Article XI Design Requirements and Standards

When a residential subdivision abuts or contains an arterial roadway, as designated on the DelDOT's Functional Classification Map, the Commission may require that measures be taken to reduce the impact of heavy traffic on the residential lots abutting or fronting upon such arterial roadway and to provide a separation of through and local traffic by one of the following means:

By providing vehicular access to such lots by means of a service drive separated from the major arterial roadway by a planting strip at least 30 feet in width and connecting therewith at infrequent intervals; or

By designing reverse-frontage lots having access only from a parallel minor street or from cul-de-sac or loop streets and with vehicular access to such lots from the arterial roadway prohibited by deed restrictions or other means; or

By requiring a minimum front yard setback of 75 feet from the right-of-way of the arterial roadway.

The Commission reserves the right to select the most appropriate method of accomplishing a separation from the arterial roadway to minimize negative impact, giving consideration to site topography and other physical conditions, the character of existing and contemplated development, its surroundings, and other pertinent factors.

Access.

It is Kent County's goal to provide alternative routes within as well as linkages between and among subdivisions and land developments in an effort to increase connectivity and decrease traffic congestion for residents, public service vehicles such as sanitation and school buses, transit, and emergency vehicles.

Table XI-1 below describes the access and connectivity requirements for both minor and major subdivisions. The term "connected routes" within the table refers to internal subdivision streets which are circuitous rather than dead ends or cul-de-sacs.

	TABLE XI-1
	Requirements	1 to 5 lots	6 to 25 lots	26 to 50 lots	51 or more lots
	Access	Interior access if the interior is developed; driveway design to allow potential future connection to interior street per DelDOT requirements for access	Interior access only; minimum 25% of lots fronting on connected routes	Interior access only; minimum 35% of lots fronting on connected routes	Interior access only; minimum 50% of lots fronting on connected routes; second entrance required when possible and permittable

Cul-de-sac streets.

Cul-de-sac and/or dead-end streets may be permitted and shall not exceed 600 feet in length from street beginning to terminal pavement edge at the end of the cul-de-sac or dead-end street.

Curbed cul-de-sac or dead-end streets shall be provided with a turnaround bulb area having a paved diameter of at least 80 feet and a street right-of-way diameter of 100 feet.

Uncurbed cul-de-sac or dead-end streets shall be provided with a turnaround bulb area having a paved diameter of at least 76 feet and street right-of-way diameter of 100 feet.

In no instance should more than 20% of the lots in a proposed subdivision front on the turnaround portion of the cul-de-sac or dead-end street.

Interior pervious and landscaped features may be permitted within cul-de-sacs if approved by the Delaware Department of Transportation for public streets and the Regional Planning Commission for private streets.

Street linkages.

Within major subdivisions and land developments using public streets, street linkages shall be provided among adjoining subdivisions in order to allow convenient and effective travel among neighborhoods. Benefits include ease of access, association with neighbors, alternative travel routes for residents, sidewalk networks on local streets, and internal circulation routes for service providers such as school buses, sanitation vehicles, transit, and emergency management personnel.

Proposed street layout plans shall incorporate provisions for linkage streets which shall be designed to provide future access and street connection to adjacent vacant or undeveloped lands which may be developed in the future. Linkage street stubs shall be provided at a ratio of at least one linkage street right-of-way stub per 800 linear feet of subdivision or land development boundary line or fraction thereof, which adjoins vacant or undeveloped land, unless determined to be unnecessary by the Commission.

Such linkage street right-of-way stubs shall be planned and constructed to the subdivision or land development boundary line. Linkage street stubs shall be identified by signage which reads "Street Connection to Future Development" in cases where the stub is part of the initial or only phase of construction and "Future Internal Street and Connection to Future Development" in cases where projects are being built in phases and the street would extend in a future phase. If the stub is in excess of 100 feet in length, then a temporary paved turnaround area shall be provided.

When a proposed subdivision or land development is being planned adjacent to previously subdivided or developed land and the previously subdivided or developed land has incorporated linkage street stubs to its perimeter as part of its recorded or approved plan, the proposed subdivision or land development must incorporate street connections to the existing linkage street right-of-way stubs as part of its street system.

Alleys.

Alleys may be permitted in residential subdivisions as low-volume, secondary accessways to residential properties. Alley rights-of-way shall be established at 16 feet in width and shall involve a minimum paved width of 14 feet.

Alleys may be provided in nonresidential subdivisions and sites for the purpose of providing secondary access to parking and loading areas. Alleys serving nonresidential subdivisions and site developments shall be established at a minimum right-of-way width of 20 feet, with a maximum paved width of 18 feet. Traffic flow in nonresidential alleys shall be limited to one-way and shall be planned and marked accordingly with standard signage and other means as applicable.

The applicant shall set forth legally binding ownership and maintenance responsibilities and obligations for any proposed alleys as part of the preliminary subdivision plan proposal for consideration by the Commission. The Commission shall approve or deny proposed alleys based upon the merits of the proposal, the importance of alleys to the overall design and layout of the subdivision, the convenience, ease of access, and circulation for future property owners, and the completeness of the maintenance obligations proposal.

Private streets. Private streets may be approved within developing areas and rural subdivisions if each of the following conditions are satisfied:

The private street shall serve no more than 10 lots;

The gross residential density for the subdivision shall not exceed one dwelling unit per two acres;

All lots within the subdivision shall be accessed from the privately dedicated street;

The minimum right-of-way width shall be 50 feet and the minimum roadway width shall be 18 feet;

The private street must meet the minimum construction and review standards as established by §187-53A(4) above; and

The applicant shall establish or cause to be established a bona fide homeowners' association or maintenance corporation for the purpose of assuming ownership of and perpetual maintenance responsibility for all private streets within the proposed development. The following minimum criteria shall be adhered to:

At a minimum, the creation and governance of the homeowners' association or maintenance corporation shall be established by legally sufficient and binding instruments to include articles of incorporation and a declaration of maintenance obligations. The applicant for subdivision approval involving private streets shall bear the burden of producing these documents.

Articles of incorporation for each homeowners' association or maintenance corporation shall be prepared by the applicant for the purpose of creating a legally binding entity to which membership shall be mandatory for all owners of real property within the subdivision, except for governmental entities which may own or acquire property for utility service, recreation areas, or other public purposes.

Each homeowners' association or maintenance corporation shall have legal authority to require its members to pay to the homeowners' association or maintenance corporation periodic dues for the purpose of maintenance and repair of private streets approved under this chapter.

The articles of incorporation and declaration of maintenance obligations shall establish an administrative structure and management procedures for the homeowners' association or maintenance corporation, which shall include but not be limited to: the election of the board of directors, collection of dues, procurement of and payment for services related to the repair and maintenance of private streets and procedural and legal requirements for the placement of liens on property of members that fail to pay the required dues; and

(e)

All such documents described above shall be submitted in draft form at the time of application for subdivision plan review (whether minor or major). The Commission's staff or Regional Planning Commission, as applicable, may transmit such documents to its legal council for review and determination of legal sufficiency prior to acting on any plan which proposed the establishment of private streets.

§ 187-59 Street design standards.

[Amended 9-22-2009 by Ord. No. 09-22]

All publicly dedicated roads and rights-of-way shall be a minimum of 28 feet in width measured from the edge of paving and not including the width of the curb and gutter and planned, designed, and constructed in accordance with the current standards of the Delaware Department of Transportation, including, but not limited to, the Functional Classification Map and Standards and Regulations for Subdivision Streets and State Highway Access.

The Regional Planning Commission may permit an alternative street width, of either lesser or greater width, when an applicant can demonstrate such a modification is better suited to the proposed development, will provide adequate on- and off-street parking, will provide adequate access for emergency vehicles, and with the written consent of the Delaware Department of Transportation.

All private streets shall be constructed in accordance with Article X, Required Improvements, § 187-53A(4).

§ 187-60 Sidewalks.

This section establishes design criteria for residential and nonresidential sidewalks.

Sidewalks shall be installed along arterial and collector roadway frontage of a property by the owner or applicant of the property whenever such property is the subject of a subdivision or land development proposal which requires Regional Planning Commission or Levy Court approval.

In nonresidential land developments, sidewalks shall be constructed along private access roadways and site entrances to provide continuous pedestrian access from the frontage sidewalk required in § 187-60A above, to existing and proposed buildings on the premises. Sidewalks shall be designed and situated so as to provide pedestrian linkages from parking lots to building entrances and between buildings and groups of buildings on the premises.

Residential subdivisions and land developments with a density of three dwelling units per one acre or greater shall provide sidewalks along both sides of all streets.

Residential subdivisions and land developments with a density of less than three dwelling units per one acre shall provide sidewalks along both sides of all residential collectors, unless determined by the Commission that sidewalks on only one side of the street are warranted. A "residential collector" is defined as a street that served as a frontage street to abutting properties and which conducts low volumes of traffic between local streets and major collector and/or arterial roadways.

Sidewalks shall be established at a minimum paved width of five feet.

Barrier-free access ramps shall be installed at each street corner and at other points of street crossing throughout every subdivision. Access ramps shall be designed and constructed by the applicant in accordance with provisions of federal and state laws and specifications.

Sidewalks shall be separated from the edge of road, pavement, driveways, and site entrances by a grass strip or landscape area of at least three feet in width and preferably five feet in width. Where a sidewalk is planned to adjoin the pavement edge of parking lot areas, such sidewalk shall be grade-separated from the parking lot surface by six-inch vertical face curbing.

