[Added 8-24-2004 by Ord. No. 04-17[1]]
[1]
This ordinance also provided that it shall
be reviewed by the Levy Court two years from the effective date to
evaluate its success and whether the results of implementation are
consistent with its stated purpose and intent.
A.
Purpose and intent. This section is intended to promote
more efficient utilization of land resources in Kent County through
the creation of a transfer of development rights option available
to land owners. The transfer of development rights option enables
owners of certain land located outside the designated Growth Zone
Overlay to sell the rights to develop their land to buyers for utilization
within designated growth areas. This option was conceived in response
to increasing pressure to develop rural agricultural areas outside
the designated Growth Zone Overlay where essential infrastructure
and support services necessary to sustain suburban and urban land
uses do not exist and are not planned. This section endeavors to achieve
handsome, well-designed, and efficient communities inside the Growth
Zone Overlay while preserving, protecting, and enhancing precious
agricultural lands and rural and natural landscapes from encroachment
by sprawl development that threatens the unique character and quality
of life that Kent County citizens enjoy and expect. The purpose of
this section is further described as follows:
(1)
Enable the reasonable transfer and use of development
rights among willing sellers and willing buyers within a priority
framework of lands most valuable for preservation and lands best suited
for development;
(2)
Provide for farmland, open space, natural resource
preservation, and public facility enhancement through the transfer
of development rights that permits an increased density on a receiving
parcel in exchange for preservation of a sending parcel;
(3)
Provide close proximity between employment,
housing, education, shopping, public facilities, and open space thereby
reducing total vehicle miles traveled (VMT's) and improving air quality
by providing housing and employment opportunities within reach of
each other;
(4)
Provide mixed use, integrated housing types
for a variety of all lifestyles and income levels;
(5)
Provide transit oriented, pedestrian friendly
communities with parks, greenways, mixed uses, and interconnectivity
thereby reinforcing community character;
(6)
Provide adequate and efficient density to support
infrastructure investment within certain areas of the Growth Zone
Overlay;
(7)
To further discourage sprawling suburban development
into rural areas; and
(8)
Ensure that development rights may be transferred
to properties that are in areas or districts that have adequate support
facilities, including, but not limited to, transportation, water,
sewer, education, employment, recreation, and commercial services
to accommodate additional development.
B.
DEVELOPMENT RIGHTS
NEIGHBORHOOD SHOPPING CENTER
RECEIVING AREA
RECEIVING PARCEL
SENDING AREA
SENDING PARCEL
TRANSFER OF DEVELOPMENT RIGHTS
Definitions. As used in this section, the following
terms shall have the meanings indicated:
A retail complex of three or more retail establishments designed,
developed, and operated with accessory off-street parking located
on the premises to serve jointly all establishments in the complex,
and offering goods and services to primarily meet the everyday needs
of residents of the immediate vicinity.
One or more designated districts within which the development
rights from sending districts may be transferred into for use within
development projects.
A parcel of land in a receiving area that is the recipient
of transferred development rights from a parcel located in a sending
area for the purpose of development with an increase in the number
of dwelling units equivalent to the number of transferred development
rights in addition to the number of dwelling units that would otherwise
be permitted on the parcel.
One or more districts in which the development rights of
parcels in the district may be transferred from for use in one or
more receiving districts.
A parcel of land in a sending area from which development
rights are being transferred for use on a parcel within a designated
receiving area, and upon which a legally binding and irrevocable preservation
easement has been placed and recorded that would prohibit the future
development of such parcel to the degree commensurate with and equivalent
to the number of development credits that have been transferred from
the parcel.
The procedure prescribed by this section whereby the owner
of a parcel in the sending area may convey development rights in perpetuity
to the owner of a parcel in the receiving area, whereby the development
rights so conveyed are extinguished in perpetuity on the sending parcel
and may be exercised on the receiving parcel in addition to the development
rights already existing regarding the parcel.
C.
General provisions.
(1)
A system of transferable development rights credit for properties situated within designated sending area is established in Subsection D, Sending areas, below.
(2)
A system of limitations on the quantity of development rights credits that may be imported into designated receiving areas is established in Subsection E, Receiving areas, below.
(3)
The designation, tabulation, tracking, recordkeeping,
management and transfer of development rights shall be under the direction
of the Kent County Department of Planning Services in accordance with
the provisions of this section, and procedures established by the
Department of Planning Services.
(4)
All sending parcels shall be encumbered in perpetuity
by an irrevocable preservation easement prepared by, and at the expense
of the buyer, the seller, or both, of the development rights. Such
preservation easement shall be recorded and become a codicil to the
property deed of the sending parcel, and shall have the effect of
limiting in perpetuity the future construction of dwellings on the
sending parcel to a maximum number equivalent to the total number
of dwelling units permitted by right in the Zoning District in which
the sending property resides for the entire sending parcel, minus
the total dwelling unit credits transferred from the parcel.
D.
Sending areas.
(1)
All areas outside of the Growth Zone Overlay
as adopted by the Levy Court shall be considered sending areas.
(2)
Parcels located within the Growth Zone Overlay
and not situated within a designated receiving area may be designated
by the Levy Court as a sending parcel. Such designation shall be initiated
by the property owner. Petitions shall include the following:
(a)
An evaluation of the degree to which the subject parcel reflects the specific physical attributes of sending areas as articulated in Subsection D(3);
(b)
The transfer credit value proposed in accordance with the sending area value system set forth in Subsection D(4);
(c)
Any additional information determined to be
necessary by the Department of Planning Services; and
(d)
Such petitions shall be subject to public hearing
before the Regional Planning Commission and the Levy Court. The Regional
Planning Commission shall formulate a recommendation to the Levy Court
who shall make the final determination.
(3)
Sending area prioritization. Lands outside the
Growth Zone Overlay have been categorized into three levels of priority
for transfer of development rights based upon the degree to which
certain physical attributes and criteria are concentrated. These areas
shall be known as the "primary, secondary, and tertiary sending areas."
The three sending areas are identified and delineated on the TDR Sending
Areas Map which is referenced as Attachment A.[1] The physical attributes and criteria upon which the priority
sending areas have been determined include:
(a)
Land evaluation and site assessment (LESA) scores
in the very high range;
(b)
Proximity to existing preserved lands (preservation
lands owned by state and federal governments; lands for which development
rights have previously been purchased through the Delaware Agricultural
Lands Preservation Program);
(c)
Existence of historic resources;
(d)
Designation as a state resource protection area;
(e)
Designation as an excellent water recharge area;
and
(f)
Lands adjoining east side of State Route 1.
[1]
Editor's Note: Attachment A is on file in
the County offices.
(4)
Sending area value. Each of the three priority
sending areas is assigned a value of transferable development rights
credit per acre that may be transferred for utilization within a designated
receiving area. Transfer credits are as follows:
(5)
Net developable acreage. Lands that shall not be subdivided according to Chapter 187, Subdivision and Land Development, of the Kent County Code, such as ponds, floodplain, and wetlands, shall not be included in the calculation of transferable development rights. In order to determine the net developable acreage for the site, the National Wetland Inventory Maps and the FEMA Flood Insurance Rate Maps may be used to estimate the acreage dedicated to wetlands and floodplain. The Department of Planning Services shall provide such estimates. In lieu of utilizing map data from the National Wetland Inventory Map and the FEMA Flood Insurance Rate Map, the applicant may, at his or her expense, have field analyses performed and certified by the United States Army Corps of Engineers in the case of wetland delineations, and FEMA in the case of floodplain delineations and base flood elevation determination, for purposes of determination of net developable acreage.
(6)
Sending parcels may convey some or all of their total available transfer credits as verified by the Department of Planning Services in accordance with Subsection F below.
(7)
Lands for which the State of Delaware, or any
other entity, such as the federal government, a nature conservancy,
or any other nongovernmental agency, has purchased or otherwise secured
the development rights, either through fee simple acquisition, condemnation,
eminent domain, deed restriction, easement or any other legal means
for the expressed purpose of preventing the development of such lands,
shall be ineligible for participation in the Kent County Transfer
of Development Rights Program. Examples of such lands include any
state or federal owned property and lands on which agricultural preservation
easements have been purchased.
(8)
Property owners who have transferred development
rights from their land forfeit the ability to use the land for any
purpose or use other than those permitted by right in the underlying
zoning district; except that such property shall not be subdivided
for residential development. Properties from which a specific quantity
of development rights has been transferred shall have forfeited, in
perpetuity, the right to subdivide or develop that specific quantity
of development units on the sending parcel.
E.
Receiving areas.
(1)
Specific areas inside the Growth Zone Overlay
have been designated as receiving areas for transferred development
rights.
(2)
Receiving area prioritization. Two categories
of receiving areas have been identified within the designated Growth
Zone Overlay for transfer of development rights based upon the degree
to which certain physical attributes and criteria are concentrated.
These areas shall be known as the "primary and secondary receiving
areas." The two receiving areas are identified and delineated on the
TDR Receiving Areas Map which is referenced as Attachment B.[2] The physical attributes and criteria upon which the priority
receiving areas have been determined include:
(a)
Location within the Growth Zone Overlay;
(b)
Sanitary sewer availability;
(c)
Central water availability;
(d)
Proximity to primary transportation and transit
routes;
(e)
Proximity to goods and services; and
(f)
Adjacency to municipalities (inside the established
Growth Zone Overlay).
[2]
Editor's Note: Attachment B is on file in
the County offices.
(3)
Municipal receiving areas. Areas within municipal boundaries may also be considered for designation as receiving areas if a municipality chooses to participate in the Kent County Transfer of Development Rights Program. The participation of municipalities may be arranged through memorandum of understanding between the municipality and the Kent County Levy Court. Participating jurisdictions shall be responsible for designating specific receiving parcels within their jurisdiction and for establishing design criteria and approval processes in substantial conformance with the County's criteria for development projects utilizing transferred development credits as specified in Subsections G, H, I, and J below.
F.
Transfer credit calculation.
(1)
County approval of development transfer credit
calculations. Total development credits available for transfer from
any given parcel shall be verified and approved by the Kent County
Department of Planning Services in a form acceptable to Kent County.
Requests for verification and approval of development credit calculations
shall be submitted to the Department of Planning Services for consideration
on application forms prepared by Kent County. Such application forms
shall be signed by the owner or owners of record of the subject property.
(2)
Application for development credit calculation.
Applications for verification and approval of development credit calculations
shall include the following minimum submission requirements:
(3)
Certification of transfer credits. Upon verification
and approval of the total development credits available for transfer
from a given sending parcel, the Department of Planning Services shall
issue to the owner of record of such parcel, a certificate of transfer
credits. The certificate of transfer credits document shall indicate
the Tax Map identification number for the subject parcel, the name
and address of the owner of record of the subject parcel, the absolute
number of development credits available for transfer from the subject
parcel, and a unique serial number of certification for the document.
The certificate of transfer credits shall be the official statement
of transfer credits per parcel for purposes of this section.
(4)
List of certified transfer credits. Approved
development credit calculation forms will be kept on file by the Department
and available for public review.
(5)
Preparation of irrevocable preservation easement.
Prior to the issuance of verification and approval of a transfer credit
calculation, the applicant shall cause to be prepared an irrevocable
preservation easement for the purpose of establishing a perpetual
restriction upon the sending area property from which development
credits are being sold or transferred. The irrevocable preservation
easement shall be prepared by, and at the expense of the buyer, the
seller, or both, of the development rights, and shall be subject to
review and approval of the Department of Planning Services.
(6)
Recordation of irrevocable preservation easement.
Such preservation easement shall be recorded in the Office of the
Recorder of Deeds for Kent County at the time of sale of any development
credits, and shall become a permanent, perpetual preservation easement
on the deed of the sending property. No such preservation easement
shall be recorded without the signature of the Director of Planning
Services or designee.
G.
Housing composition.
(1)
SINGLE-FAMILY ATTACHED DWELLING
SINGLE-FAMILY DETACHED DWELLING
SINGLE-FAMILY SEMIDETACHED DWELLING
MULTIFAMILY DWELLING
MULTIPLEX
Definitions. As used in this subsection, the
following terms shall have the meanings indicated:
A one-family dwelling attached to two or more one-family
dwellings by common vertical walls. No more than six dwelling units
shall be in an attached group.
