DEPARTMENT OF TRANSPORTATION

Division of Planning

Statutory Authority: 17 Delaware Code Section 507; Chapters 1 and 5

(17 Del.C. §507, Chps. 1 and 5)

FINAL

Secretary's Order No.:

Development Related Improvements Requiring New Rights-of-Way

I. Background

A public workshop was held on March 23, 2006 at the Delaware Department of Transportation Administration Building, 800 Bay Road, in Dover, Delaware to receive public comment on a new regulation, Development Related Improvements Requiring New Rights-of-Way, as required by Senate Bill 284. The purpose of this regulation is to prescribe procedures relating to the need for local transportation improvements required to be made when new development has been approved by local government pursuant to 17 Del.C. Chapter 5. This regulation establishes the rules and regulations, under appropriately defined conditions, when and where DelDOT will use its powers to obtain necessary rights-of-way for improvements resulting from a combination of pre-existing traffic conditions and proposed new development. These regulations are promulgated under authority of 17 Del.C. Chapter 5.

Responses to the public's questions are summarized in a Table of Comments, which follows and incorporated into this Order. Proper notice of the public workshop was provided as required by law.

Comments from Toll Brothers, Inc., (items 1, 2, 3, and 4 below), regarding Development Related Improvements Requiring New Rights-of-Way:

1. Under the Proposed Regulations, even if the project meets the eligibility requirements for DelDOT's acquisition of right-of-way, DelDOT would have the unfettered discretion to refuse to acquire the necessary right-of-way. There are no criteria governing or limiting DelDOT's ability to refuse an application, and there is no appeal process built into the regulations which would give the developer any rights in this regard. This would allow for non-reviewable arbitrary action on the part of DelDOT and would violate developers' procedural and substantive due process rights. Toll believes that there should be some objective standards employed by DelDOT in reviewing applications for right-of-way acquisition, and that all such decisions by DelDOT be subject to the statutory appeal process.

Agency Response: The proposed regulations provide DelDOT with the authority to acquire right-of-way under certain circumstances and for the public good. They are intended to complement existing authority. There is no requirement that these regulations be used, thus, there is no legal issue.

2. Under the Proposed Regulations DelDOT also has the ability to "defer" an application for right-of-way acquisition in cases where a project is located in an active transportation study area, or in an area where a study is about to be initiated, where the results could have a significant impact on or eliminate the need for the improvement proposed by the developer. While this makes sense, there is no timeframe established, and DelDOT would be able to indefinitely "defer" its decision on a particular project. Again, this would result in a violation of developers' procedural and substantive due process rights.

Agency Response: The proposed regulations provide DelDOT with the authority to acquire right-of-way under certain circumstances and for the public good. They are intended to complement existing authority. There is no requirement that these regulations be used, thus, there is no legal issue.

3. Under the Proposed Regulations, as drafted, a project is only eligible for Alternative One if it is not in DelDOT's CTP. An improvement project that is in DelDOT's CTP but has not yet been designed would not be eligible for either Alternative One or Two. There is no reason for DelDOT to exclude from the right-of-way acquisition program those improvement projects that are in DelDOT's CTP but have not yet been designed.

Agency Response: DelDOT agrees there may be a need for clarification. DelDOT will modify Alternative One to specify that it may be used when a project is in the CTP, but not yet under design.

4. In order to be eligible for the right-of-way acquisition program the need for the particular transportation improvement project must have been documented "and confirmed" during the land use process prior to the developer receiving preliminary plan approval from the local land use agency. The draft regulation does not indicate who must "confirm" the need for the improvement project. Is it DelDOT? Is it the local agency? At least in New Castle County, unless a Traffic Impact Study is required DelDOT has very little involvement in the exploratory and preliminary plan approval process. If it is DelDOT that must "confirm" the need for the transportation project before the developer is able to submit an application to DelDOT for right-of-way acquisition, how is DelDOT's involvement to be accomplished?

Agency Response: DelDOT confirms the need for the transportation improvement project and will make that determination as part of consultation with local government (prior to project approval) as part of the development review process.

Comments from Abbott Law Firm, (items 5 through 12 below), regarding Development Related Improvements Requiring New Rights-of-Way:

5. Chapter 1 - Purpose. This section contains a fatally flawed provision in the third sentence of the fourth paragraph. Specifically, the sentence states that "DelDOT retains the discretionary authority to use the provisions of Section 507 and its implementing regulations, or decide not to make use of this authority in a given instance." This provision cannot possibly withstand judicial scrutiny on the grounds that it grants totally unbridled discretion to DelDOT to decide when, if ever, it wishes to allow someone to take advantage of §507. In addition, this overbroad grant of discretion is not permitted by §507.