Sidewalk design and installation shall comply with federal requirements of the Americans With Disabilities Act (ADA) and shall incorporate barrier-free access ramping at points of intersection with street crossings and at other locations so as to accommodate barrier-free pedestrian movement and access to buildings, parking areas, and other site amenities.

Sidewalks shall be free of utility poles, bushes, plants, and all other obstructions.

All proposals requiring submission of a major subdivision or land development plan for review and approval by the Commission shall demonstrate on the preliminary plan how the proposed project will comply with the provisions of this section.

§ 187-61 Marked crosswalks.

This section specifies marked crosswalks at key street/sidewalk intersections within and adjoining proposed subdivisions and residential land developments and as linkages to destination points such as schools, parks, and commercial buildings. Marked crosswalks are intended to identify the preferred locations where pedestrians should cross the street and to alert motorists of the potential presence of pedestrians.

The applicant shall be required to install marked crosswalks, which function to create a visual and tactile connection between barrier-free access curb ramps for the purpose of demarcation of appropriate pedestrian street-crossing locations in the following instances:

At points of intersection between sidewalk and major collector and arterial streets and at all corners along a major collector or arterial street where local residential streets intersect the collector or arterial street.

At all signalized intersections adjoining the development site.

At key locations to provide marked street crossing access to active or passive parkland and open space areas, schools, playgrounds, neighborhood shopping centers, and similar pedestrian destinations within and adjoining the development site.

Marked crosswalks shall consist of transportation industry standard reflective paint pavement markings and/or adhesive pavement markings applied to the street surface in "ladder bar" fashion as illustrated in Exhibit XI-1 below. The marked area shall be five feet in width and shall be oriented perpendicular to the direction of the street at the crossing point. Markings shall run from one side of the street to the other.

Marked crosswalks shall be identified for motorists by the universal "Yield to Pedestrians" sign situated at least 25 feet and no greater than 40 feet in advance of the pavement marking and oriented to address traffic in both directions on the street.

§ 187-62 School and transit bus stops.

This section specifies school and transit bus stop design criteria along local, minor collector, major collector, and arterial roads.

All subdivision and residential site development proposals involving more than 50 dwelling units and/or greater than three dwelling units per acre shall be required to designate and reserve locations for transit and school bus stop accommodations within and/or adjacent to the proposed development.

The following specifies school bus stop locating procedures:

The applicant shall notify the local public school district of the locations, character, and layout of the proposed subdivision or residential land development by registered mail at least 30 days prior to the date of the public meeting at which such proposal will be considered for approval. The purpose of this notification is to offer the local public school district the opportunity to provide input and direction with respect to the most appropriate and serviceable location for school bus stops within the proposed development. The applicant shall use a school district notification form provided by the Department developed for this purpose.

The local public school district shall have 30 days to provide commentary to both the applicant and to the Department with respect to school bus stop provisions. Such commentary shall describe preferred locations of bus stops within and adjoining the proposed development site. Should the local school district choose not to respond within the prescribed period, the development proposal may proceed through the review and approval process.

As part of the plan review process, the Department shall forward a copy of the proposed subdivision plan or residential land development plan to the Delaware Transit Corporation (DTC), or its authorized designee, for review and recommendations relative to the reservation and designation of areas for public mass transit stops and related provisions. Bus stops shall be designed in accordance with DTC's most current standards. Review commentary and recommendations shall be offered during the normal plan period prescribed by this chapter. A delay in the issuance of review commentary by the DTC shall not result in a postponement of the plan review process.

The following specifies bus stop design and construction for local and minor collector streets:

On local and minor collector streets, bus stops shall consist of designated curbside bus stops where transit and school buses may stop within the travel lane of the street for the purpose of boarding and discharging passengers. Every effort shall be made to designate such bus stops as joint-use facilities for use by school buses and transit service vehicles.

On-street bus stops served by the DTC, or its authorized designee, shall be designated by standard DTC bus stop identification signage and shall conform to one of the following design standards:

The bus stop is designated adjacent to and immediately before a street intersection. (See Exhibit XI-2 below.) This configuration may be preferable at locations involving very limited right-turning traffic volumes. The near-side bus stop shall be at least 90 feet in length or an alternative length specified by the DTC; or

The bus stop is designated adjacent to and immediately after a street intersection. (See Exhibit XI-2.) This configuration may be preferred in locations where there are high volumes of right-turning traffic, at locations immediately following a right turn by the bus and where significant numbers of passengers would transfer from an intersecting bus route. The far-side bus stop shall be at least 80 feet in length or an alternative length specified by the DTC; or

The bus stop is designated along the curbside in locations between and separated from intersecting streets. (See Exhibit XI-2 below.) The mid-block bus stop shall be at least 130 feet in length or an alternative length specified by the DTC.

The following specifies bus stop design and construction for arterial and major collector roads:

Where required by the DTC or requested by the local school district, bus stops on arterial and major collector roads shall be designed as "bus turnout areas." These areas consist of pull-off areas of sufficient dimensional attributes to permit a bus to pull over to the curbside and out of the travel lane for purposes of boarding and discharging passengers.

Bus turnout areas shall be designed as integral features of the pedestrian sidewalk network as described in § 187-60 above and shall conform to the design and minimum dimensional requirements depicted in Exhibit XI-3 below.

Every effort shall be made to designate planned bus turnout areas as joint-use facilities for both school bus and transit service vehicles.

Bus turnout areas shall be required when:

Peak-hour curb lane traffic count exceeds 250 vehicles per hour; and

Existing land development patterns and the local street system do not permit continuous internal neighborhood circulation and linkage for transit service off of arterial and/or major collector streets; and

The nearest existing bus turnout area or similar transit facility is more than 1,300 feet (1/4 mile) walking distance from the main entrance of the proposed subdivision or residential land development.

In all cases, designated bus stops shall be designed in accordance with the current Delaware Transit Corporation standards for the usable length of a bus stop facility based on speed and traffic volume.

§ 187-63 Blocks.

Residential blocks shall not exceed 1,200 feet in length or be less than 500 feet in length between street lines. In any residential block more than 800 feet in length, a mid-block crosswalk of not less than 10 feet in width may be required where deemed necessary to provide convenient access to schools, playgrounds, shopping centers, and other community facilities.

Residential blocks shall normally be of sufficient width to provide two tiers of lots of appropriate depth.

Blocks for business or industrial use shall be of such length and width as may be necessary to serve their prospective use, and shall include adequate provisions for off-street parking and for the loading and unloading of delivery vehicles.

§ 187-64 Lots.

Every lot shall have frontage on and have access to a street.

Lots shall be oriented and adequately sized to provide sufficient buildable areas properly related to topography and the character of surrounding development.

The dimensions and areas of all lots shall comply with the minimum requirements of the zoning district in which they are located.

In cases where public water and/or public sanitary sewerage are required per Article X, Required Improvements, lots shall be designed to be served by such services.

In cases where public water and/or public sanitary sewer are not required by Article X, Required Improvements, all proposed lots shall comply with the minimum lot dimensions and areas established by DNREC as determined through soils analysis and on-site waste disposal feasibility study.

Excessive lot depth in relation to lot width shall be avoided. A ratio of depth to width of 2:1 shall be considered a desirable maximum.

Lots with multiple street frontages, including corner lots, shall require a front yard setback along all street frontages. Such lots shall be sized appropriately to accommodate reasonable and customary buildings and structures while observing the setback requirements.

Double-frontage and reverse-frontage lots shall be avoided, except where their use is essential for overcoming special topographic problems or for separating residential development from arterial roadways and other roads involving high traffic volumes as described above in § 187-58E.

Lots adjoining a railroad right-of-way line shall observe a building setback of at least 50 feet from the right-of-way line and shall include an appropriate means of buffering such lots from the railroad lines.

Insofar as possible, side lot lines shall be substantially at right angles or radial to the street line, except where a variation to this requirement will provide an improved street and lot layout.

For odd-shaped or triangular-shaped lots or lots fronting on cul-de-sac streets, the lot frontage measured at the right-of-way line may be reduced to not less than 1/2 of the minimum lot width required for the applicable zoning district. If the right-of-way line is a curved line, the lot width measurement shall be measured along the arc of the curved line.

§ 187-65 Easements.

Proposed subdivisions and/or land development proposals shall dedicate drainage easements of sufficient width and length as directed by DNREC, or its authorized agents, and/or DelDOT for the purpose of ensuring the establishment and maintenance of drainage systems. Drainage easements may include all man-made drainage improvements and structures, stormwater management ponds, maintenance areas, ditches, and natural stream courses.

The Commission shall have the authority to approve the placement of all such easements as requested by the Commission's staff, utility providers, and other regulatory agencies.

No building or structure shall be constructed on any recorded easement without the authorization of the Commission, its staff, or other agency, or utility provider having jurisdiction, except for nonpermanent structures or those not on a permanent foundation, provided a disclosure that an easement exists and the structure may need to be removed is placed on the building permit.

§ 187-66 Active recreation areas.

Kent County shall require the reservation of open space, recreation, and other public facilities as a condition of approval for all single-family, two-family, and multifamily dwelling residential developments requiring conditional use approval, site plan approval, or land subdivision approval by the Commission.

