(a) Legislative findings. — (1) Under Chapters 1 and 5 of this title, the Department of Transportation reviews and approves entrance design and internal transportation network requirements for new and existing real property developments. This review process often identifies necessary additional improvements to the local transportation system to accommodate the predicted impact of the new development. Under normal conditions, the new development may not in and of itself cause the need for new local transportation improvements, but instead acts as a triggering event in combination with preexisting traffic growth patterns in the area.

(2) On occasion, there is insufficient right-of-way for the construction of these off-site improvements, or the Department’s own schedule for making the improvements as part of its capital program is on a different schedule than the entity seeking development approval. Under appropriately defined conditions, it is proper that the entities seeking development approval contribute toward the cost of obtaining the necessary rights-of-way in lieu of altering the timing of the State’s own investments in such improvements.

(3) Under appropriately defined conditions, the Department should also be able to use its full powers to obtain the necessary rights-of-way for such improvements, triggered by the combination of preexisting traffic conditions and the proposed new development, as well as to oversee the installation of the required improvements.

(4) Even when there is sufficient right-of-way for the required improvements, there are other compliance issues that the local land use approval process may not fully take into account, such as the impact of the improvements on the State’s ability to comply with federal Clean Air Act [42 U.S.C. § 7401 et seq.] regulations, or the linkage between the proposed development and the State’s own land use planning and development policies.

(5) Therefore, the Department should enact appropriate rules and regulations to determine where and under what conditions it will use its powers to acquire real property interests for the construction of such improvements, to enforce the maintenance of safe operating conditions for the traveling public during the construction of these improvements, and to assure continued compliance with applicable environmental and other legal requirements implicated by these improvements.

(b) Implementation. — The Department of Transportation is authorized and directed to enact rules and regulations to complement its existing authority under Chapters 1 and 5 of this title relating to new developments and their impacts on the local transportation network, as follows:

(1) If the predicted impact of a new development creates a need for additional improvements within the local transportation network for which additional rights-of-way must be acquired, the regulations shall outline the procedures for the use of the Department’s powers under § 137 of this title for this purpose, using contributed funds from the entity triggering the need.

(2) In using this authority, such additional improvements shall be limited to those that do not implicate the State’s ability to comply with the air quality conformity regulations of the federal Clean Air Act [42 U.S.C. § 7401 et seq.].

(3) Furthermore, the use of the authority granted pursuant to this section is limited to those geographic areas defined by the State’s land use policies as appropriate for the type and extent of the proposed development.

(4) As part of the approval process for projects built pursuant to this authority, the Department shall consult with state and local governmental representatives in the area of the proposed improvements. The Department shall also establish procedures for public notice and comment on the potential impacts of the development and the proposed changes to the local transportation network.

(5) The regulations shall also provide for 2 alternative methods of constructing the necessary improvements.

a. The preferred alternative shall be an agreement with the entity seeking development approval to assume direct responsibility for planning, design, inspection, and construction of the improvements. At a minimum, the agreement shall also include terms giving the Department appropriate provisions for quality assurance and quality control of the construction of the additional local improvements.

b. If the Department determines in its discretion that such an agreement is not feasible and practical under the circumstances, it may instead assume responsibility for the scheduling, planning, design, construction, and inspection of the off-site improvements as a regular Department project, to be wholly funded by the entity seeking development approval.

74 Del. Laws, c. 404, § 1.