Dr. David Carter represents the 6th District on New Castle County Council.
Delaware needs more housing, particularly housing that working families, older adults and young people can afford. I support expanding housing opportunities, encouraging redevelopment and removing unnecessary barriers to housing construction.
But affordability is about more than the price of a house or apartment. Transportation, utilities, taxes, childcare and access to jobs and services all determine whether a family can afford to live in a community. Housing policy must, therefore, be coordinated with infrastructure.
Two new state laws, Senate Substitute 2 for Senate Bill 23 and House Substitute 1 for House Bill 450, make sweeping changes to local land use and transportation planning. The governor’s office recently issued implementation guidance, providing some “flexibility.” Importantly, the guidance cautions that it is only a starting point and “not a substitute for the statutory text or for legal advice.”
That matters. Local governments must now determine whether interpretations in the guidance are consistent with the laws as enacted, adding to the cost and complexity of these largely unfunded state mandates.
SB 23 significantly expands the state’s role in local zoning. It establishes a goal of measurable progress toward having 20% of a jurisdiction’s housing qualify as affordable and requires affordable housing plans. It also requires increased residential density, additional housing types and at least five additional housing production strategies.
It also changes public participation. Qualifying by-right developments cannot be subject to formal public hearings. Public meetings may occur, but review is limited to objective planning and zoning standards.
The guidance says local governments retain some authority to determine where development is by-right or conditional. That could provide important flexibility, assuming that legal review confirms that interpretation.
Still, public involvement increasingly moves to comprehensive planning and zoning, potentially years before residents know what specific development may eventually be proposed next door.
HB 450 creates an even greater concern for transportation and infrastructure.
The guidance suggests flexibility in applying the law’s baseline of four single-family units per acre in designated growth areas, allowing different densities in different areas with justification. But what constitutes as adequate “justification” remains unclear.
More troubling is the law’s 500 peak-hour-trip threshold for requiring a traffic impact study. This could allow sizable developments to proceed without the detailed traffic analysis traditionally used to identify impacts on surrounding roads and intersections.
Most importantly, the guidance identifies no exception for a project generating fewer than 500 peak-hour trips when the road or intersection receiving that traffic is already congested or failing.
Instead, HB 450 creates a statewide Department of Transportation impact fee program. Impact fees can help finance improvements, but collecting money is not the same as ensuring that infrastructure is available when development occurs. Those fees also add to housing costs, working against the affordability these policies seek to improve.
This highlights the unresolved issue of concurrency: Will necessary roads and intersections actually be improved when new homes are occupied or years afterward?
For residents of growing communities, this is not theoretical.
Our communities are experiencing rapid residential and commercial growth, while roads, intersections, schools, public safety facilities, utilities and other infrastructure struggle to keep pace. Combining greater state-directed density with fewer project-specific traffic studies will make that challenge more difficult.
A development could add substantial traffic to an already stressed corridor yet remain below the state’s 500-peak-hour threshold. A statewide standard cannot necessarily account for the unique conditions of every intersection or rapidly growing community.
Residents reasonably expect government to determine whether infrastructure can accommodate development before it is built — not years afterward.
The governor’s guidance provides some flexibility, and local governments should take advantage of every legally available opportunity to protect sound planning and public involvement. But administrative guidance cannot rewrite state law.
Meanwhile, local governments must rewrite ordinances, change review procedures, develop housing plans, meet new deadlines, collect data and explain these changes to residents. The guidance identifies technical assistance but does not identify funding for these additional local responsibilities.
Local officials will ultimately sit across the table from residents concerned about traffic, schools, sewer capacity, density and neighborhood impacts. If authority is shifted to the state, accountability and responsibility should go with it.
Delaware needs more affordable housing, but we also need affordable, livable communities supported by adequate infrastructure.
Our state legislators should revisit these laws and significantly amend them or repeal provisions that cannot be fixed, to restore meaningful local flexibility, protect public participation and ensure that infrastructure keeps pace with development. State and local governments should work together on housing reforms that address affordability without sacrificing infrastructure planning or the voices of affected communities.
Growth without adequate infrastructure is not smart growth. Solving Delaware’s housing challenges requires more than simply increasing density and accelerating development approvals.
Reader reactions, pro or con, are welcomed at civiltalk@iniusa.org.