A dwelling unit not attached to any other dwelling by any
means and is surrounded by open space or yards.
A one-family dwelling attached to one other one-family dwelling
by at least a common roof system and a common vertical wall, with
each dwelling located on a separate lot. For the purposes of this
section, this term is synonymous with duplex.
A building containing three or more dwelling units, including
units that are located one over the other.
A building containing three to five dwelling units that may
separate individual dwelling units within the building by partition
wall or by floor.
(2)
Permitted dwelling types. The following dwelling
types in Table 187-90.1-A may be permitted within developments in
the primary and secondary receiving areas in addition to those permitted
by the Zoning District in which the property is located:
|
Table 187-90.1-A
| |||
|---|---|---|---|
|
Dwelling Type
|
Primary Receiving Area
|
Secondary Receiving Area
| |
|
Single-family detached
|
X
|
X
| |
|
Single-family semidetached
|
X
|
X
| |
|
Single-family attached
|
X
|
X
| |
|
Multifamily
|
X
|
Not permitted
| |
|
Multiplexes designed to emulate single-family
detached dwellings; must be indicated on the plan
|
X
|
X
| |
|
Apartments constructed as a second story to
detached accessory structures; must be indicated on the plan
|
X
|
X
| |
|
Dwellings located on the upper floors of commercial
structures
|
X
|
X
| |
(3)
Area and bulk standards.
(a)
Primary receiving area. The area and bulk standards
within the primary receiving areas are provided in Table 187-90.1-B
below:
|
Table 187-90.1-B
| ||||||
|---|---|---|---|---|---|---|
|
Single- Family Detached
|
Single- Family Semi- detached
|
Single- Family Attached
|
Multi- family
|
Multi- plexes
| ||
|
Minimum Lot Size/Area (square feet)
|
7,000
|
4,000
|
2,000
|
1,700 per unit
|
2,000 per unit
| |
|
Maximum Impervious Surface Lot Coverage
|
40%
|
40%
|
45%
|
45%
|
45%
| |
|
Maximum Building Height (feet)
|
35
|
35
|
35
|
45
|
45
| |
|
Minimum Frontage (feet)
|
60
|
40
|
20
|
60
|
60
| |
|
Minimum Lot Width (feet)
|
60
|
40
|
20
|
60
|
60
| |
|
Front Yard Setback (feet)
|
15
|
10
|
10
|
30
|
20
| |
|
Side Yard Setback (feet)
|
10
|
10
|
15, end units only
|
15
|
15
| |
|
Rear Yard Setback (feet)
|
25
|
20
|
20
|
30
|
25
| |
(b)
Secondary receiving area. The area and bulk
standards within the secondary receiving area shall be as enumerated
in Table 187-90.1-C below:
|
Table 187-90.1-C
| |||||
|---|---|---|---|---|---|
|
Single- Family Detached
|
Single- Family Semi- detached
|
Single- Family Attached
|
Multi- plexes
| ||
|
Minimum Lot Size (square feet)
|
8,000
|
5,000
|
2,000
|
2,500
| |
|
Maximum Impervious Surface Lot Coverage
|
35%
|
40%
|
45%
|
35%
| |
|
Maximum Building Height (feet)
|
35
|
35
|
35
|
45
| |
|
Minimum Frontage (feet)
|
70
|
50
|
20
|
60
| |
|
Minimum Lot Width (feet)
|
70
|
50
|
20
|
60
| |
|
Front Yard Setback (feet)
|
25
|
20
|
10
|
25
| |
|
Side Yard Setback (feet)
|
10
|
10
|
15, end units only
|
15
| |
|
Rear Yard Setback (feet)
|
25
|
25
|
30
|
30
| |
(4)
Diversity of housing types - primary receiving area. Projects shall include a variety of housing types. At least 20% of the proposed units must be of two different dwelling types as defined in Subsection G(1) above. Differing housing types shall be integrated throughout the project, and shall not be segregated by housing type.
H.
Design criteria. All properties to which development rights are planned to be transferred shall comply with the provisions of Kent County Code, Chapter 187 (Subdivision and Land Development) pertaining to major subdivision plan review. Such proposals shall also demonstrate compliance with the following site/subdivision design criteria:
(1)
Neighborhood street system.
(a)
Circulation index.
[1]
All plan submissions shall demonstrate that
the proposed subdivision street system will achieve a circulation
ratio of 1.2 or greater. If a subdivision is planned to be constructed
in distinct development phases, then the plan shall demonstrate that
the initial phase individually and in conjunction with all subsequent
phases, will achieve and maintain the minimum circulation ratio requirement.
[2]
The circulation ratio is determined by dividing
the number of street segments (street sections between intersections
and/or cul-de-sac ends) by the number of intersections and cul-de-sac
ends (nodes). For purposes of this calculation, proposed street intersections
with existing roads and stub roads for future access to vacant developable
lands shall count as 0.5 intersections. See Figure 187-90.1-A below.
[3]
The Regional Planning Commission may waive the
circulation ratio of 1.2 if the applicant can adequately demonstrate
that due to a unique design or unusual site characteristics, the required
ratio cannot be achieved.
(b)
Street sections. This section sets forth a hierarchy
of subdivision street types for projects developed under the provisions
of the Kent County Transfer of Development Rights Program. Subdivision
streets planned under this section shall demonstrate compliance with
the following minimum design criteria:
[1]
Local street: a street primarily used for access
and service delivery to abutting properties. No more than 100 dwelling
units shall front on a local street.
[2]
Minor collector street: a street that serves
as a frontage street to abutting properties and which conducts low
volumes of traffic between local streets and major collector and/or
arterial roadways. No more than 150 lots shall front on a minor collector
street, and a minor collector street shall serve no more than 300
lots exclusive of other subdivision streets.
[3]
Boulevard street design.
[a]
Minor collector service. As an
alternative to conventional collector street design, a boulevard street
to serve as a minor collector subdivision street within a proposed
development may be utilized.
[b]
Open space credit. The Regional
Planning Commission may count the boulevard landscaped median space
toward the minimum neighborhood open space requirement for the proposed
development if, in the Commission's opinion, the following conditions
have been met:
[i]
The proposed boulevard street configuration
enables a superior development pattern for the subject property than
would be achieved using conventional street design parameters;
[ii]
The passive recreation benefits
of a proposed landscaped median space outweigh the need for an expanse
of open space elsewhere in the development; and
[iii]
The boulevard street is an appropriate
street type for the development being proposed.
[c]
Dimensions. The minimum dimensional
requirements for boulevard street design are illustrated in Figures
187-90.1-F and 187-90.1-G below:
 |
 |
(2)
Pedestrian amenities.
(a)
Residential subdivisions and land developments
shall provide sidewalks on both sides of all streets.
(b)
The developer shall install sidewalks along
arterial and collector roadway frontage of a property whenever such
property is the subject of a subdivision or land development proposal
that requires Regional Planning Commission or Levy Court approval.
(c)
In nonresidential land developments sidewalks
shall be constructed along private access roadways and site entrances
to provide continuous pedestrian access from the required frontage
sidewalk 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.
(d)
Sidewalks shall be established at a minimum
paved width of five feet.
(e)
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.
(f)
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.
(g)
Sidewalks shall be free of utility poles, bushes,
plants, and all other obstructions.
(h)
All proposals requiring submission of a major
subdivision or land development plan for review and approval by the
Commission shall demonstrate compliance with the provisions of this
section on the submission plan.
(i)
In projects containing both residential and
nonresidential development, pedestrian access shall be provided between
the residential and nonresidential portions of the site.
(j)
In all cases, sidewalks or other improved pedestrian
pathways shall be installed to provide linkages to surrounding properties
(whether improved or vacant).
(3)
Landscape and tree planting requirements.
(a)
Design should be simple and easy to maintain
and shall consist of a combination of hardy canopy trees, low evergreen
shrubs and turf grass. Ornamental and evergreen tree plantings may
be incorporated in the design but shall not be the predominant plant
types on the site.
(b)
Trees shall be planted in nonwoodland areas at a rate of one tree per 3,000 square feet of land area developed. For purposes of this subsection, the "land area developed" shall mean that nonwoodland portion of the site which is situated within the limits of disturbance as defined on the development plan. A tree preservation and planting plan meeting the criteria of § 187-76 above shall be prepared and submitted for review by the Regional Planning Commission as part of the formal plan review process.
(c)
Standard for deciduous tree plantings. Trees
shall be of a high canopy variety and shall be limbed to a minimum
height of 12 feet above grade at maturity.
(d)
Standards for evergreen tree plantings. Evergreen
tree plantings shall be at least four feet in height at the time of
planting.
(e)
Standards for shrubbery. Shrubbery shall be
of a low evergreen variety and shall be limited to use as foundation
plantings and for screening purposes.
(f)
Standards for ground cover. Ground cover shall
be limited to turf and ornamental grasses and ornamental evergreen
ground cover plantings within required landscape areas. Alternative
ground covers, such as wildflowers and meadow grasses, may also be
considered.
(g)
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.
(4)
Parks and open space. Residential subdivision and land development projects within the receiving areas shall comply with the active and passive open space requirements of Chapter 187 of the Kent County Code. Such projects shall also adhere to the following additional requirements:
(a)
All residential subdivisions and land developments
shall provide recreational areas in a size equal to 450 square feet
per dwelling unit.
(5)
Community facilities/nonresidential uses.
(a)
Area limitation. Not more than 15% of any project site area may be reserved and/or dedicated to nonresidential uses. The Regional Planning Commission may approve an increased percentage of nonresidential site area, provided the applicant demonstrates to the satisfaction of the Regional Planning Commission that the increase will result in an extraordinary benefit to the residents of the development, and within the surrounding neighborhood. Individual commercial and nonresidential buildings shall be limited to a maximum floor area not to exceed 10,000 square feet except that neighborhood shopping centers shall be limited to a maximum floor area not to exceed 50,000 square feet. The Levy Court may authorize commercial and nonresidential buildings in excess of 10,000 square feet and shopping centers in excess of 50,000 square feet if approved by the Levy Court through the conditional use site plan review process as described in § 187-40 above. Recreational facilities such as clubhouses for civic associations designed and operated for the exclusive use of a specific subdivision will not count toward the permitted 15%.
(b)
Nonresidential uses. Nonresidential uses proposed
as part of a TDR receiving area plan shall be designed as an integral
part of the proposed development and primarily intended for the direct
benefit of residents of the proposed development.
[1]
Only the following uses may be permitted by
the Regional Planning Commission as part of the overall subdivision
and land development plan:
|
Antique shops
| |
|
Art galleries
| |
|
Bakery
| |
|
Banks
| |
|
Barber/beauty shop
| |
|
Bed-and-breakfast: country inn
| |
|
Bookstore (no adult entertainment space)
| |
|
Candy store
| |
|
Charitable and philanthropic organizations without
liquor license
| |
|
Child-care center
| |
|
Churches and ancillary uses
| |
|
Coin-operated laundry
| |
|
Community centers
| |
|
Community pool and recreational facilities
| |
|
Delicatessen
| |
|
Drugstore
| |
|
Emergency uses: fire, police, rescue
| |
|
Florist
| |
|
Food catering establishment
| |
|
Gift shop
| |
|
Government buildings
| |
|
Grocery stores
| |
|
Hardware store
| |
|
Ice cream store
| |
|
Indoor recreation: racquetball, tennis, etc.
| |
|
Jewelry store
| |
|
Laundry and dry cleaning pickup
| |
|
Libraries, museums
| |
|
Newsstand
| |
|
Office supply stores
| |
|
Offices, business, professional or governmental
| |
|
Parks
| |
|
Private clubs and service organizations
| |
|
Private educational facilities
| |
|
Public educational facilities
| |
|
Public utilities and public utility uses
| |
|
Restaurants, taverns, lounges
| |
|
Shoe repair
| |
|
Stationery stores
| |
|
Transportation uses: multimodal stations and
commuter lots
| |
|
Variety stores
| |
|
Video stores (no adult entertainment space)
|
[2]
Gasoline pumps. Gasoline pumps proposed as a component of a TDR development project shall only be permitted if approved by the Levy Court through the conditional use site plan review process as described in § 187-40 above. In addition to the minimum requirements for conditional use site plans, gasoline pumps shall also demonstrate compliance with § 205-296 of the Zoning Chapter and may be subject to any additional conditions determined by the Levy Court to protect the health, safety and welfare of the citizens of Kent County.
