17 Del. C. § 507: Coordinating new development with local transportation improvements.

(a) Legislative findings. — (1) Under Chapters 1 and 5 of this title, the Department of Transportation reviews and approves entrance design and internal transportation network requirements for new and existing real property developments. This review process can identify necessary additional improvements to the local transportation system to accommodate the predicted impact of the new development. Under normal conditions, the new development may not in and of itself cause the need for new local transportation improvements, but instead acts as a triggering event in combination with preexisting traffic growth patterns in the area. The Department is best-positioned to assess statewide and county- and municipal-specific transportation improvements that will be needed based on safety and existing and projected growth patterns as indicated by a county or municipality in a certified comprehensive plan.

(2) On occasion, there is insufficient right-of-way for the construction of these off-site improvements, or the Department’s own schedule for making the improvements as part of its capital program is on a different schedule than the entity seeking development approval. Under appropriately defined conditions, it is proper that the entities seeking development approval contribute toward the cost of obtaining the necessary rights-of-way in lieu of altering the timing of the State’s own investments in such improvements.

(3) Under appropriately defined conditions, the Department should also be able to use its full powers to obtain the necessary rights-of-way for such improvements, triggered by the combination of preexisting traffic conditions and the proposed new development, as well as to oversee the installation of the required improvements.

(4) Even when there is sufficient right-of-way for the required improvements, there are other compliance issues that the local land use approval process may not fully take into account, such as the impact of the improvements on the State’s ability to comply with federal Clean Air Act [42 U.S.C. § 7401 et seq.] regulations, or the linkage between the proposed development and the State’s own land use planning and development policies.

(5) Therefore, the Department should enact appropriate rules and regulations to determine where and under what conditions it will use its powers to acquire real property interests for the construction of such improvements, to enforce the maintenance of safe operating conditions for the traveling public during the construction of these improvements, and to assure continued compliance with applicable environmental and other legal requirements implicated by these improvements.

(b) Implementation. —

The Department of Transportation is authorized and directed to enact rules and regulations to complement its existing authority under Chapters 1 and 5 of this title relating to new developments and their impacts on the local transportation network, as follows:

(1) a. By January 1, 2027, the Department shall establish a transportation impact fee applicable to each of the following:

1. Areas of this State that are designated in the Strategies for State Policies and Spending as an area designated for growth as indicated by a county or municipality in a certified comprehensive plan and that are not located within an established local or regional Transportation Improvement District.

2. Areas of this State that are outside of areas of this State that are designated in the Strategies for State Policies and Spending as an area designated for growth as indicated by a county or municipality in a certified comprehensive plan and that are not located within an established local or regional Transportation Improvement District. The transportation impact fee established by the Department under this paragraph (b)(1)a.2. may be greater than the transportation impact fee established by the Department under paragraph (b)(1)a.1. of this section to encourage development in areas of this State designated in the Strategies for State Policies and Spending as an Investment Level 1 or 2 Area.

b. The Department shall determine the transportation impact fees for each county based on the reasonable proportionate share of new development of the projected total costs to bring applicable transportation infrastructure up to State standards.

1. The Department may adopt a different transportation impact fee for each county.

2. The Department shall adopt a transportation impact fee for each county that establishes a rational nexus between new development and required costs and demonstrates proportionality between the fee and the impacts generated.

3. The Department may use deductive or inductive methodologies to determine each transportation impact fee.

4. The Department shall publish the formula used to calculate each transportation impact fee and shall reevaluate the formula every 5 years. Any increase in a transportation impact fee is capped at the increase in the United States Consumer Price Index plus 2%.

5. The transportation impact fee must be assessed on a land use basis in accordance with the Department’s current required edition of the Trip Generation Manual published by the Institute of Transportation Engineers (Trip Generation Manual).

c. 1. The Transportation Impact Fee Fund is established to receive moneys collected by the Department from the transportation impact fees required to be established under paragraph (b)(1)a. of this section.

2. The Department shall deposit into the Transportation Impact Fee Fund established under paragraph (b)(1)c.1. of this section the moneys collected from the transportation impact fees.

d. The transportation impact fee is intended to fund the Department’s planning, designing, engineering, and construction of improvements related to upgrading existing transportation infrastructure, including deficient pedestrian facilities and substandard signal and intersection facilities, acquisition of applicable rights-of-way and easements, and the Department’s funding of necessary administrative costs to staff and otherwise administer this section.

