The purpose of this Article is to:

A.

Ensure that development occurs only where there are adequate transportation facilities in place, or programmed for construction;

B.

Ensure that development regulation:

1.

Is based on sound and equitable planning principles that avoid unnecessary congestion of transportation facilities, and

2.

Is coordinated with local, regional and state transportation planning and funding decisions; and

C.

Ensure coordination with the Delaware Department of Transportation ("DelDOT"), which funds and manages the State's transportation improvements.

(Ord. No. 97-172, § 3(ch. 13, div. 11.000), 12-31-1997; Ord. No. 06-060, § 1(Exh. A), 9-26-2006; Ord. No. 19-005, § 2, 5-28-2019)

No major land development or rezoning shall be permitted if the proposed development exceeds the level of service ("LOS") standards set forth in this Article or a Transportation Improvement District ("TID") or a Complete Community Enterprise District ("CCED") transportation master plan.

(Ord. No. 19-005, § 3, 5-28-2019)

A.

The transportation capacity for a proposed development shall be based upon the available capacity as determined by a traffic impact study ("TIS").

B.

The applicant shall follow the methodology set forth in this Article to determine the transportation impacts of the site.

C.

The TIS shall involve:

1.

A TIS prepared by the applicant, reviewed by DelDOT and approved by the County; or

2.

A TIS prepared by DelDOT on behalf of the applicant; or

3.

A transportation master plan prepared to support a TID or a CCED, as provided in Division 40.11.300.

(Ord. No. 97-172, § 3(ch. 13, § 11.110), 12-31-1997; Ord. No. 19-005, § 3, 5-28-2019)

A.

Except as exempted elsewhere in this Chapter, an applicant shall submit the following traffic information for all major plans and rezonings.

1.

Approximate vehicle trips per day during the week and the weekend, and the a.m. and p.m. peak hour trips generated by the proposed development;

2.

Road conditions and access geometry including roadway surface, horizontal, and vertical alignment conditions associated with the access location(s) to the adjoining roadway;

3.

Accident and roadway safety summary from DelDOT;

4.

Existing peak hour level of service at intersections in the area of influence of the proposed development, if available;

5.

Names and dates of previous traffic studies of intersections and road segments in the area of influence of the proposed development, if available;

6.

Existing travel time information for roadway segments within the area of influence, where available.

B.

In order to expedite the review of the above information, the applicant may, at its option, provide it to the Department and DelDOT in advance of the scheduled preapplication conference.

C.

If the Department and DelDOT find, based upon the information supplied by the applicant pursuant to Subsection A and the standards set forth in this Section, that a proposed rezoning, subdivision, or land development could generate significant traffic impacts, the Department shall require the applicant to prepare and submit a traffic impact study to the Department and DelDOT. Traffic impacts are considered significant if any of the following conditions exist.

1.

The proposal exceeds two thousand (2,000) projected average daily trips ("ADT").

2.

The proposal is projected to generate more than fifty (50) peak hour trips, including trips that are diverted from existing traffic.

3.

The subject property is located near roadway segments and intersections, which are operating below the level of service specified in Section 40.11.210.

4.

The proposed development causes the total development within the area traffic analysis zone and the adjacent zones to exceed the totals in the WILMAPCO Regional Transportation Plan or a Land Use and Transportation Plan or master development plan prepared in accordance with Division 40.11.300.

5.

The proposed development will impact roadways that are not capable of providing adequate and safe circulation, or adequate stopping sight distances, or that contain other geometric deficiencies that would result in safety problems if the development were built.

(Ord. No. 97-172, § 3(ch. 13, § 11.120), 12-31-1997; Ord. No. 04-059, § 1(Exh. A), 7-13-2004; Ord. No. 09-066, § 8, 10-13-2009; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 19-005, § 3, 5-28-2019)

The requirement for a traffic study and the evaluation of the level of service will be waived provided the Department finds:

A.

That a traffic impact study was completed for a similar subdivision or land development on the parcel no more than three (3) years before the submission of the current subdivision or land development application, that there has been no significant change in circumstances, and that the subdivision and land development activity within the area of influence are consistent with the size and type of development evaluated in the traffic impact study; or

B.

The parcel is subject to deed restrictions requiring that the proposed subdivision or land development be phased to coincide with improvements to the transportation system, or phased by a reduced rate of build out, so long as the time frame set forth in any deed restriction for completion of the development has not expired; or

C.

The proposed development is located within and has trip generation consistent with a TID or a CCED and meets the criteria established in Division 40.11.300.

