Why Should Delaware Care?
For generations, land use has been controlled by counties and municipalities, whose elected officials determine what and where new developments can be built. This year, however, the state legislature exercised its Constitutional authority to override that precedent, and force local governments to enact policies they don’t support.
Toward the end of this year’s legislative session, tensions flared between state lawmakers and local officials over a group of proposed bills that aimed to strip local governments of some land use authority, known as “home rule.”
The proposals included mandates for Delaware’s three counties to ease restrictions on where marijuana shops can be located, prohibitions on local governments denying certain electrical substation projects, and requirements to include affordable housing units and more accessible parking.
As a result, the Delaware League of Local Governance sent a letter to the General Assembly, urging lawmakers to protect and reaffirm the authority of municipalities in zoning and land-use decisions.
In addition, all three counties signed off on similar resolutions asking the General Assembly to respect the principle of local governance.
Delaware has made similar moves in the past, with measures like the 1971 Coastal Zone Act and the Quality of Life Act, which passed in 1988. But regulations that could carry heavy impacts on land use for cities and counties are usually left up to local officials.
While some of the bills were tabled before the General Assembly ended its session on June 30, the passage of others could reshape the balance of power between the state and its local governments.
Approved
Senate Bill 75 – Marijuana Rezoning
With Delaware’s recreational marijuana industry set to open in August, some marijuana operators have stressed that they won’t be able to find a location to open their storefronts due to the harsh restrictions imposed by municipalities and the state’s three counties.
As a result of the control given to local governments through the state law that legalized recreational marijuana, a third of Delaware’s 57 municipalities have outlawed the industry outright, while the counties have set significant buffers between marijuana establishments and other areas like schools and homes.
Sussex County has set the widest buffers between shops and sensitive areas at 3,000 feet, while New Castle County currently has its buffer set at 1,000 feet.
To ease those restrictions, lawmakers introduced Senate Bill 75 in March.
The measure, sponsored by state Sen. Trey Paradee (D-Dover) and Rep. Ed Osienski (D-Newark), overrides county-level zoning laws and limits required buffers to 500 feet. It also protects existing medical marijuana facilities with retail conversion licenses, allowing them to stay in their current locations regardless of future zoning changes.
The bill was met with pushback from Republican legislators like Rep. Valerie Jones Giltner (R-Georgetown) and Senate Minority Whip Brian Pettyjohn (R-Georgetown), who argued that the bill could set a dangerous precedent in the matter of local land use issues. They said such issues should be left to local officials who were elected by local residents.
Ultimately, the legislation was passed 13-8 in the Senate and 25-13 in the House.
The bill now awaits a signature from Gov. Matt Meyer before it can become law, but it is still unclear how he will act.
Senate Bill 159 – Offshore wind override
Senate Bill 159, introduced by State Sen. Stephanie Hansen (D-Middletown), requires permit approvals for electric substations in a heavy industrial zone as long as it supports a renewable energy generation project of at least 250 megawatts – essentially pigeonholing it to offshore wind.
The proposal, which was passed and signed by Gov. Meyer on the last day of the legislative session, became one of the hardest fought political battles of the year. The bill retroactively strips Sussex County Council of its ability to deny a permit for an offshore wind farm.
Late last year, Sussex County Council rejected a permit for a substation that would’ve been crucial to the completion of an Atlantic Ocean wind farm, visible from Delaware and Maryland beaches.
US Wind, the Maryland energy company that filed the land use permit, appealed the rejection to state courts late last year, but that case is ongoing.
The bill has faced considerable opposition from Republican lawmakers and local officials who argued that the bill was an example of government overreach, but Democrats and environmental groups supported the bill, saying it’s necessary to address Delaware’s energy needs.
Republican lawmakers even attempted to hold up the approval of the state capital budget in order to stop the offshore wind measure from moving forward during the last day of session.
But the measure was ultimately passed after legislators came to agree on a compromise – pushing implementation date of the law to Jan. 1, 2026, giving more time for the ongoing court case involving U.S Wind to move forward.
