DelDOT proposes new right-a-way regs

By Sam Harvey
Staff Reporter

Delaware Department of Transportation (DelDOT) planners have been showcasing some comprehensive new regulations this week, aimed in part at facilitating developer-DelDOT cooperation on rights-of-way purchases.

According to DelDOT’s Ted Bishop (assistant director, development coordination), department staff has been working on the new regulations for more than a year and a half. “We’ve had involvement at every level, from various stakeholders, and I’m confident they’ve done a very good job,” Bishop said.

The public is welcome to comment on these regulations until the end of the month (March 31). Bishop said the department might have to hold additional public workshops if someone discovered a glaring error, something necessitating “substantive change.” But barring that possibility, and as long as DelDOT Secretary Carolann Wicks approves, he expects Wicks’ signature and implementation as early as the end of April.

The regulations are presented in their entirety on the state’s Web site, at www.delaware.gov. Click “Comment about Proposed Regulation Changes” and, for the DelDOT-related regs, scroll to the bottom.

The “Development-Related Improvements Requiring New Rights-of-Way” regulations are perhaps the furthest-reaching.

For a bit of background, DelDOT derives eminent domain-style authority to implement these regulations from the “Highways” section of Delaware code.

That section of state law determines where and under what conditions DelDOT should use its real estate process to acquire the rights-of-way.

From state law: “Under appropriately defined conditions, the Department should also be able to use its full powers to obtain the necessary rights-of-way for such improvements, triggered by the combination of pre-existing traffic conditions and the proposed new development…

To fall under the new regulations, a development must be:

• Approved as a preliminary plan, at the local level (town or county);

• Consistent with the local comprehensive plan;

• In a Level 1, 2 or 3 investment area on the state strategies map (anywhere but Level 4, which is set aside for agriculture and open-space preservation); and

• In conformance with Clean Air Act regulations.

Once developers check off the list, they and DelDOT staff negotiate one of two alternatives.

As preferred, DelDOT takes over everything from planning and design through construction and inspection — for both on- and off-site improvements.

As a fall-back alternative, the developers build their own improvements and DelDOT handles the off-site portion — past ol’ Johnson’s place and on to the stop sign, as it were.

From the regs, DelDOT would consider one or the other alternative if:

• The project was particularly complex — then developers would fund the project in its entirety.

• The project was already on DelDOT’s list (the Capital Transportation Plan), and DelDOT had already completed planning and design — then the developer would contribute toward rights-of-way acquisition, and pay for any plan modifications.

“If (the developers) meet all the conditions, and we would otherwise have a project there, this would allow them to move forward with the actual transportation improvement,” Bishop pointed out.

But he admitted that wasn’t always possible. If ol’ Johnson was utterly unwilling to sell any of his right-of-way, and for some other reasons DelDOT couldn’t exercise eminent domain, the department might have to settle for developers’ cash instead.

“Typically, we’d get a monetary contribution, which wouldn’t specifically address the transportation problem,” he said. “We’d rather have a project go in.”

It would be a need to improve the level of service on local roads that triggered the process in the first place, Bishop pointed out. But developers would have to contribute their fair share, one way or the other, he said, before DelDOT would issue a “letter of no objection” for the project.

DelDOT would primarily refuse to issue such a letter if the department couldn’t provide access to the site — it gets a lot more complicated out past the next stop sign.

According to information available on DelDOT’s Web site, at www.deldot.gov, local governments’ authority to manage their own land use tempers the department’s role.

From the Publications & Forms section, Livable Delaware Implementation Plan, Site Plan Reviews: “For example, we would not necessarily object to a development that could be provided reasonable access yet worsened an already congested intersection.

“We would take this position because, to our knowledge, counties and municipalities (except for New Castle County) do not have ordinances whereby they can deny a development because of its impact on the transportation network, or even a policy document indicating what the criteria for an acceptable or unacceptable impact might be.

“Our department has not created its own criteria in deference to the local land use jurisdiction’s authority … and the potential impact it could have on land development.”

The new regulations, however, kick off in a slightly different tenor:

“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.”

The improvements are for the public good, the regs emphasize, but both Bishop and DelDOT spokesman Mike Williams admitted implementation could be a little clunky. Under the regs, developers have to improve the local transportation system “if their proposed development triggers the need for the improvement.”

This speaks but little to cumulative effect. “You can have two competing developments across a field from one another – one guy starts three years before the other guy, the guy who started later is going to benefit from the improvements,” Williams pointed out.

But Bishop said the department was working toward a better way. For instance, when DelDOT saw two or more developers planning projects in the same area, he said it was sometimes possible to convince them to combine forces for more comprehensive roadway improvements.

“It’s not ironclad, but we can typically convince them that it’s in their best interest,” Bishop said. “We’re finding that developers — they’re primarily interested in moving forward, time is money — will work with us.”

“Also, we’re looking at larger areas at one time,” he said. “Area-wide or sub-regional studies.”

He cited the big Westown collaboration (several developers entered into a master plan with local government in Middletown) as a successful example, although he admitted DelDOT would probably do a few things differently the next time it tackled such a master plan.

Determining who is responsible for what fair share will never be a simple matter, Bishop indicated.

“For instance, you can’t have developers who are 10 miles away from Route 1 pay for a lane widening on Route 1, or even a portion of it,” he said. “Even though the homes they’re building are going to have some impact, you can’t say how much.

“What percentage would we ask them to pay?” Bishop asked. “All we can get out of them is payment for improvements right near them.”

Again, the “Developer-Related Improvements Requiring New Rights-of-Way” regulations are presented in their entirety on the state Web site. Anyone with comments can contact the department at (302) 760-2122.

Other regulations up for public review are “Delaware Safe Routes to School” and a thick packet on subdivision and street standards and highway access.

For “Delaware Safe Routes to School,” the title says it all. Gov. Ruth Ann Minner signed the enabling legislation back in 2002, and these regulations would establish the actual program, which would “enable DelDOT to work with schools to encourage children to walk and bicycle to school safely.”

Public and public charter schools are eligible, but the program is specifically designed to benefit grade-school students (kindergarten through eighth grade). Individual projects may be funded up to $125,000. With comments or questions, contact the department at (302) 760-2121.

The packet on subdivision streets is the opposite of short and sweet, although traffic engineers will likely find its 200-plus pages lively reading. Here again, comments go to (302) 760-2122.

“The main thing we’ve done is take regulations that were in effect in the mid- to late-1980s, update and improve them, and revise them so they reflect the current thinking,” Bishop summarized. “What’s being done in the way of best management practices (BMPs), things of that nature.”