House Bill 104 in 2023 - PLUS Exemption Bill

An Effort to Remove PLUS Reviews from certain applications

PLUS reviews serve government agencies, the applicants, and the public. 

As we understand, there was an effort to eliminate PLUS reviews altogether in 2021, but the final bill they introduced in 2022 was HB 420, which was to bypass PLUS reviews for some businesses that create jobs - any jobs

HB 420 passed the House and also passed the Senate Committee on 6/15/2022, but the 2022 session ended without a Senate vote for HB 420.

It is now back as HB 104 of 2023.


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House Bill 104 - 152nd General Assembly (2023)

Status:


Sponsors and Bill Details

(* Bolded ones in the following sponsor list represent Sussex County.)

Primary Sponsor: Bush (Rd 29)

Additional Sponsor(s):

Sen. Spiros Mantzavinos (SD 7), John Walsh (SD 9)

Rep. Dorsey Walker (RD 3)

Co-Sponsor(s):

Sen. Buckson (SD 16), Paradee (SD 17), Poore (SD 12), Wilson (SD 18)

Reps. Briggs King (RD 37), Carson (RD 28), Collins (RD 41), Gray (RD 38), Griffith (RD 12), K. Johnson (RD 5), Longhurst (RD 15), Osienski (RD 24), Schwartzkopf (RD 14), D. Short (RD 39), Michael Smith (RD 22), K. Williams (RD 19), Yearick (RD 34)

Long Title:

AN ACT TO AMEND TITLE 29 OF THE DELAWARE CODE RELATING TO LAND USE PLANNING.

Original Synopsis:

The state’s pre-application process for land use process, known as PLUS, was created 20 years ago and has served to increase coordination among state and local agencies. In doing so, it has fulfilled its intent of providing predictability and consistency for the development community, especially in the area of major projects. Given that success, this bill assists in expediting the process for economic development projects in the State of Delaware with some exemptions from the PLUS process. A project located in Investment Level 1 or 2 [see note below] under the Strategies for State Policies and Spending that is consistent with local zoning and any local comprehensive plan that will create full-time jobs is exempt from the pre-application process unless required by the local government or requested by the applicant. 

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Senate Districts



House Districts

(Note: Some legislators seem to think it applies only to projects in Investment Levels 1 or 2 (because of the language in the Original Synopsis above), but the actual bill (see below, line 7) reads, "located at least partially in Investment Levels 1 or 2."

This means the project could be located 10% in Levels 1 or 2, and 90% in Levels 3 or 4.

HB104.pdf

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House Amendment 1 to House Bill 104

Current Status:  Passed 4/6/23

Bill Details

View Parent Bill: HB 104 w/ HA 1

Introduced on: 4/6/23

Primary Sponsor: Bush

Original Synopsis:

This Amendment deletes the phrase “or otherwise” and replaces it with “or by ordinance” and deletes the phrase “or where an applicant voluntarily requests to participate under subsection (b) of this section” since it is duplicative of what is contained in subsection (b) of this section.

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House Vote HB 104 on 4/6/2023

5/3/2023, Wed. 10-10:45 AM -  Senate Housing and Land Use Committee 


Chair: S. Elizabeth Lockman (SD 3)

Vice-Chair(s): Russell Huxtable (SD 6)

Members:

Kyra L. Hoffner (SD 14)

Marie Pinkney (SD 13)

Bryan Townsend (SD 11)

John "Jack" Walsh (SD 9)

Eric Buckson (SD 16)

Dave G. Lawson (SD 15)

Election in 2024: Districts 2, 3 (Lockerman), 4, 6 (Huxtable), 10, 11 (Townsend), 16 (Buckson), 17, 18, 21 

Meeting Info

Committee: Senate Housing & Land Use

Chair: Lockman

Vice-Chair(s): Russell Huxtable

Date/Time: 5/3/23 10:00 AM

Location: Senate Hearing Room

411 Legislative Avenue *

Dover, DE 19901

Virtual Meeting Info: Register for Meeting 

Meeting Livestream 

Downloads: View PDF

Agenda

Legislation: HB 104 w/ HA 1

Sponsor: Bush

Description: AN ACT TO AMEND TITLE 29 OF THE DELAWARE CODE RELATING TO LAND USE PLANNING.

Comments

For questions regarding the agenda, please contact Daykia Hunter-McKnight at Daykia.Hunter-McKnight@delaware.gov.

