The following letter was sent to Delaware Senate Housing & Land Use Committee with a copy provided to the Cape Gazette for publication.
The significant difference between the synopsis for House Bill 104, stating that a proposed project would qualify for an exemption from the Preliminary Land Use Service review process if it is located in Investment Levels 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 Levels 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 for Investment Levels 1 and 2, thereby 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 real possibility, particularly in Sussex County, that the majority of the project could be located in Investment Levels 3 or 4. See Sussex County 2019 Comprehensive Plan, page 4-11. The plan instructs that “special scrutiny should be applied to spending decisions and development proposals within these [Investment Levels 3 and 4] areas to ensure these activities are consistent with state and local development and preservation policies.” Unless and until this instruction is changed, the exemption should not extend to projects that are even partially located in Investment Levels 3 or 4.
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 the statutory language is ambiguous and requires interpretation. A statutory synopsis cannot change the meaning of an unambiguous statute. See Board of Adjustment of Sussex County v. Verleysen. The proponents of HB 104 cannot, therefore, ethically maintain that the exemption from a PLUS review will only be for projects located in Investment Levels 1 or 2.
I disagree for several reasons that any exemption from a PLUS review be granted, even if limited to those located entirely in Investment Levels 1 or 2. There is a real risk of harm resulting from the absence of review and input from the various state agencies having experience that is, in many cases, unavailable at the local level. An exemption should certainly not be granted for any project that is not entirely located in Investment Levels 1 or 2. I further believe these legislative efforts are premature and should not occur prior to the state addressing much more pressing needs.
I urge you to reject this misleading and premature legislation in its current form, and instead focus on improving Delaware's infrastructure, educational opportunities available for Delaware residents, workforce capabilities, quality-of-life factors, the environment and other more impactful areas that can encourage and attract quality business to Delaware that will help Delaware residents decide to remain in Delaware and enjoy a more rewarding career with good compensation and benefits that is close to home.
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