2014 Delaware Code
Title 7 - Conservation
CHAPTER 75. DELAWARE LAND PROTECTION ACT
§ 7508. Land use requirements

(a) In order to maintain the protection of the unique ecological functions of state resource areas in a manner consistent with the purposes of this chapter, each county government shall adopt and incorporate overlay zoning ordinances, guidelines and specific technically based environmental performance standards, design criteria and mitigation requirements, where appropriate, that shall apply to significant ecological functions and identified historic and archeological sites on these lands. The guidelines shall designate the boundaries to which they apply and provide a procedure for the appeal of such boundary designations. The zones created hereunder shall overlie and not replace the existing zoning or preclude or prejudice any change thereto. The standards specified in the guidelines shall include, but not be limited to:

(1) The establishment of frontage, building height, setback and site design requirements that shall apply in state resource areas and which may apply to lands immediately adjacent thereto, which will result in residential, commercial and industrial or other uses which minimize the loss of open space and associated values of state resource area lands.

(2) The establishment of technically based specific environmental performance standards and design criteria that shall apply in and may apply adjacent to state resource areas in order to protect the values of said lands.

(b) The powers granted counties under Title 9 as they pertain to the protection of any natural feature or resource governed by this title, shall be exercised through the adoption of ordinances and land use requirements duly enacted or approved by the county government of each county. Such natural resource protection requirements shall restrict land use activity by means of enactment and enforcement of specific technically based environmental performance standards, design criteria and mitigation requirements consistent with state law and regulations. Minimum lot sizes, density limitations, and prescribed percentages of impervious surface and use limitations and prohibitions shall not constitute performance standards as required herein, however, such limitations and restrictions shall be adopted where appropriate, to establish an alternative means of complying with the purpose and requirements of the overlay zones. It shall be the option of the owner of land to satisfy either (1) the county environmental performance standards, design criteria and mitigation requirement, or (2) the overlay zoning ordinances where such options are made available. The guidelines, performance standards, design criteria of this subsection shall not apply to lands producing agricultural commodities as defined in Chapter 7 of Title 3 or lands under state agency ownership.

(c) In order to encourage landowners and developers to promote the objectives of this chapter, each county government shall evaluate density bonuses, credits or other incentives and allowances to land owners and developers for lands or resource protection rights thereto, to encourage the permanent protection of open space and/or any natural resource as governed by this title and elect such measures as they deem appropriate. The counties shall evaluate and consider enactment of measures to allow such bonuses, allowances, incentives and credits to have the ability to be sold, transferred or applied, as a matter of right, to other lands to the maximum density permitted by the applicable zoning classification, so long as such action is consistent with the comprehensive plan of the county.

(d) Counties shall adopt zoning ordinances that enact these guidelines and standards within 18 months after receipt of state resource area maps from the Department. If a county government does not comply with this 18-month enactment requirement, said county shall be ineligible for any funds negotiated for but unexpended under subsection (e) of this section and return to the State an amount equal to Funds expended under an agreement negotiated under subsection (e) of this section.

(e) The Secretary shall negotiate an agreement and grant a one time amount of up to $100,000 to each county to assist with compliance of the requirements in this section.

67 Del. Laws, c. 352, § 1.;