In effect, this one sentence renders the entirety of the remaining portion of the Regulations mere surplusage. Indeed, DelDOT could deny permission to utilize its eminent domain authority to any person or entity for any reason, or no reason at all, even if the applicant met all of the requirements of the Regulations. This is the very essence of arbitrary and capricious government decision making, and must be deleted in order to insure that the Regulations are not void in their entirety. Instead, DelDOT must set forth objective standards and provide that any person who satisfies the standards is eligible to participate in the program.

Agency Response: The proposed regulations provide DelDOT with the authority to acquire right-of-way under certain circumstances and for the public good. They are intended to complement existing authority. There is no requirement that these regulations be used, thus, there is no legal issue.

DelDOT has provided eligibility standards.

6. The last paragraph of section 3.1. The first sentence appears to reasonably and wisely authorize DelDOT to deny a developer the right to use eminent domain authority where it would cause substantial harm to an abutting property owner. A good example of this is when DelDOT did the developer's bidding for it in order to provide it with a big bonus/free road improvements at the taxpayers' expense at the Camden Town Center (i.e. Route 13, Lochmeath Way and WalMart Drive). But the Regulations provide DelDOT with unbridled discretion to overlook such a substantial detriment to an abutting property owner for any reason, or no reason at all. Once again, such discretion is overbroad, not permitted by §507, and would be struck down by a Court as being clearly arbitrary and capricious. Instead, the Regulations should provide that if substantial impact is caused to abutting or nearby property owners, then DelDOT shall deny application for use of its eminent domain authority.

Agency Response: DelDOT respectfully disagrees. If substantial impact on adjacent property occurs, then DelDOT must consider that impact in making decisions and mitigate the impact under some of those decisions.

7. Section 3.3 on Public Input Process. A sentence should be added to the final paragraph which also requires that a sign 4' x 4' in size be placed on the closest right-of-way to the lands where the development project is proposed advertising the public meeting.

This is the necessary third leg of the public notice requirements, which will nicely supplement the direct notification and notice by advertisement provisions contained in the draft Regulations.

Agency Response: DelDOT respectfully declines to accept your suggestion. The current process works well and does not create additional sign clutter.

8. Section 3.4 on "Review Process" DelDOT should not require an applicant to submit all final plans necessary to receive approval at the beginning of the process. This is obviously very extensive and risky for the developer. Instead, DelDOT should only require a conceptual plan sufficient to inform the public and permit review of the proposed exercise of DelDOT's power of eminent domain. The specific plans referred to in §3.4 should not be required until DelDOT has approved the developer's use of DelDOT's power of eminent domain for the project.

Agency Response: DelDOT submits that an applicant has the opportunity to receive comments at the conceptual stage by participating in the PLUS process administered by the Office of State Planning Coordination. The level of plan detail required by DelDOT must be sufficient to determine the right-of-way needed.

9. Section 3.5 on "Real Estate Process" Nothing in §507 permits DelDOT to avoid having to comply with the requirements of the Delaware Real Property Acquisition Act, 29 Del.C. Ch. 95. Therefore, it would seem to make sense to save a whole lot of space in the Regulations by simply incorporating those provisions by reference along with DelDOT's Real Estate Manual, which is codified in the Delaware Code of Regulations. It appears that the provisions of Section 3.5 attempt to limit the level of compliance with those statutory and regulatory obligations on DelDOT's part, which is not legally permissible.

Agency Response: The real estate process section was included for convenience. It is consistent with the Real Estate Manual.

10. The last paragraph of the proposed Regulations: This paragraph seems hopelessly out of place under the §3.6 heading of "Design and Construction Administration." It appears to be a more general statement which is duplicative of the provisions contained at the beginning of the Regulations. Therefore, it should be eliminated for purposes of clarity.

Agency Response: DelDOT agrees it is redundant and should be deleted.

11. Concerns About Constitutionality Of Law And Regulations: I wanted to note my concern about the constitutionality of the enabling statute, 17 Del.C. §507. First, the General Assembly is not generally permitted to delegate its authority to private persons, which is the effect of the statutory permission to permit private developers to utilize DelDOT's power of eminent domain in order to advance their private projects. Second, the power of eminent domain may only be utilized for public projects. In many instances, the installation of road improvements to accommodate a private development project has only secondary public benefits. Section 507 may cross that fine line between public and private benefit.