Upon clicking the registration link listed above, a member of the public will be directed to a webpage where they will be required to enter the required registration fields. After submitting the required information, the registrant will receive an email containing the virtual meeting link, meeting ID, and password. This email also includes options to join the meeting via telephone.

*Written remarks may be submitted to Daykia.Hunter-McKnight@delaware.gov. Public comments provided in writing will be accepted prior to the committee meeting and up to 24 hours after a hearing has adjourned. All written public comments will be considered part of the official record.


PLUS's Purpose in Serving Government Agencies

According to the State website:

The Office of State Planning Coordination works closely with and staffs the Cabinet Committee on State Planning Issues. The Office of State Planning Coordination's mission is the continuous improvement of the coordination and effectiveness of land use decisions made by state, county, and municipal governments while building and maintaining a high quality of life in the State of Delaware.

OSPC meets its mission through:


PLUS's Benefit to Land Use Applicants - One-Stop for Feedback from All Agencies


Applicants receive various state agencies' feedback up front in one sitting of less than 30 minutes - vs. finding the issues later on and getting delayed for length. Sometimes applicants modify their plans after the state's input. Applicants often thank the state agencies for their input after the review meeting.



PLUS's Benefit to the Public


Examples of how the PLUS Reviews served the public

Chappell Farms:

It was early 2021 when Chappell Farms were reviewed for approval. For some reason, DNREC did not provide its review for this application. Some members of Sussex2030 wanted to look up the maps for Wellhead Protection Area and Excellent Groundwater Recharge Area because a gas station was proposed on-site. However, the map was not available to view at the time. Fortunately, one member remembered an old application called Overbrook Town Center, which was denied. Sure enough, the 2008 PLUS review showed a small map of the Excellent Groundwater Recharge Area, of which the northeastern portion was on the proposed Chappell parcel. Not delineating it in the application was a violation of Sussex Source Water Protection, §89.

We brought up this issue at the public hearing. Since then, we noticed most applications mentioned whether these protected water bodies were within their parcels and, if so, how they comply with the code requirements.

So, even an old PLUS review was of great value to the public looking for information, and it served the county in administering the required process.


Coral Lakes:

Another example was the recent case of Coral Lakes. DNREC’s review revealed the difference in the wetland delineation between the applications submitted in 2019 and 2020. We delved into the reasons and found the federal administration’s change of the delineation rules, which the federal courts overturned in 2021. This furthered the public’s understanding of wetland delineation processes and later helped the research for another application.

We went back to the PLUS reviews of 2009-04-01, 2010-02-02, 2019-01-5 to compare how the applications for the same parcel(s) changed.


Issues with HB 104


If the decision on whether to send the application to PLUS is solely left with County's P&Z, there could be some problems. Here are the reasons:

Examples of PLUS Code Not Followed:

1.ALL Environmentally Sensitive Area (now called Coastal Area) must go through PLUS Review, but they do not.

    Title 29 State Planning and Property Acquisition

§ 9203. Local land use planning actions subject to review process  

(a) All projects meeting any 1 of the following criteria shall undergo a pre-application meeting and review process as set forth in this chapter: 

(3) Rezonings, conditional uses, site plan reviews and/or subdivisions, within environmentally sensitive areas, as identified within any local jurisdiction's comprehensive plan as certified under §9103 of this title. 


2. PLUS Applicants must respond to PLUS Report, but some applicants send their responses only to P&Z.

    Title 29 State Planning and Property Acquisition

 § 9204. Pre-application review process  

(d) Following the pre-application review process and upon filing of an application with the local jurisdiction, the applicant shall provide to the local jurisdiction and the Office of State Planning Coordination a written response to comments received as a result of the pre-application process, noting whether comments were incorporated into the project design or not and the reason therefore. 


3. If P&Z's decision is in conflict with State's information, P&Z must explain its reasons in writing, but currently P&Z does not do so.

Title 9 - Counties, Chapter 69. Zoning (Sussex), Subchapter II. The Quality of Life Act 

§ 6961. Information from state and local agencies and school districts.  

(b) As part of its review of a rezoning or subdivision application, the county government through its designated local planning agency shall request and review information from all state and local agencies and local school districts identified on a list prepared by the County and shall file as part of the record any written information provided by such state and local agencies or local school districts with respect to the rezoning or subdivision application. If the planning agency makes recommendations that are in conflict with the information supplied by state and local agencies or local school districts, it must explain its reasons for doing so in writing. 