(Ord. No. 97-172, § 3(ch. 13, § 11.121), 12-31-1997; Ord. No. 04-059, § 1(Exh. A), 7-13-2004; Ord. No. 19-005, § 3, 5-28-2019)

Within thirty (30) days after the Department or DelDOT determine that a traffic impact study is necessary, the Department and DelDOT shall meet with the applicant to establish the area of influence and all parameters used in the study. Once established, no substantial modification to the area of influence and study parameters shall be made by the applicant without the approval of the Department and DelDOT. Such approval shall be given only 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 study parameters was flawed or otherwise inaccurate.

(Ord. No. 97-172, § 3(ch. 13, § 11.122), 12-31-1997; Ord. No. 19-005, § 3, 5-28-2019)

A.

The area of influence shall extend beyond the site entrance(s) to include further intersections to the extent that the projected site traffic (Vehicle Trip Ends on an average weekday or weekend day, whichever is greater) exceeds:

1.

One (1) percent of the annual average daily traffic on the intersecting road if it is an arterial road,

2.

Five (5) percent of the annual average daily traffic on the intersecting road if it is a collector road, or

3.

Ten (10) percent of the annual average daily traffic on the intersecting road if it is a local road.

B.

Subsection A notwithstanding, the following rules shall also apply:

1.

The study area shall always include the site entrances.

2.

If the site would have access on two (2) or more intersecting roads, the study shall include their intersections.

3.

The study area shall not extend more than three (3) intersections beyond the site entrance(s) in any one (1) direction, unless it is determined by the Department or DelDOT that the proposed development would have a greater than normal impact upon the transportation system.

4.

For the purposes of this Section, average weekday vehicle trip ends generated by retail commercial uses shall be reduced by the following amounts to account for pass-by traffic.

a.

Restaurants, forty (40) percent.

b.

Convenience markets and service stations, sixty (60) percent.

c.

Other retail uses thirty (30) percent.

5.

For uses that operate on an event basis (e.g., stadiums and arenas) the Department and DelDOT shall substitute professional judgment for Subsection A in determining the area of influence.

(Ord. No. 97-172, § 3(ch. 13, § 11.124), 12-31-1997; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

A.

A traffic impact study shall be prepared by individuals or firms that perform traffic engineering and the study shall be reviewed and sealed by a professional engineer. The content and format of the study shall be as prescribed by Chapter 2 of DelDOT's Development Coordination Manual, or any amendments thereto, and include all of the following additional requirements:

1.

The anticipated trip generation of the land use including vehicle trips per day during the week and the weekend, and the a.m., p.m., and weekend peak hour trips generated by the proposed development.

2.

New traffic counts will be required for all intersections in the area of influence of the proposed development. If other traffic impact studies have been done in the area within one (1) year, the traffic counts from these traffic impact studies or other traffic counts may be used with the approval of the Department and DelDOT.

3.

Currently planned traffic mitigation programs and transportation improvements, including, without limitation, projects awarded or under construction, projects in DelDOT's Capital Transportation Program (CTP) and their completion dates, and projects and corridor needs in the adopted WILMAPCO Regional Transportation Plan.

4.

The existing and projected peak hour level of service after the proposed development is completed, with and without specified traffic mitigation measures.

5.

A geometric assessment of any roadways or plan features identified as having deficiencies likely to result in potential safety or design problems; e.g., turning radii, access location.

6.

Multi-modal transportation information for the area of influence including:

a.

The location of existing and planned sidewalks, shared-use pathways, bicycle lanes, transit routes, transit stations or bus stops, park and ride lots, and layover stations;

b.

Significant pedestrian and bicycle safety issues, such as crosswalks, highway lanes to be crossed, and roadway hazards to bicycles (such as storm grates or railroad rails in pavements); and

c.

Needed pedestrian and bicycle amenities, such as sidewalks, lighting, or bus shelters.

7.

Future traffic shall be projected by including trip generation from committed developments and a growth factor for background traffic.

a.

"Committed developments" are the following developments that are approved by the County but which have not yet been constructed:

i.

Developments with recorded plans, major plans and plans with rezonings not initiated by the County that have exploratory plan approval; and

ii.

Developments having had a zoning change approved within a three (3)-year prior period; and

iii.

Developments containing deed restrictions requiring phasing to coincide with improvements to the transportation system.

b.

Future traffic also shall be projected by the inclusion of trip generation based upon a growth factor for background traffic.

c.

The traffic impact study shall include all committed development in unincorporated New Castle County within a two-mile radius of the exterior boundaries of the project and any additional committed developments that the Department, at the scoping meeting determines will substantially affect traffic conditions in the area of influence.

8.

A statement indicating whether the peak hour level of service calculated for each road segment and intersection will exceed the acceptable level of service for the type of roadway segment and intersection pursuant to Section 40.11.210.