To the extent that "public" road improvements are already planned, but are only being advanced by the developer's earlier construction of them, the use of this authority may be appropriate. I do believe, however, that DelDOT already has the authority under those circumstances to exercise the power of eminent domain irrespective of §507 and any Regulations promulgated pursuant thereto. The problem arises with the potential to create a "tail wagging dog" situation, where developers who have the most political influence will be able to build projects despite the possibility that the location of their proposed development is simply not appropriate from a planning perspective, while those developers without the right political connections will be left out despite the fact that their project may be a perfectly logical location for the proposed development.

Agency Response: DelDOT is charged with making the determination of whether an action under this proposed regulation is in the public interest and has public benefit. There is an inherent risk, but that risk is dependent on the facts in each particular case. DelDOT intends to review those facts carefully and deliberately.

12. Impermissible extension of the program to "rezonings" Title 17, §507 only authorizes DelDOT to adopt Regulations which would permit the use of its power of eminent domain by developers proposing land development projects. It does not authorize the use of eminent domain power in the context of a rezoning application. Despite that fact, the Regulations assert in the "Background" section that the ability to use DelDOT's eminent domain authority would apply to developers proposing real estate rezoning applications in municipalities and counties.

Proof of the limitation on DelDOT's regulatory authority is contained first in the "Legislative Findings" provision under §507(a), which references Chapter 1 and 5 of Title 17. Chapter 1, §131(i) refers to DelDOT's review of subdivision proposals. And Chapter 5, §508 refers to the dedication of new roads for State maintenance in the land development plan design and implementation process. Indeed, §507(a) expressly talks about development proposals, and not rezonings of land. So to does §507(b). Consequently, the Regulations should be modified so that they make it clear that the authority to use DelDOT's power of eminent domain can only be provided to a developer in the context of a land development project, and not with respect to a rezoning proposal.

Agency Response: DelDOT respectfully disagrees. DelDOT has the authority to use these regulations in cases where development applications involve rezoning.

Comments from Century Engineering, (items 13 through 27 below), regarding Development Related Improvements Requiring New Rights-of-Way:

13. 3.0 Regulatory Procedures, Add words shown in italics below:

Alternative One:... "assume direct responsibility for the planning, design, construction, and inspection of off-site improvements and the total cost of the rights of way acquisition."

Alternative Two:... "assume responsibility for scheduling, planning, design, rights of way acquisition, construction"...

Agency Response: Will incorporate for clarification. DelDOT will incorporate the suggested language for clarification.

14. 3.2 Plan Preparation, Add new first paragraph as follows: After the project is approved by DelDOT, DelDOT will assign a State project number and title, and issue a written notice to proceed. The State project number and title will be clearly identified on all future plans, correspondence and documents.

Agency Response: Agreed. Will clarify to read "After the project is accepted by DelDOT, …"

15. Former second (new third) paragraph, rewrite portion of second sentence as follows:

"verified through deed research, examination of recorded plot plans, and DelDOT’s highway, bridge and subdivision plan archives.”

Agency Response: DelDOT agrees and will clarify.

16. 3.4 Review Process. Fourth paragraph, rewrite portion of first sentence as follows:

"Existing deeds, recorded plot plans shall be acquired and applicable DelDOT highway, bridge and subdivision plans shall be obtained from DelDOT archives to establish and verify" …

Agency Response: Will incorporate for clarification.

17. 3.5 Real Estate Process First paragraph, add new third sentence...

"DelDOT's Real Estate Section, or a qualified entity, with prior approved by DelDOT, shall procure the necessary rights of way."

Agency Response: Will incorporate for clarification.

18. Second paragraph, rewrite portion of first sentence as follows:

"… or if the valuation waiver method can be used".

Agency Response: Will incorporate for clarification.

19. 3.5.2 Valuation: Add new third sentence shown in italics

.... "If the offer of just compensation is estimated to be less than $25, 000, DelDOT may authorize the use of one of two (2) appraisal waiver valuation methods and the offer to purchase may be made in the form of an Administrative Offer Summary (AOS). "

Agency Response: Language will be clarified to read "If the offer of just compensation is estimated to be less than $10,000, DelDOT may authorize the use of one of two (2) appraisal waiver valuation methods and the offer to purchase may be made in the form of an Administrative Offer Summary (AOS). "If the offer of just compensation is estimated to be more than $10,000, but less than $25,000, DelDOT may authorize the use of one of two (2) appraisal waiver valuation methods and the offer to purchase may be made in the form of an Administrative Offer Summary (AOS) with the consent of the property owner."

20. 3.5.4 Acquisition: Rewrite portion of first sentence as follows

... "A deed or easement of conveyance"

Agency Response: Will incorporate for clarification.