[3]
Drive-in/drive-through service facilities. Establishments proposed to include drive-through service windows, such as, but not limited to, drive-through restaurants, banks, and pharmacy stores shall only be permitted if approved by the Levy Court through the conditional use site plan review process as described in § 187-40 above. In addition to the minimum requirements for conditional use site plans, such drive-through facilities shall also demonstrate compliance with the following design standards:
[a]
When adjoining or across the street
from an existing or planned residential lot or use, the drive through
lane shall be setback at least 100 feet from the adjoining residential
lot line.
[b]
When adjoining or across the street from existing or planned residential lots or uses, the drive-through lane, order station and pick-up window shall be screened by a continuous opaque barrier of at least four feet in height to run the entire length of that portion of the drive-through lane that would be in direct view of the residential lot or use. The opaque barrier shall conform with the material requirements for opaque barriers set forth in § 187-79A(1) (Opaque barrier options).
[c]
Drive-through service lanes shall
be designed to accommodate at least six automobile stacking spaces
for each drive-through lane. Stacking space shall be at least 108
linear feet in length measured from the beginning of the drive-through
lane to the pick-up window.
(c)
Lot coverage. Each nonresidential lot shall
have a minimum of 25% of the lot area dedicated to be landscaped open
space .
(d)
Front yard. Each lot shall have a landscaped
open space of at least 25 feet in width measured from the back of
the curb along the entire frontage of the lot, except at points of
site access. Trees shall be provided along the frontage perimeter
at a minimum rate of one tree for each 50 linear feet of frontage.
(e)
Side and rear yards. A minimum of 15 feet of
landscaped open space shall be provided along all side and rear lot
lines when abutting a residential use and a minimum of five feet when
abutting a nonresidential use. Tree plantings shall be provided along
all nonfrontage perimeters at a minimum rate of one tree for each
75 linear feet.
(f)
Building placement. Nonresidential buildings
shall be situated on the property so as to maximize the use of the
frontage along the roadway.
(g)
Landscaped buffers. There shall be a landscaped
buffer area of at least 12 feet in width between the principal buildings
and customer parking lot and drive areas, exclusive of drive-up service
lanes and customer service window areas, rear driveways, and loading
areas. The buffer area shall include provisions for a sidewalk of
at least six feet in width and no greater than eight feet in width.
The buffer area and sidewalk shall be grade separated from the parking
lot by concrete curbing of at least six inches in height. Drive-in
service lanes, canopy areas, customer service windows, and accessory
buildings and structures shall be exempt from the design requirements
of this subsection.
(h)
Parking lot design.
[1]
Location. Parking shall not be permitted to
be situated within the front yard nor between the right-of-way line
and the building except in the following instance: Neighborhood shopping
centers as defined above, in which case parking may be permitted between
the building and the roadway, provided that such parking is limited
to two rows of single parking spaces between the road and the storefront.
[2]
Layout. Parking lots shall be arranged in such
a manner so that not more than 20 parking spaces in a row shall be
permitted without a landscaped island. No more than six rows of 20
spaces shall be provided without provision for a landscaped median.
Parking lot landscape islands shall be a minimum of 10 feet wide and
planting medians shall be no less than eight feet wide.
[3]
Landscape buffers. Parking lot screening adjacent
to public right-of-way. Low-profile screening shall be required when
parking spaces would result in vehicles facing onto the roadway. Screening
may consist of a low wall, evergreen hedge with minimum height of
two feet at time of planting planted three feet apart on center and
a maximum height of three feet at maturity, or earth berm. Should
a low wall be used, such wall shall be accompanied by evergreen shrub
plantings on the roadway side of the wall and spaced 10 feet apart
on center.
[4]
Interior landscape. A minimum of 5% of the interior
area of a parking lot shall be reserved for landscape purposes. This
provision shall include the landscaping of all required parking islands
and medians. Shade trees shall be incorporated within the landscaped
islands whenever and wherever practicable.
[5]
Vehicular site entrances for nonresidential
uses.
[a]
Number of vehicular site entrances.
One vehicular site entrance shall be permitted for each street which
abuts a site. For sites with aggregate street frontage in excess of
300 linear feet, one additional vehicular site entrance may be permitted.
For sites with aggregate street frontage in excess of 600 linear feet,
two additional vehicular site entrances may be permitted.
[b]
Shared access among adjoining properties
shall be provided whenever possible for entrances to adjoining uses,
including residential driveways.
[c]
Cross access shall be provided
among abutting uses of similar use categories, whenever possible,
to provide linkage between properties as an alternative to re-entering
the main collector corridors to access both existing and future neighboring
properties.
[d]
Entrance locations for adjoining
properties. Nonresidential site entrances shall be no closer than
25 feet to an adjoining property, which is zoned residential and no
closer than 10 feet to an adjoining property, which is in a nonresidential
zoning category.
[e]
The Delaware Department of Transportation
has final authority and approval over the location of all access points.
(i)
Adjustments to bulk standards. When it can be
demonstrated to the satisfaction of the Regional Planning Commission
through the site plan review process that, due to specific constraints
related to lot configuration, orientation of existing buildings on
adjacent lots, existing built conditions, or specific design objectives,
the area and bulk requirements listed above cannot be met, the Commission
may authorize alternative lot coverage, setbacks, building placement,
and parking lot configurations. However, parking within the front
yard or between the right-of-way line and the building shall be limited
to no more than 50% of the total parking required for the proposed
use and such parking must be adequately landscaped and screened from
the roadway.
I.
Architectural design standards.
(1)
General. The following standards apply to all
buildings:
(a)
Building orientation and facade.
[1]
The principal building facade of proposed buildings
should be oriented toward the primary street frontage, and in the
same direction as the majority of existing buildings on the frontage
street. Proposed buildings on corner properties should reflect a public
facade on both street frontages. See Figure 187-90.1-H below.
[2]
In designing new buildings, consideration should
be given to the dominant architectural features of existing buildings
in the immediate vicinity, as applicable. However, strict adherence
to existing architectural styles is not the predominant goal of this
section. Existing architecture should be utilized as a frame of reference
for proposed architecture, but should not be the sole design template
in every instance.
[3]
Large expanses of blank walls are to be avoided.
The public facade shall incorporate windows and primary doorway entrances
along the street frontage, as well as projecting elements such as
eaves, cornices, canopies, projecting bays, shadow lines and overhangs.
(2)
General architectural characteristics.
(a)
Building proportions. Consideration should be
given to proportional attributes including overall height-to-width
ratios of existing building facades, doors, windows, projecting canopies,
and other architectural features, found in adjacent existing buildings.
See Figure 187-90.1-I below:
(b)
Building mass and scale. Facades of new buildings
should incorporate, but not mimic, the sense of lightness or weight
exhibited in the architecture of existing buildings on neighboring
properties and should incorporate similar proportions of solids (i.e.,
siding, blank walls, etc.) to voids (i.e., windows, door openings,
etc.). See Figures 187-90.1-J, 187-90.1-K, and 187-90.1-L below:
 |
 |
 |
(c)
Materials. The plan shall incorporate durable
exterior surface materials complementary with the color, texture,
size, and scale of exterior materials reflected on existing buildings
in the immediate vicinity.
(d)
Roofs. The general roof shape, ridge and eave
heights, and material characteristics proposed shall be visually compatible
with these same attributes expressed in existing buildings along the
subject street, or in the immediate vicinity.
(3)
Residential buildings.
(a)
Because of the higher density permitted within
TDR receiving area communities, structures in such communities are
expected to achieve a higher standard of community and architectural
design. Developments should be designed with architectural diversity
and character in mind to provide a high level of design quality in
the built environment.
(b)
Developers, architects, and designers are to
be afforded flexibility to meet the challenge of designing attractive,
higher density communities but are compelled to follow the design
standards in this article.
(c)
In designing the proposed dwelling units, applicants are expected to follow the general criteria listed in Section 187-90.1I above as well as utilize more specific design criteria as described below. The following are illustrative of the types of architectural design tools deemed to count toward satisfaction of architectural requirements:
(d)
Single-family attached dwellings. In addition
to the design criteria listed above, developments including attached
dwelling units must also meet the following guidelines:
[1]
Single-family attached dwelling units containing
more than two units in a row shall have facades, which alternate siding
styles and patterns to provide visual distinction to each unit. Alternation
between siding and brick is encouraged.
[2]
The facades of single-family attached dwelling
units containing more than two units in a row shall be offset by at
least three feet per unit in order to provide architectural relief.
[3]
No more than six attached dwelling units in
a row are permitted.
[4]
Rear access. The use of alleys for purposes
of utility routing, service delivery, off-street parking, and rear
lot access is required. However, when it can be demonstrated to the
satisfaction of the Regional Planning Commission that due to unique
circumstances alleys would be impractical in certain portions of a
development plan, the Commission may waive the requirement for rear
access.
(e)
Multifamily structures. Multifamily residential
buildings shall demonstrate compliance with the following criteria:
[1]
At least 60% of the exterior of each multifamily
building shall be of masonry brick construction.
[2]
The proportion of window and door openings to
solid wall areas shall be consistent throughout the architecture.
[3]
At least two vertical off-sets for each of the
long sides of each building shall be incorporated. Off-sets shall
be at least five feet in depth and extend a distance equivalent to
at least one-third of the long side building facade.
[4]
Horizontal elements such as masonry band courses,
lintels, balcony projections, projecting eaves and cornices shall
be incorporated.
(4)
Community facilities/nonresidential structures.
(a)
Architectural review. The side of any building
which fronts on a major or minor collector or arterial roadway shall
be referred to as a corridor elevation. The corridor elevation shall
contain architectural elements traditionally associated with the front
of a building. Blank walls without functioning windows are prohibited
along the corridor. Windows must be incorporated into the overall
design concept of the corridor elevation. Providing one or several
small windows on a large corridor elevation shall not constitute compliance
with this section.
(b)
A "functioning window" shall be defined as a
window which lets light into the interior of the structure, and is
integrated and related to the interior layout of the space.
(c)
In addition to functioning windows, the corridor
elevation shall have two or more of the following elements:
[1]
A primary entrance door or doors (except for
loading doors).
[2]
A primary entrance feature, such as a porch,
portico, awning, entrance walk, or other similar feature.
[3]
Landscaping integrated into the building design
concept.
[4]
Architectural or urban design elements which
link adjacent structures together, such as plazas, walkways, colonnades,
or similar features.
[5]
Architectural relief, such as vertical and horizontal
off-sets in exterior wall elevations, band courses, lintels and sill
courses, cornices and the like to create shadow lines.
[6]
Screening. The following items shall be located
so as to minimize visibility from the roadway, adjacent properties
and other public areas and shall be screened from public view:
(d)
To foster increased architectural diversity,
the Regional Planning Commission may authorize a deviation from the
stated architectural design standards when, in the opinion of the
Commission, such action is warranted to yield superior architectural
quality and neighborhood design.
J.
Plan requirements.
(1)
The Regional Planning Commission shall consider
the physical orientation and architectural characteristics of proposed
buildings, the relationship of proposed buildings to existing buildings
and to other proposed buildings, and their contributions to the overall
image of the immediate vicinity. Design characteristics of proposed
buildings and building additions should not detract or devalue existing
buildings in the immediate vicinity.
(2)
Site plan and subdivision plan submissions made
under the provisions of this section shall include the following elements:
(b)
County approved certificate of transfer credits from which the proposed development transfer credits are derived as set forth in Section 187-90.1F above.
(c)
A sanitary sewer technical feasibility study in accordance with Chapter 180 of the Kent County Code and approved by the Kent County Department of Public Works prior to submission. No project shall be considered by the RPC without certification by the Department of Public Works that such study has been completed and approved. In no case shall a project be considered by the Regional Planning Commission unless and until a sanitary sewer is legally and technically available. This provision applies to residential and nonresidential projects of any size.
