§ 842 — School capacity application for municipal corporations

(a) (1) This section shall apply only to residential development. Prior to recording a residential subdivision plan for over 5 units in size for any lands in any municipality located in a county that utilizes voluntary school assessments as set forth in Title 9 and notwithstanding any home rule or charter provision to the contrary, the applicant shall provide certification from the Secretary of the Department of Education, after consultation with the superintendent of the appropriate individual school district, that the school district has adequate capacity for the proposed development. The Secretary shall respond to any request for certification or voluntary school assessments within 60 days of receipt of a completed request for such certification. That certification shall include the following information:

a. Existing classrooms and service levels based upon the Delaware Department of Education, Delaware School Construction Manual, September 19, 1996, as may be amended or supplemented from time to time, or based upon other standards accepted as accurate by the Secretary of the Department of Education; and

b. Capacity calculations, which shall include the current student population, increased demand resulting from prior certifications from the Department of Education, and the increased demand that will result from the proposed development. The municipality shall, within 20 days, provide the Department of Education with all necessary information regarding the number and type of dwelling units proposed and other information which the Secretary may request.

(2) This subsection shall apply to all new residential subdivision plans over 5 units in size for lands located within or annexed into a municipality located in New Castle County on or after July 1, 1992, and first submitted for review after July 1, 1999.

(3) This subsection shall apply to all new residential subdivision final plans over 5 units in size for lands located within or annexed into a municipality located in Sussex County if such County utilizes voluntary school assessments.

(b) Notwithstanding the foregoing provisions of this section, no certificate of adequate school capacity shall be required where either:

(1) The residential development is restricted by recorded covenants to provide housing or shelter predominantly for individuals 55 years of age or older pursuant to the provisions of the federal Fair Housing Act [42 U.S.C. § 3601, et seq.];

(2) The residential development is for low-income housing, which, for purposes of this section; shall be defined to mean any housing financed by a loan or mortgage that is insured or held by the Secretary of Housing and Urban Development or the Delaware State Housing Authority or which is developed by a nonprofit corporation certified under § 501(c)(3) of the United States Internal Revenue Code [26 U.S.C. § 501(c)(3)]; or

(3) The applicant has pledged, in a writing recorded and running with the subject property, to pay a voluntary school assessment in an amount determined pursuant to § 103(c) of Title 14 for each lot for which the applicant would otherwise be required to obtain a certificate.

(c) Voluntary school assessments will be calculated on a per unit basis as of the issuance of the first building permit, and the fee shall remain constant throughout the development of the subdivision (and shall not be increased for any reason, including but not limited to any resubdivision); provided, however, that after 5 years the voluntary school assessment amount may be recalculated. Any voluntary school assessments paid under this subsection shall be paid to the Department of Education at the time that a certificate of occupancy is obtained for each unit, and shall be deposited by the Department into an interest-bearing account as set forth below. With the approval of the Secretary, after consultation with the superintendent of the affected school district, an applicant may receive a credit against voluntary assessments to be paid in an amount equal to the fair market value of any lands or properties set aside by the applicant and deeded to the school district for school uses. Any such lands shall not be used for nonschool purposes, other than as parkland or open space. All voluntary assessments paid shall be held in an interest-bearing account by the State for the school district in which the applicant’s project is located until such time as the school district engages in construction activities which increase school capacity, at which time such assessments shall be released to the school district by the State in the amount of voluntary school assessments paid into an interest-bearing account for such district. It is the intent of this section that lands or properties required to be conveyed by the applicant to a municipality as a condition either to annexation or subdivision approval shall not be eligible to be used for purposes of obtaining a credit against the voluntary school assessment, notwithstanding the fact that such lands or properties may subsequently be conveyed by the municipality to a school district.

(d) To the extent any municipality located in a county that utilizes voluntary school assessments has adopted (or in the future attempts to adopt) any regulations or ordinances linking or tying residential development to school capacity or otherwise restricting residential development in the absence of school capacity for lands covered by this section, such regulations and ordinances are hereby preempted and of no force and effect.

Legislative History

72 Del. Laws, c. 237, § 2 ; 73 Del. Laws, c. 350, § 109 ; 74 Del. Laws, c. 308, § 151(c), (d) ; 84 Del. Laws, c. 210, § 2