Bill Would Impose New Restrictions on Landowners

Posted on 08-11-2023

A bill introduced just before the legislature ended its work for the year seeks to restrict how Delaware property owners can use their land.

House Bill 246 seeks to establish new prohibition zones adjacent to any surface water in the state, barring nearly all land use activity within the designated areas.

The measure would reverse Delaware’s historical preference for allowing local governments to make land use decisions. The bill would seize the authority of county and municipal governments that currently have purview over buffer zone requirements.

Sponsored by State Rep. Sophie Phillips (D-18th District) and State Sen. Russell Huxtable (D-Harbeson, Milton, Dewey Beach), the measure would require a 300-foot buffer to “the mean high-water line of any tidal water body, tidal steam, or tidal marsh, as well as the shoreline of any non-tidal freshwater lake, pond, or stream.” It would require a buffer of at least 50 feet from the top bank of a tax ditch.

Water and marsh are common throughout the state but are especially apparent in the state’s largest county, which is defined by its bay and ocean coastline, the Inland Bays, streams, rivers, ponds, marshes, and tax ditches. Of the state’s more than 2,000 miles of tax ditches, 1,215 miles drain Sussex properties.

Sussex County Council just updated and modernized its water and wetland buffer requirements in May 2022. Among those changes were the following protections:

  • Doubled, from 50 feet to 100 feet, the size of buffering along and around new residential communities that adjoin tidal wetlands and waterways, such as rivers, bays, and streams;
  • Created a 30-foot buffer requirement for new developments along non-tidal wetlands and intermittent streams:
  • Prohibited the clear-cutting of trees and other vegetation in buffer areas;
  • Established new penalties for damage caused to buffers and forested areas.

State Rep. Rich Collins (R-Millsboro), a former land use activist, said the legislation would usurp local authority and would be onerous for Sussex County landowners. “With all the water and marsh in the county, the dramatic and arbitrary increase in the buffers proposed by this bill would bar many county residents from using their land as they see fit. If this becomes law, it will amount to a ‘governmental taking’ of the value of massive amounts of Sussex County property with the stroke of a pen.”

Rep. Collins added that nearly 148,000 acres of Delaware farmland and forestland have already been permanently preserved through the Farmland Preservation Program, almost 58,000 acres in Sussex alone. “And this was all done cost-effectively and with the voluntary participation of landowners,” he said.

The measure is currently pending action in the House Housing Committee. It will be eligible for consideration when lawmakers return to Legislative Hall for the second half of the 152nd General Assembly in January

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