(d)
Architectural elevation drawings or other graphic
representation illustrating exterior building characteristics of proposed
buildings and/or building additions that would be visible from the
public right-of-way. Elevation drawings shall be drawn to scale and
shall reflect major architectural elements such as exterior surface
materials, windows, doors, columns, and wall-mounted signage. Elevation
plans are intended to provide a general depiction of the physical
appearance, massing and scale of the proposed construction.
(e)
A final record plat for a subdivision using
transferred development rights shall contain a statement setting forth
the development proposed, the zoning classification of the property,
the number of development rights used, and a notation of the recordation
of the conveyance of development rights.
K.
Review process.
(1)
TDR development projects. All proposed subdivision and land development projects located within the primary and secondary receiving areas shall follow the applicable review processes as provided in Articles IV through VI for major subdivisions and Article VIII for land development projects of this chapter, except that in every case the required public hearing for the application shall occur at the sketch plan review stage as an initial review and authorization step by the Levy Court.
(2)
Public workshop. At least 30 days but not more than 180 days prior to formal submission of the sketch plan for any major subdivision or land development application proposal for consideration by the Levy Court under § 187-90.1, the applicant shall be responsible for organizing a public workshop for the purpose of informing the public of the pending development project, and for addressing concerns expressed by the public. The public workshop is expressly intended to establish a dialog between the developer and residents of the surrounding area for the purpose of identifying concerns and possible resolutions.
(a)
Required materials. The applicant shall provide
the Department with both a paper and electronic copy of the proposed
conceptual sketch plan as well as the time, date, and location of
the public workshop at least 30 days in advance of the public workshop.
The location for the workshop shall be in a facility that is easily
accessible to the immediate community surrounding the project.
(b)
Mailed notice. The applicant shall provide notice
of the time, date and place of such public workshop to all property
owners within 200 feet of the extreme limits of the subject property
as their names appear in the County tax record and to such other interested
parties as may be determined by the Department. Such notices shall
be mailed at least 10 days prior to the workshop.
(c)
Published notice. In addition, notice of the
workshop shall be published in a newspaper of general circulation,
in the area of the application site, at least 10 but no more than
30 days prior to the workshop.
(d)
Posted notice. The applicant shall provide and
post a sign in compliance with specifications established by the Department
of Planning Services, which shall be placed in a conspicuous location
(no greater than seven feet from a residential or local road right-of-way,
and no greater than 10 feet from a collector or arterial right-of-way);
one along each adjacent right-of-way (two if the parcel is bisected
by a public road) perpendicular to the street so as to be clearly
visible to the public. The posted sign shall consist of a four-foot-by-four-foot
laminated sign with a yellow background with two-inch black lettering
in a sans serif typeface. The sign shall include a brief description
and data column of the proposed development project; the time, date,
and place of the public workshop; and a full size copy of the proposed
development plan. The applicant shall provide to the Department photographic
proof of posting with a signed affidavit. Failure of any such posted
notice to remain in place after the notice has been posted shall not
be deemed a failure to comply with these standards or be grounds to
challenge the validity of any decision made on the application unless
the notice was removed by the applicant or at his or her direction.
(e)
The applicant shall cause the preparation of
a detailed transcript of the public workshop by a court reporter for
the purpose of recording and transcribing the presentation and discussion
at the workshop. The transcript of the workshop shall be furnished
to the Department for review, reference, and inclusion in the application
file.
(f)
The applicant shall be responsible for all costs
associated with the workshop, including, but not limited to, advertising,
mailing and postage, Department staff time, and court reporting.
(3)
Public hearing. At the initial public hearing step with the Levy Court, the applicant shall present a conceptual sketch plan, a written statement documenting the project's compliance with the provisions of § 187-90.1, Subsection A (Purpose and intent) of this article, and the official transcript from the public workshop step described above. The conceptual sketch plan shall reflect the general layout of streets, housing areas and types, and open space and recreation areas, and shall include all information required in accordance with § 187-18 and Appendix A for Major Subdivision sketch plan submissions, and in accordance with § 187-36 and Appendix D for other land development sketch plan submissions.
(a)
The Levy Court shall determine whether the proposed
project is of such a design and type that warrants further review
by the Regional Planning Commission.
(b)
If the Levy Court determines that further review is warranted, the second step in the review process shall involve a submission of the preliminary plan for review and consideration by the Regional Planning Commission in accordance with the provisions of § 187-20 for major subdivision plans and in accordance with § 187-38 for other land development projects.
(4)
Public notice. The public hearing on the conceptual
sketch plan shall be conducted during a regularly scheduled meeting
of the Levy Court, no later than 60 days after the filing of the application
for consideration. Such period may be extended by mutual agreement
between the Levy Court and the applicant.
(a)
No public hearing shall be held by the Levy
Court until notice of time and place thereof has been provided to
the applicant, property owners within 200 feet of the subject property,
and to such other interested parties as may be determined by the Levy
Court at least 10 days prior to the date of said hearing. Notice shall
be provided as follows:
[1]
The applicant shall notify by mail all property
owners within 200 feet of the extreme limits of the proposed transfer
of development rights project as their names appear in the County
tax record at least 10 days prior to the hearing. The applicant shall
provide the Department of Planning Services with a copy of the notice
sent to property owners and post office receipts on or before the
public hearing date.
[2]
The Department of Planning Services shall provide
notice to the general public of the public hearing before the Levy
Court by publishing the date, time, place, and nature of the hearing
at least 10 days before the hearing in a newspaper of general circulation
in the County.
[3]
The Planning Services staff shall post a notice
outlining the time, date, place, and nature of the hearing in a conspicuous
location on the property.
[4]
The published and posted notices shall contain
reference to the time and place or places within the County where
the proposed conceptual sketch plan may be examined.
(b)
At the hearing, the Levy Court shall receive
a report from the Planning Services staff, together with any comments
and recommendations received from other County departments and/or
outside agencies. Interested parties shall have the opportunity to
offer testimony both in favor of and in opposition to the proposed
sketch plan.
L.
Municipal review.
(1)
Municipal review. For transfer of development
rights projects located within a one-mile radius of a municipality,
the municipality shall be provided the opportunity to review and comment
upon the proposed plan. The Department shall be responsible for forwarding
plans to the respective municipalities at least 45 days prior to the
RPC meeting.
(2)
Annexation provision. When the receiving area
for a transfer of development rights project is located within a municipal
annexation area as designated in the certified comprehensive plan
for the municipality, the applicant for the project shall afford the
municipality the opportunity to annex the land and accept the planned
TDR project.
(a)
If the municipality should choose to annex the
land, the applicant shall be obligated to proceed with the annexation
and develop the TDR project within the municipality. Written notification
of the municipality's decision to permit the transfer of development
rights project shall be provided to Kent County.
(b)
Should the municipality choose not to annex
the property, the applicant may develop according to Kent County's
TDR requirements. Written notification of the municipality's decision
to not annex the property and permit the transfer of development rights
project shall be provided to Kent County.
(3)
Memorandum of understanding. Kent County shall
enter into an agreement with interested municipalities through a memorandum
of understanding detailing the process and requirements for TDR development
within the municipality's boundaries.
(4)
Municipal annexation plans. In the event that
a municipality initiates a formal amendment proceeding with the State
of Delaware for the purpose of amending the annexation plan component
of its certified Comprehensive Plan to incorporate specific lands
designated as TDR receiving areas into its annexation plan, then Kent
County shall refrain from considering TDR development projects within
such specific receiving areas for a period not to exceed 183 calendar
days (six months) from the date of enactment of the Kent County Transfer
of Development Rights Ordinance, or until the date of recertification
of the municipality's Comprehensive Plan and Annexation Plan as amended
by the State of Delaware, whichever comes first.
M.
Performance review. This section shall be reviewed
every five years from the date of adoption for consistency with the
Kent County Comprehensive Plan and for general effectiveness in land
use planning. This five-year review shall not be construed to mean
the County cannot review and amend the section more frequently.
N.
Strategies for state policies and spending. Upon the enactment and/or adoption of the Strategies for State Policies and Spending document by the State of Delaware, and upon any update or revision of that document, Kent County shall review the transfer of development rights program Sending Area and Receiving Areas Maps to ensure consistency with the State of Delaware investment strategies maps. Kent County Levy Court reserves the right to amend the Sending Area and Receiving Areas Maps as integral components of the Kent County Zoning Map under the provisions of Chapter 205, Zoning of the Kent County Code.
O.
Effective date. This Transfer of Development Rights
Program Ordinance shall become effective on January 1, 2005, and shall
remain in effect unless and until amended or repealed by the Levy
Court of Kent County.
[Added 10-17-2006 by Ord. No. 06-41[1]]
A.
Purpose and intent. The provisions of the Adequate
Public Facilities Ordinance are intended to ensure that essential
public facilities needed to support new development meet or exceed
the level of service standards established herein. It is expressly
intended that adequate public facilities needed to support new residential
development are available concurrent with the impacts of such development,
as defined in this section. It is further intended that no application
for major subdivision, conditional use or site plan approval shall
be approved which would cause a reduction in the levels of service
for any public facilities below the adopted level of service established
in this section. To achieve the purpose and intent of this section,
the provisions of this section establish uniform procedures for the
review of development applications subject to the standards and requirements
of this section. In meeting this purpose, public facility and service
availability shall be deemed sufficient if:
(1)
The public facilities and/or related services
needed to support, and off-set, the impacts of new development already
exist; or
(2)
The public facilities and/or related services
needed to support, and off-set, the impacts of new development are
constructed in conjunction with new development; or
(3)
The new development is phased, so that the public
facilities and related services deemed necessary by Kent County are
available concurrently with the new development; or
(4)
The public facilities and/or services needed
to support, and off-set, the impacts of new development are planned
and funded for construction within two years of final plan approval.
B.
ADEQUATE PUBLIC FACILITIES
AREA OF INFLUENCE
CAPACITY
(1)
(2)
(3)
(4)
CAPACITY, AVAILABLE
CAPACITY, PLANNED
COMMITTED DEVELOPMENT
LEVEL OF SERVICE
STATE-RATED CAPACITY
TRAFFIC ANALYSIS ZONE (TAZ)
Definitions. For the purpose of this section, the
following terms and words are defined as follows:
Facilities and services relating to roads, schools, emergency
medical services, and water supply and distribution systems meeting
minimum acceptable level of service standards established by Kent
County Levy Court.
[Amended 10-24-2006 by Ord. No. 06-42[2]; 3-27-2007 by Ord. No. 07-08; 3-27-2007 by Ord. No. 07-09; 12-15-2009 by Ord. No. 09-30]
A defined area within which a proposed development is presumed
to create a demand for public services and facilities and so is evaluated
for compliance with this section.
The maximum demand that can be accommodated by a public facility
or service without exceeding the adopted level of service.
For water supply and distribution, capacity
shall be measured in terms of the documented water supply and projected
fire hydrant discharge rates in gallons per minute (GPM) to be provided
within new development projects.
For emergency medical services, capacity shall
be measured in terms of the aggregate average call volume to the Kent
County Emergency Dispatch Center as determined by the Kent County
Department of Public Safety.
[Amended 10-24-2006 by Ord. No. 06-42[3]]
For roads, capacity shall be measured by the
maximum number of vehicles that can be accommodated at an intersection
during peak-hour periods while maintaining the level of service standard
as set forth in this section and in accordance with Delaware Department
of Transportation Rules and Regulations for Subdivision Streets and
the Highway Capacity Manual as amended.
[Added 3-27-2007 by Ord. No. 07-08]
For schools, student capacity ratings shall
be determined in accordance with the most recent September 30 unit
count and school capacity ratings established by the Delaware Department
of Education.
[Added 3-27-2007 by Ord. No. 07-09;
amended 12-15-2009 by Ord. No. 09-30]
The existing capacity available from a facility or service
to accommodate a new development project.
The capacity to be created by programmed capital improvements.
The anticipated demand created by previously approved but
unbuilt dwelling units.