Purpose. The purpose of this section is to ensure that active recreation areas are provided as an integral design element within residential developments and that such facilities are of an adequate scale in relation to the size of the residential development and provide residents with a variety of active recreational pursuits. In general, the County encourages improved active open spaces to be provided within the established growth zone and cash in lieu of active recreation outside of the growth zone.

Dedication required. The Commission shall require the reservation of recreation areas, and the subsequent construction of recreation facilities by the applicant of a character, extent, and location suitable to the needs created by a development for recreation facilities as defined and in accordance with the design guidelines set forth.

Definition. The following are illustrative of the types of recreation areas and subsequent facilities that shall be deemed to serve active recreational needs and therefore to count toward satisfaction of the active recreation area requirements of this section:

Improved walking, jogging, or biking trails;

Swings, slides, and play apparatus;

Tennis, handball, racquetball, basketball, and volleyball courts;

Neighborhood/Community swimming pools;

Fitness and exercise rooms;

Meeting or activity rooms within clubhouses;

Baseball and soccer fields; and

Any combination of improved walking areas, gazebos, park benches, and greenway areas associated with stormwater management ponds designed to emulate natural features.

Design guidelines.

Accessible. Recreation areas shall be accessible within the development and arranged in a manner that affords reasonable access to all residents within the development. When warranted, recreation areas can be dispersed throughout the development, provided that each remote location is accessible.

Pedestrian oriented. Recreation areas shall be pedestrian-oriented and designed with linkages to existing and planned public walkways and with other existing or planned recreation areas.

Age-oriented. The nature and scope of planned recreation areas shall reflect an awareness of, and sensitivity toward, the anticipated age groups that would reside within the proposed development.

Parking. Designs shall consider the need for parking facilities associated with recreation areas.

Walking, jogging and biking trails. The developed portion of walking, jogging, and biking trails shall be the only area counted toward the area requirement.

Setbacks. No structure, equipment, or game court surface shall be located closer than 30 feet to any lot line of any lot to be used for residential purposes or nearer than 25 feet to any right-of-way line.

Landscaping. Where warranted, visual screening of parking areas, game courts, playground areas and other features as necessary to preserve and protect the interests of adjoining residential properties may be required.

Area. The minimum area of a remote recreation area shall be 2,000 square feet.

Recreation and open space area review.

At the required preliminary conference prior to the submission of the subdivision or land development plan, the applicant or agent shall meet with the Commission's staff to review the sketch plan and for the applicant or agent to receive early advice and consultation on the proposed development or subdivision and the proposed open space and recreation facilities, including size, type, and layout.

Upon receipt of the submitted subdivision or land development plan, the Commission's staff shall consult with the Kent County Department of Community Services.

Comments and recommendations regarding open space and recreation areas shall be included in the Commission's staff recommendation report provided to the Commission. With respect to recreation and open space, the report shall detail the recommendations as to the active recreation facilities to be recommended, including the location, parking areas, and proposed landscaping as well as the proposed open space.

Area required. All residential subdivisions and land developments within the growth zone shall provide recreational areas in a size equal to 300 square feet per dwelling unit or 1/2 acre of land, whichever is greater. All residential subdivision and land development outside of the growth zone shall provide recreational areas in a size equal to 600 square feet per dwelling unit or 1/2 acre of land, whichever is greater. In no case shall the Commission require that more than 10% of the gross area of the subdivision or land development be so dedicated or reserved when the gross area is greater than five acres.

Improvements required. All required active recreation improvements shown on preliminary subdivision and site plans as approved by the Commission shall be constructed and/or installed in accordance with § 187-72, Construction phasing, below.

Cash in lieu of recreation area.

[Amended 10-25-2005 by Ord. No. 05-12]

Determination of suitability for cash donation. Where the Community Services Committee of Levy Court determines that the construction of active recreation is not practical due to close proximity to existing available recreation facilities or infeasible due to natural characteristics of the land or will not benefit the residents of the development, the Commission shall require a full or partial cash in lieu of recreation area donation be made by the applicant.

Amount of cash donation. The total amount of cash-in-lieu of active recreation open space shall be equivalent to the appraised pre-improvement value of the land area required. The appraised pre-improvement value shall be based upon an appraisal of the subject property completed at the applicant's expense within six months prior to the date of request for consideration of cash in lieu of recreation area. If the County and/or the applicant do not agree on the land value estimate established by the appraisal, a new appraisal shall be performed by an independent third-party professional real estate appraiser at the applicant's expense. This appraisal shall be awarded on a competitive bid basis to a qualified, certified appraiser that submits the lowest bid. The County shall manage the bid process.

Park Service Fund. All cash in lieu of recreation area donations shall be deposited in the Kent County Park Service Fund to be used for the creation of new park and recreation areas, the expansion or improvement of existing park and recreation areas, or the acquisition of new park and recreation areas.

Payment of cash donations. One hundred percent of the cash donation shall be paid by the applicant to Kent County prior to the issuance of the first building permit for the development.

§ 187-67 Passive open space.

Purpose. The purpose of this section is to preserve areas of open space within residential subdivisions and land developments which are designed to provide buffer spaces between developing areas, to preserve and enhance existing natural and historic features, and to establish a network of open spaces within the built environment to provide a balance between developed and undeveloped lands, wildlife habitat conservation, the preservation of scenic view corridors, and to provide residents opportunities to engage in passive recreation activities.

Dedication required. The Commission shall require the dedication/reservation of open space for the purpose of buffering, landscaping, and preservation of natural features which add value to the residential development and to the surrounding community.

Definition. Open space shall include land or an area of water, or combination of land and water, within a development site designed and available for the use and enjoyment of residents of the development, not including, off-street parking, areas set aside for public facilities and rights-of-way, and areas to be preserved as wetlands or floodplains as required and any other lands unsuitable for development. The following are illustrative of the types of open space areas that may be deemed to serve buffering and preservation of natural features to count toward satisfaction of the passive open space requirements of this section:

Mature forests and groves;

Hedgerows;

Watercourses;

Riparian forest buffers;

Historic, cultural, or archeological landmarks and resources;

Landscaped buffers and berming designed to promote privacy;

Open landscaped areas suitable for being used and enjoyed for purposes of informal and unstructured recreation and relaxation;

Stormwater detention ponds when suitably designed to emulate natural features by incorporating irregular shapes, gradual slopes (no greater than 1:4) and appropriate landscape plantings, but excluding nonimprovement easement areas (such features must be depicted on the required landscape plan); and

(9)

Irreplaceable environmental assets with value that have been adequately documented.

Design guidelines.

Land areas shall be at least 20 feet in width.

Selective clearing of natural vegetation may be permitted to form trails and clearings within woodland areas in accordance the woodland preservation provisions below.

Open spaces shall attempt to be contiguous and designed with linkages to existing and planned public walkways and with other existing or planned recreation areas.

§ 187-68 Public parks, facilities and land reservations.

Within the growth zone, as identified by the Kent County Comprehensive Plan, the Commission may require that up to 15% maximum of the gross area in the development be so dedicated or reserved. The Commission may require that up to 35% of the gross area in the development be so dedicated or reserved in residential development outside of the growth zone.

Purpose. The purpose of this section is to afford the County the opportunity to reserve lands within developing areas which represent important and strategic locations for the distribution of essential public goods and services such as potential educational facilities, emergency services, and recreational facilities. The Kent County Community Services Department shall advise the Commission of any proposed subdivision or land development that includes lands proposed for use as public parks to be operated for the free use of a Recreation Service District by Kent County Community Services.

Public parkland, dedication optional. Where deemed essential by the Community Services Committee of Levy Court upon consideration of the type of development proposed in the subdivision or land development, and the community recreation needs of the general area of the subdivision or land development, the applicant may be required to dedicate the recreation area to Kent County for use as a public park to be operated by Kent County Community Services. In no case shall Kent County require that more than 5% of the gross area of the development be dedicated for the public facility.

If the County is to take ownership of the active recreation open space, title to open space so established shall be conveyed to the County by the applicant before any lots are sold in the subdivision or at such other time as the County may determine, but in any case not later than the time when 80% of the proposed lots have been conveyed to the future property owners. To assure that required open space is conveyed in a usable condition by the applicant, the Commission may require the applicant to file an agreement with the County stating in what physical condition the open space will be placed at the time of the conveyance.

Public facilities, dedication optional. Where public facilities are shown or proposed in the County Comprehensive plan, or in any other plan or study accepted by the Levy Court or other public body, and are located in whole or in part in a proposed subdivision or land development plan, the Commission may require the dedication or reservation of the area required in lieu of the requirements of § 187-66 above.

Temporary land reservation, optional. Any areas required by any other public bodies or any remaining areas beyond the 5% dedicated to the County under § 187-68B above may be set aside by the Commission for a period of one year to allow the proper authority the opportunity to purchase the area. Upon failure of the proper authorities to purchase such site within one year after the date of the final approval of the project, the applicant, upon application, shall be relieved of the responsibility of reserving such land for public purposes.

Definition. The following are illustrative of the types of public facilities that may be considered for reservation or dedication by this section:

Utilities;

Public buildings;

Public parks;

Public educational facilities

Public trails; and

§ 187-69 Preservation of historic buildings and properties.

Recreation facilities.

