Delaware General Assembly

Lieu/Substituted 6/2/22

The General Assembly has ended, the current status is the final status.

SS 1 for SB 287

5/6/22

Hansen

Reps. Heffernan, K. Williams

Sen. Townsend

AN ACT TO AMEND TITLES 9, 14, AND 22 OF THE DELAWARE CODE RELATING TO SCHOOLS.

This Act addresses the relation between land development and school capacity and facilitates greater coordination between the counties and local school districts with regard to planning. In addition, the Act enables Kent and Sussex County to use the Voluntary School Assessment (VSA) and other agreements to address the impact of residential development on school capacity. The following is a summary of the Act’s 6 sections: Section 1 of the Act amends Chapter 26 of Title 9 of the Delaware code pertaining to zoning in New Castle County. First, it amends § 2656 of Title 9 to require that New Castle County’s comprehensive plan for planning and development include an educational element concerning the construction and allocation of school facilities within school districts. Second, Section 1 of the Act amends § 2661(c) of Title 9 concerning the certification of adequate school capacity for proposed residential developments. Section 2661(c)(1) provides that prior to recording a major subdivision plan, a residential developer must provide a certification of adequate school capacity to the Department of Land Use from the Secretary of the Department of Education. Section 2661(c)(2) sets forth exceptions to the requirement that a developer provide such a certification, including, in § 2661(c)(2)(iii), that no certification is necessary where the developer has pledged to pay a VSA. Section 1 deletes that exception. In addition, Section 1 of the Act further amends § 2661(c) to provide that if adequate school capacity does not exist, New Castle County may request that the Secretary calculate a VSA, which the residential developer has the option of paying in lieu of, or in partial satisfaction of, the certification of adequate school capacity, at the discretion of the local school district. Section 1 also provides that the local school district or the Secretary may require a residential developer to enter into an agreement to resolve school capacity issues arising from the proposed development that are not addressed by the VSA. Finally, Section 1 of the Act amends § 2661(c) to remove language providing that any regulation or ordinance adopted by New Castle County linking residential development to school capacity is preempted by state law and of no force or effect. Section 2 of the Act amends Chapter 49 of Title 9 of the Delaware code pertaining to zoning in Kent County. First, it amends § 4956 of Title 9 to require that Kent County’s comprehensive plan for planning and development include an educational element concerning the construction and allocation of school facilities within school districts. Second, Section 2 of the Act amends § 4961 of Title 9 to add a new subsection (d) concerning the certification of adequate school capacity for proposed residential developments. Section 4961(d) enables Kent County to require residential developers to provide a certification from the Secretary of the Department of Education concerning school capacity prior to recording a major record subdivision plan; however, no certification is required where the proposed development is (i) restricted to providing housing predominantly for individuals 55 years of age or older; or (ii) for low income housing. If adequate capacity does not exist, Kent County may request that the Secretary calculate a VSA, which the residential developer has the option of paying in lieu of, or in partial satisfaction of, a certification of adequate school capacity, at the discretion of the local school district. In addition, the school district or the Secretary may require a residential developer to enter into an agreement to resolve school capacity issues arising from the proposed development that are not addressed by the VSA. Section 3 of the Act amends Chapter 69 of Title 9 of the Delaware code pertaining to zoning in Sussex County. First, it amends § 6956 of Title 9 to require that Sussex County’s comprehensive plan for planning and development include an educational element concerning the construction and allocation of school facilities within school districts. Second, Section 3 of the Act amends § 6961 of Title 9 to add a new subsection (d) concerning the certification of adequate school capacity for proposed residential developments. Section 6961(d) enables Sussex County to require residential developers to provide a certification from the Secretary of the Department of Education concerning school capacity prior to recording a major record subdivision plan; however, no certification is required where the proposed development is (i) restricted to providing housing predominantly for individuals 55 years of age or older; or (ii) for low income housing. If adequate capacity does not exist, Sussex County may request that the Secretary calculate a VSA, which the residential developer has the option of paying in lieu of, or in partial satisfaction of, a certification of adequate school capacity, at the discretion of the local school district. In addition, the school district or the Secretary may require a residential developer to enter into an agreement to resolve school capacity issues arising from the proposed development that are not addressed by the VSA. Section 4 of the Act amends § 842 of Title 22 of the Delaware code to conform with the changes to § 2661 of Title 9 contained in Section 1 of the Act. Specifically, Section 4 of the Act removes the exception that a residential developer need not provide a certification of adequate school capacity if the developer has pledged to pay a VSA. In addition, Section 4 of the Act removes language providing that any regulation or ordinance adopted by New Castle County linking residential development to school capacity is preempted by state law and of no force or effect. Section 5 of this Act amends § 103 of Title 14 of the Delaware code. It provides that in calculating the VSA, the Secretary of the Department of Education shall consider the cost of off-site roadway improvements required by the state transportation department. Section 6 of this Act directs the Department of Education to develop guidance and policies for the implementation of §§ 2661(c)(5), 4961(d)(5), and 6961(d)(5) of Title 9, concerning the ability of local school districts and the Secretary of the Department of Education to require a residential developer to enter into an agreement to resolve any remaining school capacity issues not addressed within the VSA. The Department of Education is to develop these guidance and policies by July 1, 2023. Section 7 of this Act directs the Department of Education to develop guidance and policies for implementing §§ 2656(g)(11), 4956(g)(11), and 6956(g)(11) of Title 9, concerning the requirement that the Counties consider an educational element in developing their comprehensive plans for planning and development. The Department of Education is to develop these guidance and policies by July 1, 2024. Section 8 of this Act requires Kent and Sussex Counties to include the educational element in their comprehensive plans within the next comprehensive plan update following this Act's enactment into law and requires New Castle County to include the educational element in its comprehensive plan by December 31, 2025. Section 9 provides that the effective date for this Act, other than for the provisions affected by Sections 6, 7, and 8, is July 1, 2023.

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Takes effect upon being signed into law

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