[Added 12-15-2009 by Ord. No. 09-30]
The performance standard adopted by Kent County Levy Court
for the provision of roads, schools, emergency medical services and
water supply and distribution. The adopted minimum acceptable level
of service shall provide a basis for the establishment or expansion
of a public facility or service, which is subject to this section.
[Amended 10-24-2006 by Ord. No. 06-42[4]; 3-27-2007 by Ord. No. 07-08; 3-27-2007 by Ord. No. 07-09; 12-15-2009 by Ord.No. 09-30]
The rated student capacity of each school as determined by
the Delaware Department of Education. Portable classrooms shall not
be used in computing the school capacity for the purposes of this
section.
[Added 3-27-2007 by Ord. No. 07-09;
amended 12-15-2009 by Ord.No. 09-30]
A unit of geography used in transportation planning models.
The spatial extent of the zones typically varies from very large in
rural areas, to smaller areas in more urbanized places. The areas
are defined based upon population and housing unit data derived from
the most recent decennial census data. For purposes of this section,
the term “Traffic Analysis Zone” means and refers to those
established and defined by the Delaware Department of Transportation.
[Added 3-27-2007 by Ord. No. 07-08]
[2]
Editor's Note: This ordinance provided that
it shall be effective upon enactment of state legislation amending
or repealing § 9124(b) of Title 29 of the Delaware Code
so as to allow implementation of this ordinance.
[3]
Editor's Note: This ordinance provided that
it shall be effective upon enactment of state legislation amending
or repealing § 9124(b) of Title 29 of the Delaware Code
so as to allow implementation of this ordinance.
[4]
Editor's Note: This ordinance provided that
it shall be effective upon enactment of state legislation amending
or repealing § 9124(b) of Title 29 of the Delaware Code
so as to allow implementation of this ordinance.
C.
Applicability. All major subdivisions, conditional use site plans, site plans, and revised subdivision or site plans received for approval or reapproval by the Regional Planning Commission shall meet the requirements set forth herein prior to approval, except as provided in Subsection D, Exemptions, below
D.
Exemptions. The following land use applications shall
not be subject to the requirements of this section:
(1)
Minor subdivisions;
(2)
Public or private educational institutions;
(3)
Public safety facilities;
(4)
Public utilities;
(5)
Land development plans involving an aggregate
impervious cover of less than 5,000 square feet and not requiring
formal site plan review by the Regional Planning Commission;
(6)
Revisions to recorded subdivision plans that
do not result in the creation of additional lots;
(7)
Minor changes or alterations to approved site plans in accordance with § 187-42 of this chapter; and
(8)
Conditional use applications not requiring site
plan review.
E.
Administration.
(1)
This section shall be administered by the Levy
Court and/or the Regional Planning Commission in conjunction with
the Department of Planning Services, in accordance with the jurisdiction
and authority set forth for each of these entities with this chapter.
All applications, maps, and documents relative to major subdivision,
conditional use site plan or site plan approval subject to the provisions
of this section shall be submitted to the Department of Planning Services
for review and consideration as part of the plan review process.
(2)
This section applies to all applications for major subdivision, conditional use site plan and site plan review for new construction filed after the effective date of this section. Except as provided in Subsection D above, all development proposals shall demonstrate compliance with the requirements set forth in this section through the preliminary conference review process set forth in § 187-17 for major subdivisions, and § 187-35 pertaining to land development applications for site plan and/or conditional use plan review prior to submission for consideration. The provisions of this section shall not apply to minor subdivision plans, conditional uses not requiring site plan review, and site plans involving less than 5,000 square feet of building floor area.
(3)
Levels of service for public facilities shall be evaluated during the preliminary conference review process described in § 187-17 and § 187-35. The applicant shall be required to demonstrate compliance with the level of service standards set forth in Subsection F (Level of service standards) of this section prior to formal submission for all of the above-referenced land use applications. The applicant shall provide a level of service analysis report to the Department of Planning Services for review during the preliminary conference review process.
(4)
The level of service analysis report to be provided by the applicant as required in Subsection E(3) above shall document and include:
(a)
Existing levels of service and available capacity
within the area of influence pertaining to the public facilities and
services governed by this section;
(b)
Projected future levels of service within the
area of influence pertaining to the public facilities and services
governed by this section at the projected development completion date,
not including level of service impacts generated by the proposed development
project;
(c)
Projected future levels of service within the
area of influence pertaining to the public facilities and services
governed by this section at the projected development completion date,
including level of service impacts generated by the proposed development
project;
(d)
The impact of the proposed development on available
capacity and the resultant levels of service; and
(e)
Proposal explaining how compliance with the
level of service standards would be achieved and/or maintained if
the project is approved.
(5)
Based upon the level of service analysis performed under Subsection E(4) above, the Director of Planning Services or designee shall report the findings and provide recommendations to the Regional Planning Commission and/or Levy Court pertaining to the maintenance or attainment of the level of service standards through the applicable development plan review process set forth in this chapter.
(6)
The developer shall:
[Amended 10-24-2006 by Ord. No. 06-42[5]]
(a)
Achieve and/or maintain level of service standards
set forth in this section with the addition of the proposed development
project; or
(b)
Provide the necessary improvements and/or contributions
to mitigate for the diminution of public facility service capacity
caused by the proposed development project; or
(c)
Reduce the residential density and/or building
floor area, and/or intensity of use to reduce the impact on the capacities
of public facility services to achieve compliance with the level of
service standards of this section.
[5]
Editor's Note: This ordinance provided that it shall be effective upon enactment of state legislation amending or repealing § 9124(b) of Title 29 of the Delaware Code so as to allow implementation of this ordinance. Section 2 of this ordinance provided that, not less than 30 calendar days following the preapplication meeting set forth in § 187-17, an applicant may request exemption from any or all provisions of this chapter based on good-faith reliance on the state of law that existed prior to the enactment of this ordinance to his or her substantial detriment. Ord. No. 06-42 includes the full text of the procedure for requesting this exemption, which automatically terminates 18 months from the enactment of Ord. No. 06-42.
(7)
Subdivision plans, conditional use site plans,
or site plans that will not maintain or achieve compliance with the
level of service standards set forth herein shall not be approved.
(8)
Effect of determination. The determination of adequacy of public facilities shall remain valid for as long as the subdivision or site plan is considered valid. The determination shall expire upon the expiration of the subdivision or site plan in accordance with §§ 187-14, 187-21, and 187-41 of this chapter.
F.
Level of service standards.
(1)
Central water service. All proposed residential
subdivisions involving more than 10 lots shall be served by a central
water system that includes fire hydrants located in accordance with
Delaware State Fire Protection Regulations. Fire hydrant yields (gallons
per minute) shall comply with the minimum requirements as set forth
by the State Fire Marshal's Office. A plan showing the water distribution
system, including the location of fire hydrants, shall be provided
with all major subdivision applications involving more than 10 lots.
(2)
Emergency medical services (EMS).
[Added 10-24-2006 by Ord. No. 06-42[6]]
(a)
To offset the increased cost of providing emergency
medical services (EMS) to an expanding County population, an EMS impact
fee shall be assessed. The level of service standard for emergency
medical services shall be based upon aggregate average call volume
to the Kent County Emergency Dispatch Center. It has been determined
that on average, 0.07 dispatch calls per person are received by the
Kent County Department of Public Safety each year. Based on the dispatch
call factor of 0.07 calls per person per year, the number of calls
generated by proposed residential development shall be determined.
The projected number of dispatch calls per year shall be determined
by projecting the total population of the proposed residential development
at build-out using the average number of persons per household for
Kent County as determined by the most recent population statistics
published by the United States Census Bureau.
(b)
The Kent County Department of Public Safety
shall calculate the total impact fee to be assessed per dwelling unit
for each new residential development proposal. The impact fee shall
be based upon the projected number of annual dispatch calls for the
proposed development multiplied by the per-capita EMS costs based
upon the most recent reporting year. The impact fee for the proposed
development shall be apportioned equally to each proposed dwelling
unit, and shall be paid to Kent County on a per-dwelling-unit basis
prior to the issuance of a building permit.
(c)
The EMS impact fee shall be automatically adjusted
on January 1 of each year based upon the average per-capita EMS costs
derived from the most recent reporting year as determined by the Department
of Public Safety. All EMS impact fee funds collected shall be deposited
into a reserve account for the purpose of funding upgrades and/or
expansion of County EMS services and/or County EMS infrastructure
within Kent County. The funds generated by said expansion fee shall
be held in a separate interest-earning expansion reserve account.
[6]
Editor's Note: This ordinance provided that it shall be effective upon enactment of state legislation amending or repealing § 9124(b) of Title 29 of the Delaware Code so as to allow implementation of this ordinance. Section 2 of this ordinance provided that, not less than 30 calendar days following the preapplication meeting set forth in § 187-17, an applicant may request exemption from any or all provisions of this chapter based on good-faith reliance on the state of law that existed prior to the enactment of this ordinance to his or her substantial detriment. Ord. No. 06-42 includes the full text of the procedure for requesting this exemption, which automatically terminates 18 months from the enactment of Ord. No. 06-42.
(3)
Roads.
Added 3-27-2007 by Ord. No. 07-08[7]]
(a)
Purpose. The Regional Planning Commission shall
not approve any major subdivision or site plan proposal, and Levy
Court shall not approve any conditional use site plan proposal, if
the proposed development cannot achieve the level of service standards
set forth in this section; except, however, the Commission and/or
Levy Court may approve such a project conditioned upon the applicant
completing all required road improvements necessary to achieve the
level of service standards for adequacy of the facility. This subsection
shall apply only to minor arterial, major and minor collector, and
local roadways as defined by the most recent version of DelDOT's Functional
Classification Map. Limited-access roads shall not be subject to the
provisions of this subsection.
(b)
Capacity calculation. The transportation capacity
for a proposed development shall be determined by a traffic impact
study or other method acceptable to DelDOT such as the Support Facilities
Report. The applicant shall follow the methodology set forth in this
section to determine the highway capacity within the area of influence
of the site.
(c)
Need for traffic impact study. If the Department
of Planning Services or DelDOT finds, based upon the information supplied
in a sketch plan provided for a preliminary application meeting and
the standards set forth in this section, that a proposed subdivision
or land development could generate significant traffic impacts which
would require roadway improvements, the Department shall require the
applicant to prepare and submit a traffic impact study to the Department
and DelDOT. Significant impact shall be considered to exist and a
traffic impact study shall be required for a subdivision or land development
if any of the following conditions exist:
[1]
The proposal exceeds the projected average daily
traffic warrants provided in DelDOT's Rules and Regulations for Subdivision
Streets, as amended.
[2]
The proposal is projected to generate more than
50 peak-hour trips, excluding traffic passing by the subject property,
unless the project is located in a DelDOT Special Study Area or District
as designated by mutual agreement between Kent County and DelDOT.
[3]
The area of influence of the subject property includes roadway segments and intersections currently operating below the level of service standard specified in Subsection F(3)(j), Adequate level of service, below.
[4]
The proposed development causes the total number
of dwelling units within the area Traffic Analysis Zone (TAZ) to exceed
the projected totals set forth in the Dover/Kent County MPO Transportation
Improvement Plan.
(d)
Traffic impact study waiver. If a traffic impact
study was completed for a proposed change in zoning of the subject
parcel or if, in the opinion of the Department of Planning Services
and DelDOT, sufficient prior traffic impact studies of the area of
influence have previously been conducted, the requirement for a new
traffic study and the further evaluation of the level of service may
be waived, provided the Department of Planning Services finds that:
[1]
The ordinance changing the zoning was adopted
no more than three years prior to the submission of the major subdivision,
site plan or conditional use plan application, that there has been
no change in circumstances that would result in a 5% or greater increase
in peak-hour traffic volumes or in total average daily traffic volumes
above the volumes projected in the prior traffic impact study, and
that the subdivision and/or land development activity within the area
of influence is similar to the size and type of development evaluated
in the traffic impact study conducted for rezoning; or
[2]
The proposed project is within a transportation
improvement district or similarly defined area as designated by mutual
agreement between Kent County and DelDOT, as identified by DelDOT,
and trip generation numbers provided for the proposed subdivision
or land development, as approved by DelDOT, do not change the projected
traffic volumes upon which roadway improvements designed by or approved
by DelDOT for the district or area have been based by more than 5%.