21. Add second paragraph as follows

... "If DelDOT uses its power of eminent domain to obtain required right of way; DelDOT and DelDOT's legal counsel will assume responsibility for pursuing the legal action and the developer will deposit an amount equal to two (2) times the original offer of just compensation, plus estimated attorney's fees with DelDOT The deposit will be held by DelDOT in a non-interest bearing account. The deposit will be disbursed by DelDOT in the following manner, 1) the original amount of just compensation will be deposited with the Court when with the original complaint is filed, 2) the remainder will be disbursed in accordance with a court order, with any excess returned to the developer, 3) attorney's fees will be disbursed as invoices are submitted

. Agency Response: Will incorporate with the following clarification "developer will deposit an amount equal to the property owner's estimate of valuation, plus estimated attorney's fees…."

22. 3.5.5 Right of Way Certification: Add new subsection as follows:

"Before the project is advertised for construction, DelDOT will review the project right of way acquisition files to verify and insure that the required procedure(s) has been met. If approved, DelDOT shall prepare and issue a Right of Way Certification.”

Agency Response: DelDOT shall prepare and issue a letter certifying the Right of Way has been approved. DelDOT will not be issuing formal Certifications.

23. 3.6.1 Alternative One, Delete third paragraph and replace as follows

"The developer will be required to enter into an agreement with an engineering firm that is certified by the DelDOT Consultant Control Committee to perform construction inspection and engineering. The engineering firm and the assignment of personnel shall be subject to approval by DelDOT. Division of Transportation Solutions will coordinate inspection.”

Agency Response: DelDOT respectfully disagrees. The terms are "registered" not "certified" and "Committee" not "Coordinator."

24. Figure 6-2, under Inspection for Level III:

“The developer will be required to enter into a construction inspection agreement with an inspection engineering firm currently under contract with DelDOT. certified by the DelDOT Consultant Control Committee to perform construction inspection and engineering. The engineering firm and the assignment of personnel shall be subject to approval by DelDOT Division of Transportation Solutions will coordinate inspection.

Agency Response: DelDOT respectfully disagrees. The terms are "registered" not "certified" and "Committee" not "Coordinator."

25. Section 6.6.3 Inspection and Acceptance

1. Project Assignment of Personnel

Project staff shall be adequate in number, with appropriate qualifications to control the work in a manner consistent with sound engineering and construction practices. The developer shall submit the qualifications of the inspection personnel and the level of staffing to DelDOT for approval. A project supervisor...

6. As-Built Plans

For the preparation of as-built plans, the inspecting engineering firm shall retain one set of record prints o f the construction plans. These shall be kept up-to-date by the substitution of revised plan sheets add a comma, by marks for minor changes that have been made, and by notes from the inspector's diary.... As-built plans shall be prepared in accordance with DelDOT's approved procedures and will be required as part of the final acceptance of the off site improvements. Will incorporate for clarification.

Agency Response: Will incorporate for clarification.

26. 6.7 Construction Responsibilities

4. In the event that utilities, poles, lights, signs, traffic signals, or other appurtenances need to be moved for an approved entrance or other off site roadway improvements, the applicant shall pay all costs involved in the relocation. The applicant shall resolve with the affected utility or other owner of such appurtenances any required utility relocation, the time of moving and the required reimbursement.

Agency Response: Will incorporate for clarification.

27. Section 6.7.2 Work Hour Restrictions

The developer may proceed with extended work hours if it secures approval from a majority of the residents of the affected neighborhood. The limits of the affected neighborhood shall be approved by DelDOT.

Agency Response: Will incorporate for clarification.

II. Findings and Conclusions

The Department has carefully considered all relevant public input regarding its proposed regulation, and has provided a reasoned analysis and a sound conclusion with regard to the response given to each comment, as reflected in the Table of Comments. The reasoning and conclusions with respect to each issue are hereby incorporated into this Order as formal findings.

III. Order

In view of the above findings, it is hereby ordered that Delaware's Development Related Improvements Requiring New Rights-of-Way Regulation, as required by Senate Bill 284, be promulgated in final form in the customary manner and established rule making procedure required by law.

IV. Reasons

The development of these new regulations will provide a significant transportation safety and efficiency benefit for the current and future citizens of the State of Delaware. Additionally, this rule making represents careful, deliberate and reasoned action by this agency to address transportation issues affecting Delaware. In developing these regulations, the Department has balanced the transportation need for the State of Delaware to promulgate regulations concerning this matter with the important interests and wide range of public concerns, in furtherance of the policy and purposes of 17 Del.C. Chapter 5.