For subdivisions or land developments containing or adjacent to historic or cultural resources, the following design criteria shall apply:

Lots shall be designed to minimize adverse impacts of new construction on the historic resource;

Natural features such as trees and vegetation which contribute to the preservation of a historic resource or provide a buffer between the historic resource and new development shall be retained; and

§ 187-70 Ownership and maintenance of active recreation areas and passive open spaces.

Protective techniques such as limits of disturbance, building restriction lines, and buffers shall be used.

Any of the above design options may count toward satisfaction of the open space criteria in § 187-67 above.

[Amended 1-22-2013 by Ord. No. 13-01]

Purpose. The purpose of this section is to establish standards and requirements for the maintenance of open space and common areas and inspection thereof, a process for the transfer of open space and common areas from the developer to a homeowners' association, and a property tax exemption for active recreation areas and passive open spaces.

Definitions. As used in this section, the following terms shall have the meanings indicated:

ACTIVE RECREATION

Recreational uses, areas, and activities oriented toward potential competition and/or involving special equipment. Playgrounds, sports fields and courts, swimming pools, and golf courses are examples of active recreation uses.

COMMON FACILITIES

All improvements and construction, including but not limited to all recreation amenities, walkways, stormwater facilities, ponds, landscaping, and sanitary sewer and other utilities not owned by Kent County, within a subdivision or land development located on open space owned jointly among all property owners.

COMMON OPEN SPACE

Land area, owned jointly among all property owners within a subdivision or land development, to be left undeveloped as part of a natural resource preservation, recreation, bufferyards, or other open space provisions of this chapter. Open space excludes areas in lots, street rights-of-way, and parking.

HOMEOWNERS' ASSOCIATION

A body of persons legally responsible for the maintenance of private open spaces and/or common facilities; also known as "maintenance corporation."

MAINTENANCE ESCROW

A deposit or fund held in trust or as a security until specified conditions are met as described in this chapter and then transferred to a homeowners' association for the purpose of caring for common open spaces and facilities.

ON-LOT SERVICES

Routine maintenance or repair work such as landscaping, snow removal, or building upkeep performed on individual, privately owned lots or dwelling units. Such services and associated fees are separate from fees required for maintenance of commonly owned open spaces or facilities.

OPEN SPACE

Land area to be left undeveloped as part of a natural resource preservation, recreation, buffer yards, or other open space provisions of this chapter. Open space excludes areas in lots, street rights-of-way, and parking.

PASSIVE RECREATION/PASSIVE OPEN SPACE

Recreational uses, areas, or activities oriented to noncompetitive activities which either require no special equipment or are natural areas.

Ownership and maintenance required. There shall be provisions that insure that all active recreation and passive open space areas, and all other dedications and/or reservations of land not dedicated to Kent County, shall be owned and maintained by a responsible entity. These provisions shall be presented to Kent County for review and shall be in a form acceptable to Kent County. The applicant shall either:

Retain ownership and maintenance responsibility of all open space areas; or

Provide for and establish a legal entity such as a homeowners' association, community open space trust, or maintenance corporation for the purpose of ownership and maintenance of all active recreation and passive open space areas in the development in perpetuity. For the purposes of this chapter, the terms "homeowner association," "maintenance corporation," "maintenance organization," or any similar entity shall be considered equivalent.

Entities established for the maintenance of "on-lot" services to private, individual lots or dues collected for the maintenance of "on-lot" services are exempt from the requirements of this section.

Homeowners' association requirements. If the applicant proposes to establish a homeowners' association for purposes of ownership and maintenance of common open space, such association shall be governed by the following:

Membership mandatory. Membership in the organization shall be mandatory for all owners of properties within the development. The members of the organization shall share equitably (pro rata basis per unit) the costs of maintaining common open space and recreation areas in accordance with all applicable property maintenance codes of Kent County as adopted and amended from time to time, in accordance with all record plan notes, and in accordance with procedures established by the homeowners' association.

Responsibilities. The homeowners' association shall be responsible for maintenance, insurance, taxes, fees, and other burdens expenses customary to the ownership of real property for all active recreation and passive open space areas and all improvements and constructions thereon, including but not limited to rights-of-way not dedicated to a third party, all recreation amenities, walkways, stormwater facilities, ponds, landscaping, and sanitary sewer and other utilities not owned by Kent County.

Deed restrictions. Restrictive covenants shall be established that provide that in the event the homeowners' association fails to maintain the open space according to the standards of the Kent County Code and in accordance with the recorded or approved plan, the County may, following reasonable notice:

Demand that the deficiency of maintenance be corrected; or

Enter the open space area to maintain same. The cost of such maintenance shall be charged to the homeowners' association and/or individual homeowners in accordance with the provisions of § 187-70E(2) below.

If the developer collects monthly or annual dues from residents for maintenance of the active recreation and passive open space areas prior to exceeding conveyance of 25% of the lots or units within the development, the developer shall provide a process and opportunity for election of at least 25% of the seats on the board of directors to residents to be elected by the membership of the homeowners' association. Prior to exceeding conveyance of 50% of the lots or units within the development, the developer shall provide a process and opportunity for election of at least 33% of the seats on the board of directors to residents to be elected by the membership of the homeowners' association.

If the developer collects monthly or annual dues from residents while still holding a majority vote on the homeowners' association or maintenance organization, the developer shall provide a budget and financial statements related to operating the association annually to the residents. The documents shall be reviewed at an annual meeting hosted by the developer in a location convenient to the residents. A copy of the notification of the annual meeting shall be provided to the Department of Planning Services.

Third-party ownership of open space may be permitted upon approval by the Commission under such conditions as the Commission may deem appropriate.

Maintenance escrow. The developer shall place $300 per lot or unit within a subdivision or land development in an interest-bearing escrow account. All principal and interest that accrues in this account shall be turned over to the homeowners' association as set forth below.

A deposit of $300 shall be made to the escrow account with each initial real estate settlement and shall be verified prior to the issuance of building permits for construction of units beyond the initial 80% of the lots or units within the subdivision. The balance of the escrow account shall be reflected on the financial statement.

The developer must demonstrate that the funds have been placed in an independent escrow account separate from the operating fund of the developer.

The escrow funds shall not be withdrawn by the developer or any person acting on behalf of the developer.

At the time governance of the homeowners' association is transferred to the residents, the escrow collected to date plus any interest shall be transferred to the association.

The balance of the maintenance escrow collected after transfer of association governance to the residents shall be provided to the homeowners' association prior to final inspection of the subdivision or land development and/or release of any County-held surety bonds or letter of credit.

Inspection and approval process. These procedures shall be followed for inspections of active recreation and passive open space areas. Inspections and approvals may be made in phases if the record plan indicates a phased development sequence, or, alternatively, if a phased active recreation and passive open space sequence is indicated on the landscape plan.

One-hundred percent of the active recreation and passive open space areas shall be completed prior to issuing building permits for the final 20% of the dwelling units proposed or prior to such time as the developer transfers the maintenance responsibilities for the active recreation and passive open space areas to the homeowners' association, unless a written agreement is in place between the developer and the Department.

The developer shall contact the Department, in writing, requesting an inspection of the active recreation and passive open space areas.

Within 10 days of the receipt of the request, the Department shall coordinate an inspection of the active recreation and passive open space areas for conformance with this chapter. The Department will notify the developer, in writing, of any defects or noncompliant items found during the inspection and will specify a time period in which to correct them.

When all specified defects and noncompliant items have been corrected, the developer shall notify the Department, in writing, and the Department will coordinate a reinspection of the land. At the time the Department finds that the condition of the active recreation and passive open space areas conforms to all plan specifications and any requirements under this chapter, the developer shall be notified within 10 days, in writing, that the active recreation and passive open space areas have been approved.

Maintenance of open space and common facilities.

Maintenance by developer. The developer of a subdivision or land development shall maintain the active recreation and passive open space areas and any improvements thereon, including but not limited to mowing and general maintenance, until the following conditions are satisfied:

The active recreation and passive open space areas shown on the record plat, landscape plan, and/or related construction drawings have been constructed or installed according to the approved plans and approved as required by this chapter;

The active recreation and passive open space areas have been legally transferred to a homeowners' association according to the provisions of this chapter; and

If applicable, the developer has transferred majority control of the board of directors of the homeowners' association to the residents.

Developers are responsible for snow removal of vehicular travelways until those roads have been accepted into the DelDOT maintenance system pursuant to Delaware Code.

Maintenance by the homeowners' association. Once the above conditions are satisfied, active recreation and passive open space areas shall thereafter be maintained and kept in good order and repair by the homeowners' association.

Should a homeowners' association or maintenance corporation fail to maintain and repair the active recreation and passive open space areas and any improvements thereon as required herein, the County may, in addition to any other remedy provided in this chapter, enter upon the premises and perform such maintenance and repair, provided that at least 10 days' notice is given to the registered agent of the homeowners' association or maintenance organization. Notice shall also be provided to individual homeowners via regular mail.

The cost of the work performed by the County shall be billed to the homeowners' association or, at the election of the County, may be charged to the owners of the lots or units within the subdivision. In the latter case, the cost shall be apportioned against each lot or unit in accordance with the provisions of the instruments, if any, governing their rights of use of enjoyment, or, in the absence of any such provisions, the apportionment shall be by pro rata share per lot or unit.

If the billed amount is not paid by the homeowners' association or maintenance organization, the apportioned share for each lot shall become a lien against the lots or units within the subdivision in accordance with the provisions of § 175-2 of the Kent County Code.