The talking points on HB 104:


Letters

Don't Be Fooled By The Synopsis

 

The significant difference between the synopsis for HB-104, stating that a proposed project would qualify for an exemption from the PLUS review process if it is located in Investment Areas 1 or 2, and the actual language of the bill, which states that a project would qualify for an exemption from the PLUS review process if it is at least partially located in Investment Level Areas 1 or 2 renders the legislation fatally flawed.  

 

The apparent, albeit unstated, rationale for HB-104 --  that the State has already reviewed and made its "infrastructure investment" decisions Investment Areas 1 and 2  rendering a PLUS review unnecessary or at least not critical, cannot possibly extend to projects that can only be partially located in these areas with the possibility of the majority of the project being located in Investment Level Areas 3 or 4.  See Sussex County 2019 Comprehensive Plan (pertinent page attached).

 

The legislature is deemed to be aware of the law and how legislation will be interpreted by the Courts.  In Delaware, a court may only look to the synopsis if the court finds that the statutory language is ambiguous and requires interpretation.  A statutory synopsis cannot change the meaning of an unambiguous statute.  See Bd. of Adjustment of Sussex County v. Verleysen, 36 A3d 326 (Del 2012).  The proponents of HB-104 cannot ethically maintain that the exemption from a PLUS review will only be for projects located in Investment Areas 1 or 2.  

 

While we disagree for several reasons why an exemption from a PLUS review for any project, even if limited to those located entirely in Investment Areas 1 or 2, is beneficial on balance when the potential harm resulting from these unreviewed projects by State agencies having various relevant experience is taken into account, we also believe that the bill will not produce the expected result.  In any event, however, an exemption should certainly not be granted for any project that is not entirely located in Investment Level Areas 1 or 2.

 

We urge you to reject this misleading and counter-productive legislation and instead focus on improving Delaware's infrastructure (broadly defined), the educational opportunities for Delaware residents, quality of life factors, the environment and other more impactful areas that can encourage and attract quality business (we do not need more gas stations or bank branch offices) to Delaware that will help Delaware residents decide to remain in Delaware and enjoy a fairly compensated and rewarding career. 


Letter of Concern by SARG

HB 101 List of Concerns - SARG - Final.doc

Letter of Opposition to House Bill 104 - PLUS Exemption Bill

Sussex2030 group, a non-partisan grassroots group in Sussex County, is concerned about the brain drain from the State of Delaware and advocates for industries and schools that will prepare for the future needs of our State and carry us along the path of economic and technological advancements. We are not certain HB 104 addresses our State's needs clearly and effectively.

Regretfully, therefore, we are writing to express the rationale behind our opposition to House Bill 104, which seeks to exempt economic development projects located at least partially in the State's Investment Levels 1 and 2 from the PLUS Review requirement.

The PLUS review is a legitimate and effective means for the State to achieve and ensure uniform operation of its regulatory regime in several areas where the State has retained a substantial interest, including land use, infrastructure, environment, historic preservation, etc., and thereby strikes the appropriate balance of State and Local authority and responsibility in these areas.  

PLUS reviews streamline the business development process by collecting feedback up-front from all state agencies in one sitting of fewer than 30 minutes. The PLUS process prevents potential setbacks and delays later on.

The proposed legislation does not provide any explanation, much less justification, for how this exemption will benefit the State or its residents. At a minimum, the public should expect a clear explanation of a problem and how the proposed legislation is the best solution to solve the identified problem. 

The language of House Bill 104 - introduced on March 30, 2023, passed the House Committee and the House vote within a week - is also problematic in several respects. 

 We strongly urge all State Senators to oppose this legislation as short-sighted and not in the State's and its residents' long-term best interest.


Letter from Jim Rodgers

https://www.capegazette.com/article/senate-must-kill-plus-bill/257026

Senate must kill PLUS bill

Throughout the ’80s and ’90s, agencies were organized to deal with the increasingly complex issues related to land management in Delaware. As a result, one key opportunity for members of the public to participate in land-use decisions was the formation of the Preliminary Land-Use Service. PLUS operates out of the Office of State Planning Coordination. Its mission is to help coordinate the work of state agencies and project developers before major landuse changes come before local governments.