House Bill 48 – Accessible parking
In early June, Delaware lawmakers introduced a bill aimed at tightening compliance with the Americans with Disabilities Act (ADA).
House Bill 48, sponsored by Rep. DeShanna Neal (D- New Castle/Wilmington), will require local county or municipal authorities to issue permits to commercial buildings to ensure that accessible parking spaces are compliant with the design and construction requirements of the Americans with Disabilities Act.
Government buildings will also be subject to the law, but will instead receive their approval from the state’s Architectural Accessibility Board.
While both state and federal laws already mandate accessibility standards, the bill notes that these laws are “often ignored and rarely enforced.”
Co-sponsor State Sen. Nicole Poore (D–New Castle) emphasized that lax enforcement has led to accessibility issues across the state, particularly in tourist-heavy areas, during the Senate Environment, Energy & Transportation committee meeting last month. In 2021, the Community Legal Aid Society and residents filed a lawsuit against the City of Rehoboth Beach, alleging that a lack of accessible parking denied them reasonable access to businesses and harmed their quality of life.
Under HB 48, both commercial and government facilities would be required to provide the appropriate number of accessible spaces, install proper signage, and meet ADA-compliant design specifications.
Nick Smith, president of the Delaware League of Local Governance and mayor of Clayton, argued that the proposed requirements could hinder access for residents at facilities with limited parking, such as town halls where quick in-and-out visits are common. Rep. Lyndon Yearick (R-Dover) noted similar concerns during the House vote on June 17.
According to federal law, buildings with one to 25 parking spaces must have at least one accessible parking space.
The bill also increases fines for unlawfully occupying accessible parking spaces and allows local governments to issue civil penalties of up to $500 for non-compliant parking infrastructure.
Properties will have five years from the bill’s passage to bring their parking facilities into compliance.
The bill, which passed 27-7 in the House and 21-0, now awaits consideration from Gov. Meyer.
Tabled
Senate Bill 87 – Accessory dwelling units
Senate Bill 87, sponsored by State Sen. Russl Huxtable (D–Lewes/Rehoboth), would require cities, towns, and counties to allow the construction of accessory dwelling units (ADUs) — whether attached to, detached from, or located within a single-family home — without imposing unnecessary barriers or overly burdensome zoning or application requirements.
Counties, cities, and towns must create a local ordinance to allow at least one ADU on any property that has a single-family home, and the units must be accessible as rental housing.
“There’s no single magic bullet to solve Delaware’s affordable housing crisis, but policies, like this one, ones that diversify and expand our housing supply, are critical steps forward,” Huxtable said during a May Senate Housing and Land Use Committee hearing.
The bill also requires the Delaware State Housing Authority and the Office of State Planning Coordination to support local governments by providing outreach, education, and resources to help implement the law.
Huxtable emphasized that local governments can tailor the ordinances to the characteristics of their communities, and the bill will not override deed restrictions against ADUs or any other restrictions that are in place before June 30, 2027.
The proposal was a recommendation from the state’s Affordable Housing Task Force and was openly supported by the Delaware State Housing Authority.
But Senate Minority Leader Gerald Hocker and State Sen. Eric Buckson (R-Dover) noted that the bill could be a burden for residents who live next to the small units and could impact parking in different neighborhoods.
A representative of Newark who spoke at the meeting voiced opposition on behalf of the city, emphasizing that ADUs could create a secondary housing market for students. They noted that Newark’s current affordable housing crisis is largely driven by the high demand from students occupying housing across the city.
Representatives of the Homebuilders Association of Delaware, the Delaware Affordable Housing Coalition, and the League of Women Voters were also present during the meeting to voice their support for the bill, emphasizing that its passage could significantly improve Delaware’s homelessness and housing crisis.
The bill was introduced in early April and successfully passed the Senate Housing and Land Use Committee. However, it did not move to the Senate floor for a vote.
Huxtable did not respond to a request for comment on whether there were additional issues to be workshopped this fall, but as of now, the bill will pick up where it left off when the General Assembly reconvenes in January.