9.

Recommendations regarding what, if any, transportation improvements or trip reduction/transportation demand management (TDM) measures would be necessary to attain an acceptable level of service. If the report indicates that level of service will be exceeded, a Traffic Mitigation (TM) Agreement shall be submitted detailing the infrastructure improvements to be made.

10.

A statement signed by the applicant and referenced on the plan certifying that:

a.

The project information in the study is true and correct;

b.

The traffic analysis was conducted in accordance with the requirements of this Chapter.

(Ord. No. 97-172, § 3(ch. 13, § 11.130), 12-31-1997; Ord. No. 00-102, § 2, 11-28-2000; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 09-066, § 9, 10-13-2009; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 19-005, § 3, 5-28-2019)

Cross reference— Level of Service (LOS) waivers and Traffic Mitigation (TM) Agreements, § 40.11.230.

A.

Upon receipt of a final traffic impact study, DelDOT shall have ninety (90) days to review the traffic impact study pursuant to this Article and submit written comments to the Department. DelDOT, the applicant, and the Department may extend these time frames by mutual agreement. The review of the traffic impact study shall include the following:

1.

A statement indicating whether a traffic impact study was previously submitted and evaluated for the same or a substantially similar rezoning, subdivision, or land development application, and if so, the results of that evaluation, including any recommended mitigation measures. The statement also may contain an evaluation and findings of any other concurrent TIS for applications in the immediate area;

2.

A statement assessing the ability of the existing and planned transportation system to support the proposed rezoning, subdivision, or land development;

3.

A statement describing the extent to which the proposed rezoning, subdivision, or land development is consistent with the adopted WILMAPCO Regional Transportation Plan;

4.

A statement describing the extent to which any proposed transportation improvements, trip reduction/TDM measures are consistent with the adopted WILMAPCO Regional Transportation Plan and the State Capital Transportation Program ("CTP") and transportation capital budget;

5.

A statement describing the extent to which the proposed rezoning, subdivision, or land development complies with applicable DelDOT standards or regulations for access and subdivision design, and with the standards in Section 40.11.210; and

6.

A statement certifying the adequacy of the recommended traffic mitigation measures to bring the network back to the desired level of service in Section 40.11.210.

B.

If DelDOT does not complete its review of the traffic impact study within the above provided time frame, the applicant shall have the option to request that the traffic impact study be reviewed by individuals or firms that perform traffic engineering that are approved by the Department. Such reviews shall be examined and sealed by a professional engineer also approved by the Department. The applicant shall pay the cost of this review to the Department prior to submission of the final traffic impact study to the individual or firm by the Department.

(Ord. No. 97-172, § 3(ch. 13, § 11.140), 12-31-1997; Ord. No. 06-060, § 1(Exh. A), 9-26-2006; Ord. No. 19-005, § 3, 5-28-2019)

A.

Upon receipt of the traffic impact study and comments from DelDOT or individual or firm approved by the Department as provided in Section 40.11.140B, the Department shall review the traffic impact study with regard to the following:

1.

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.

2.

DelDOT's comments and recommendations when DelDOT reviewed the traffic impact study.

3.

The level of service requirements of this Article.

4.

Appropriateness and adequacy of any proposed mitigation measures.

5.

Compatibility with regional and State transportation plans and nearby development proposals.

6.

Design principles and standards as described in this Chapter (e.g., interconnectivity, transit/pedestrian accessibility and street design).

B.

Based upon the above criteria, the Department shall approve, approve with conditions or disapprove the traffic impact study. The Department shall approve the project when the traffic impact study demonstrates that acceptable levels of service will be maintained for roadway segments and intersections within the area of influence of the project as defined by Section 40.11.210. The project shall not be approved if it will result in an unacceptable level of service for a roadway segments or intersection(s) within the area of influence of the project. If the study is not approved the applicant may take one (1) of the following actions:

1.

The applicant may request permission to revise the proposed plan and traffic impact study to include additional traffic mitigation measures necessary to maintain acceptable levels of service within the project's area of influence. The proposed revisions shall be submitted by the applicant to the Department and DelDOT.

2.

The applicant may submit for approval an exploratory plan with a lower maximum intensity and density that does not exceed adequate levels of service, or submit for review and record (with approval) a declaration of restrictions that would prohibit development until such time as an adequate level of service can be achieved.

C.

Once the traffic impact study is approved or approved with conditions for a major plan, the applicant may proceed with a record plan submission as provided in Article 31.

