Land Use Planning

Del. Code tit. 29, ch. 92
in effect

Del. Code tit. 29, § 9201 Findings; purpose.

(a) Some land use decisions are far-reaching, complex determinations involving the commitment of finite resources by many levels of government and private investment. Such decisions must be coordinated so as to achieve efficient, effective and timely use of finite resources. (b) The resource investment, both public and private, in land use decisions is long-term and therefore a process which provides a certain and stable climate for decision-making is necessary to foster rational investment of these resources. (c) A method of achieving consistency and coordination between the levels of government, and between government and private enterprise, is essential to achieve these goals. (d) Economic activity should be enhanced by coordinating and simplifying the various state regulatory and review processes required prior to development. It is declared, therefore, that a process for streamlining such processes be established.

Del. Code tit. 29, § 9202 Definitions.

For the purpose of this chapter: (1) “Affordable housing” means housing that is affordable to households making up to 80% of the AMI for rental units and up to 120% of the AMI income for homeownership units. (2) “Applicant” means any person who must apply to a local jurisdiction for approval to proceed with a project which requires a local jurisdiction to take a land use planning action. (3) “Area median income” or “AMI” means the median income for households based on household size and geographic area as established annually by the U.S. Department of Housing and Urban Development. (4) “Comprehensive development plan” means a municipal or county comprehensive land use plan, master plan or comprehensive plan as provided in Titles 9, 22 or this title. (5) “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, and the economic development project is located at least partially in Investment Levels 1 or 2 as set forth under the Strategies for State Policies and Spending, promulgated under § 9101 of this title. (6) “Final decision” means any legislative, administrative or quasi-judicial action that establishes the final determination of a local jurisdiction concerning any land use planning action. (7) “Homeownership unit” means a dwelling unit intended for owner occupancy, including a single-family detached dwelling unit, a single-family attached dwelling unit, a townhouse, a condominium, a manufactured home, and any other dwelling unit offered for sale to and occupied by the owner of the dwelling unit. (8) “Local jurisdiction” means the County of New Castle, the County of Kent, the County of Sussex, municipalities within the State or any other political subdivision of the State, or any instrumentality of any political subdivision of the State. (9) “Local land use planning action” means any action involving: a. The adoption or amendment of a Comprehensive Development Plan; b. The zoning or re-zoning of land; c. The subdivision or partioning of 1 parcel of land into 2 or more parcels of land or the combining of 2 or more parcels of land into 1 or more new parcels of land if required by local subdivision review ordinances; or d. The review or approval of 1 or more parcels of land for development if required by local site plan review ordinances. (10) “Person” means any individual, partnership, firm, association, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, local jurisdiction, any interstate body or any other legal entity. (11) “Rental unit” means a dwelling unit intended for occupancy by a tenant under a lease or rental agreement, including an apartment, a multifamily dwelling unit, an accessory dwelling unit, a manufactured home offered for rent, and any other dwelling unit occupied by an individual other than the owner. (12) “Rezoning” means any modification of zoning classification of property based upon local zoning codes adopted as provided in Title 9 or 22. (13) “Site plan” means a plan, to scale, showing uses, structures and any other improvements for a parcel as required by a local jurisdiction’s land use regulations. (14) “Subdivision” means the division of land into 2 or more lots.

Del. Code tit. 29, § 9203 Local land use planning actions subject to review process.

