Delaware Land Use Planning (1-DE-a)
Land Use Planning Process
1-DE-a.1 – Contact Local Authority with Jurisdiction over the Proposed Project Site
At the outset of a project the developer should consult the local authority with jurisdiction over the proposed project site to determine whether the municipality has a comprehensive development plan. If the appropriate municipal planning commission has formulated a comprehensive development plan, then any development in the municipality must adhere to the corresponding comprehensive development plan. Del. Code. Ann. tit. 22 § 702(d).
1-DE-a.2 – Review Comprehensive Development Plan
Prior to initiating construction, a project developer should ensure that project plans comply with the corresponding comprehensive development plan. All jurisdictions in Delaware have a certified comprehensive plan. In formulating a comprehensive development plan, the planning commission must coordinate with other municipalities, the county, and the state. Del. Code. Ann. tit. 22 § 702(b).
Comprehensive development plans must contain the following:
- A municipal development strategy setting forth a position on population and housing growth;
- Expansion of boundaries;
- Development of adjacent areas;
- Redevelopment potential;
- Community character;
- General uses of land within the community; and
- Critical community development and infrastructure issues. Del. Code. Ann. tit. 22 § 702(b).
If the municipality has a population greater than 2,000, then the comprehensive development plan must also include the following:
- A description of the physical, geographic and economic conditions of the jurisdiction;
- Policies, statements, goals and planning components for
- Public and private uses of land;
- Economic development;
- Affordable housing;
- Community facilities;
- Open spaces and recreation;
- Protection of sensitive areas;
- Community design;
- Adequate water;
- Wastewater systems;
- Protection of historic and cultural resources;
- Any such other elements best promote the health, safety, prosperity and general public welfare. Del. Code. Ann. tit. 22 § 702(b).
Upon completion of a comprehensive development plan, a municipal planning commission must submit the plan to the Delaware Office of State Planning Coordination for review. Del. Code. Ann. tit. 22 § 702(f). The Delaware Office of State Planning Coordination coordinates state, county, and local planning efforts. Delaware Office of State Land Planning Coordination Webpage.
Municipalities must also provide a report describing implementation of their comprehensive plan and identifying development issues to the Delaware Office of State Planning Coordination and the city council or town commissioners. Del. Code. Ann. tit. 22 § 702(g). The municipality must also report to the city council or town commissions annually. Del. Code. Ann. tit. 22 § 702(g).
1-DE-a.3 – Review County Building Code Requirements (If Applicable)
Prior to initiating construction, a developer should also ensure that the project adheres to county building code requirements. In New Castle County, a developer may not begin “construction of a building or structure, or any electrical system…without first filing” a building permit application with the Department of Land Use. Del. Code. Ann. tit. 9 ch.25 § 2510.
1-DE-a.4 – Review Local Zoning Regulations (If Applicable)
The developer should review the local zoning regulations where the proposed project is located. In Delaware, if a municipality adopts municipal zoning regulations, the municipality must establish a planning commission to establish and enforce regulations. Del. Code. Ann. tit. 22 § 306.
Generally municipal zoning regulations are designed to:
- Lessen congestion in the streets;
- Secure safety from fire, panic and other dangers,
- Promote health and general welfare;
- Provide adequate light and air;
- Prevent the overcrowding of land;
- Avoid undue concentration of population; and
- Facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. Del. Code. Ann. tit. 22 § 303.
1-DE-a.5 to 1-DE-a.6 – Does the Project Conform to the Local Planning Commission’s Regulations?
If the planning commission determines that the project is not in compliance with local regulations, the project developer may appeal the decision to the municipal board of adjustment. Del. Code. Ann. tit. 22 § 324.
1-DE-a.7 – Appeal Planning Commission Decision (If Applicable)
If the developer appeals a municipal planning commission decision to the board of adjustment, the planning commission must provide the board of adjustment with a record of its decision. Del. Code. Ann. tit. 22 § 324.
1-DE-a.8 to 1-DE-a.10 – Give Public and Individual Notice of the Public Hearing
If the developer appeals the planning commission decision to the board of adjustment, the board establishes a hearing date and time and must provide public notice and individual notice to parties. Del. Code. Ann. tit. 22 § 326.
The board of adjustment may authorize a variance from any zoning ordinance if the variance is not contrary to the public interest and a literal interpretation of the zoning ordinance will result in unnecessary hardship or exceptional practical difficulties. Del. Code. Ann. tit. 22 § 327.
1-DE-a.11 to 1-DE-a.13– Appeal Decision to Superior Court (If Applicable)
If the developer is aggrieved by a board of adjustment decision, then the developer may appeal the decision to Delaware Superior Court within 30 days of the board of adjustment filing the decision. In petitioning the court, the developer must establish that the board of adjustment’s determination is illegal. Del. Code. Ann. tit. 22 § 328.
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