(Ord. No. 97-172, § 3(ch. 13, § 11.150), 12-31-1997; Ord. No. 00-102, § 2, 11-28-2000; Ord. No. 04-059, § 1(Exh. A), 7-13-2004; Ord. No. 09-066, § 10, 10-13-2009)

Rezoning applications. In addition to the provisions contained in Section 40.11.150.A, the Department may request DelDOT's assistance in determining if the cumulative impact of proposed zoning changes for a given review period requires additional highway improvements or whether only a portion of the requested zoning changes for a review period can be supported. The Department may permit testimony and additional information to be submitted regarding any proposed mitigation. In considering a rezoning, the Department's and Planning Board's recommendations shall take into account the cumulative impact of the proposed rezonings, any mitigation proposed, and the factors that must be considered for rezonings set forth in Article 31.

(Ord. No. 97-172, § 3(ch. 13, § 11.155), 12-31-1997; Ord. No. 00-102, § 2, 11-28-2000; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

A.

The minimum acceptable peak hour level of service to be achieved and maintained on all roadway segments and intersections within the area of influence of the proposal shall be as follows:

1.

Sewer service areas.

a.

Level of service D within any sewer service area identified in Section 40.12.110;

b.

For roadway segments and intersections located within a sewered area or an existing developed area or designated infill area operating at an existing level of service D or E, the minimum acceptable peak hour level of service shall be E, provided that level of service D will be attained through transportation projects that add capacity to the transportation system, and

(i)

Are currently under construction, or

(ii)

For which contracts for construction have been executed by the applicant or third parties and approved in writing by DelDOT to ensure completion within three (3) years after issuance of the first building permit for the project that requires the capacity provided by those improvements to meet the required level of service, or

(iii)

For which contracts for construction have been awarded by DelDOT to ensure completion within three (3) years after issuance of the first building permit for the project that requires the capacity provided by those improvements to meet the required level of service.

2.

Outside sewer service areas. The existing level of service with no roadway segments and intersections exceeding level of service C.

B.

Building permits and certificates of occupancy may not be issued except as provided below.

1.

For non-residential construction shown on a plan, the required level of service standard must be attained at the time the Department issues the certificate of occupancy.

2.

For residential construction shown on a plan, the required level of service standard must be attained at the time the Department issues a building permit.

3.

If Subsection A.1.b., above applies, the level of service standard required will be attained by the construction of transportation improvements within three (3) years from the first building permit.

(Ord. No. 97-172, § 3(ch. 13, § 11.210), 12-31-1997; Ord. No. 00-024, § 2, 6-13-2000; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 09-067, § 1, 11-10-2009; Ord. No. 19-005, § 4, 5-28-2019)

A.

Traffic mitigation measures shall be required if the applicant proposes to develop at a density that would exceed the current levels of service as set forth in Section 40.11.210. To be considered, traffic mitigation measures must result in an acceptable level of service and may include any one or all of the following:

1.

A reduction in the proposed density or intensity of development;

2.

The phasing of construction to coincide with the completion of programmed transportation construction projects which are identified in DelDOT's six (6) year capital improvements program;

3.

The construction or implementation of off-site transportation or transit improvements, or trip reduction/TDM measures by the applicant.

B.

The specific mitigation measures shall be chosen based on their ability to achieve and maintain acceptable levels of service for roadway segments and intersections within the area of influence of the project. All proposed traffic mitigation measures approved by the Department shall be listed on the record plan.

C.

Traffic Mitigation (TM) Agreements shall be used by an applicant when an acceptable level of service cannot be reasonably achieved and when an applicant is unable to phase or reduce the density or intensity of the development proposal and unable to provide highway improvements to meet LOS standards. As part of the LOS Waiver process, a TM Agreement shall be prepared and approved pursuant to Section 40.11.230.

(Ord. No. 97-172, § 3(ch. 13, § 11.220), 12-31-1997; Ord. No. 00-102, § 4, 11-28-2000; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 19-005, § 4, 5-28-2019)

A.

Level of Service (LOS) Waiver. If the proposed development is located in a designated infill area, the Southern New Castle County Sewer Service Area, or existing developed area where there are existing roadway segments or intersections functioning at unacceptable levels of service, as defined by Section 40.11.210, the applicant may, in writing, request a Level of Service (LOS) Waiver. The applicant shall submit the LOS Waiver request, accompanied by a TM agreement to the Department. The submission shall include DelDOT's recommendation and comment and other application requirements and materials as set forth below and in Appendix 1 to this Chapter.

1.

The application consisting of a copy of the Traffic Mitigation Agreement and DelDOT's recommendation and comment. The applicant shall also forward a copy of this application to the Clerk of County Council, the district council member, and the President of County Council.

2.

A draft resolution for County Council's consideration that is to also be provided in electronic form.

3.

The applicable Departmental filing fee in accordance with Appendix 2 to this Chapter.