The applicant shall contribute to transportation improvement costs
within the district or area based upon a formula to be developed by
DelDOT.
(e)
Scoping meeting. Within 15 days after the Department
or DelDOT determines that a traffic impact study is necessary, the
Department and DelDOT shall meet with the applicant to establish the
area of influence and all traffic impact study parameters. The area
of influence will be based upon comparisons of the anticipated site
traffic to the existing traffic on roads in the immediate vicinity.
Once established, no substantial modification to the area of influence
and parameters shall be made by the applicant without the approval
of the Department and DelDOT. Such approval shall only be given if
the applicant can demonstrate to the satisfaction of DelDOT and the
Department that the data relied upon to determine the area of influence
and parameters is flawed or otherwise inaccurate.
(f)
Area of influence.
[1]
The area of influence shall extend beyond the
site entrance(s) to include additional intersections to the extent
that the total projected peak-hour site traffic (peak-hour vehicle
trip ends on an average weekday or weekend day, whichever is greater)
exceeds:
[a]
One percent of the annual average
daily traffic on the intersecting road if it is an arterial road;
[b]
Five percent of the annual average
daily traffic on the intersecting road if it is a collector road;
or
[c]
Ten percent of the annual average
daily traffic on the intersecting road if it is a local road.
[2]
Subsection F(3)(f)[1] notwithstanding, the following rules shall also apply:
[a]
The study area shall always include
the site entrances.
[b]
If the site would have access on
two or more intersecting roads, the study shall include their intersections.
[c]
The study area shall extend at
least to the nearest arterial or collector road but in no case less
than three intersections with state-maintained roads from the site.
Intersections with commercial entrances may be considered as part
of the study at the discretion of the Department and DelDOT.
[d]
For the purposes of this section,
average weekday vehicle trip ends generated by retail commercial uses
shall be reduced to account for pass-by trips based on the standards
included in the ITE Trip Generation Handbook, as amended.
[e]
For uses that operate on an event basis, e.g., stadiums and arenas, the Department and DelDOT shall substitute professional judgment for Subsection F(3)(f)[1] in determining the area of influence.
(g)
Traffic impact study requirements. A traffic
impact study shall be prepared by individuals or firms that perform
traffic engineering, which shall be reviewed and sealed by a Delaware
registered professional engineer. The content and format of the study
shall be as prescribed by DelDOT's Rules and Regulations for Subdivision
Streets, as amended.
(h)
DelDOT report required. Upon receipt of a final
traffic impact study, DelDOT shall review the traffic impact study
pursuant to this article and submit written comments to the Department.
The review of the traffic impact study shall include review comments
and recommendations in accordance with DelDOT's Rules and Regulations
for Subdivision Streets, as amended.
(i)
Subdivision or land development traffic impact
study plan approval.
[1]
Upon receipt of the traffic impact study and
comments from DelDOT or individual or firm approved by the Department
as provided above, the Department shall review the traffic impact
study with regard to the following:
[a]
The accuracy, completeness, and
thoroughness of the traffic impact study as well as whether the study
was conducted in conformance to the study parameters set by the Department
and DelDOT.
[b]
DelDOT's comments and recommendations.
[c]
The level of service standards
of this section.
[d]
Appropriateness and adequacy of all proposed mitigation measures as described in Subsection F(3)(k) below.
[e]
Compatibility with regional and
state transportation plans and nearby development proposals currently
under review by the Department of Planning Services.
[f]
Design principles and standards
as described in this chapter (e.g., interconnectivity, transit/pedestrian
accessibility and street design).
[2]
Based upon the above criteria, the Levy Court
and/or Regional Planning Commission shall approve, approve with conditions
or disapprove the recommendations set forth in the traffic impact
study as part of the plan review process. The Levy Court and/or Regional
Planning Commission may approve the roadway components of the project
when the traffic impact study demonstrates that the levels of service
standards set forth in this section will be maintained or achieved
for roadway segments and intersections within the area of influence
of the project. The project shall not be approved if it will result
in a substandard level of service for a roadway segment or intersection(s)
within the area of influence of the project. If the traffic impact
study is not approved the applicant may take one of the following
actions:
[a]
The applicant may request permission
to revise the proposed plan and traffic impact study to include additional
traffic mitigation measures necessary to achieve the specified level
of service standard within the project's area of influence. The proposed
revisions shall be submitted by the applicant to the Department and
DelDOT for review.
[b]
The applicant may submit a revised
plan that would generate fewer trips that does not exceed the levels
of service standard.
[3]
If the traffic impact study is approved or approved
with conditions for a major subdivision plan, the applicant may proceed
with a preliminary subdivision plan submission. If the traffic impact
study is approved or approved with conditions for a site plan or conditional
use site plan, the applicant may proceed with submission of those
plans in accordance with the processes set forth in this chapter pertaining
to such plan types.
(j)
Level of service standards.
[1]
Within the Growth Zone Overlay District. The
minimum acceptable level of service standard for roadway segments
and intersections within the Growth Zone Overlay District shall be
Level of Service D.
[Amended 9-30-2008 by Ord. No. 08-19[8]]
[8]
Editor's Note: This ordinance provided that
it shall be effective retroactively to 6-13-2006, the established
effective date of the original Adequate Public Facilities - Roads
Ordinance (Ord. No. 07-08).
[2]
Outside the Growth Zone Overlay. The minimum
acceptable level of service standard for roadway segments and intersections
outside the Growth Zone Overlay District shall be Level of Service
C.
[3]
If the existing level of service for an intersection or road segment
is below the required level of service standard as specified above,
the existing level of service shall, at a minimum, be maintained,
and shall not be further reduced. This provision shall not relieve
an applicant from making safety and capacity improvements as recommended
by DelDOT or as part of a traffic impact study.
[Added 12-15-2009 by Ord. No. 09-31]
(k)
Traffic mitigation measures.
[1]
Traffic mitigation measures shall be required
if a proposed subdivision or land development project would result
in a noncompliance with the level of service standards as set forth
above. To be considered, traffic mitigation measures must result in
attainment of the level of service standards set forth above. Such
traffic mitigation measures may include any one or some combination
of the following:
[a]
A reduction in the proposed trip
generation of development;
[b]
The phasing of construction to
coincide with the completion of programmed transportation construction
projects which are identified within the first three years of DelDOT's
six-year capital transportation program; and/or
[c]
The construction of off-site road
improvements by the applicant or others that result in compliance
with the level of service standards.
[2]
The specific traffic mitigation measures shall
be chosen based on their ability to reduce the impact of traffic generated
by the proposed subdivision or land development, in order to achieve
and maintain the level of service standards for a minimum of two years
for roadway segments and intersections within the area of influence.
All proposed traffic mitigation measures approved by the Levy Court
or Regional Planning Commission through the plan approval process
shall be conditions of plan approval. No building permits shall be
issued for new construction unless approved traffic mitigation measures
are under construction, and no certificate of occupancy for any building
shall be issued unless and until all traffic mitigation measures are
completed in phase sufficient to maintain the level of service standards.
[7]
Editor's Note: Section 7 of this ordinance provided as follows: “Section 7. Vested Rights and Exemption from provisions of the Adequate Public Facilities Ordinance, Section 187-90.2 et. seq. (a) Within 30 calendar days following the preapplication meeting set forth in § 187-17, or 60 days after the adoption of the ordinance, whichever occurs last, an applicant may request exemption from any or all provisions of this chapter based on good faith reliance on the state of law that existed prior to the enactment of this ordinance to his or her substantial detriment. Any request for exemption shall be in writing and submitted to the Planning Office. (b) Upon receipt of a timely request, Kent County Levy Court shall provide a hearing to consider the request for exemption. At the hearing the applicant shall be permitted to appear and to show cause why an exemption should be granted. However, land cost alone does not qualify as an expenditure that would confer vested rights because the land is ordinarily usable under the new restrictions to the same extent as it was under the restrictions in place at the time of the preapplication meeting. (c) Kent County Levy Court shall apply a substantial reliance test to determine whether an applicant’s development rights are vested due to good faith reliance on the subdivision ordinance under which he or she proceeded. Kent County Levy Court may approve or deny in whole or in part an application for exemption by weighing such factors as the nature, extent and degree of public interest to be served by the Adequate Public Facilities Ordinance amendment against the nature, extent and degree of the applicant’s reliance on the state of the subdivision ordinance under which he or she proceeded. The nature and extent of applicant’s reliance on the Subdivision Ordinance prior to the introduction of the Adequate Public Facilities Ordinance may be established by various considerations, including, but not limited to: 1. Whether the applicant’s reliance on the state of the ordinance was reasonable; 2. Whether the applicant made extensive efforts to comply with the subdivision ordinance under which he or she proceeded; 3. Whether the applicant expended substantial sums to comply with the ordinance under which he or she proceeded; and 4. Whether the applicant’s good faith reliance on the ordinance under which he or she proceeded was to his or her substantial detriment. (d) The provisions of this Section 7 shall automatically terminate 18 months from the date of enactment.”
(4)
Schools.
(a)
Purpose.
[1]
Before any proposed sketch or preliminary plan for a residential
development project, other than a minor subdivision application, is
accepted by the Department of Planning Services for consideration
of approval by the Levy Court or Regional Planning Commission, a determination
of compliance with the school level of service standard of this subsection
shall be rendered by the Department of Planning Services. The determination
of compliance shall be based upon a finding that adequate capacity
exists, or will exist, to accommodate increased demand for educational
services in the school district within which the proposed residential
development is located. Such determination shall indicate that:
[a]
Available capacity exists to accommodate the demand
for educational services with the addition of the proposed residential
development; or
[b]
Planned capacity improvements are scheduled for
completion within two years of the date of final plat or site plan
approval exclusive of any capacity enhancements created pursuant to
a previously approved developer-funded mitigation program; or
[c]
The developer has executed an agreement with the County to pay mitigation to the school district within which the proposed subdivision is located to compensate for the impact of the proposed subdivision based upon the formula described in Subsection F(4)(e)[2] below.
[3]
Subdivisions and land developments comprising housing
intended for occupancy and use by individuals age 55 and older pursuant
to the provision of the Housing for Older Peoples Act (HOPA) of 1995
of the Federal Fair Housing Act, 42 U.S.C. § 3601 et seq.,
shall be exempt from these provisions. Applicants shall demonstrate
compliance with the Fair Housing Act provisions, including applicable
deed restrictions prior to final plan approval.
[Added 5-27-2014 by Ord. No. 14-09]
(b)
Level of service standards. The Department of Planning Services
shall determine the adequacy of school capacity according to the following
criteria:
[1]
The level of service for all schools (elementary, middle, and
high) is 100% of state-rated capacity. If any school within a district
does not have adequate capacity to serve existing and projected enrollment,
capacity for the entire district shall be considered inadequate.
[2]
Available capacity for individual schools shall be determined in accordance with Subsection F(4)(d), Measuring for available capacity, below.
[3]
Compliance with the level of service standard shall be determined
at the preapplication and preliminary plan review stage.
[4]
Final plat approval shall not be granted for developments until
the affected schools obtain adequate capacity or the developer has
executed an agreement with Kent County to pay mitigation to the school
district.
(c)
Student generation rate. The student generation rate per household
for elementary, middle, and high school shall be determined based
upon the most recent census data, including the American Community
Survey, for average school aged children per household, and by age
cohort. The student generation rate shall be further determined based
upon the following housing types:
[Amended 5-27-2014 by Ord. No. 14-09]
(d)
Measuring for available capacity.
[1]
For determination of available capacity, the Department of Planning
Services shall analyze the most current enrollment data and student
capacity ratings for the school district prepared by the Delaware
Department of Education for adequacy. Projected additional student
enrollment that would result from this proposed development in conjunction
with the committed development shall be determined and included in
this analysis.
[2]
Student generation related to committed development shall reflect
projected enrollment increases associated with all additional approved,
but not recorded, major subdivision plans, and recorded, but not built,
major subdivision plans in the school district.