After 30 days' notice to the owners, the assessment provided for herein may be collected by any available legal means.

Transfer of governance of homeowners' association. The Department shall serve as a resource for the developer and the homeowners to ensure the transfer of control is completed correctly.

Prior to transferring governance of the homeowners' association from the developer to the homeowners, the developer shall record a deed transferring ownership of all open space and common facilities from the developer or developer's limited liability corporation to the homeowners' association corporation.

Legal transfer of the active recreation and passive open space areas from the developer to the homeowners' association does not relieve the developer from completing all required improvements within the time frame established by this chapter or any other governmental agency.

Transfer of control of the homeowners' association or maintenance corporation shall occur once the subdivision is eighty-percent completed.

The developer shall provide at least 60 days' written notice to each homeowner of the developer's intent to transfer control of the board of directors to the homeowners. A copy of the notice and an affidavit from the author of the letter listing the names of the homeowners to whom notice was sent shall also be provided to the Department.

The developer shall supply the County with the names, addresses, and phone numbers of the homeowners serving on the board of directors.

Prior to transferring majority control of the homeowners' association or maintenance corporation and all of the associated active recreation and passive open space areas, the developer shall ensure that all expenses of the homeowner association have been paid.

Property tax exemption. Active recreation areas and passive open spaces shall be exempted from Kent County government and school district property taxes under the following conditions:

The exemption shall be limited to those parcels designated on approved and recorded subdivision plats, on property located anywhere in Kent County, and identified as 1) open space; 2) conservation area; 3) utility station; 4) private road; 5) recreation, either active or passive; 6) water management; or 7) parcels serving a similar civic purpose by providing benefits to all property owners equally within the subdivision.

The utilization of such parcels must be limited in perpetuity to the use designated on the plat, and no fee for access to, use of, or enjoyment of such parcels, other than dues payable by all property owners in the subdivision to a homeowners' association, may be charged to property owners in the subdivision.

Any parcel which accommodates a business of any kind, including but not limited to golf courses, marinas, spas, country clubs, stores, restaurants, etc., and any parcel intended to be sold or otherwise transferred to a private individual or entity (other than a property owners' association or third party approved by the Regional Planning Commission) are excluded from the exemption provided for herein.

§ 187-71 Exemption to recreation area and open space dedication/reservation.

Applicable active recreation areas and passive open spaces shall be exempted from property tax upon their inclusion in Kent County's mass appraisal and land management records by assignment of a zero taxable assessment by the Assessment Office.

Exemptions for small developments.

Residential subdivisions and land developments with less than five acres of land and less than 10 dwelling units shall be exempt from the land requirements set forth in §§ 187-66 and 187-67 above, but shall require a full cash donation to be made by the applicant in lieu of a dedication of land.

Residential subdivisions and land developments with less than five acres of land and between 10 and 20 dwelling units may be exempt from the one-half-acre minimum requirement for recreation areas, but may be required to provide a lesser amount as recommended by the Parks and Recreation Commission. The Commission shall require a full or partial dedication of land.

Phases or sections within developments that are commonly proposed for development shall not be considered as individual residential subdivisions or land developments qualified for exemptions under this section.

§ 187-74 Tree planting requirements in nonwoodlands.

The cash donation shall be equivalent to 10% of the preimprovement appraised value of gross land area. The process for appraisal as well as the appeal and payment process shall be the same as that described in § 187-66G above.

§ 187-72 Construction phasing.

The construction/improvement of open space areas shall be completed in a proportion equal to or greater than the proportion of residential dwelling units completed, except that 100% of the recreation areas shall be completed prior to issuing building permits for the final 20% of the dwelling units proposed, unless a written agreement is in place between the applicant and the Department. Building permits shall not be issued for dwelling units unless the requirements of this section are met.

§ 187-73 Woodland preservation.

Purpose. The purpose of this section is to establish standards and requirements for the protection and planting of trees and woodlands because it is recognized that woodlands and trees are not only desirable, but are also essential to the health, safety, and welfare of the population in that they provide oxygen, reduce carbon dioxide, stabilize soil, cleanse the air by transpiring clean water into the atmosphere, cleanse water passing into the ground through the root system, provide protection for wildlife and their habitats, provide shade, reduce noise and glare, increase property values, and provide an important physical, aesthetic, and psychological balance to the built environment.

Definitions. As used in this section, the following terms shall have the meanings indicated:

CALIPER DIMENSION

An outside diameter measurement of the trunk of a tree measured at a vertical distance of six inches above grade.

CLEARING

The removal of trees from an area of 5,000 square feet or greater, whether by cutting or other means. Clearing shall not include the removal of trees for landscaping purposes by individual lot owners.

DRIPLINE

A line on the ground established by a vertical plane extending from a tree's outermost branch tips to the ground; i.e., the line enclosing the area directly beneath the tree's crown from which rainfall would drip.

TREE

Any self-supporting woody perennial plant, usually having a mainstem or trunk and many branches and at maturity normally attaining a trunk diameter greater than three inches at any point and a height of over 10 feet.

TREE PROTECTION AREA

Any portion of a site wherein are located existing trees which are proposed to be retained in order to comply with the requirements of this section. The tree protection area shall include no less than the total area beneath the tree canopy as defined by the dripline of the tree or group of trees collectively.

WETLANDS

Those areas of lands which fall within the definition of "wetlands" currently used by the Army Corps of Engineers, or those adopted by the State of Delaware in accordance with the Army Corps of Engineers.

WOODLAND

An area of contiguous wooded vegetation of at least 10,000 square feet in area where trees exist at a density of at least one tree with a diameter at breast height of six inches or greater per 400 square feet of land and where the tree branches form a contiguous canopy. Active tree nurseries and orchards shall not be considered woodland for purposes of this chapter.

Applicability. The terms and provisions of this section shall apply to any activity on real property which requires conditional use, site plan, or subdivision approval of the Commission as set forth in this chapter and Chapter 205 (Zoning).

Inside the growth zone. Within the central portion of Kent County identified by the Kent County Comprehensive Plan as the growth zone, woodland areas shall be preserved in accordance with the Table XI-1 below:

Table XI-1 Woodland Preservation
Use	Density	Percentage of Existing Woodland Area to be Preserved^{^}
Residential	0 to 1.25 DU's/acre	60%^*
	1.25 to 2.5 DU's/acre	50%^*
	2.5 to 5 DU's/acre	40%^*
	5 to 10 DU's/acre	30%
	More than 10 DU's/acre	20%
Nonresidential	1 to 10 acres	20%
	10 to 25 acres	30%
	25 to 50 acres	40%
	More than 50 acres	50%
Notes: ^*Selective clearing may be used on up to 1/2 of the woodland area required to be preserved. This allows individual lots to be placed within protected woodlands. The balance of the area required for protection must be placed within common ownership. ^{^}Areas required to be cleared for street rights-of-way shall not be included in the calculation of woodlands to be preserved.

Outside of the growth zone. No more than 30% of a woodland area, tract or parcel may be cleared for any purposes outside of the designated growth zone.

Clearing prohibited without approval. Clearing, as defined by this section, for any purpose whatsoever, except the establishment of trails and pathways (not greater than eight feet in width) and open yard areas, shall be prohibited unless approved by the Regional Planning Commission through the site plan, conditional use, or subdivision review process.

Tree preservation in wetlands. No portions of wetlands areas shall be developed or cleared of vegetation unless granted permission under state and/or federal permit; they shall remain as essentially undisturbed areas.

Trees of special value. Trees having an historic value, as determined by the Commission's staff, State Historic Preservation Officer, or the Delaware Forestry Service, or that are of an outstanding nature due to type or species, age, or other professional criteria, may be required by the Commission to be preserved. Such trees may be prohibited from being removed by the Building Inspector until such time that the Commission has granted approval to remove such trees.

Forest corridors and linkages. In designing subdivisions and land developments, applicants are encouraged to minimize forest fragmentation and maintain and create, whenever possible, forested corridors to link other forested tracts.

Plan required. All developments in nonwoodland areas requiring approval of the Commission shall be required to submit with their application and plans a tree preservation and planting plan as set forth in § 187-76, and shall conform with the following provisions.

Tree planting standards. Existing trees may be preserved and new trees may be planted to achieve the minimum tree planting requirements of this chapter as specified below. For new tree plantings to be counted toward the tree planting requirement, new trees shall be of a species and minimum planting size as set forth in Appendix E (Table of Trees) of this chapter.[1]

[1]

Appendix E is included at the end of this chapter.

Inside the growth zone. For nonwoodland portions of development tracts, new trees shall be planted at a rate of one tree per 10,000 square feet of lot area for residential land development and one tree per 5,000 square feet of site area for nonresidential land development.

Outside the growth zone. For nonwoodland portions of development tracts, new trees shall be planted at a rate of one tree per 5,000 square feet of lot area for residential land development, and one tree per 3,000 square feet of site area for nonresidential land development.

Replacement guarantee. A one-year full-price replacement guarantee shall be provided by the applicant and noted on the record plan for all required new tree plantings.

§ 187-75 Tree mitigation.