4.

The applicable Recorder of Deeds filing fee in the event the application is granted (the check will be returned if the application is rejected).

5.

All current school taxes, county taxes and sewer service fees must be paid or not delinquent at the time of application.

6.

All other information and items as required by Section 40.11.230.

B.

Traffic Mitigation (TM) Agreement. Every applicant who requests an LOS Waiver from County Council shall be required to enter into a TM Agreement with DelDOT. In connection with the application to obtain an LOS Waiver, DelDOT will coordinate its negotiations with the applicant in the preparation of a TM Agreement with the Department. Every TM Agreement shall be executed by the applicant and DelDOT. Each TM Agreement will typically contain the following:

1.

Primary trip reduction measures that the applicant must implement in order to achieve quantitative trip reduction goals, which shall include at a minimum no more than eighty-five (85) employee vehicles per one hundred (100) employees arriving during the morning peak traffic period or departing during the evening peak traffic period on any given day. The specific measures shall be incorporated into the TM Agreement.

2.

Contingent trip reduction measures, some or all of which shall be utilized in the event that the primary measures fail to achieve the trip reduction goals.

3.

A requirement that the applicant will pay the reasonable costs of a third-party consultant (retained and supervised by DelDOT) to serve as an auditor. The Department shall participate on the consultant selection committee. The third-party auditor will annually audit the applicant's progress on implementation of the specific TDM measures it has agreed to implement and the effectiveness of such measures in achieving trip reduction goals.

4.

A requirement that the applicant will develop a budget of the total costs that the applicant expects to bear for the implementation of the TDM measures for the five (5) years following the issuance of the Certificate of Occupancy (CO), exclusive of the cost of the independent auditor. This budget shall be developed by the applicant and approved jointly by DelDOT and the Department prior to, and as a condition of, the issuance of a CO. DelDOT shall retain the consultant by use of its normal consultant contract procedures, including but not limited to the use of an appropriate hourly-fee based method for compensation, as well as the normal DelDOT limitations on profit, overhead, and chargeable fees.

5.

A requirement that the applicant will secure the implementation of the TDM measures with a financial guarantee, deposited with and held by DelDOT. The financial guarantee shall be provided by a bond, certified check, letter of credit, or other form of security in a manner and form approved by DelDOT. The guarantee must be posted at the time the CO is issued, shall be in an amount equal to one hundred and fifty (150) percent of the total costs of implementing the TDM measures and shall remain in effect for five (5) years. For multi-phased projects such a financial guarantee shall be posted at the time that the CO is issued for each subsequent building. DelDOT may also draw on the financial guarantee to pay for the cost of the auditor, should the applicant fail to make payment within a reasonable period of time. The amount otherwise drawn upon the financial guarantee shall be limited to an amount equal to the amount thus far unexpended by the applicant under the approved budget for such costs, up to the one hundred and fifty (150) percent limit.

6.

In connection with an LOS Waiver, any other provision(s) that County Council adds or adopts as a condition of an LOS Waiver. The waiver thus will be conditioned on the applicant and DelDOT accepting and agreeing to the provisions.

7.

Any other transportation mitigation conditions or measures required by DelDOT as a condition of an LOS Waiver. The waiver will be conditioned on compliance with any condition required by DelDOT.

C.

LOS Waivers and TM Agreement Approval.

1.

After DelDOT (in consultation with the Department) and the applicant have negotiated the TM Agreement, the applicant may submit a written request to County Council and the Department for an LOS waiver which shall be accompanied by TM Agreement and DelDOT's comments and recommendations with regard to the TM Agreement.

2.

The Department will review the LOS waiver, TM agreement and DelDOT's comments and recommendations and shall submit its written recommendation within twenty (20) days to the Clerk of County Council, the sponsor, the sponsor's legislative aide, and the applicant. If the Department recommends changes to be made to the applicant's draft resolution, a substitute draft resolution shall accompany the Department's recommendation and shall be provided in electronic form to the sponsor's legislative aide.

a.

The Department shall consider the following when developing a recommendation:

i.

The locations of the roadway segments and intersections that will have unacceptable levels of service and the relative effect construction of the subdivision or land development will have on the roadway segments and intersections;

ii.

The number and types of current and future constructed projects in the area of influence of the proposed development and the effect the projects had on the results of the traffic impact study;

iii.

The types of traffic mitigation measures or transportation improvements proposed by the applicant to reduce traffic congestion from the proposed development; The potential for transportation improvements that will result in the attainment of acceptable levels of service being included in future DelDOT capital improvement programs; and

iv.

