed in consultation with the Department of Transportation, for development patterns that reduce vehicular trips, increase pedestrian connectivity, support transit-oriented development, and promote mixed-use development.

Del. Code tit. 9, § 6999 Court review of land use actions; limitations on liability of individuals and associations.

Any individual or association of individuals that challenges or opposes a zoning, subdivision or other land use application, and seeks judicial review of a decision concerning the application in a manner prescribed by statute, shall not be liable to any other party to the judicial review for seeking such a review, except for such costs as are expressly provided for by the rules of court.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title9/c069/sc01/index.htmlFetched: 10/4/2026

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