This Article establishes the actual development capacity of individual sites based on current adequacy ("concurrency") of roads, water, sewers, and schools. Concurrency for these facilities shall be obtained through compliance with this Article, Article 11, Article 12, and Article 14. Concurrency shall be obtained solely through the payment of an impact fee, in accordance with Article 14, for library, emergency medical, fire, parks and police services. Concurrency for drainage shall be achieved by compliance with Article 22.

This Article requires an applicant for a rezoning, subdivision development plan or land development plan to conduct a carrying capacity analysis which regulates the maximum intensity of development based on actual infrastructure capacity. The carrying capacity analysis is designed to ensure that the public health, safety, welfare and quality of life of the citizens of this County are protected by preventing development from exceeding the existing carrying capacity of public facilities needed to sustain the proposed development. The resource protection standards of Article 10 can also impact the intensity or density of a development so that calculation is integrated in Division 40.05.400. For purposes of this Article, the site's carrying capacity shall be based upon the following:

A.

Transportation capacity. The County has numerous areas of congestion that may limit the development potential of a site. Each proposed development is allocated capacity based upon a traffic impact study for the proposed development. The allocation of this capacity sets a maximum development potential for each site.

B.

Sewer capacity. County sewer service may represent a limiting factor for development. The County has conducted an analysis of various areas of the County to determine the sewer capacity of each area. In all sewer service areas in the County, sewer capacity shall be provided on a first come, first serve basis if and/or when sanitary sewer service becomes available, as determined by the Department of Public Works.

C.

Water capacity. Independent water companies supply water for development in the County. A water company must certify that it has adequate capacity to serve the areas being influenced by the development with water. The water company must certify that it can supply adequate pressure and fire volumes to support the new development or that the company has budgeted funds sufficient to provide adequate capacity.

D.

Schools. School districts are independent from the County. The school districts must certify that they have adequate capacity or have received resources sufficient to provide adequate capacity.

E.

Natural resources. The protection standards of Article 10 are included here in a calculation that indicates the acres of each resource that must be preserved and the maximum permitted density for residential or intensity for nonresidential development.

(Ord. No. 97-172, § 3(ch. 13, div. 05.000), 12-31-1997; Ord. No. 06-042, § 1, 7-25-2006; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 18-031, § 61, 4-24-2018)

At the preapplication stage for a rezoning or a major or minor subdivision or land development proposal, the applicant shall comply with the requirements of this Article and shall submit a complete site carrying capacity analysis pursuant to Section 40.05.510, except as follows.

A.

A site resource capacity analysis pursuant to Division 40.05.400 need not be conducted for any site containing no natural resources listed within Section 40.05.420, or for any sites designated as a redevelopment plan or as a qualified Brownfield property.

B.

The maximum gross floor area established by Table 40.05.422 of this Article shall not apply to mezzanine space in warehousing storage facilities.

C.

Any lot proposed for residential use which cannot be further subdivided, or which is buildable after floodplains or wetlands are taken into account but would not be buildable after other resource standards are applied, need not comply with the site resource capacity requirements of Division 40.05.400. However, such a lot shall be permitted only one (1) dwelling unit.

D.

Any land development plan proposing a nonresidential use less than twenty thousand (20,000) square feet of gross floor area (GFA), and which is buildable after floodplains or wetlands are taken into account but would result in no buildable area after other resource standards are applied, need not comply with all of the site resource capacity requirements of Division 40.05.400. The site capacity calculation shall be conducted for such lots applying only floodplain and wetland resources.

E.

A site resources capacity analysis pursuant to Division 40.05.400 need not be conducted where a parcel is to be subdivided into not more than five (5) residential lots. However, all resources required to be protected in Table 40.05.420 shall be mapped and protected under conservation easements. All lots shall also meet the minimum lot area requirements, excluding the area attributed to any protected resource.

F.

So long as the public health and safety would not be jeopardized as evidenced by an environmental report, Division 40.05.400 shall not apply to environmental conditions on a site that were altered by or resulted from an act of God that occurred after purchase of the property. However, any applicable State and federal requirements shall still be followed and any necessary permits or approvals obtained.

G.

Reserved.

H.

Proposed public facilities that are needed to support development such as schools, parks on government land, libraries, sewer, police, fire stations, or hospitals, shall be exempt from this Article, Article 10 (excluding floodplain or federal or State wetland regulations), Article 14, and Table 40.03.210, Table 40.04.111 (excluding lighting regulations), and Division 40.04.200. Such development shall comply with the provisions of Article 11, however, the Department and DelDOT shall determine on a case-by-case basis the time frame by which any mitigation must be completed.

