DE HOUSE BILL 280.
Will Governor Minner have reintroduce this bill?
"Sprawl bill stuck in committee
Measure to limit rural development opposed by farmers, home builders
The centerpiece of Gov. Ruth Ann Minner's quest to guide growth -- a bill that would strictly limit development on nearly 450,000 acres of rural land -- is languishing in a House committee with little chance of passing this legislative session, lawmakers said this week.
Aides to Minner had been counting on Rep. Greg Lavelle, R-Sharpley, to cast the vote needed to release the controversial Sprawl Prevention Act from the House panel that reviews land-use initiatives.
The General Assembly adjourns for the year June 30, and the measure would have to pass the full House and Senate to become law.
But Lavelle said he is first working on a compromise -- including finding money to compensate farmers whose land might be devalued. Lavelle said the measure as written would never pass the Senate, where it is opposed by President Pro Tem Thurman Adams Jr., a Bridgeville-area farmer.
"I'm trying to inject a little reality, and the reality is that it's not going to go anywhere," Lavelle said. "I could take the easy out, release it, and wash my hands of the situation. But I’d like to do something to move the issue.”
Introduced a year ago, House Bill 280 would limit development on land targeted by state officials for preservation to one home for every four acres. By contrast, in Sussex County even the most rural land can have two homes on every acre.
The bill also would ban community septic systems from rural lands where development isn’t desired. Builders use such systems in large-scale subdivisions where public sewer is not available.
Minner has said the bill would protect $103.6 million of taxpayer money spent to preserve farms by steering development to designated growth zones served by adequate roads, sewers and police and fire service. Many advocates of planned growth support her measure, saying it would protect agricultural areas and save money.
A five-day News Journal report in April detailed the wide-ranging effects of sprawl in Delaware – skyrocketing costs for roads and other infrastructure, unprecedented traffic jams, crowded schools, degraded water and air, and a dramatic loss of farmland.
Just this week, money woes led state transportation officials to postpone dozens of road projects – many in rural areas where growth has been rampant.
Since 1990, Delaware’s population has increased 27 percent, far more than nearby states. Much of Delaware’s growth has occurred far from population centers, where it costs more to provide key services.
During the last two years, nearly half of the land proposed for new housing has been located in an area that Minner’s anti-sprawl bill is seeking to protect from dense development, the newspaper found.
But Minner’s bill has met fierce opposition from two powerful forces – the Delaware Farm Bureau and the Home Builders Association of Delaware – who have the greatest stake in developing rural land. Members contend it would unfairly penalize farmers and limit opportunities to build affordable housing. The bill, if it became law, also would quash many members’ housing projects.
Leann Ferguson, of the Southern New Castle County Alliance civic group, said that the bill’s opponents appear to have won the day with lawmakers.
“It’s not going to get out of committee,” Ferguson said. “I said a long time ago that they were going to cave to special interests.”
Minner, who since 2001 has been pushing her Livable Delaware program to guide growth, said several top aides are working overtime to persuade lawmakers.
“I’m always optimistic,” the governor said in a telephone interview. “We don’t say anything dies. We keep working until we accomplish our goal.”
Added state Agriculture Secretary Michael T. Scuse: “It’s going to be tough to get through the Legislature, but it’s got a chance.”
Many lawmakers say they support planned growth but would feel uncomfortable creating a law that would deprive some farmers of the chance to sell their land to the highest bidder.
“There are poor families that have been farmers for generations that may for a variety of reasons look to sell the farm,” said Sen. Robert I. Marshall, D-Wilmington West. “How would the family make out?”
Contact senior reporter Cris Barrish at 324-2785 or cbarrish@delawareonline.com."
| SPONSOR: | Rep. Valihura & Sen. Sokola ; |
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| Reps. Roy, Lofink, Gilligan, Longhurst, Schooley, McWilliams; Sens. Henry, Sorenson, Blevins, Peterson |
| HOUSE OF REPRESENTATIVES 143rd GENERAL ASSEMBLY |
| HOUSE BILL NO. 280 |
| AN ACT TO AMEND TITLE 7 OF THE |
Section 1. Amend § 6002(36), Title 7 of the Delaware Code, by striking the word “municipal” as it appears therein.