Carolann Wicks, Secretary

Date of Issuance: October 5, 2006

Effective Date of the Amendment: November 11, 2006

Development Related Improvements Requiring New Rights-of-way

BACKGROUND

Developers proposing [real estate rezoning or subdivision rezoning, subdivision or land development] applications in Delaware municipalities and counties are required to improve the local transportation system that serves the property if their proposed development triggers the need for the improvement. Many developers are able to make the necessary improvements, while others are hindered by their inability to secure the necessary road right-of-way. Often, prior development along the roadway has already absorbed the capacity created when the road was first built and the surrounding landowners may not feel that there is any benefit in selling the needed right-of-way to enable the next round of development. Prior to these regulations, state law did not authorize acquisition of rights-of way necessary for development-related improvements.

Fundamentally these road improvements are for the public good, as the general public will receive the travel benefits. The need for improvements is most often triggered by new development in combination with pre-existing traffic growth patterns in the area. DelDOT’s plan for making roadway improvements is outlined in its Capital Transportation Program (CTP). The needed roadway improvement may be on a different schedule or it may not be in the CTP at all. A further concern is implementing roadway improvements without sufficient public involvement. When the project is DelDOT’s, DelDOT utilizes a formal public participation process. However, when a private sector developer carries out the improvements, a similar public participation process may not be followed, [or at best it is may be] insufficient.

MAJOR ISSUES

The regulations herein address the following issues and barriers to [implementing transportation improvements; the need for which is triggered by] development:

• Developer’s inability to secure right-of-way for necessary improvements [which are required when counties and municipalities approve rezoning of property or new subdivisions or land developments.]

• DelDOT’s Capital Transportation Program

• (CTP) schedule being different than the developer’s schedule or not including the needed improvement.

• Lack of a public participation process during the [consideration planning and design] of development-related improvements.

Lack of clarity and definition regarding DelDOT’s role in assuring project quality.

1.0 Purpose

The Delaware State Senate passed SB 284 on June 8, 2004 and the Delaware House of Representatives passed it on July 1, 2004. SB 284 was signed into law on July 22, 2004 and it is codified at 17 Del.C. Section 507. [The essence of this legislation was to address the need for transportation improvements that are required to be made by developers when new development has been approved by local government.]

Section 507 directs DelDOT to establish rules and regulations to determine where and under what conditions it will:

• Use its real estate process to acquire the necessary right-of-way for [public purpose] improvements;

• Enforce the maintenance of safe operating conditions for the public during construction;

• Involve the public and inform them of the reason for and scope of improvements; and

• Assure compliance with applicable environmental and legal requirements.

Developers whose proposals trigger the need for improvements, or necessitate an acceleration of the timing of previously recognized DelDOT projects, shall contribute funds towards the necessary right-of-way acquisitions. Improvements are limited to those that do not negatively impact the State’s ability to meet the conformity requirements of the [Federal] Clean Air Act [and its several amendments].

DelDOT’s use of this authority is limited to areas where the State’s own land use policies support the type and scale of the proposed development. As part of the approval process for transportation improvements built pursuant to this authority, DelDOT is required to consult with area representatives of state and local government. DelDOT retains the discretionary authority to use the provisions of Section 507 and its implementing regulations, or to decide not to make use of this authority in a given instance.

2.0 Relationship to Strategies for State Policies and Spending

Delawareans are concerned about the threat of sprawl, traffic congestion, loss of farmland and open space, diminished air and water quality, and a shortage of affordable housing.

Strategies for State Policies and Spending was adopted by Governor Ruth Ann Minner and published by the Office of State Planning Coordination to coordinate land use decision-making with the provision of infrastructure and services in a manner that makes the best use of Delaware’s natural and fiscal resources. There are two fundamental policies that guide the State Strategies:

• State spending should promote quality, efficiency, and compact growth; and

• State policies should foster order and resource protection, not degradation.

Strategies for State Policies and Spending includes a map that serves as a graphic representation of the areas favored for growth. The map depicts four investment levels, of which the first three are appropriate locations for the application of these regulations: Level 1, Level 2, and Level 3. Level 3, however, is intended for longer term phased growth or land preservation. For a full description of the investment levels as well as the map, please visit: www.state.de.us/planning/strategies. The strategies of the State’s Livable Delaware initiative [build on the foundation laid by complement] the Strategies for State Policies and Spending. They are intended to [encourage support] growth in areas that the State has agreed are most appropriate for and capable of accommodating this growth in an efficient and cost-effective manner, with a focus on existing communities and growth areas. Through these regulations, detailed herein, DelDOT is empowered to secure right-of-way for roadway improvements that are consistent with and support this key objective of Livable Delaware.