I.

Division 40.05.100 of this Article and Article 11 shall only apply to rezoning and major subdivision or land development applications.

J.

Division 40.05.200 of this Article shall not apply to residential facilities or communities which are restricted by recorded covenants to provide housing or shelter predominately for individuals fifty-five (55) years of age or older pursuant to the provisions of the Federal Fair Housing Act, 42 USC § 3601, et seq.

(Ord. No. 97-172, § 3(ch. 13, § 05.050), 12-31-1997; Ord. No. 98-062, § 1(ch. 13, § 05.050), 9-22-1998; Ord. No. 99-042, § 1, 6-22-1999; Ord. No. 2001-073, § 1, 1-8-2002; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 02-075, § 1(Exh. A), 10-22-2002; Ord. No. 04-059, § 1(Exh. A), 7-13-2004; Ord. No. 06-007, § 1, 3-28-2006; Ord. No. 06-060, § 1(Exh. A), 9-26-2006; Ord. No. 06-125, § 1, 1-23-2007; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 18-020, § 6, 7-10-2018; Ord. No. 18-021, § 15, 7-10-2018; Ord. No. 20-074, § 1, 10-27-2020; Ord. No. 23-104, § 5, 1-9-2024)

Prior to receiving a rezoning or major record subdivision or land development final plan approval from the Department, the transportation capacity allocated to a proposed development shall be determined by Article 11.

(Ord. No. 97-172, § 3(ch. 13, div. 05.100), 12-31-1997; Ord. No. 19-005, § 1, 5-28-2019)

The base capacity of a site is determined by the remaining capacity available as determined by the traffic impact study conducted pursuant to Article 11.

(Ord. No. 97-172, § 3(ch. 13, § 05.110), 12-31-1997; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

For residential development only. In accordance with 9 Del. C. § 2661(c)(1) (Adequate capacity; Voluntary School Assessment), prior to recording a major record subdivision plan, the applicant shall provide certification to the Department from the Secretary of the Department of Education after consultation with the superintendent of the appropriate individual school district that the school district has adequate capacity for the proposed development.

(Ord. No. 97-172, § 3(ch. 13, div. 05.200), 12-31-1997; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

Editor's note— Ord. No. 01-112, § 1(Exh. A), adopted March 12, 2002, repealed § 40.05.210 in its entirety. Formerly, said section pertained to school capacity certification as adopted by Ord. No. 97-172, § 3(ch. 13, § 05.210), adopted Dec. 31, 1997; as amended. See the Unified Development Comparative Table for a detailed analysis of amendments.

All developments shall have adequate water supply, public or private, or no building or zoning permits will be issued. Sewer service, either public or private (as may be permitted by this Chapter), is also required unless septic systems are permitted pursuant to Article 22. The adequacy of water capacity shall be determined by Section 40.05.310 and the adequacy of sewer capacity by Section 40.05.320. Developments that propose private on-site (septic) systems for each use or dwelling unit are exempt from sewer calculations if they can satisfy the septic system standards contained in Article 22. Development that is approved to use well water shall also be exempt from this Division.

(Ord. No. 97-172, § 3(ch. 13, div. 05.300), 12-31-1997; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

Prior to receiving a rezoning or record subdivision or land development final plan approval from the Department, the developer shall obtain from the water service provider the following form and certification (Form 40.05.310 Water Capacity Certification).

(Ord. No. 97-172, § 3(ch. 13, § 05.310), 12-31-1997; Ord. No. 98-080, § 1(ch. 13, § 05.310), 9-22-1998; Ord. No. 09-066, § 3, 10-13-2009)

Prior to receiving a rezoning or record subdivision or land development final plan approval from the department the developer must obtain verification from the Department of Public Works that sewer capacity is available or will be available at the time of the proposed development.

(Ord. No. 97-172, § 3(ch. 13, § 05.320), 12-31-1997; Ord. No. 18-031, § 62, 4-24-2018)

The site capacity analysis requires measuring the resources on each site. The site capacity calculation ensures that the development does not exceed the site's resources.