The extent to which the proposed development represents the logical infilling or completion of an established land use pattern, offers the opportunity to advance affordable housing, economic development or other objectives of the Comprehensive Development Plan.

b.

The Department will not recommend approval of an LOS Waiver unless, at a minimum, the Department finds:

i.

The proposed development is an economic development project that is significant with respect to the number and character of jobs provided, or the potential revenue to the County; or

ii.

The applicant demonstrates, based on documentation, that the application of this Article creates unique, significant, undue hardship; or

iii.

The proposed development accomplishes another unique, significant, and demonstrated public purpose that could not be accomplished by applying other provisions of this Article.

3.

Upon receipt of the Department's recommendation, County Council shall act on the LOS Waiver resolution, or any substitute resolution, at one (1) of its next two (2) regularly scheduled public meetings. A simple majority or seven (7) votes shall be required to approve an LOS Waiver resolution receiving a favorable recommendation from the Department. A two-thirds (⅔) majority or nine (9) votes shall be required to approve an LOS Waiver resolution when the Department recommends disapproval.

4.

If County Council grants an LOS Waiver, it may approve the TM Agreement with or without conditions. If conditions or additional provisions are required, approval of the LOS Waiver will be contingent upon agreement to the conditions or additional provisions by DelDOT and the applicant, and execution of an amended TM Agreement including the conditions or additional provisions. The President of County Council shall sign the resolution granting such waiver on behalf of County Council.

5.

Upon approval by County Council, with or without modifications, the TM Agreement shall be incorporated into the grant of the LOS Waiver and shall be recorded by the Clerk of County Council in the New Castle County Office of the Recorder of Deeds at the cost of the applicant, as a deed restriction that runs with the land. All deed restrictions shall be prepared by the applicant and approved by the Departments of Land Use and Law prior to final approval. The applicant's final record plan shall indicate the instrument number where the deed restriction is recorded. A copy of the recorded TM Agreement and the LOS Waiver document shall be provided to the Department and the applicant. The applicant shall also provide WILMAPCO with a copy.

6.

As an additional condition of the grant of an LOS Waiver, the applicant shall post a financial guarantee of its obligations under the TM Agreement with DelDOT, as described in Subsection B.5.

D.

Employer Reports, Compliance Audits and Enforcement of trip reduction/transportation demand management (TDM) measures.

1.

Compliance Audits. While the TDM measures are being implemented by the applicant in accordance with the TM Agreement:

a.

DelDOT will retain a third-party consultant at the applicant's expense, pursuant to Subsection B.3., to serve as an independent auditor of the applicant's implementation of the TM Agreement; and

b.

Beginning with the issuance of the CO for the first building, the applicant will, for two (2) years or until the independent auditor confirms that such measures have been fully implemented, whichever first occurs, provide to DelDOT and the Department semi-annual reports (beginning six (6) months after the CO is issued or earlier if required by DelDOT) on the progress of its implementation of the TDM measures in the TM Agreement. In connection with a multi-phase development, a new two-year period shall begin with the issuance of each CO; and

c.

The independent auditor will provide the applicant, DelDOT, the Department and WILMAPCO annual audits on the progress of the applicant's implementation of the TDM Measures in the TM Agreement and achievement of the trip reduction goals.

2.

Enforcement. Should either DelDOT or the County determine that the applicant has failed to make a good faith effort to implement, or to continue to implement, the TDM measures in the TM Agreement, one (1) or more of the following actions may be initiated or undertaken by either DelDOT or the County. Before either DelDOT or the County determines that the applicant has failed to make a good faith effort to implement or to continue to implement, the TDM measures and/or before any enforcement action is initiated or undertaken by either DelDOT or the County, the applicant shall have the right to meet with the Department to show cause why no enforcement action should be taken. In the event that the applicant does not resolve the concerns raised by DelDOT or the County within sixty (60) days of notice, any of the following options may be utilized by the Department:

a.

The imposition of fines;

b.

DelDOT's drawing upon the financial guarantee that the applicant has posted with it, in order to carry out TDM measures within the area of influence of the applicant's project (if such guarantee has been imposed as a condition of the development). The amount drawn upon the financial guarantee shall be limited to an amount equal to the amount thus far unexpended by the applicant under the approved budget for such costs, up to the one hundred and fifty (150) percent limit;

c.

Refusal to issue further building permits by the County for any building(s) on the site for which the TDM measures were developed; and

d.

Any and all other remedies available at law or in equity.

3.

Reduction of Financial Guarantee. DelDOT may reduce the financial guarantee the applicant has posted with it, based on the implementation of TDM measures in the TM Agreement and/or progress toward trip reduction goals. In any event, the term of the financial guarantee posted with DelDOT shall not exceed five (5) years. The amount drawn upon the financial guarantee shall be limited to an amount equal to the amount thus far unexpended by the applicant under the approved budget for such costs, up to the one hundred and fifty (150) percent limit.