[3]
If any of the above calculations results in a fraction, the
number shall be rounded up to the next whole number.
[4]
The proposed residential development shall be considered
compliant with the level of service standard when the combination
of existing enrollment, projected student enrollment related to the
proposed development, and student generation related to committed
development is less than or equal to available capacity of all schools
within the applicable district.
(e)
Mitigation.
[1]
If it is determined that a residential development proposal would result in noncompliance with the level of service standards set forth in Subsection F(4)(b), approval shall only be granted by the Levy Court or Regional Planning Commission when:
[a]
The developer has executed an agreement with the County to pay mitigation to the school district within which the proposed subdivision is located to compensate for the impact of the proposed subdivision based upon the formula described in Subsection F(4)(e)[2] below; or
[b]
The developer reduces the residential density to
reduce the impact on the school capacity to achieve compliance with
the level of service standards of this subsection; or
[c]
The Levy Court or Regional Planning Commission
approves a project phasing schedule that limits the construction of
the project to a maximum annual build-out rate that achieves compliance
with level of service standards.
[2]
Per-household mitigation payments shall be calculated at the
final plan approval stage by multiplying the total student generation
rate by 35% of the most recently established local school district
share of total average cost per student for school construction as
determined by the Department of Education.
[Amended 5-27-2014 by Ord. No. 14-09]
|
Total Per-Student Construction Cost = $34,786
Local Share = 29% or $10,088
35% Local Share = $3,531
Student Generation Rate (single-family) = 0.6
| |
|
Per-Household Mitigation Payment calculation:
35% of Local Share $3,531 (in this example) x Student
Generation Rate 0.6 (in this example) = Per=Household Mitigation Payment,
$2,118/unit (in this example)
| |
|
*This example is for illustrative purposes only. The Total Per-Student
Construction Cost and the Local Share are subject to change and revised
periodically by the Delaware Department of Education; and the Student
Generation Rate is subject to change based upon the most recent decennial
census data for average school-aged children per household, and by
age cohort. Based upon changes to those factors, the Per-Household
Mitigation Payment is subject to change accordingly.
|
[3]
The mitigation payment due for each lot shall be
payable at the time of building permit. The payment shall be made
directly to the respective school district and a receipt provided
to the Department of Planning Services.
(f)
Limitations on residential building permit approvals.
[1]
The Levy Court shall have the authority to limit the number of building permits for new residential units in school districts that do not have adequate student capacity as determined in Subsection F(4)(d).
[2]
The Levy Court may limit the number of residential
building lots that may be approved for development on an annual basis
in school districts for which all available school capacity has been
utilized.
G.
Advancement of facilities. Except as otherwise provided, if the level of service analysis report required in Subsection E(4) above reveals that available capacity of a public facility is not adequate for the planned development, the Levy Court and/or Regional Planning Commission may permit the applicant to advance the public facilities which are deficient, subject to the provisions below.
[Added 3-27-2007 by Ord. No. 07-08[10]]
(1)
No advancement of public facilities needed to
avoid deterioration in the adopted levels of service shall be accepted
by the Levy Court or Regional Planning Commission unless:
(a)
The proposed public facility is a planned capital
improvement or a nonfunded capital improvement; and
(b)
Appropriate conditions are included to ensure
that the applicant will obtain all necessary approvals for construction
of the public facilities from any agency having jurisdiction over
the public facility prior to or concurrent with final plan approval,
or issuance of a building permit from Kent County; and
(c)
The applicant furnishes a bond or other financial
assurance sufficient to guarantee the completion of construction of
the public facility to be advanced.
(2)
A written statement of commitment to construct
the public facility shall be provided by the applicant as a condition
of plan approval, and shall contain, at a minimum, the following:
(a)
An estimate of the total financial resources
needed to construct the proposed public facility; and
(b)
A schedule for commencement and completion of
construction of the public facility with specific target dates for
multiphase or large-scale projects; and
(c)
At the option of the Levy Court and/or Regional
Planning Commission and only if the public facility improvement to
be completed by the applicant would create capacity exceeding the
demand generated by the proposed development, a recoupment plan that
would enable the applicant to recoup the costs associated with creating
excess capacity from future development proposals within the area
of influence that would utilize the excess capacity. A recoupment
plan shall quantify the availability of excess capacity in terms of
equivalent dwelling units, the dollar costs incurred by the applicant
in creating excess capacity, and the unit cost per equivalent dwelling
unit that would be assessed to future development projects within
the area of influence. All recoupment plan proposals require approval
of Levy Court or Regional Planning Commission in accordance with the
jurisdiction and authority of each body as set forth in this chapter.
(3)
The construction or funding of only a portion
of a public facility needed to meet the adopted level of service may
be approved by the Levy Court or Regional Planning Commission only
when:
(a)
The proposed portion of the public facility
would achieve the level of service standard for the public facility
required to offset the impacts of the development proposal capacity,
and would be executed and completed concurrently with the proposed
development; and
(b)
The construction or funding of the balance of
the public facility that is needed to meet the adopted level of service
will be accomplished from other sources.
[10]
Editor's Note: This ordinance also redesignated
former Subsection G as Subsection H.
H.
Appeals procedure. Any applicant aggrieved by a determination by the Regional Planning Commission that adequate capacity is not available to serve a proposed development project and the subsequent denial of the project or conditions of approval intended to preserve capacity may follow the appeals procedure provided in Article XIV, Appeals, of this chapter.
[1]
Editor's Note: This ordinance provided for an effective date of 6-13-2006. Section 2 of this ordinance provided that, not less than 30 calendar days following the preapplication meeting set forth in § 187-17, an applicant may request exemption from any or all provisions of this chapter based on good-faith reliance on the state of law that existed prior to the enactment of this ordinance to his or her substantial detriment. Ord. No. 06-41 includes the full text of the procedure for requesting this exemption, which automatically terminates 18 months from the enactment of Ord. No. 06-41.
[Added 7-21-2009 by Ord. No. 09-14]
A.
A single-family
condominium shall be eligible to be converted to a single-family subdivision
consisting of fee-simple lots if the following requirements are met:
(1)
A determination is provided by the Department of Planning Services
that the community construction, home placements, roads, setbacks,
stormwater management features, entrances, and all other site improvements
demonstrate compliance with the minimum regulatory requirements in
effect at the time of construction of the condominium.
(2)
Certification from the Kent Conservation District, Delaware Department
of Transportation, Delaware State Fire Marshal, Delaware Department
of Natural Resources, and Kent County Department of Public Works shall
be required as applicable to ensure that the above-referenced site
improvements have been constructed and completed as presented on the
subdivision plan.
(3)
Public water and sewer serve all lots.
(4)
The main lines for all utilities, including, but not limited to,
water, sewer, electric, natural gas, cable, and propane, shall be
located in common areas.
(5)
Each lot has at least two off-street parking spaces.
(6)
The minimum lot size shall be 5,000 square feet.
(7)
In the case of manufactured homes, all homes must be affixed to permanent
foundations with the wheels and axles removed, and the motor vehicle
title to each home must be retired after conversion and title thereafter
shall be only transferred by deed.
(8)
One hundred percent of condominium owners must agree, in writing,
to the conversion.
(9)
Two separate maintenance accounts shall be established by the applicant:
a fund dedicated and limited to street maintenance; and a fund dedicated
to all other property maintenance issues such as open space maintenance,
stormwater facility maintenance, sign maintenance, etc.
(a)
In order to determine the amount to be designated for street maintenance,
the applicant shall prepare a street pavement assessment report prepared
by a professional engineer which shall determine the construction
of the existing streets, provide an assessment of the useful life
expectancy of the streets, and provide an estimate of maintenance
costs. This report shall provide a recommended annual street maintenance
assessment to each homeowner in the neighborhood.
(b)
In order to determine the amount to be designated for general property
maintenance issues, the applicant shall produce an estimate of the
annual property maintenance costs, exclusive of street maintenance.
This estimate shall provide the amount of an annual property maintenance
assessment for each homeowner in the neighborhood.
(c)
The park or condominium owner shall deposit an amount equal to the
per-lot annual street maintenance and general property maintenance
assessments, as calculated above, into an interest-bearing escrow
account to be turned over to the homeowners' association. All accrued
interest shall be turned over to the homeowners' association.
(d)
The funding of the account shall coincide with the real estate settlement
for each lot and shall be completed on or before issuance of 75% of
building permits within the subdivision.
(e)
The developer must demonstrate that the funds have been placed with
an independent escrow agent who is not under the power and control
of the developer. The escrow agreement shall provide that the funds
shall not be withdrawn by the developer or any person acting on behalf
of the developer.
(f)
At the time the homeowners assume control of the homeowners' association
and elect a board of directors, the escrow amount plus any interest
shall be transferred to the association; however, such transfer shall
not occur without the approval of the Department of Planning.
(10)
A record subdivision plan showing each lot’s metes and bounds,
setbacks, and street rights-of-way, and surveyed locations of all
dwelling units and accessory structures shall be submitted to the
County Planning Office and recorded in the Recorder of Deeds office
upon approval of the conversion;.
(11)
An as-built plan documenting installation of existing roadways, sewer,
water and storm facilities shall be submitted to the County Planning
Office at the time the record plan is submitted.
(12)
A homeowners' association or maintenance corporation must be created
for the maintenance of all facilities to be held in common ownership.
Deed restrictions, articles of incorporation, bylaws, and declaration
of maintenance applicable within the subdivision, including agreements
for the operation and maintenance by the property owners or agency
in the subdivision of any sewage, stormwater management facilities,
roads, recreation areas, or other physical facility which is of common
use or benefit shall be provided to the Department for review in conjunction
with the subdivision plan. All such documents must be recorded in
conjunction with the final plan.
B.
A conversion
pursuant to this section shall be approved administratively, provided
the applicant is in compliance with all provisions of this section.
The review fee shall be that established for minor subdivision review.
[Added 3-11-2014 by Ord. No. 14-02]
A.
Purpose. The purpose of this section is to provide an alternative
to homeowner responsibility for long-term maintenance of stormwater
infrastructure within subdivisions and land developments and relieve
homeowners of the burden of minor and major stormwater maintenance.
This section establishes the process for creating and extending a
district within and among major subdivisions and land developments
in which the stormwater management infrastructure, not owned and maintained
by the Department of Transportation, will be maintained by Kent County
in coordination with the Kent Conservation District for a fee to be
billed by the County on the annual property tax bills of individual
lot/unit owners.
B.
EMERGENCY REPAIRS
MAJOR MAINTENANCE
MINOR MAINTENANCE
OPERATION AND MAINTENANCE PLAN
ROUTINE MAINTENANCE
STORMWATER INFRASTRUCTURE
STORMWATER MAINTENANCE DISTRICT
STORMWATER MANAGEMENT
(1)
(2)
Definitions. As used in this section, the following terms shall have
the meanings indicated:
A repair to stormwater collection, conveyance, and/or management
infrastructure in a stormwater management district of an unexpected
situation or sudden occurrence of a serious and urgent nature that
demands immediate action which occurs outside of normal routine maintenance
or scheduled capital improvements and/or repairs within the stormwater
maintenance district. Emergency repairs shall be the responsibility
of the district.
Includes renovations such as replacement of outlet structures
and pipes, rebuilding of inlet pipes and aprons, repair of embankments,
and in extreme cases, replacing biofiltration media, complete rehabilitation
or retrofit. Major maintenance shall be provided for all subdivisions
and land developments included in a stormwater management district.
Major maintenance activities are further illustrated in the Stormwater
BMPs Maintenance Tasks and Responsibilities Guidance Document, and
activities for specific stormwater infrastructure shall be included
in the operation and maintenance plan.
Includes activities which typically occur annually or every
two or three years such as removal of accumulated sediments, clearing
of obstructions from inlet pipes or outlet structures, management
of burrowing animals, stabilization of low-flow channels, resetting
of rip rap, and repair of eroded banks. Minor maintenance shall be
provided for all subdivisions and land developments included in a
stormwater management district. Minor maintenance activities are further
illustrated in the Stormwater BMPs Maintenance Tasks and Responsibilities
Guidance Document, and activities for specific stormwater infrastructure
shall be included in the operation and maintenance plan.