Importantly for the public at large, its work is transparent and readily available, online and by direct contact. It’s the one chance the state offers the public to assess the scope and characteristics of large-scale land-use proposals well in advance of public hearings on the matter.

Right now, a bill is making its way through the General Assembly that, if passed, will begin unraveling this invaluable service. According to HB104, an economic development project creating full-time jobs, consistent with local comprehensive plans and ordinances, and located at least partially in State Investment Levels 1 or 2 will no longer have to go through PLUS.

At first glance, the effect on job creation in the state might make this seem a sound proposal. But note that the wording of HB104 means the exemption would apply if any part of a proposed project falls within Investment Levels 1 or 2. In effect, that leaves every one of the four investment levels open to development without the benefit of PLUS review. It’s difficult to understand how our legislators can support such a bill. And, because the official summary of the bill oddly makes no mention of the “located at least partially” aspect of the exemption, it’s difficult to believe the public understands the bill either.

HB104 would put an end to any effective public participation in major land-use decision making. There is often little time between the announcement of a public hearing on applications for large-scale land use and the hearing itself. Without PLUS and the public inquiry afforded well in advance of these hearings, opportunity for the public to think and respond sensibly will be reduced to minuscule at best.

On April 6, the House passed HB104. Starting April 25, the Senate Housing and Land-Use Committee will have the option to take up the bill.

I urge the committee in the strongest terms to not let this flawed bill go any further. The Senate can stop this right now.

If HB104 is only the beginning of a PLUS pullback, or even elimination, I urge everyone to look at another bill now before the House Economic Development/Banking/Insurance & Commerce Committee. With respect to several aspects of new development planning, HB101 would bypass DelDOT and DNREC review. Instead, private consultants would do reviews and be paid by the developers! It’s another example of how some elements in our government are growing more willing to relinquish control of increasingly complex issues related to land management.

I urge everyone to contact their state representatives and demand a second, disapproving look at HB104.

Letter from Jeanette Akhter

Public needs PLUS process

Have any of your readers ever discovered that on the property down the street, trees have been cut down and earth-moving equipment is reshaping the landscape to prepare for a new development? Have they wondered how come no one knew anything about it? How could they have found out about it earlier?

The answer is that they could have used the information on the Delaware Preliminary Land Use Service website at plus.stateplanning.delaware.gov.

The PLUS website details each proposed development, as well as the response of state agencies. It goes into detail about the impact of the development, e.g. on traffic and the environment. By using this information, the public can understand the pros and cons of its local impact, and prepare an opinion of either support or opposition to the project, which can be presented at the county planning and zoning meeting on that particular project.

This PLUS system was set up 20 years ago, and it, as quoted in the HB 104 synopsis: “has served to increase coordination among state and local agencies. In doing so, it has fulfilled its intent of providing predictability and consistency for the development community, especially in the area of major projects.” Amazingly, HB 104 then goes on to propose elimination of the PLUS process for projects “at least partially” within state investment level 1 or 2. Levels 1 and 2 are the primary areas wherein state policies will support growth and economic development activities.

Without the PLUS process, the very first public indication that anything is being planned for a property occurs 15 days before the scheduled P&Z hearing. It consists of a very small sign posted on the property, a notification in the back pages of one of the state newspapers, and notices mailed only to owners of property within 200 feet of the project. Then seven days before the P&Z hearing, the developer’s proposal appears on the P&Z website. It is geared to professionals and is technical, often running into more than 1,000 pages. Without the PLUS process, the public likely won’t be familiar with the comprehensive plan that would apply to the project. Nor would they likely understand the impact of the development on surrounding traffic, environment, resource utilization, possible historical sites, etc. Nor would they have any clue what they could do about it.

The PLUS process is crucial for the public to understand and evaluate the impact of developments. HB 104 has already passed the House and will be heard very soon in the Senate Housing and Land Use Committee. It’s really important to stop this bill.  Contact the senators and urge them not to pass this bill. For more information, go to legis.delaware.gov/CommitteeDetail?committeeId=617.

Synopsis of HB 104 Not Accurate Representation of the Proposed Legislation

 

In an article appearing on page 10 of the weekend edition of the Cape Gazette, the unidentified author writes about House Bill 104 and apparently relies upon the official and inaccurate synopsis of this Bill for his or her information about the legislation.