Section 2. Amend Title 7 of the Delaware Code by creating new Chapter 60A to read as follows:
“CHAPTER 60A. SPRAWL PREVENTION ACT
6001A. Short Title.
This Chapter shall be known and may be cited as the “Sprawl Prevention Act.”
6002A. Findings.
The General Assembly for the State of
(1) The State has the responsibility to manage the development and conservation of land, water, underwater and air resources to ensure order and prosperity for present and future generations of Delawareans.
(2) Title 7, Chapter 60 identifies a legitimate State interest and public purpose in managing the development, utilization, and control of land, water, underwater and air resources of the State to ensure that there are adequate supplies of these resources for domestic, industrial, power, agricultural, and other beneficial uses.
(3) The State has heavily invested in open space acquisition, farmland preservation, and in the protection of our green infrastructure through the Livable Delaware Initiative and other past efforts because
(4) The majority of public infrastructure and services for residents are funded through State financial resources, and the State has a vested interest in the efficient and prudent expenditure of those public funds by directing new development to areas of the State most capable of meeting the transportation, educational, health care, emergency and other service needs of its citizens and thereby maximizing the public investment in those services, which are purposefully concentrated growth areas.
(5) Residential development scattered across rural areas is a threat to the State's land, water, underwater and air resources since it fragments natural habitats, impairs water quality, causes significant pollution to our air, and undermines the State’s significant investment to protect and conserve these precious and finite resources.
(6) Research indicates that stream degradation occurs when a watershed reaches approximately 10 percent impervious cover. Targeted, planned development concentrates impervious cover in growth zones, while minimizing the impervious cover across the entire watershed. However, scattered development across a watershed increases the amount of impervious cover across the watershed due to the need for increased roadways and buildings.
(7)
(8) The Office of State Planning Coordination and the Cabinet Committee on State Planning Issues have adopted, under authorities granted in Title 29 Chapter 91, the Delaware Strategies for State Policies and Spending, dated July 2004, which identify lands in the State by “investment level” and which further define lands in Investment Level 4 as being primarily agricultural lands, undeveloped natural areas, forested lands, parks and wildlife preserves and other sparsely populated areas of a rural character.
(9) Residential development that is scattered across our rural area is a serious threat to the continued viability of the agricultural industry in
(10) Residential development that is scattered across our rural landscape is costly to the State, as infrastructure and services must be provided to residents who are living in areas that have not been planned for growth. Providing infrastructure and services to scattered residential developments compromises the effectiveness of emergency services including police, ambulance and fire services. This problem is compounded in time as the infrastructure deteriorates and the service demand increases.
(11) Under authorities granted in Titles 9 and 22 of the Delaware Code, county and municipal governments have prepared Comprehensive Land Use Plans which identify growth areas where infrastructure and public services are planned to provide for the needs of a growing population, as well as areas suitable for rural, semi-rural, and agricultural land uses.
(12) Generally, public sewer services and other utilities are provided within growth areas designated by county and municipal governments and not in rural areas.
(13) Wastewater treatment and disposal systems are utilized in areas not presently served by regional sewers, and those on-site wastewater treatment and disposal systems may be a desirable means of providing wastewater services in growth areas where county or regional sewers are unavailable, or in non-growth areas where it is compatible with the rural character of the area.
(14) As a consequence of using these wastewater services in areas outside of growth zones, however, these wastewater systems have allowed for incompatible development in areas not planned for growth, able to sustain growth, or compatible with the rural character of the area.
(15) On-site wastewater treatment and disposal systems (community and individual) and treatment works should not be used as a tool to enable greater density of residential development in Level 4 investment areas or to overcome environmental site limitations or local government constraints on land use in non-growth areas.
(16) The indirect and cumulative impact of growth these wastewater systems enable, in areas not planned for growth, is detrimental to the land, water, underwater, and air resources of the State.
(17) It is essential to the continued preservation and viability of the State’s land, water, underwater and air resources, to the viability of our agricultural industry, and to the efficient use of the State’s limited fiscal resources that wastewater systems be regulated in accordance with the Strategies for State Policies and Spending and the certified county and municipal plans because these regulations will help ensure the predictable and orderly growth of the State of Delaware and limit sprawl.
