This letter responds to the pending legislation in the General Assembly to overturn actions taken by the local government.
Notwithstanding the hyperbolic political posturing by certain elected and appointed government officials, the state clearly has the authority to do so when protecting important state interests.
The power of subordinate government bodies to enact zoning regulations and make decisions is a power delegated to them in the Delaware Constitution. Subordinate government bodies have no inherent authority in this area and may act only in conformance with the enabling legislation. For Sussex County, this delegated authority is contained in Chapters 69 and 70 of Title 9 of Delaware Code. These statutes provide the scope of Sussex County’s authority in zoning and land-use matters, its limits and how conflicts of law in this area are resolved. The doctrine of preemption also makes clear that a state law prevails when the law of a subordinate government body directly conflicts with the law of a superior sovereign.
In my opinion, the state has oversight responsibility over the exercise of its delegated police power to protect the public’s health, safety and welfare. This is especially true in environmental matters. Where the subordinate government body is taking action inconsistent with state environmental protection law or fails to take action to update its regulations consistent with science, the state should step in. Disparate treatment of citizens depending on where they reside should not be tolerated. A good example of the state’s failure to exercise proper oversight is Sussex County’s source water protection regulations, adopted in 2008, which the county has conceded in the 2018 comprehensive plan are in need of updating and improvement. I am not aware of any action being undertaken to update this ordinance. I believe it is fair to ask: How long does the public have to wait before either the local government or state acts?
The state’s authority to preempt local authority is clear. The debate should focus instead on why the state is taking this action at this time. The retroactive applicability of the pending legislation begs the question of why this legislation was not sought to be enacted earlier. Retired Judge William Witham's question about why the General Assembly is interfering with an apparently pending legal proceeding in this matter is an interesting one and hopefully will receive an explanation.
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