(a) All projects meeting any 1 of the following criteria shall undergo a pre-application meeting and review process as set forth in this chapter: (1) Major residential subdivisions with internal road networks and more than 50 units, excluding previously recorded residential subdivisions of any size which have not been sunsetted. (2) Any nonresidential subdivision involving structures or buildings with a total floor area exceeding 50,000 square feet, excluding any previously approved and recorded nonresidential subdivision regardless of floor area size, or any site plan review involving structures or buildings with a total floor area exceeding 50,000 square feet, excluding any previously approved and recorded nonresidential site plan review regardless of floor area size. Notwithstanding this paragraph (a)(2), economic development projects are exempt from the pre-application meeting and review process, unless required by a local jurisdiction, through a memorandum of understanding between a local jurisdiction and the Office of State Planning Coordination or by ordinance. (3) Rezonings, conditional uses, site plan reviews and/or subdivisions, within environmentally sensitive areas, as identified within any local jurisdiction’s comprehensive plan as certified under § 9103 of this title. (4) Annexations inconsistent with the local jurisdiction’s comprehensive plan as certified under § 9103 of this title. (5) Applications for rezoning if not in compliance with the local jurisdiction’s comprehensive plan as certified under § 9103 of this title. (6) Any other project which is required to be referred to the State for pre-application review by local jurisdiction regulations. (7) Any local land use regulation, ordinance or requirement referred to the Office of State Planning Coordination by a local jurisdiction for the purpose of providing the jurisdiction with advisory comments. The land use regulations, ordinances or requirements that are to be referred to the Office of State Planning Coordination may be specified in a jurisdiction’s Memorandum of Understanding. (8) County and municipal comprehensive plans as required by Titles 9 and 22. (b) Any applicant may voluntarily request to participate in the pre-application review process and shall make such requests in writing to the Office of State Planning Coordination.

Del. Code tit. 29, § 9204 Pre-application review process.

(a) Pre-application reviews shall be conducted and concluded, unless otherwise provided for herein, prior to the formal submission of any document required by the first step under any local jurisdiction’s land use review regulation, including, but not limited to, a “preliminary” or “sketch” subdivision or site plan, or a written request for a re-zoning, conditional use, or annexation by an applicant to the local jurisdiction. The applicant may elect to initiate the pre-application review process simultaneously with the formal submission or application to any local jurisdiction with an approved Memorandum of Understanding as provided for in § 9205(c) of this title. The applicant is responsible for complying with any and all local regulations and is strongly encouraged to meet with local officials prior to initiating the pre-application review process. The applicant shall be responsible for requesting a pre-application review under this chapter. (b) The Office of State Planning Coordination shall develop an application and procedures for review and shall be responsible for scheduling and coordinating all pre-application review meetings. Meeting dates shall be designated for 1 or more days certain each month and held in accordance with procedures outlined by the Office of State Planning Coordination. Projects shall be heard at a pre-application meeting within 45 calendar days of receipt of a request by the Office of State Planning Coordination. The Office of State Planning Coordination shall give public notice of all pre-application review meetings by following the requirements of § 10004(e) of this title. (c) Within 20 business days following the date of the pre-application meeting with the applicant, the Office of State Planning Coordination shall furnish to the applicant and the local jurisdiction a written compilation of all comments received at the meeting. Failure of Office of State Planning Coordination to meet the 20-business-day requirement will result in the State forfeiting the opportunity to comment on the local land use planning action. The length of review may be extended by mutual consent of the Office of State Planning Coordination and the applicant. The local jurisdiction shall be notified immediately of any mutually acceptable delays. (d) Following the pre-application review process and upon filing of an application with the local jurisdiction, the applicant shall provide to the local jurisdiction and the Office of State Planning Coordination a written response to comments received as a result of the pre-application process, noting whether comments were incorporated into the project design or not and the reason therefore.

Del. Code tit. 29, § 9205 State agency authorities, roles and responsibilities.

(a) All state agencies shall participate in the pre-application review process if requested by the Office of State Planning Coordination and shall provide such assistance and advice as requested by the Office of State Planning Coordination. (b) In special circumstances, the Office of State Planning Coordination may waive the pre-application requirements of this chapter. Where such waiver is granted, the Office of State Planning Coordination shall provide a written explanation of the causes for the waiver to the relevant local jurisdiction and the applicant. These circumstances may include, but are not limited to, local governments that impose a more stringent review of projects enumerated in § 9203(a) of this title than required by this chapter, or for projects which will provide an extraordinary benefit to the State and the local jurisdiction through economic development, job creation, educational opportunities, public services or facilities, agricultural preservation or protection and enhancement of the natural environment. (c) In order to more effectively coordinate with the local land-use process, the Office of State Planning Coordination shall, through a memorandum of understanding agreed to by both parties, exempt the local jurisdiction from the provisions of this chapter or modify the pre-application review process specified herein when the local jurisdiction has a Certified Comprehensive Plan and imposes a more stringent review of projects enumerated in § 9203(a) of this title than required by this chapter. (d) The Office of State Planning Coordination shall coordinate, where possible, the other state review processes including but not limited to the transportation agreements specified in Title 9, and other state land use review and permitting processes.