 

The actual language of the proposed legislation amending Section 9202 of Title 29 of the Delaware Code states as follows:

 

Economic development project means a development project creating full-time jobs, that is consistent with an adopted local government comprehensive plan and local land development and zoning ordinances, and the economic development project is located at least partially in Investment Levels 1 or 2 as set forth under the Strategies for State Policies and Spending, promulgated under 9101 of this title. [emphasis added]

 

The official synopsis misstates the intent of the proposed bill by omitting any reference at all to the actual language of the proposed bill which clearly makes a project eligible for an exemption from a PLUS review if the project is only partially located in Investment Levels 1 or 2.

 

As a service to your readers, I urge and expect you to print a correction to this misleading article concerning House Bill 104 as soon as possible so that your readers will know that this legislation, if adopted, could extend the exemption eligibility to a project that is only partially located in Investment Levels 1 or 2 (high-density or rapidly growing areas).

 

While there are several other problems with this proposed legislation, to include, but not limited to, whether it will accomplish what it purports to accomplish, on the one hand, and whether it will cause direct harm or result in unintended adverse consequences on the other hand, greater care must be taken in any event to report accurately on what our elected officials are doing.

 

Thank you for reporting on these important legislative initiatives.

 

Steven L. Counts

Opposition - HB 101 and HB 104

Dear Senator,

As a resident of Sussex County and the Vice President of the Sussex Preservation Coalition, I wish to express my concerns with HB 101 and HB 104.

While the two synopses state that the bills will expedite the review process, we know that the PLUS Review process is not the problem. In fact, HB 104 openly states that the PLUS review has been successful in expediting the process for developers. The real impetus for these bills is to keep the public in the dark: to avoid public concern and discourse.

These bills come at a time when residents of Sussex County are finally getting involved in the approval and permitting process. Developers have gone virtually unchallenged by the public, the P&Z Commission, and the County Council, until recently. The PLUS Review has provided us with invaluable information regarding the conditions on-site of both commercial and residential projects. We have become vocal at P&Z and County Council hearings, citing comments and recommendations made by the State agencies. Because we do not have the resources to hire engineers, nor are we allowed on the properties, the PLUS Review provides information we would otherwise not be able to access.

Also, in their current state, there are real problems with the way the bills are written.

HB 101 should not lump DelDot and DNREC together. HB 101 states that consultants to be used could be preapproved by DelDOT “and/or” DNREC. These are two completely different disciplines. Also, the last two sentences of the synopsis are contradictory and puzzling, at best.

The developer will make payment directly to the consultant, yet “policies and procedures should be developed to protect against conflicts of interests in the use of private consultants.”

The second sentence validates why this bill is a recipe for disaster and will be next to impossible to reevaluate and amend due to the advantages it will give to the construction industry. This is exactly why we should not rely on private consultants who are paid directly by the developer.

This bill needs to be soundly rejected.

HB 104 is poorly written and opens the barn door for those searching for loopholes, though one need not go far. The bill states that projects located “at least partially in Investments Levels 1 or 2” are exempt. The words “at least partially” need to be replaced with the word “exclusively.” As with HB 101, this proposal will not expedite the application process.

It will, however, keep information provided by the PLUS agencies from the public. Again, limiting information for, and discourse from, the public.

One other thing about the PLUS Review. It has served the public well in notifying us of projects in the works. It gives us time to gather information in preparation for the hearing—the public’s only shot at adding its comments to the record.

You also need to know that the PLUS Review has also provided the public, the P&Z Commissioners, and County Council with history and facts about the site. Without the PLUS Review, and the comments, those who are charged with protecting the health, safety, and welfare of the county are rendered uninformed. Relying solely on engineers hired by the applicant is reckless.

I submit that both bills need to be killed, or at the very least, revised.

Thank you,

Jill Hicks

Senate Email Addresses

(*The ones highlighted in RED are the sponsors of HB 104. The BOLD ones represent Sussex County.)

The list can be copied to the 'TO' area of the email.


Members of the Senate Housing and Land Use Committee that may vote next, possibly on 4/26:


All other Senators:


Emails of House of Representatives:

The House has already passed HB 104. However, if there is any modification made by Senate, the bill may come back to the House for another vote.

(*The ones highlighted in RED are the sponsors of HB 104. The BOLD ones represent Sussex County.)



Media Contact

newsroom@capegazette.com - Cape Gazette

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 newsroom@iniusa.org  - Delaware State News