Planning Commission waiver. The Commission may waive the provisions of §§ 187-73 and 187-74 above, and require replacement planting for mitigation purposes, should the Commission determine after demonstration by the applicant that due to physical limitations of the land which would otherwise prohibit the reasonable use of the land, or for purposes of preserving, protecting and promoting the interest of public health, safety, welfare and/or public convenience. Tree mitigation may occur off-site in accordance with the provisions listed below in this chapter.

If a waiver is sought from the tree planting requirement in nonwoodland areas, new tree plantings are required at a rate of 1:1 inside the growth zone and at a rate of 2:1 outside the growth zone. All new tree plantings shall meet the minimum size at planting requirements.

If a waiver is sought from the minimum woodland preservation area requirements, then mitigation must be in the form of newly created woodland areas. New woodlands shall be created at a rate of 1.25 times the amount of woodlands to be removed inside the growth zone and at a rate of 1.5 times outside the growth zone. A woodland mitigation plan shall be prepared by a licensed forester, landscape architect, or certified nursery professional for the consideration of the Commission.

All tree mitigation must occur on-site unless an off-site location is specifically approved by the Commission. When considering off-site locations for tree mitigation, the Commission shall consider:

A physical hardship related to the land which would otherwise prohibit compliance on the subject site;

Whether the mitigation plan proposed by the applicant is superior in terms of environmental benefits, tree quantity, or aesthetic qualities compared to strict compliance with the chapter on site.

Tree mitigation required for unauthorized clearing. In the event that trees or woodland areas to be preserved under this chapter or as a condition of a site plan, subdivision, or conditional use approval are illegally removed, tree mitigation shall be required. All tree mitigation plantings must be placed on the same lot, parcel, or tract on which the illegal clearing occurred, except as noted below. All replacement trees must be of the same or a similar variety as the trees illegally removed. Replacement with native species is encouraged.

If trees have been removed from nonwoodland areas, new tree plantings shall be provided in accordance with Table XI-2:

Table XI-2 Tree Mitigation
Diameter at Breast Height of Trees Removed (inches)	Number of Trees Required	Caliper Dimension at Planting (inches)
25 or larger	5	3
17 to 24	3	2
9 to 16	3	1.75
8 or less	2	1.75

If trees have been removed from woodland areas, then mitigation must be in the form of newly created woodland areas. New woodlands shall be created at a rate of 1.75 times the area of woodlands that were illegally removed. The woodland unlawfully removed must be replanted to satisfy a portion of this requirement. A woodland mitigation plan shall be prepared by a licensed forester, landscape architect, or certified nursery professional, for review and approval by the Director or designee.

If the applicant wishes to provide replacement plantings on any property other than the one on which illegal clearing occurred, the mitigation plan must be reviewed and approved by the Commission. When considering off-site locations for tree mitigation, the Commission shall consider:

A physical hardship related to the land which would otherwise prohibit compliance on the subject site;

§ 187-76 Tree preservation and planting plan requirements.

Whether the mitigation plan proposed by the applicant is superior in terms of environmental benefits, tree quantity, or aesthetic qualities compared to strict compliance with the chapter on site.

The Commission may require tree mitigation areas to be placed in permanent conservation through deed restrictions, conservation easements, or donation to land trusts.

Plan specifications. A tree preservation and planting plan or a preservation and selective clearing plan, prepared by or in conjunction with a design professional, including a licensed forester, landscape architect, or certified nursery professional, shall be shown on a copy of a preliminary plat, sketch, or site plan, as appropriate to the proposed development, drawn to the same scale and covering the same area as the other plan documents prepared for the Planning Commission hearing. The plan may be combined with a required buffer and landscape plan for the project, at the option of the applicant. The plan shall provide sufficient information and detail to clearly demonstrate that all applicable requirements and standards of this section will be fully satisfied. The plan shall contain but need not be limited to the following:

Project name, zone, parcel number, North arrow and scale.

Applicant's name, address and telephone number.

Name, address, and telephone number of the design professional responsible for the preparation of the plan.

Delineation of all lot lines, minimum yard areas, buffers, and landscape areas as required by the zoning ordinance.[1]

[1]

See Ch. 205, Zoning.

Total acreage of the site and total lot area for each lot delineated.

Delineation of all wetlands and woodlands.

Designation and delineation of all lots in nonwoodland areas, expected to retain existing trees to meet the tree density requirement.

Approximate location and description of the protective tree fencing, staking, or continuous ribbon to be installed which, at a minimum, shall follow the dripline of all trees to be retained along adjoining areas of clearing, grading, or other construction activity.

The location, spacing, caliper dimension, and species of new trees proposed to meet tree density requirements.

Measures to be taken to avoid sedimentation intrusions and erosion in tree protection areas, and the location of such devices.

A summary table of the number of new trees to be planted and minimum number of existing trees to be retained to meet the tree density requirement, if any, along with calculations showing that the tree density requirement has been achieved. Groupings of trees in the tree protection areas for new trees may be keyed to the summary table by area rather than having each tree individually labeled on the plan.

There shall be a note on the plan indicating that a one-year full-price replacement guarantee on all new trees planted is held by the applicant and an additional one-year guarantee on replacement plants. The applicant is expected to maintain plantings, including watering all plants any time from April to December when natural rainfall is less than one inch per week.

The applicant shall remove all stakes and guy wires from trees and site one year after planting.

§ 187-77 Wetland areas.

A wetlands investigation shall be performed by a qualified wetlands specialist at the expense of the applicant in preparation for any activity on real property, which requires conditional use, site plan or subdivision plan approval by the Regional Planning Commission as set forth in this chapter and Chapter 205 (Zoning).

The limits of all wetlands determined to be present on the subject property shall be flagged by the wetlands specialist and identified on the subject property by customary survey markers and shall be delineated on the plan. Wetlands areas shall be tabulated on the plan in acres.

No portions of wetlands areas shall be subdivided, filled, developed, or cleared of vegetation unless granted permission to fill and/or eliminate the wetlands area under state and/or federal permit, including nationwide permits authorized by the United States Army Corps of Engineers; they shall remain as essentially undisturbed natural areas.

No buildings, structures, impervious surface, fill, obstructions to drainage, or land disturbance shall be situated nearer than 25 feet to a delineated wetlands area. The placement of fill, regrading, or other obstructions to surface sheet flow, or the clearing or removal of natural vegetation within this setback area, shall be prohibited. For areas within this same twenty-five-foot building setback that are devoid of any natural vegetation, fencing, landscaping, and lawn areas shall be permitted. Notwithstanding all of the foregoing, limited cuts into the surface area of this twenty-five-foot setback area in conjunction with the placement of outfall stabilization facilities therein (such as stone rip-rap, turf stabilization, or other geosynthetic materials) may be permitted for the purpose of stabilizing and/or installing stormwater management outfalls, thus providing for a nonerosive flow condition at the outfall, provided that such encroachments into the twenty-five-foot setback area shall be limited to a maximum distance into the wetland buffer of 15 feet measured from the twenty-five-foot wetland buffer line, and shall be limited to a maximum width of 20 feet.

[Amended 3-28-2006 by Ord. No. 06-08]

§ 187-78 Water bodies, streams, and other watercourses; riparian buffers.

Lakes, ponds, rivers, and streams shall be left as permanent open space. No filling, piping or diverting of water bodies, lakes, ponds, or streams shall be permitted except for required roads, to be approved by the U.S. Army Corps of Engineers, DelDOT, and/or DNREC as appropriate.

No buildings, structures, or paved surfaces, except stairs and ramps, fences, open decks, patios or docks with a combined area of 200 square feet or less, shall be permitted to be constructed nearer than:

One hundred feet to the shoreline, as defined by the mean high-water line, of any tidal water body, tidal stream, or tidal marsh; or

One hundred feet to the shoreline, as defined by the mean high-water line of any nontidal freshwater water body, lake, pond, or blue-line stream as depicted on the most recent revision of the United States Geological Survey Topographic Quadrangle Maps; or

Fifty feet to the shoreline or top of bank, as defined by a greater than 50% change in slope in a distance of less than 10 feet, of any stream (non-blue-line), creek, or drainage ditch.

For projects located within a promulgated total maximum daily load (TMDL) basin, the property owner or applicant acting on his or her behalf shall be responsible for the preservation or reestablishment of riparian buffers in order to facilitate the reduction of nutrients and other pollutants to the level necessary to ensure compliance with TMDL load reductions. Existing riparian buffers shall either be preserved as provided above or planted to within 100 feet from the center line of the stream. The clearing or removal of natural vegetation within this setback area shall be prohibited.

§ 187-79 Buffer requirements.

Buffering of nonresidential uses other than agriculture. Visual and sound screening shall be provided on nonresidential use properties (other than agricultural uses) when abutting a residential use. Screening shall consist of an opaque barrier at least six feet in height accompanied by landscaping.

Opaque barrier options. The requirement for the opaque barrier may be met by choosing one of the following:

An opaque wooden fence.

A wall constructed of masonry materials, either stucco, brick, split-faced block, or decorative concrete.

An earthen berm (4:1 maximum side slopes).

Dense, durable and continuous evergreen tree planted screen of at least six feet in height at the time of planting and arranged to effectively achieve an opaque visual buffer.

(e)

Any combination of fencing, landscaping and/or berming that achieves a six-foot-high opaque barrier.

Buffering from agricultural uses.