4.

In addition to the remedies provided above, DelDOT shall monitor the attainment of trip reduction goals, based on annual reports of the independent auditor.

a.

If the trip reduction goals have not been met by the applicant within one (1) year of the issuance of the CO, despite the implementation of the primary TDM measures, the applicant is required to implement one, some, or all of the contingent TDM measures, intended to achieve equivalent traffic mitigation, as set forth in the TM Agreement.

b.

Should either DelDOT or the County determine that the applicant has failed to achieve the trip reduction goals within three (3) years after issuance of the CO, the applicant shall appear before County Council to be heard as to why the applicant has not achieved the trip reduction goals. The applicant may work with DelDOT and the Department to develop a revised TM Agreement to be reviewed and approved by County Council. After the third year and unless and until the trip reduction goals contained in the applicant's plan have been achieved by the applicant, County Council may mandate that the Department refuse to issue further building permits, grant rezoning changes or any other land use regulatory changes or LOS Waivers relating to the particular site which is the subject of the TM Agreement, if such permits, changes, or waivers would allow alterations or additions to the building(s) at the site, which would result in increased employment at that site. In addition, DelDOT may refuse to grant additional exit/entrance permits for such site, unless and until the trip reduction goals have been achieved by the applicant.

5.

After five (5) consecutive years of attaining the goal(s) of the TM Agreement, annual audits no longer will be required. However, DelDOT reserves the right to perform an audit at DelDOT's expense at any time. If a change in any public policy, or the withdrawal or discontinuation of any governmental program, or other change in circumstance beyond the control of the applicant make impossible or impractical the implementation of primary or contingent TDM measure(s), the applicant shall, with the concurrence of DelDOT, substitute other measure(s) designed to achieve equivalent trip reductions, provided that:

a.

The total costs of implementation of such substitute TDM measures will not exceed the original budgeted amount of the TDM measures replaced; and

b.

Such substitution has been approved by County Council. In considering such requests, County Council shall request that DelDOT and the Department provide a recommendation on such requested changes, prior to action by County Council. In an instance where the creation of a new government program makes other TDM measures more desirable, an applicant may, according to the process described above, substitute TDM measures. In either instance, DelDOT and the Department shall provide their recommendations to County Council no later than sixty (60) days after the applicant has requested this action. Should there be a change in the use of the site which is the subject of the TDM measures or a change in the circumstances which resulted in the TM Agreement being required, County Council on the recommendations of DelDOT and the Department may amend or terminate said TDM requirements.

(Ord. No. 97-172, § 3(ch. 13, § 11.230), 12-31-1997; Ord. No. 00-102, § 5, 11-28-2000; Ord. No. 00-130, § 1, 6-12-2001; Ord. No. 04-154, § 2, 1-25-2005; Ord. No. 06-060, § 1(Exh. A), 9-26-2006; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 19-005, § 4, 5-28-2019)

A.

Applicability.

1.

This Section provides for the development of a Transportation Improvement District ("TID"), which provides a more effective and flexible way to implement the purposes of this Article and to encourage economic development consistent with Article 40.01.015.C. A "TID" means a geographic area defined to secure required improvements to transportation facilities in that area and approved as provided in this Section and the DelDOT Development Coordination Manual ("DCM"), Section 2.4, as amended.

2.

This Section does not apply to any area zoned exclusively for any combination of the following zoning districts: Suburban Transition (ST), Suburban (S), Suburban Estate (SE), Suburban Reserve (SR), Neighborhood Conservation (NC), or Manufactured Home (MM).

3.

This Section does not apply to any area zoned exclusively for commercial uses.

B.

Agreement. The Department will enter into an agreement with DelDOT that addresses the initial boundaries and the target horizon year for a TID, and includes any other provision agreed to by the County and DelDOT to implement the TID.

C.

Land Use and Transportation Plan.

1.

The County shall adopt a Land Use and Transportation Plan for the TID. When the County adopts a Land Use and Transportation Plan as part of an approved TID with all of the elements provided in Subsection C.2. below, the traffic study requirements established in Sections 40.11.110, 40.11.120 and 40.11.121 do not apply.

2.

The Land Use and Transportation Plan shall include the following elements:

a.

A map identifying the TID boundaries, in accordance with Section 2.4.2.3 of the DCM.

b.

A target horizon year for the land use forecast and provision of all transportation improvements identified in Subsection C.2.e, below, that are needed to accomplish the applicable LOS. The target horizon year shall not exceed twenty (20) years.

c.