Identifies the required maintenance and associated schedule
for stormwater management systems. A draft plan shall be provided
following the initial letter of intent from a community and a final
plan shall be included as part of the resolution adopted by Levy Court
creating or extending the stormwater maintenance district. The plan
may be subsequently revised with the approval of the Technical Advisory
Committee should conditions of the stormwater management system change
(e.g., conversion of turf areas to meadow).
Includes tasks such as grass cutting, vegetative management,
control of invasive species, and trash removal for residential subdivision
and land development only. Routine maintenance is an optional service;
the stormwater management district will perform this task for HOAs,
and a separate fee will be assessed based on factors including square
footage or acreage and number of times mowing is to occur each season.
Routine maintenance is only available for residential development.
Routine maintenance activities are further illustrated in the Stormwater
BMPs Maintenance Tasks and Responsibilities Guidance Document, and
activities for specific stormwater infrastructure shall be included
in the operation and maintenance plan.
Includes stormwater collection, conveyance, and management
structures shown on approved stormwater management plans and located
outside of state-maintained rights-of-way.
An area in Kent County, within ascertainable boundaries,
and that is in the opinion of the County government susceptible to
efficient and economical stormwater maintenance pursuant to the procedures
of this section.
For water quantity control, a system of vegetative, structural,
and other measures that controls the volume and rate of stormwater
runoff that may be caused by land-disturbing activities or activities
upon the land; and
For water quality control, a system of vegetative, structural
and other measures that controls the adverse effects on water quality
that may be caused by land-disturbing activities or activities upon
the land.
C.
Applicability.
(1)
All major residential subdivisions, residential land developments,
and mixed-use developments (e.g., planned unit developments) that
contain stormwater infrastructure approved after the effective date
of these regulations shall automatically be included within the stormwater
maintenance district prior to final plan approval.
(2)
Property owners within any subdivision or land development or
mixed-use developments (e.g., planned unit developments) requesting
public funds for stormwater management structure restoration shall
petition, using forms provided by Kent County, to be included in the
stormwater maintenance district prior to the dispersal of public funds.
(3)
Applicants/owners of individual nonresidential land development
may request, in writing, to be included in the stormwater maintenance
district prior to final plan approval. Service shall include only
basins, BMPs, and surface drainage facilities but would exclude proprietary
systems, underground storage, underground infiltration, closed drainage
systems and catch basins, porous pavement, green roofs, Delaware sand
filters, and water harvesting. Inclusion in the district shall be
noted on the final plan.
(4)
Property owners within existing major subdivisions and land
development may petition, using forms provided by Kent County, to
create or extend the stormwater maintenance district.
D.
Establishing a stormwater maintenance district for a subdivision
or land development approved after enactment of this section.
(1)
For residential and mixed-use (residential and nonresidential)
subdivision and land development applications, inclusion within the
stormwater maintenance district shall be automatic as a condition
of preliminary plan approval and shall be memorialized on the final
and/or record plan.
(2)
Individual nonresidential land development applications may
be included in the stormwater management district upon the written
request of the applicant and/or owner. The inclusion within the district
shall be memorialized on the final and/or record plan.
(3)
Perpetual easements granting the district access for the inspection
and maintenance of stormwater management infrastructure shall be shown
on the record plan. A separate recorded easement agreement in a form
determined by Kent County shall also be required.
(4)
The district shall not assume responsibility for the stormwater
facilities and infrastructure until the subdivision or land development,
or phase thereof, is substantially complete and the Kent Conservation
District has provided final approval of construction.
(5)
Fees shall not be assessed to property owners until the district
assumes responsibility for maintenance. Once the district assumes
responsibility, the units within the subdivision or land development,
or phase thereof, shall be subject to annual billing.
E.
Establishing a stormwater maintenance district for an existing subdivision
or land development approved prior to enactment of this section or
located within an incorporated area.
(1)
A representative of the subdivision or land development shall
submit to the Department of Planning Services a letter of intent to
petition for inclusion in the stormwater maintenance district.
(2)
The letter of intent shall be forwarded to the Kent Conservation
District for technical review. The Kent Conservation District shall
provide the community representative and the Department of Planning
Services with a report describing any required repairs to the stormwater
system. The report shall also include a draft operation and maintenance
plan.
(3)
Any required repairs shall be completed by the property owners
prior to creation of or inclusion in the district. Alternatively,
the property owners may petition the district to complete the repairs
and the cost apportioned to the property owners for payment based
upon a schedule to be established in the resolution creating the district.
(4)
Fifty-one percent of all lot/unit owners within major subdivision
or land development in Kent County may petition the Levy Court to
create or extend the stormwater maintenance district. Subdivisions
and land developments sharing stormwater infrastructure shall be treated
as a mixed-use development. The petition shall be completed using
forms provided by the County and shall include a list of the property
owners with their property and mailing addresses to be included within
the district. Voting rights shall be determined as follows:
(a)
One vote per individual lot;
(b)
One vote per equivalent dwelling unit (EDU) for nonresidential
development and residential development in single ownership (e.g.,
multifamily) shall be counted; and
(c)
When a subdivision is still under construction, the developer
shall represent one vote regardless of the number of individual lots
owned.
(5)
The petition shall include a description of the area to be included
in the district and the services to be provided (i.e., to what extent
will routine maintenance be performed by the district). Each property
owner shall be reflected as voting "yes," "no," or "not available."
The petition shall be made to the Department of Planning Services
and include a certification that the information provided by the property
or unit owner is true and correct.
(6)
Upon receipt of the petition, the Department of Planning Services
shall verify the signatures on the petition, ensure that a majority
of the lots are represented on the petition, and forward the request
to the Kent Conservation District for technical review and report.
(7)
For subdivisions and land developments located within incorporated
areas, the petition shall be accompanied by evidence of concurrence
by the local governing body. Such evidence may include a resolution
adopted by the governing body or approved minutes documenting a vote
of concurrence by the governing body.
(8)
After receipt of the Kent Conservation District report, the
Levy Court shall introduce a resolution creating or extending the
stormwater maintenance district for public hearing. The resolution
shall describe the geographic limits of the area, the fee structure
used to establish the annual fee to homeowners, any required repairs
to be completed for additional payment, and the operation and maintenance
plan for the community.
(9)
Public notice.
(a)
Notice to the general public of the Levy Court hearing shall
be accomplished by publishing the date, time, place, and nature of
the hearing in a newspaper of general circulation in the County.
(b)
Said notice shall be published by the Department of Planning
Services once not more than 21 and at least 10 days before the public
hearing and shall contain a description of the boundaries of the proposed
stormwater maintenance district and a statement that the County government
will hold a hearing to solicit public comment prior to consideration
of whether or not to create or extend the proposed district.
(c)
The notice shall state that in the event the County government
decides to create or extend the proposed stormwater maintenance district,
the County government will assess the unit costs of stormwater maintenance
against each tax parcel or unit property within the stormwater maintenance
district.
(d)
The Planning Services staff will post a notice outlining the
date, time, place, and nature of the hearing at all the entrances
to the subdivision or land development.
(10)
If the Levy Court determines, after a public hearing, that it
is in the public interest to create or extend the proposed stormwater
maintenance district, it shall pass a resolution creating the stormwater
maintenance district.
(11)
A perpetual easement agreement in a form determined by Kent
County granting the district access for the inspection and maintenance
of stormwater management infrastructure shall be recorded prior to
the district assuming responsibility for maintenance.
(12)
The Levy Court may, without further public hearing, consolidate
two or more stormwater maintenance districts into a single district.
F.
The stormwater maintenance district may be created at any time; however,
Levy Court may establish dates certain that maintenance of and billing
for new or extended districts shall commence (e.g., annually or semiannually).
G.
Stormwater maintenance district may be modified or dissolved only after a public hearing and vote of the Levy Court. Any application to modify or dissolve the stormwater maintenance district shall follow the steps enumerated in Subsection E above.
H.
Fee assessment.
(1)
In order to fund the annual and long-term costs for the stormwater
maintenance district, the Levy Court shall establish a fee structure
as part of the annual budget and divide the annual cost, plus a pro
rata administrative cost, by the number of dwelling units within the
stormwater maintenance district to arrive at the annual unit cost.
(2)
Fees for residential land development (i.e., manufactured-home
parks or apartments) shall be assessed to the property owner rather
than the unit owner.
(3)
For mixed-use subdivisions and land developments (e.g., planned
unit development), the fee for the nonresidential portion and residential
portion in single ownership (e.g., multifamily) shall be calculated
based upon equivalent dwelling units (EDU). An EDU would represent
the average imperviousness (combined rooftops and driveways/sidewalks)
of the residential lots draining to the structure. For example, if
the average lot has 2,500 square feet of impervious surface and a
commercial building and parking lot has 25,000 square feet, the commercial
component represents 10 EDUs.
(4)
For individual nonresidential land developments, the fee shall
be calculated based upon equivalent dwelling units (EDU). An EDU would
represent the average imperviousness (combined rooftops and driveways/sidewalks)
of AC-zoned residential lots served with public water and sewer and
located within the Growth Zone.
(5)
EDUs for nonresidential development and for residential development
in single ownership shall be calculated based upon the drainage area
and change in land cover as reflected in the stormwater management
plan.
(6)
For subdivisions and land developments in which the property
owners choose to give the district responsibility for routine maintenance,
a separate fee shall be added to the standard unit cost.
(7)
The annual unit cost shall then be assessed against each unit
located within the boundaries of the stormwater maintenance district.
No parcel of real estate shall be exempt from paying its annual unit
cost.
(8)
After levying the stormwater maintenance fee, the County government
shall deliver a separate fee collection warrant to the County Finance
Director commanding him or her to collect the stormwater maintenance
fee and its amount. The fee shall be levied and collected at the same
time and in the same manner as other County taxes and shall be a lien
on real property the same as other County taxes. The fee shall be
included on the County tax bills under the heading "stormwater maintenance
fee."
(9)
The County shall establish a separate enterprise fund for the
stormwater maintenance district(s). District revenue shall be accounted
for separately and shall not be available for non-district related
expenditures but may be used throughout any of the established district(s).
(10)
Should responsibility for maintenance be assumed by the district
after the commencement of any fiscal year and expenses incurred prior
to the first billing, the County government shall include in the next
annual budget an amount sufficient to reimburse the general fund for
the expenditure during the last fiscal year as well as an amount sufficient
to pay the cost for the coming fiscal year. Alternatively the County
may conduct a mid-year supplemental billing for the pro-rated amount.
I.
Maintenance and oversight.
(1)
Kent County shall enter into an agreement with the Kent Conservation
District for the completion of routine maintenance, capital improvements,
and emergency repairs within the stormwater maintenance district(s).
Upon the mutual agreement of the Kent Conservation District and the
County, either entity may enter into a contract with any private entity
or entities to complete maintenance or improvement projects within
the stormwater maintenance district(s). Such contracts may encompass
work within an individual subdivision or land development or a group
of subdivisions or land developments. All routine maintenance activities
assumed by the district shall be contracted out to qualified private
sector professionals.
(2)
The Stormwater Maintenance District Technical Advisory Committee
shall be appointed by the Levy Court to assist in the review and prioritization
of capital projects, the annual budget, and general administration
of the stormwater maintenance district program. The Committee shall
meet a minimum of semiannually and be comprised of one staff member
each of the Kent County Departments of Public Works, Planning Services,
and Finance, three private-sector engineers, two representatives from
the Kent Conservation District, one representative from the Delaware
Department of Natural Resources and Environmental Control, a representative
from a private stormwater maintenance company, and a citizen representative.
(3)
The annual budget adopted by the Levy Court shall include a
capital budget for significant repairs to and reconstruction of stormwater
infrastructure within the district(s) and separate line items used
for maintenance, administrative costs, and emergency repairs/reconstruction.
(4)
Specific capital projects shall be recommended by staff and
the Kent Conservation District for review and approval by the Levy
Court. To the extent possible, specific projects shall be described
in the annual capital budget.