(Ord. No. 97-172, § 3(ch. 13, div. 05.400), 12-31-1997)

Table 40.05.420 provides the procedure for calculating a site's total protected land. Step 1 determines the base site area. Steps 2—4 determine the land to be protected. All applicants, residential and nonresidential, must begin by completing this calculation. Where the site is in more than one (1) zoning class, or where the site is to be divided into residential and nonresidential uses, separate calculations are required. Any area excluded from the base site area shall not be included in the resource calculation. With approval from the Department, contiguous land of like kind may be purchased or restricted by a conservation easement to increase development potential.

Table 40.05.420
CALCULATION FOR TOTAL PROTECTED LAND

(Ord. No. 97-172, § 3(ch. 13, § 05.420), 12-31-1997; Ord. No. 98-080, § 1(ch. 13, § 05.420), 9-22-1998; Ord. No. 99-075, § 1, 12-14-1999; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 14-126, § 2, 1-13-2015; Ord. No. 21-009, § 2, 12-14-2021; Ord. No. 22-101, § 1, 11-29-2022)

Table 40.05.421 provides the procedure for calculating the residential use's capacity based on natural resources. Table 40.05.422 shall be used to determine nonresidential uses. Calculations shall be rounded down to a whole dwelling unit in determining the capacity of the site.

Table 40.05.421
RESIDENTIAL CAPACITY CALCULATION

(Ord. No. 97-172, § 3(ch. 13, § 05.421), 12-31-1997; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 09-037, § 1, 10-13-2009; Ord. No. 24-137, § 3, 12-10-2024)

Table 40.05.422 provides the procedure for calculating the capacity for nonresidential uses.

Table 40.05.422
NONRESIDENTIAL CAPACITY CALCULATION

(Ord. No. 97-172, § 3(ch. 13, § 05.422), 12-31-1997; Ord. No. 98-062, § 1(ch. 13, § 05.422), 9-22-1998)

The site carrying capacity is the lowest site yield as determined by site resources, school district capacity, transportation capacity, sewer capacity, and water system capacity.

(Ord. No. 97-172, § 3(ch. 13, div. 05.500), 12-31-1997)

The site carrying capacity shall be determined as provided in Table 40.05.510 below.

Table 40.05.510
SITE CARRYING CAPACITY

(Ord. No. 97-172, § 3(ch. 13, § 05.510), 12-31-1997; Ord. No. 06-042, § 3, 7-25-2006)

The analysis required in Section 40.05.510 may result in a reduction in density. If the limiting value of the site carrying capacity results from the maximum resource capacity determination, the developer shall build within those limits. If the limiting value of the site carrying capacity is established by the concurrency capacity determination, the following options are available to the developer:

A.

Build at a lower density. The developer may choose to develop the entire site at the density permitted by Table 40.05.510.

B.

Build with future development reservation. The developer may divide the development into two (2) phases. The first phase would use the entire development potential for the site, less one (1) dwelling unit. The remainder of the property would be planned with a restrictive covenant in favor of the County setting forth the capacity of the site and the potential for development that could be used, provided additional capacity was made available. For example, if capacity became available due to road improvements made by the State or other sources, the resulting trips per acre would be calculated for the improvement.

C.

Make improvements. The developer can make improvements for traffic as approved by the County and DelDOT. Improvements may be made to the sewer as determined by the Department of Public Works. In the Suburban zoning districts, sewer improvements may include the use of spray irrigation, provided that such a system has a minimum processing capacity of one hundred thousand (100,000) gallons per day and so long as the capacity of the system can be increased at a later time by an additional fifty thousand (50,000) gallons per day. Other types of large scale treatment systems may be permitted if approved by DNREC and the Department of Public Works. Such facilities shall only be permitted in Suburban zoning districts and shall only be constructed in accordance with the rules and regulations governing such systems as promulgated by DNREC and the Department of Public Works. All such systems shall be turned over to the County upon their completion and formal acceptance by the Department of Public Works. The developer may reach agreements with the school district or with a water supplier to make or fund improvements that would be available prior to occupancy.

D.

Acquire development rights. The landowner may acquire certain development rights from another owner of vacant land located in the same planning area as provided in Article 7. This is accomplished, in part, by submitting an application for the development of both parcels and determining the capacity of both. Provided the density is equal to or less than that permitted by the district and site resource capacity, the capacity may be transferred from one (1) site to another. A conservation easement shall be placed on the land from which the development potential is transferred. The conservation easement shall specify the following:

1.

Any remaining development potential. This includes any reservation that may have been made in the initial transfer of development rights.

2.

The amount and type of development right permitted to be transferred.

(Ord. No. 97-172, § 3(ch. 13, § 05.520), 12-31-1997; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 18-031, § 63, 4-24-2018)