3.0 Regulatory Procedures

The construction of the necessary transportation improvements may occur in one of the following two ways:

Alternative One: DelDOT shall enter into an agreement with the entity seeking development approval whereby the[y developing entity takes the project lead and] assume[s] direct responsibility [and all costs] for the planning, design, [right-of-way acquisition,] construction, and inspection of [off-site] improvements. The agreement must include terms giving DelDOT appropriate provisions for quality assurance and quality control. This is the preferred alternative.

Alternative Two: If DelDOT determines that the aforementioned agreement is not feasible and practical, DelDOT may [take the project lead and] assume responsibility for the scheduling, planning, design, [right-of-way acquisition,] construction, and inspection of the off-site [off-site] improvements as a DelDOT project. The following include, but are not limited to, [reasons conditions] that may cause DelDOT to [assume responsibility take the lead, but not the cost,] for the project:

• The project is particularly complex. The project will still be wholly funded by the entity seeking development approval.

• The project is already in the DelDOT’s CTP, planning and design are complete, but right-of-way has not been acquired. The developer shall contribute funds towards the necessary right-of-way acquisition and be responsible for any additional costs incurred as a result of the portion of the project being modified.

[The development and related improvements are part of a Transportation Investment District or similar master planned area. The developer will pay their fair share of the cost based on trip generation. The specific responsibilities of these several parties will be described in a Memorandum of Agreement.]

3.1 Project Eligibility

If a project [or improvement] is not in DelDOT’s CTP [, or in the CTP but not yet under design] and found to need right-of-way, it may be [eligible for Alternative One. In order to be eligible, the improvements must be offsite (non-entrance and outside the limit of construction at the entrance) and must meet all of the following conditions: considered for eligibility if the following conditions are met:]

• The development project for which the improvements are required [must is]

[Be cC]onsistent with the local comprehensive plan;

[Be cC]onsistent with Strategies for State Policies and Spending, including location in a Level 1, 2, or 3 State Strategy investment area; and

[Be iI]n conformance with the requirements of the Clean Air Act (CAA) regulations.

• The need for the transportation improvement project must be documented and confirmed during the land use process [prior to the developer receiving as part of the] preliminary plan approval from the local land use agency.

[The transportation improvement is located adjacent to the public right-of-way. Improvements include but are not limited to, intersection upgrades, roadway widening, and improvements required at the entrance to the proposed development.]

[The need and eligibility are confirmed through completion of the following checklist:

Fig.A.1 Transportation Improvement Checklist

Preliminary Plan Approval Yes____ No____

Consistent with Comprehensive Plan Yes____ No____

State Strategies Level 1, 2, or 3 Investment Area Yes____ No____

In conformance with Clean Air Act Regulations Yes____ No____ ]

When the project has been found to be eligible, DelDOT may still choose to defer or deny advancement of the project. Project deferral may be considered in cases where a project is located in an active transportation study area, or in an area where a study is about to be initiated, where the results could have a significant impact on or eliminate the need for the subject project.

Project denial may be considered in cases where the project would cause abutting property to lose access or be reduced in value to the extent that it would be rendered [unusable,] economically [un-viable]. Deferral or denial under these conditions shall be at DelDOT’s discretion.

3.2 Plan Preparation

[After the project is accepted by DelDOT, Pp]lan preparation for preliminary engineering and final design of transportation improvements (also known as “construction plans”) shall be in accordance with [Section 4.5 of the Standards and Regulations for Subdivision Streets and State Highway Access Manual DelDOT plan development standards.]

Right-of-Way (ROW) plans shall be in accordance with DelDOT’s Right-of-Way Manual. Additionally, right-of-way shall be verified through deed research [and,] examination of plot plans [and DelDOT highway, bridge and subdivision archives. The Standards and Regulations for Subdivision Streets and State Highway Access contains the right-of-way plan checklist.]

3.3 Public Input Process

Public input for land development is most critical during the exploratory sketch plan phase of the land use process [at the and should be part of the] local land use agency[‘s process]. During the design of transportation improvements, DelDOT [and the developer] will solicit public input in a formal setting and provide information such as the implementation process, maintenance and protection of traffic (MOT), and potential impacts (e.g. travel time charts showing different alternative routes and project showing how long the public will be inconvenienced).

DelDOT’s Public Involvement Policy O-03 illustrates the range and levels at which the public has an opportunity to participate in the planning process. This policy states that public involvement processes shall be proactive and provide complete information, timely public notice, full public access to key decisions, and opportunities for early and continuing involvement. DelDOT shall consult with state and local governmental representatives once the concept plan is submitted. DelDOT [, with the participation of the relevant developer,] is committed to educating the public about transportation issues, services and projects, as well as soliciting information, reaching consensus, and providing a way for the general public to express their needs, ideas, concerns, and perspectives relating to the transportation system.