(18) These reasons demonstrate the need to restructure the limitations when issuing permits for wastewater treatments in Level 4 areas, as a mechanism to ensure the health, safety and well being of the citizens of the State of
6003A. Definitions
(a) The words and phrases as defined in § 6002 of this Title shall have the same meaning when used within this Chapter, unless the context clearly indicate otherwise.
(b) In addition to words and phrases defined pursuant to subsection (a) of this section, the words and phrases listed below shall have the following meaning when used in this Chapter:
(1) “Applicant” means any person, individual, trust, firm, joint stock company, federal agency, partnership, corporation (including but not limited to governmental corporation & L.L.C.’s), association, State, municipality, commission, political subdivision of the State, or intrastate body applying for a permit or variance pursuant to this Chapter.
(2) “Board” means the Environmental Appeals Board.
(3) “Community system” means any on-site wastewater treatment and disposal system which will serve more than three (3) lots or parcels or more than three (3) condominium units or more than three (3) units of a planned unit development.
(4) “Enlarged lot” means a lot enlarged by altering, adjusting, moving, reconfiguring, adding or deleting lot lines.
(5) “Growth zone” means geographic areas within any development district, annexation area, or other area designated for growth by a local government within a certified comprehensive plan, or any land within Investment Levels 1, 2, or 3 as defined in the Delaware Strategies for State Policies and Spending, dated July 2004, or as amended periodically by the Cabinet Committee on State Planning Issues.
(6) “Merged lot” means a lot created by altering, adjusting, moving, reconfiguring, adding or deleting lot lines in order to create one larger lot or a different lot from what previously had been two or more separately recorded lots.
(7) “On-site wastewater treatment and disposal system” means any conventional or alternative, wastewater treatment and disposal system installed or proposed to be installed on land of the owner or on other land to which the owner has the legal right to install the system.
(8) “Recorded lot” means any parcel of land having been designated as a building lot by any local government and recorded as such by a Recorder of Deeds.
(9) “Rural area” means any area of the State which is outside any county or local growth zone as delineated in a local government certified comprehensive plan or within the Investment Level 4 area as defined in the Delaware Strategies for State Policies and Spending as adopted periodically by the Cabinet Committee on State Planning Issues.
6004A. On-site wastewater treatment and disposal systems
(a) Approval for a permit.
(1) In a rural area, no permit shall be approved or issued for an individual on-site wastewater treatment and disposal system in any subdivision consisting of more than five (5) lots unless:
a. The minimum lot size in the subdivision is four (4) acres; or
b. The lot was recorded on or before the date this Chapter (Sprawl Prevention Act) becomes effective; or
c. The lot is restricted by an Agricultural Preservation District Agreement or Agricultural Preservation Easement as defined in Delaware Code, Title 3, Chapter 9.
(2) No permit shall be approved or issued for a community on-site wastewater treatment and disposal system in any rural area unless:
a. The community system has an unexpired construction permit in which case the Secretary may extend the permit one (1) time for up to one (1) year; or
b. The system is for agribusiness or other farming related activity; or
c. The Secretary determines that for the protection of human health and safety, and the environmental protection of the land, water, and underwater resources of the State, the community system is the best alternative to replace existing individual on-site wastewater treatment and disposal systems.
(b) Marginal Areas.
(1) Any lot recorded before the effective date of this Chapter and which is fifty percent (50%) or more within any growth zone, shall be considered a part of the growth zone.
(2) Merged lots and/ or enlarged lots in marginal areas that were created or altered after the effective date of this Chapter shall not be considered a part of any growth zone.
6005A. Limitations for Issuance of Permit
(a) The Secretary shall not approve a permit for a treatment works in a rural area unless:
(1) In consultation with the Secretary of the Department of Agriculture and the State Planning Coordinator, the Secretary evaluates:
a. The need for the treatment works; and
b. The impact of the treatment works on development within the area to be served; and
c. The impact of the treatment works on lands adjacent to any pipes or appurtenances associated with the treatment works; and
(2) The Secretary determines that the treatment works is the best alternative to replace existing individual on-site wastewater treatment and disposal or community systems for the protection of human health and safety, and the protection of the land, water, and underwater resources of the State and the treatment works will not be utilized to serve new growth or development activities.