1. A. Except as provided by paragraph (b)(1)d.1.B. of this section, the Department shall, in consultation with the applicable county and municipal government, use any transportation impact fee collected to fund improvements in the same county as the development paying the transportation impact fee.

B. If a county or municipality fails to do all of the following by June 1, 2027, the Department shall use transportation impact fees collected in that county or municipality to fund improvements as determined solely by the Department:

I. Enact an ordinance or regulation regarding traffic impact studies that is consistent with § 2662(b), § 4962(b), or § 6962(b) of Title 9 or § 313 of Title 22, as applicable.

II. Enact an ordinance or regulation regarding residential density requirements that is consistent with § 2663, § 4963, or § 6963 of Title 9 or § 314 of Title 22, as applicable.

2. A development remains responsible for access and entrance improvements directly to the development’s site, including auxiliary lanes as required by the Department. The Department may require changes to entrance locations or frontage with identified safety issues and any work required will be at the cost of the development.

3. The Department shall acquire any necessary right-of-way and easements required under this section.

e. Except as provided by paragraph (b)(1)f. and (b)(1)i. of this section and for Capital Transportation Program projects that require developer contributions, the Department shall require all new development that generates new vehicle trips to pay the transportation impact fee.

f. The Secretary of the Department shall waive or reduce the transportation impact fee for a residential development that is financed in whole, or in part, by the Delaware State Housing Authority.

g. A development shall pay the transportation impact fee before the issuance of a building permit.

h.1. In addition to the transportation impact fee, the Department shall assess and collect a surcharge in the amount of 2% of the transportation impact fee due under paragraph (b)(1)a. of this section.

2. The Department shall, on a quarterly basis, deposit the moneys collected from the surcharge under paragraph (b)(1)h.1. of this section with the Office of Management and Budget, which shall, at the direction of the Governor, in consultation with the Director of the Office of Management and Budget and the Controller General, divide the moneys between the following:

A. The Delaware Farmland Preservation Fund established under § 905 of Title 3.

B. The Delaware Land and Water Conservation Trust Fund established and maintained under subchapter II of Chapter 54 of Title 30, for exclusive use by the Open Space Program established under Chapter 75 of Title 7.

C. The Department of Natural Resources and Environmental Control’s Shoreline and Waterway Management Section, for use in programs dedicated to coastal resilience.

D. The Department of Transportation’s programs for sidewalks to bicycle pathways.

E. The Brownfields Development Program established under subchapter II of Chapter 91 of Title 7.

i. A development that performs a traffic impact study that requires off-site improvements beyond the direct site access and applicable auxiliary lanes, and the costs are in excess of the transportation impact fee, shall pay the additional cost of the design, construction, right-of-way acquisition costs, and traffic impact study costs, less the required transportation impact fee, to the Department.

(2) The regulations required under paragraph (b)(1) of this section ( “regulations” ) must outline the procedures for the Department’s acquisition of rights-of-way and easements necessary for transportation infrastructure within an area described in paragraph (b)(1) of this section.

(3) If the predicted impact of new development necessitates a need for additional improvements within the local transportation network, beyond improvements necessary to bring transportation infrastructure up to State standards, and for which additional rights-of-way must be acquired, the regulations must outline the procedures for the use of the Department’s powers under § 137 of this title for this purpose, using contributed funds from the entity triggering the need. Any rights-of-way and easements required may be acquired by the Department, if deemed by the Department, in its reasonable and sole discretion, to be appropriate in the given circumstances.

a. In using this authority, such additional improvements must be limited to those that do not implicate the State’s ability to comply with the air quality conformity regulations of the federal Clean Air Act [42 U.S.C. § 7401 et seq.].

b. The use of the authority granted pursuant to this section is limited to those geographic areas defined by the State’s land use policies as appropriate for the type and extent of the proposed development.

(4) As part of the approval process for projects built under this section, the Department shall consult with state and local governmental representatives in the area of the proposed improvements. The Department shall also establish procedures for public notice and comment on the potential impacts of the development and the proposed changes to the local transportation network.

(5) The regulations shall provide for 2 alternative methods of constructing the necessary improvements, as follows:

a. The Department may enter into an agreement with the entity seeking development approval to assume direct responsibility for planning, design, inspection, and construction of the improvements. At a minimum, the agreement shall also include terms giving the Department appropriate provisions for quality assurance and quality control of the construction of the additional local improvements.

b. If the entity seeking development approval is eligible for and pays a transportation impact fee, the Department may assume responsibility for the scheduling, planning, design, construction, and inspection of improvements.