Public input under th[is e] road improvement process shall be in accordance with DelDOT’s Public Involvement Policy O-03.

Regardless of whether a developer or DelDOT takes the lead in making the transportation improvement, a minimum of one public meeting [is required. One meeting] shall be held after preliminary plan review. The need for other meetings, for example showing implementation and maintenance of traffic, will be determined by DelDOT and included in the agreement between DelDOT and the entity seeking development approval. The scope of the[se additional] meeting[s] can vary, depending on the impacts of the proposed transportation improvements. All adjacent property owners shall be notified [by regular mail] in writing 14 days prior to the public meeting, and offered an opportunity to comment. A notice shall be placed in a local newspaper of general circulation advertising the public meeting [date and location for the proposed improvement, its scope, an indication of the expected project duration and the opportunity to discuss as well as an estimate of how long and] to what extent the public will be affected by the project.

3.4 Review Process

The developer’s engineer[, who must be a Delaware-registered professional engineer,] shall prepare and submit to DelDOT for review and approval all construction plans, right-of-way plans, specifications, and estimates for the project. The design of roadway improvements shall be in accordance with the latest standards published by the American Association of State Highway and Transportation Officials (AASHTO), DelDOT’s Road Design Manual, [DelDOT’s Standards and Regulations for Subdivision Streets and State Highway Access,] and the Manual on Uniform Traffic Control Devices (MUTCD). [Where conflicts exist, DelDOT’s Road Design Manual shall take precedence.]

The plan submissions will be required to undergo separate reviews for construction and right-of-way plans:

• The construction plan submission will consist of a preliminary, semi-final, and final (or contract) plan submission. The submittals shall include design plans, specifications and cost estimates for construction of the project.

• The right-of-way plan submissions shall include a semi-final and final plan submission.

The developer’s engineer shall establish review dates with concurrence from DelDOT for [all] construction and right-of-way plans. [These plans shall be reviewed by DelDOT’s Chief Engineer. He or she The developer’s engineer shall also] coordinate with the utility companies to determine existing utility locations and possible relocations.

Existing deeds and [recorded] plot plans shall be acquired [and applicable DelDOT highway, bridge and subdivision plans shall be obtained] to establish and verify the existing right-of-way. The engineer shall attest to the right-of-way shown on the plans.

The engineer will work through DelDOT’s Development Coordination Section and the Pavement Management Section for pavement evaluation and design verification. This may include the need for pavement cores and subgrade soils analysis.

The engineer will work with DelDOT’s Design Services for hazardous material and/or contaminated site delineation. [The developer shall be responsible for any site remediation required.] The engineer shall prepare, apply for, and obtain all necessary permits and environmental or historic documentation required by federal, state, and local authorities. Copies of the permits and supporting documentation shall be provided to DelDOT prior to a Notice to Proceed being issued for construction of the project.

3.4.1 Inspection

[Depending on the size and impact of the project on the abutting state-maintained roadway, the level of inspection will vary. Off-site improvement project inspection shall be in accordance with Section 6.6 of the Standards and Regulations for Subdivision Streets and State Highway Access Manual. DelDOT will determine the level of inspection required for each project. Inspection will be provided by DelDOT Public Works staff, DelDOT construction staff, or an inspection consultant currently under contract with DelDOT for inspection services.]

3.5 Real Estate Process

DelDOT’s Real Estate right-of-way acquisition process can be used to secure roadway improvements triggered by development[, only after the developer has exhausted all efforts to obtain the needed private property through voluntary good faith negotiations. The developer shall consult with the Real Estate Section, develop an acquisition plan and implement that plan with DelDOT oversight]. Land acquisition shall be in accordance with DelDOT’s most current Real Estate Management Manual. DelDOT engages the property owners and tenants in a process of notification, appraisal, and negotiations. [DelDOT’s Real Estate Section, or a qualified entity, with prior approval by DelDOT, shall procure the necessary rights-of-way].

Based on the complexity, DelDOT’s Real Estate Section will determine whether an appraisal is necessary or if a valuation waiver [method] can be used. In instances where temporary access to a property is required, DelDOT shall determine the lease value of the property for the duration of the project.

Process Steps:

3.5.1 Notification: property owners and tenants will be notified in one or both of the following ways: they will be contacted by a DelDOT Real Estate representative or notified of public workshops. [This notification will occur at least six months in advance of any eminent domain action, should good faith negotiations fail to result in a signed contract.]