Visual screening shall be provided on residential development properties when adjoining agricultural use properties. Such screening may consist of:

Dense, durable, and continuous evergreen tree planted screen of at least six feet in height at the time of planting and arranged to effectively achieve an opaque visual buffer;

A combination earthen berm (4:1 maximum side slopes) and continuous evergreen tree plantings to achieve an effective height of six feet at the time of planting; or

Any combination of fencing, landscaping, and/or berming that achieves a six-foot-high opaque barrier.

Agricultural use protections. Normal agricultural uses and activities conducted in a lawful manner are preferred and priority uses and activities in the Agricultural Conservation (AC) and Agricultural Residential (AR) Zoning Districts outside of the growth zone and in all state-authorized Agricultural Preservation Districts. In order to establish and maintain a preference and priority for such normal agricultural uses and activities and avert and negate complaints arising from normal noise, dust, manure and other odors, the use of agricultural chemical and nighttime farm operations, land use within the AC and AR Zoning Districts and adjacent to Agricultural Preservation Districts shall be subject to the following:

For any new subdivision or land development located in whole or in part within the AC or AR Zoning Districts outside of the growth zone or within 300 feet of the boundary of an Agricultural Preservation District, the owner of the subdivision or land development shall provide as a note on the plan and in the deed restrictions and any leases or agreements of sale for any residential lot or dwelling unit the following notice: "This property is located in the AC or AR Zoning District outside of the Growth Zone or in the vicinity of any established Agricultural Preservation District in which normal agricultural uses and activities have been afforded the highest priority use status. It can be anticipated that such agricultural uses and activities may now or in the future involve noise, dust, manure and other odors, the use of agricultural chemicals, and nighttime farm operations. The use and enjoyment of this property is expressly conditioned on acceptance of any annoyance or inconvenience which may result from such normal agricultural uses and activities."

For any new subdivision or land development located in whole or in part within 50 feet of the boundary of an Agricultural Preservation District, no improvement requiring a certificate of occupancy shall be constructed within 50 feet of the boundary of the Agricultural Preservation District.

§ 187-79.1 Wellhead protection buffers.

Normal agricultural uses and activities conducted in accordance with good husbandry and best management practices in the AC and AR Zoning Districts outside of the growth zone and adjacent to all Agricultural Preservation Districts shall be deemed protected actions and not subject to any claim or complaint of nuisance, including any such claims under any existing or future County code or ordinance. In the event a formal complaint alleging nuisance related to normal agricultural uses and activities is filed against an owner of lands located within the AC or AR Zoning Districts or within an Agricultural Preservation Districts, such owner, upon prevailing in any such action, shall be entitled to recover reasonably incurred costs and expenses related to the defense of any such action, including reasonable attorney's fees.

Parking lots. Whenever a parking lot is located across the street from a residential use, it shall be edged with low-profile evergreen hedge planting located along a line drawn parallel to the street and a distance of 20 feet therefrom, such hedge to be interrupted only at points of ingress and egress. The open area between such hedge and the street shall be landscaped in harmony with the landscaping prevailing on neighboring properties fronting on the same street.

Buffers along arterial streets. Where development proposals front on an arterial street, a landscape buffer shall be required along the arterial road frontage. These buffer areas shall be a minimum of 30 feet in depth, measured from the right-of-way line of the arterial street, and shall, at the time of development of the property, be planted with a variety of trees, shrubs and ground cover so as to create a distinctive and consistent visual character of the arterial street. The landscape design and planting plan for these arterial street buffer areas shall be subject to the approval of the Planning Commission as an integral part of the site development plan. When it can be demonstrated to the satisfaction of the Commission through the plan review process that, due to specific constraints related to existing lot size, lot configuration or the orientation of existing buildings on adjoining properties, compliance with this section would severely limit the development potential of the property or would cause the property to be out of character with the surrounding built environment, the Commission may approve a lesser amount of buffering, provided that the basic objective of establishing landscaped green space along arterial roadways is achieved.

Required landscape buffers shall be prepared by or in conjunction with a design professional, including a licensed forester, landscape architect, or certified nursery professional, and shall be shown on a copy of a preliminary plat, sketch, or site plan, as appropriate to the proposed development, drawn to the same scale and covering the same area as the other plan documents prepared for the Planning Commission hearing.

All required landscape buffers shall be planted prior to issuance of 50% by bonded phase of the certificates of occupancy and maintained by the applicant until all of the certificates of occupancy have been issued; provided, however, that no required landscape planting should be conducted between May 15 and September 1.

[Added 1-25-2011 by Ord. No. 11-04]

No buildings, structures, or paved surfaces shall be permitted to be constructed nearer than 150 feet to a public drinking water supply well, except that buildings and access associated with the well and related fencing, treatment, water storage, and distribution facilities shall be permitted.

The natural runoff flowing into and through the one-hundred-fifty-foot wellhead buffer shall be allowed, and all new stormwater runoff shall be diverted around the buffer.

Between 150 and 300 feet from a public drinking water supply well, stormwater from new development shall be treated using water quality best management practices in accordance with current requirements of the Delaware Sediment and Stormwater Regulations dated October 11, 2006, or as later revised.

A public drinking water supply well is any well from which the water is used to serve a community water system by Section 22.146 (Public Water Systems) in the Delaware State Regulations Governing Public Drinking Water Systems.

Maps prepared by the Delaware Department of Natural Resources and Environmental Control delineating applicable wells in accordance with 7 Del. C. § 6082(b) and 9 Del. C. § 4956(g)(4), and which may be updated from time to time in accordance with 7 Del. C. § 6082(e) and (f), are available in the office of the Department of Planning Services.

The following are exempt from these buffer standards:

Private residential wells serving individual households;

Wells used for agricultural purposes;

The replacement of any existing public water supply well that was not required to meet the wellhead protection requirement at the date of its original installation and has failed shall be exempt from meeting this wellhead protection requirement, provided that the replacement well is drilled at a distance not to exceed 10 feet from the original well;

Minor subdivisions;

Recorded subdivisions;

Revisions to recorded subdivision plans that do not result in the creation of additional lots;

Minor changes or alterations to approved site plans in accordance with § 187-42 of this Code;

Improvements to existing residential lots, including additions to existing one-family dwellings, the placement of sheds, and fences;

(9)

Subdivision and land development projects, conditional use site plans, and site plans for which a preapplication has been conducted and conditional use site plans for water supply in an existing recorded subdivision; and

(10)

Any nonmotorized recreational facilities, including but not limited to pavilions, walking trails, playgrounds, etc.

§ 187-79.2 Excellent recharge areas.

[Added 6-25-2019 by Ord. No. 19-09]

Purpose and intent. The purpose of this section is to ensure that land use activities are conducted in such a way as to minimize the impact on and reduce the risk of contamination to excellent groundwater recharge areas which are the source for public drinking water in Kent County. These standards apply only to areas that lie within an excellent groundwater recharge area. This section is intended to satisfy the requirements of the Delaware Source Water Protection Law 2001 as codified in 7 Del. Laws, c. 60, Subchapter VI, Source Water Protection, § 6082(b) and (f), and apply only to projects located within identified Excellent Recharge Areas.

Excellent groundwater recharge area maps.

Maps prepared and provided by the Department of Natural Resources and Environmental Control (DNREC) delineating excellent groundwater recharge potential areas in Kent County are hereby referenced in accordance with 7 Del. Laws, c. 60, §§ 6082(b) and 6083.

The Department of Natural Resources and Environmental Control periodically shall provide the Kent County Department of Planning Services and Kent County Levy Court with updated Excellent Recharge Area Maps which shall be referenced by this chapter and shall be made available to the public upon request and posted on the County website.

When there appears to be a conflict between the mapped boundary and actual site conditions, the applicant may engage the services of a professional geologist to prepare a report intended to determine more accurately the precise boundary of the Source Water Protection Area. The report shall include:

A detailed topographic layout of the subdivision and/or area to be developed and prepared by a state-registered professional land surveyor or professional geologist.

Evidence derived from a site-specific investigation that may include aquifer testing, test borings, test pits, observation wells, groundwater elevations, and topography surveys as appropriate for the type of source water protection area that clearly demonstrates that the area in question does not meet the definition of a "source water protection area" as defined.

Any challenges to the delineations of the good or excellent groundwater recharge potential areas must follow the methods used in the Delaware Geological Survey publication: Report of Investigations No. 66, Ground-Water Recharge Potential Mapping in Kent and Sussex Counties, Delaware. The challenge must be approved by DGS and DNREC SWAPP.

Notwithstanding any other section of this chapter, if an owner initiates a precise boundary delineation pursuant to this section, any and all time review limitations shall be stayed pending the submission of the complete report contemplated by this section. Following submission of the report and all supporting documents, DNREC shall have 60 days to finally approve or disapprove the exploratory sketch plan submission or such further time as deemed necessary by DNREC, but not to exceed an additional 60 days.

ABOVEGROUND STORAGE TANK (AST)

The excellent groundwater recharge must be shown on all subdivision plans and all land development plans whether reviewed administratively or by the Regional Planning Commission and Levy Court.

Definitions. As used in this section, the following terms shall have the meanings indicated:

A single containment vessel greater than 250 gallons as defined in the Delaware Regulations Governing Aboveground Storage Tanks. ASTs with a storage capacity greater than 12,499 gallons containing petroleum or hazardous substances and ASTs with a storage capacity greater than 39,999 gallons containing diesels, heating fuel or kerosene are subject to the design, construction, operations, and maintenance requirements of the Delaware AST regulations.