Del. Code tit. 29, § 9206 Local jurisdiction authorities, roles and responsibilities.

(a) Nothing in this subchapter shall be construed to deny local jurisdictions their final decision-making authority over proposed local land use planning actions. (b) The local jurisdiction shall, in accordance with this chapter, make its final decision and notify the Office of State Planning Coordination of such decision as soon as possible.

Del. Code tit. 29, § 9220 Purpose.

The purpose of this subchapter is to increase the supply and diversity of housing in this State for all income levels by supporting local jurisdictions in their efforts to close housing supply gaps, including affordable housing supply gaps, through measures such as rezoning to allow for higher-density development and more diverse housing types.

Del. Code tit. 29, § 9221 Affordable housing plans.

(a) A local jurisdiction that has a population greater than 2,000 and that is required to adopt a comprehensive plan under Title 9, Title 22, or this title must include an affordable housing plan consistent with this subchapter as part of its comprehensive plan. The affordable housing plan must establish a concrete strategy with clearly defined and measurable goals and outcomes to accomplish all of the following objectives: (1) Make meaningful and measurable progress towards a strategic goal of having 20% of all housing units in the local jurisdiction qualify as affordable housing. (2) Diversify the types of housing, including affordable housing, available in the local jurisdiction. (b) An affordable housing plan developed under this subchapter must be developed in collaboration with the Delaware State Housing Authority. Once an affordable housing plan is adopted, it becomes incorporated into the local jurisdiction’s comprehensive plan. (c) A local jurisdiction must adopt its initial affordable housing plan concurrently with its next comprehensive plan, except as provided under subsection (d) of this section. Thereafter, an affordable housing plan must be included in every comprehensive plan. (d) Notwithstanding the timeframe provided for under subsection (c) of this section, a local jurisdiction that adopts its next comprehensive plan before February 1, 2027, is not required to adopt its first affordable housing plan or comply with the requirements under § 9222 of this title until its next 5-year comprehensive plan review. (e) An affordable housing plan must be developed through an open and inclusive process, which must take place concurrently with the comprehensive plan development process. (f) At the request of a local jurisdiction, the Delaware State Housing Authority shall provide technical assistance in implementing the local jurisdiction’s affordable housing plan.

Del. Code tit. 29, § 9222 Required and optional elements of affordable housing plans.