A quantitative, parcel-specific forecast of land use in the TID, in accordance with Section 2.4.2.5 of the DCM.

d.

A level of service (LOS) standard in accordance with Section 2.4.2.6 of the DCM for all collector and arterial streets in the TID, and any other transportation improvements that the County elects to subject to the LOS analysis.

e.

The transportation improvements needed to bring all roads and other transportation facilities in the TID up to applicable State or local standards, including the LOS standards identified in the Land Use and Transportation Plan, over the life of such plan.

f.

A technique for measuring LOS or travel time on transportation facilities, which may include travel time on segments and not intersections. This may include any technique described in the Development Coordination Manual, or other techniques that reflect then-existing best practices or innovative approaches to measuring transportation or network capacity.

g.

A system for developer contributions in accordance with Section 2.4.2.8 of the DCM, which:

i.

Are sufficient to recover transportation capital improvement costs attributable to new development in the TID, and

ii.

Are earmarked for the transportation improvements identified in Subsection C.2.e, above, which are located in the TID.

h.

All sources of financing for the improvements identified in Subsection C.2.e, above, including anticipated developer contributions identified in Subsection C.2.g, above, and any additional and committed sources of County, state or federal funding that are not contingent upon voter approval.

i.

A required economic analysis that shall:

i.

Identify workforce characteristics and employment by industry and specialization;

ii.

Identify major area employers;

iii.

Compare existing and potential economic activity in the study area to the rest of the county, relevant peer regions and emerging development trends; and

iv.

Assess future economic growth and associated industry wage potential.

v.

Provide an estimate for the potential of high wage employment opportunities in the study area.

3.

The Land Use and Transportation Plan shall be adopted as part of the Comprehensive Plan. The Land Use and Transportation Plan shall include the following public outreach process prior to initiation of the Comprehensive Plan amendment:

a.

Community meeting.

i.

The Department shall notify all property owners within the proposed TID boundaries informing them of the application and the review and approval process.

ii.

The Department shall arrange an area-wide meeting to inform the community about the TID and the program requirements. This will occur prior to the Planning Board public hearing.

b.

Written notices shall be sent to all property owners of record within the proposed TID boundaries.

c.

After the community information meeting occurs, the Department shall document the comments received at the meeting and provide a summary of the comments for the Planning Board and County Council public hearings. The Planning Board and County Council shall conduct public hearings as required for adoption or amendment of the Comprehensive Plan.

D.

Limitation on Number of TIDs. County Council shall not adopt more than two (2) TIDs in a calendar year.

E.

TID Report. The Department shall provide County Council with a report every two (2) years on the use and effectiveness of the TID provisions.

F.

Documentation. Transportation improvements required to bring all roads and transportation facilities in the TID to established standards and developer contributions and other sources of financing shall be provided in an appendix to contractual obligations by the parties which will be recorded in the Recorder of Deeds and referenced on the record plan.

(Ord. No. 19-005, § 5, 5-28-2019)

A.

Applicability. This Section provides for the development of a Complete Community Enterprise District(s) ("CCED(s)"), which may provide a more effective and flexible way to implement the purposes of this Article in the County's more urban areas that are served by, and have development patterns that support, multiple travel modes including transit. For purposes of this Article, a "CCED" means a geographic area that meets the criteria established in 2 Del. C. §§ 2103 and 2104. For purposes of this Section, the terms "District," "Farebox recovery ratio," "Isoperimetric quotient," "Level of service," "Parcel of land," and "Project" have the meanings assigned in in 2 Del. C. § 2102.

B.

Agreement. The Department will enter into an agreement with DelDOT that addresses the initial boundaries and the target horizon year for a CCED, creates the master development plan described in Subsection C below, and includes any other provisions agreed to by the County and DelDOT to implement the CCED.

C.

Master Development Plan and Transportation Planning Study.

1.

The County shall adopt a master development plan for the CCED. When the County adopts a CCED with all of the elements provided in Subsection C.2 below, the traffic study requirements established in Sections 40.11.110, 40.11.120 and 40.11.121 do not apply.

2.

The master development plan shall include the following elements:

a.

Mass transit routes;

b.

A mix of parcels of land zoned for residential, commercial, light industrial, or institutional uses;

c.

A guide for the specific design of the physical form, public spaces, and amenities of the District so that transit, walking, and cycling are safe and comfortable modes of travel for all the residents of the District;

d.

Level of service requirements specific to the District and

3.

The master development plan shall be adopted as part of the Comprehensive Plan.

4.

Once a master development plan has been created, DelDOT will conduct a transportation planning study pursuant to 2 Del. C. § 2103.

(Ord. No. 19-005, § 5, 5-28-2019)