BEST MANAGEMENT PRACTICES

Structural, nonstructural and managerial techniques that are recognized to be the most effective and practical means to control nonpoint source pollutants yet are compatible with the productive use of the resource to which they are applied. Such techniques can include applying the principles of filtration, infiltration and storage most often associated with natural vegetation and undisturbed soils while minimizing a reliance on structural components. They may also be constructed using an imported soil medium and planted with vegetation designed to promote the natural hydrologic process. These practices include, but are not limited to, vegetative filtration, riparian buffer plantings, bioretention areas, vegetative flow conveyance, as well as recharge and surface storage in undisturbed natural areas. These are used in both urban and agricultural areas.

CONTAMINATION

Any physical, chemical, biological, or radiological substance that enters the hydrologic cycle through human action and may cause a deleterious effect on groundwater resources.

ENVIRONMENTAL ASSESSMENT REPORT

Documents that post-development recharge will be no less than predevelopment recharge for both water quality and quantity when computed on an annual basis. The environmental assessment report at a minimum needs to include the following elements:

Site description of proposed development within the water resource protection area.

Climatic water balance comparing predevelopment and post-development recharge potential for both water quantity and quality.

Subsurface exploration, including borings, test pits, and infiltration tests.

Design of groundwater recharge facilities that assure water quality as well as water quantity.

Construction and maintenance considerations.

Recommended groundwater monitoring plan.

EXCELLENT GROUNDWATER RECHARGE AREAS

Water management agreement between the applicant and the County providing for monitoring and maintenance of the recharge system. The applicant will abide by the groundwater management agreement as written in the DNREC Supplement to the Source Water Protection Guidance Manual for the Local Governments of Delaware: Ground-Water Recharge Design Methodology, dated May 2005, or as later revised.

Those areas with a high percentage of sand and gravel that have excellent potential for recharge as determined through a stack unit mapping analysis delineated by the Delaware Geological Survey and presented in the Report of Investigations No. 66, Ground-Water Recharge Potential Mapping in Kent and Sussex Counties, Delaware, Geological Survey, 2004. Excellent Groundwater Recharge Areas are delineated on the Excellent Groundwater Recharge Area Maps described in Subsection B(1) of this section.

GROUNDWATER

The water contained in interconnected pores located below the water table in an unconfined aquifer or located in a confined aquifer.

HAZARDOUS WASTE

A solid waste or combination of solid wastes which because of its quantity, concentration, or physical, chemical, or infectious characteristics may cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating, irreversible illness, or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. Without limitation, included within this definition are those hazardous wastes described in Sections 261.31, 261.32, and 261.33 of the Delaware Regulations Governing Hazardous Waste.

IMPERVIOUS COVER

The sum of parking lots, roads, buildings, sidewalks, or other created surfaces through which rainwater cannot pass or infiltrate the soil. Materials such as permeable pavers, permeable concrete or asphalt, and permeable plastic grid systems, shall not be considered impervious.

INFILTRATION

The passage or movement of water through the soil profile.

LAND-DISTURBING ACTIVITY

A land change or construction activity for residential, commercial, industrial, and institutional land development which may result in soil erosion from water or wind, or the movement of sediments or pollutants into state waters or onto lands in the state; or which may result in accelerated stormwater runoff, including, but not limited to, clearing, grading, excavating, transporting and filling of land.

LEADERSHIP IN ENERGY AND ENVIRONMENTAL DESIGN (LEED)

A rating system developed and administered by the U.S. Green Building Council based in Washington, DC. It is designed to promote design and construction practices that increase profitability while reducing the negative environmental impacts of buildings and improving occupant health and well-being. The LEED rating system offers four certification levels for new construction which includes Certified, Silver, Gold and Platinum, corresponds to the number of credits accrued in five green design categories: sustainable sites, water efficiency, energy and atmosphere, materials and resources and indoor environmental quality. LEED standards cover new commercial construction and major renovation projects, interior projects and existing building operations.

ON-SITE WASTEWATER TREATMENT AND DISPOSAL SYSTEM

Conventional or alternative wastewater treatment and disposal systems 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.

RUNOFF

That portion of precipitation or snow melt that has not evaporated or infiltrated into the soil, but flows on land or impervious surfaces.

SANITARY LANDFILL

A land site at which solid waste is deposited on or into the land as fill for the purpose of permanent disposal, except that it will not include any facility that has been approved for the disposal of hazardous waste under the Delaware Regulations Governing Hazardous Waste.

SOURCE WATER PROTECTION OVERLAY ZONE

Wellhead Protection Areas and Excellent Ground Water Recharge Areas.

STORMWATER

The runoff of water from the surface of the land resulting from precipitation or snow or ice melt.

STORMWATER MANAGEMENT

For water quantity control, a system of vegetative, structural, and other measures that may control the volume and rate of stormwater runoff, which may be caused by land-disturbing activities or activities upon the land; and

UNDERGROUND STORAGE TANK (UST)

For water quality control, a system of vegetative, structural, and other measures that control adverse effects on water quality that may be caused by land-disturbing activities upon the land.

One or a combination of tanks including underground pipes, the volume of which is 10% or more below ground, as defined in the Delaware Regulations Governing Underground Storage Tank Systems, dated March 12, 1995. The following USTs are not subject to the design, construction, operation, and maintenance requirements of the Delaware UST Regulations: residential heating fuel, agricultural, and residential motor fuel USTs less than 1,100 gallons, and any UST less than 110 gallons.

WATER QUALITY

Those characteristics of stormwater runoff from an impervious surface or a land-disturbing activity that relate to the chemical, physical, biological, or radiological integrity of water.

WATER QUANTITY

Those characteristics of stormwater runoff that relate to the volume of stormwater runoff to downstream-gradient areas resulting from land-disturbing activities.

Those characteristics of stormwater that relate to the volume of stormwater that infiltrates the land surface and enters the underlying aquifer.

New development design criteria.

New development that does not exceed 20% impervious coverage in Excellent Recharge Areas shall be considered in compliance with these regulations.

New development in Excellent Recharge Areas may exceed the gross impervious cover threshold of 20% up to the maximum impervious cover permitted by Chapter 205, Zoning, provided that stormwater up to and including the two-year frequency storm event is:

Treated according to best management practices; and

Directed to recharge BMPs utilizing infiltration or surface water recharge, not to include extended detention, and designed per the most recently enacted Delaware Sediment and Stormwater Regulations; or

The project is LEED-certified (Leadership in Energy and Environmental Design) in the sustainable sites category; or

The applicant demonstrates through an environmental assessment report prepared by a registered professional geologist or registered professional engineer familiar with the hydrogeologic characteristics of Kent County using a climatic water budget that the post-development recharge quantity will meet or exceed the predevelopment recharge quantity. The environmental assessment report shall be submitted to DNREC for review and comment prior to plan approval.

For all new construction within an Excellent Recharge Area, all structures except for residential dwellings shall be required to discharge roof drains into recharge facilities designed per the most recent Delaware Sediment and Stormwater Regulations. No discharge by roof drains to impervious surfaces, except for residential dwellings, is permitted in excellent groundwater recharge areas.

Redevelopment design criteria.

Redevelopment resulting in impervious cover of 20% or less within the Excellent Recharge Area shall be considered in compliance with these regulations.

Redevelopment resulting in impervious cover of more than 20% but also resulting in a reduction of impervious cover of 5% within the Excellent Recharge Area shall be considered in compliance with these regulations. A reduction of less than 5% is permitted if it results in impervious cover of 20% within the Excellent Recharge Area.

Redevelopment resulting in impervious cover of more than 20% and resulting in an increase of impervious surface within the Excellent Recharge Area shall meet the requirements of Subsection D(2) of these regulations.

When increased impervious cover is proposed within an Excellent Recharge Area, the site must provide stormwater management for the increased runoff.

Special environmental considerations. On sites where infiltration would be contrary to a clean-up agreement or other conditions imposed by the Department of Natural Resources and Environmental Control or the U.S. Environmental Protection Agency, the impervious surface limitation of this section shall not apply to the affected areas. Such sites shall be certified by the Department of Planning Services as part of the development review process.

This section does not apply to vacant or abandoned property. These properties must comply with Subsection D above.

Nonconforming uses. Nonconforming uses may continue in excellent groundwater recharge potential areas in the form in which they existed at the time of the adoption of this section, unless they pose a direct hazard to the County's water upon advice from the Delaware Division of Public Health, or are causing some foreign substances (oil, salts, chemicals, or other substances) to be introduced into the water supply, as determined by DNREC's Division of Air and Waste Management and/or Division of Water Resources. In the latter case, the Building Department shall issue a mandatory cease-and-desist to stop the offending activity within the area. Nonconforming existing underground or above-ground storage of oil, petroleum, and petroleum products shall require secondary containment pursuant to the State of Delaware regulations governing underground storage tanks or for above-ground storage of petroleum products, secondary containment facilities capable of capturing the material stored on the site, for existing facilities that are proposed either to be upgraded or replaced.

Exemptions. The following are exempt from these standards:

Minor subdivisions;

Recorded major subdivisions;

Revisions to recorded subdivision plans that do not result in the creation of additional lots;

Minor changes or alterations to approved site plans in accordance with § 187-42 of this Code;

Improvements to existing residential lots, including additions to existing one-family dwellings, the placement of sheds, and fences; and