(a) An affordable housing plan developed under this subchapter must do all of the following: (1) Clearly state the local jurisdiction’s goals, policies, and objectives for increasing the housing supply for all income levels, including how the local jurisdiction will achieve the requirement under § 9221(a)(1) of this title. (2) Describe existing or planned efforts for the development of affordable housing, or, if such efforts do not exist, efforts that the local jurisdiction will undertake to increase or improve affordable housing. (3) Provide a timeline showing how the local jurisdiction will achieve the affordable housing objectives established in the affordable housing plan. (b) An affordable housing plan must include all of the following elements for increasing housing diversity and production, including for affordable housing, in the local jurisdiction: (1) Increases in maximum permitted residential density, including increases in the number of dwelling units permitted per acre in order to facilitate an affordable and diverse housing stock. (2) Authorization for a mix of housing types, including single-family detached, single-family attached, duplexes, triplexes, multifamily dwellings, accessory dwelling units, cottage housing developments, and manufactured housing without the need for a conditional use permit or special exception. (3) Evaluation of bulk standards, including minimum lot sizes, maximum lot widths, minimum setbacks, minimum unit size, maximum lot coverage, maximum building heights, and dedicated open space requirements, as those standards relate to achieving maximum permitted residential density. (c) An affordable housing plan must include at least 5 of the following elements for increasing housing production, including affordable housing production, in the local jurisdiction: (1) Provision of density bonuses or other incentives, which may include additional permitted dwelling units per acre, additional building height, reduced parking requirements, or reduced open space requirements, for including affordable housing units in residential developments or developments that are mixed-use with a majority residential component. (2) Creation of transit-oriented development zoning designations with significant increases in density along fixed transportation routes, including buses, trains, and other means of public transportation. (3) Creation of expedited or accelerated permit review and approval timelines for residential development units that include affordable housing units. (4) Provision of fee waivers, reductions, or deferrals for residential development units that include affordable housing. (5) Reduction or waiver of local impact fees for any affordable housing unit. (6) Facilitation of diverse housing types at different price points by adopting form-based codes or other alternative development standards in areas designated for growth in the comprehensive plan. (7) Amendment of land use regulations to allow single-room occupancy housing as a permitted use in at least 1 residential zone. (8) Amendment of land use regulations to allow transitional housing, emergency housing shelters, group homes, recovery homes, or other supportive housing as a permitted use in at least 1 residential zone. (9) Amendment of land use regulations to allow as a permitted use the conversion of commercial, office, and retail spaces into residential use or mixed-use with a majority residential component. (10) Designation of at least 1 residential zone where multifamily housing is a permitted use by-right as defined in § 9223 of this title, or if such zoning already exists, allowing for a substantial increase, through zoning or rezoning, in the amount of land zoned to allow additional multifamily housing as a permitted use by-right as defined in § 9223 of this title. (11) Implementation of another strategy for increasing and diversifying affordable housing that has been approved by the Delaware State Housing Authority for the purpose of meeting the obligations of this subsection. (d) Any elements included in this section that a local jurisdiction has completed or made significant and measurable progress towards completing on or after July 17, 2024, may be counted towards satisfying the requirements of this section.

Del. Code tit. 29, § 9223 By-right residential uses.

(a) For purposes of this section: (1) “By-right” means a use identified as a permitted use within a zoning district under a local zoning ordinance that complies with all applicable objective standards and requirements and does not require a rezoning, conditional use permit, special exception, or variance. (2) “Objective standards” means standards that are measurable, uniformly applicable, and not subject to discretionary personal judgment. (b) A residential development application for a use that is permitted by-right under the zoning ordinance of a local jurisdiction shall be reviewed through an administrative review and approval process. (c) Nothing in this section prohibits a local jurisdiction from requiring review or approval by a planning commission, planning board, or other administrative body, provided the review is limited to determining compliance with applicable objective standards. (d) A local jurisdiction may hold a public meeting for a residential development application described in subsection (b) of this section. Any ordinances or regulations adopted to govern a public meeting held under this subsection must provide for a public meeting that meets all of the following criteria: (1) Does not constitute and is not conducted as a public hearing. (2) Is limited to determining compliance with applicable objective standards and requirements. (3) May allow for public comment, provided all such comment is made only through written submission. (e) This section supersedes any inconsistent public hearing requirements applicable to a residential development application described in subsection (b) of this section, including public hearing requirements in §§ 4811, 6810, 6811, and 6812 of Title 9. This section does not impact hearings required in conjunction with Board of Adjustment appeals.

Del. Code tit. 29, § 9224 Reporting requirements.

(a) The Delaware State Housing Authority shall coordinate with the Office of State Planning Coordination to gather information from local jurisdictions regarding their compliance with the affordable housing plans developed under this subchapter. (b) The Delaware State Housing Authority shall coordinate with the Office of State Planning Coordination to develop an annual report showing each local jurisdiction’s progress toward meeting the goals identified in its affordable housing plan. (c) The Delaware State Housing Authority shall publish the reports required under this section on its website no later than May 15 of each year, beginning in 2028.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title29/c092/sc01/index.htmlFetched: 10/4/2026