3.5.2 Valuation: property owners will receive fair market value for any land and/or buildings they are required to sell. A qualified, licensed independent appraiser may complete the appraisal, which is approved by an independent authority (DelDOT). [If the offer of just compensation is estimated to be less than $10,000, DelDOT may authorize the use of one of two (2) appraisal waiver valuation methods and the offer to purchase may be made in the form of an Administrative Offer Summary (AOS). If the offer of just compensation is estimated to be more than $10,000, but less than $25,000, DelDOT may authorize the use of one of two (2) appraisal waiver valuation methods and the offer to purchase may be made in the form of an Administrative Offer Summary (AOS) with the consent of the owner.] Property owners may, at their own cost, obtain their own appraisal.

3.5.3 Negotiations: a DelDOT Real Estate representative will contact the property owner with a plan showing the amount of land needed and written confirmation of the amount of compensation being offered. The property owner will be given 60 calendar days to consider the offer. If the offer is accepted, both parties (DelDOT and the seller) sign a binding contract and settlement is held.

3.5.4 Acquisition: A deed of conveyance is signed over when the check is delivered at settlement. If the fair market value offer is not accepted, state law recognizes the right of the property owner to refuse the purchase offer and to have the value of the property established through the courts utilizing DelDOT’s power of eminent domain.(the right of the government to acquire private property for public use). That approach will only be used as an action of last resort. [If DelDOT uses its power of eminent domain to obtain required right-of-way, DelDOT and DelDOT’s legal counsel will assume responsibility for pursuing the legal action and the developer will deposit an amount equal to the property owner’s estimate of valuation, plus estimated attorney’s fees with DelDOT.]

3.6 Design and Construction Administration

3.6.1 Alternative One

The developer shall hire a [registered Delaware-registered professional] engineering firm possessing a Certificate of Authorization for all offsite improvement projects. If the developer designs the transportation improvements[, the cost of which the developer has responsibility,] (Alternative One), the developer shall provide DelDOT with 100% of the right-of-way costs upon completion of the preliminary engineering and final determination of right-of-way. DelDOT [or a qualified entity, with prior approval by DelDOT,] will acquire the determined right-of way in accordance with the real estate process in section B.3.5 and DelDOT’s Real Estate Management Manual.

The developer shall hire a qualified contractor as determined by DelDOT to implement the identified improvements. [The contractor shall be included on the DelDOT Registry of Contractors.]

The developer shall also enter into a construction inspection agreement with a firm currently under contract [to DelDOT or a firm currently on the Registry of Contractors] to provide such services with DelDOT.

3.6.2 Alternative Two

If DelDOT designs and constructs the transportation improvements (Alternative Two), [prior to initiation of design services] the developer shall provide DelDOT with a certified check for the estimated total cost of preliminary engineering and final design costs as approved by DelDOT. [The design fee shall be paid to DelDOT.] [uU]pon final determination of the required improvements and at the same time as final site plan and preliminary entrance plan is submitted for DelDOT’s review and approval[, the developer and DelDOT will reconcile any differences between the estimated design costs and actual costs.]

Prior to DelDOT acquiring right-of-way for the offsite improvements, the developer shall provide DelDOT with security in the amount of 100% of the estimated final construction and right-of-way acquisition costs as approved by DelDOT.

The following forms of security shall be acceptable:

• Surety Bond issued by a bonding company licensed in Delaware.

• Commercial letter of credit issued by a lending institution licensed in Delaware.

• Certified check with escrow agreement.

DelDOT shall issue a Notice to Proceed (NTP) for the construction after the right-of-way acquisition is completed. [Upon final determination of the required right-of-way acquisition and construction costs, the developer and DelDOT will reconcile any differences between the estimated right-of-way acquisition and construction costs and the actual costs.

At no time will DelDOT have responsibility for the cost of scheduling, planning, public participation, design, right-of-way acquisition, construction or inspection related to off-site improvements except as provided for in the section 4.0 of these regulations.]

[These regulations address the identified need for transportation improvements triggered by new development in cases where such improvements would not otherwise be possible due to right-of-way constraints. In addition to providing a process for meeting a public transportation need, these regulations also establish under what conditions this process may be utilized in support of land use and transportation infrastructure coordination.]

[4.0 Finance

Except in those instances where DelDOT has entered into an agreement to fund certain portions or phases of a transportation project or projects, DelDOT will not provide financing for any portion or phase of a transportation project or projects covered by these regulations. Except in the instances cited above, the developer shall pay directly for all costs and expenses associated with said project. The developer may avail his or herself of the several types of financial vehicles commonly used for such purposes including bonds, letters of credit and escrow accounts.]

10 DE Reg. 892 (11/01/06) (Final)