(b) Within a rural area, the Secretary shall not approve:
(1) The utilization of an existing treatment works for any use other than the original approved use(s) without consulting with the Secretary of the Department of Agriculture and the State Planning Coordinator;
(2) The use of State funds to extend a treatment works without specific approval from the Cabinet Committee on State Planning Issues;
(3) he extension, expansion, or other change in use of a treatment works constructed all or in part with State funds without consulting the Secretary of the Department of Agriculture and the State Planning Coordinator.
6006A. Variance
(a) Upon the Applicant’s request, the Secretary may grant a variance from the strict application of this Chapter. The procedures for a variance in § 6011 of this title may be used when applicable and when such use furthers the intent of this Chapter. Subsections (b) and (c) of this section shall be used when considering a variance. No variance shall be granted unless the said variance meets the following criteria:
(1) The project will not result in a substantial adverse effect on the environmental quality of the area in general, and will not have a substantial adverse impact on the land, water, underwater and air resources of the State of Delaware; and
(2) The variance will be the minimum variance necessary to allow the project to comply with the findings and purpose of this Chapter; and
(3) A denial of the desired variance would preclude a reasonable economic return through the use of the property, including but not limited to economic returns from agricultural operations; and
(4) In consultation with the Secretary of the Department of Agriculture, it is determined that the project will not adversely impact the viability of agricultural lands or operations in the vicinity of the parcel in question; and
(5) The justification for the variance is not related to a self-imposed special condition; and
(6) The applicant is the fee simple owner of the land, and is not a contract buyer whose interest is based on contracts to purchase land contingent upon zoning and other approvals.
(b) When considering an application for a variance, the Secretary shall have the authority to hear “vested rights” and “equitable estoppel” claims. Upon hearing such claims, the following, along with other relevant information the Secretary deems applicable, shall be taken into consideration:
(1) The geographic character of the surrounding lands; and
(2) An applicant’s reasonable, substantial and good faith reliance upon representations made by local, state or federal government officials acting in their official capacity prior to the effective date of this Chapter; and
(3) The extent to which the applicant has obtained development approvals or other permits from any federal, state, county or municipal government prior to the effective date of this Chapter; and
(4) The economic investments and preparations in the land which the applicant made in good faith prior to the effective date of this Chapter; and
(5) The applicant or land owner’s preparation, monetary investment and/ or the acquiring of local permits, after having knowledge of this Chapter or after a period of time where the applicant or land owner should have had knowledge of this Chapter.
6007A. Appeals to the Environmental Appeals Board.
(a) The procedures for appeals to the Board outlined in Chapter 60 of this Title shall govern the procedure and process for appeals in this Chapter unless otherwise indicated herein. The Board shall have the authority to hear “vested rights” and “equitable estoppel” claims. This authority is limited to only those claims arising from the enforcement of this Chapter. No appeal shall operate to stay any action of the Secretary.
(b) The Board shall have the authority to affirm the Secretary’s decision, reverse the Secretary’s decision or remand the case back to the Secretary for further consideration.
6008A. Appeal from the Board’s Decision.
The procedures to appeal the Board’s decision as outlined in Chapter 60 of this Title shall govern this Chapter, unless otherwise indicated. The Court shall review the Board’s decision based upon the record. All administrative remedies shall be exhausted prior to contesting any decision made pursuant to this Chapter.”
Section 3. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.
Section 4. This Act shall become effective upon its enactment into law.
SYNOPSIS
| This legislation prohibits on-site community wastewater treatment and disposal systems and public or private sewer service in areas not designated for growth via any local certified comprehensive plan or the Delaware Strategies for State Policies and Spending. It will curtail residential growth and sprawl in areas not designated for growth through control of on-site wastewater treatment and disposal systems otherwise permitted by the State’s Department of Natural Resources and Environmental Control. It further requires that the minimum lot size for a subdivision greater than five units which is not in a growth area be four acres for an individual on-site wastewater system to be placed there. |