2 Del. Admin. Code § 2308-3.0
The construction of the necessary transportation improvements may occur in one of the following two ways:
Alternative One: DelDOT shall enter into an agreement with the entity seeking development approval whereby the developing entity takes the project lead andassumes direct responsibility and all costs for the planning, design, right-of-way acquisition, construction, and inspection of improvements. The agreement must include terms giving DelDOT appropriate provisions for quality assurance and quality control. This is the preferred alternative.
Alternative Two: If DelDOT determines that the aforementioned agreement is not feasible and practical, DelDOT may take the project lead andassume responsibility for the scheduling, planning, design, right-of-way acquisition, construction, and inspection of the off-site improvements as a DelDOT project. The following include, but are not limited to, conditions that may cause DelDOT to take the lead, but not the cost, for the project:
The project is particularly complex. The project will still be wholly funded by the entity seeking development approval.
The project is already in the DelDOT's CTP, planning and design are complete, but right-of-way has not been acquired. The developer shall contribute funds towards the necessary right-of-way acquisition and be responsible for any additional costs incurred as a result of the portion of the project being modified.
The development and related improvements are part of a Transportation Investment District or similar master planned area. The developer will pay their fair share of the cost based on trip generation. The specific responsibilities of these several parties will be described in a Memorandum of Agreement.
If a project or improvement is not in DelDOT's CTP, or in the CTP but not yet under design and found to need right-of-way, it may be considered for eligibility if the following conditions are met:
The development project for which the improvements are required is
. Consistent with the local comprehensive plan;
. Consistent with Strategies for State Policies and Spending, including location in a Level 1, 2, or 3 State Strategy investment area; and
. In conformance with the requirements of the Clean Air Act (CAA) regulations.
The need for the transportation improvement project must be documented and confirmed during the land use process as part of the preliminary plan approval from the local land use agency.
The transportation improvement is located adjacent to the public right-of-way. Improvements include but are not limited to, intersection upgrades, roadway widening, and improvements required at the entrance to the proposed development.
When the project has been found to be eligible, DelDOT may still choose to defer or deny advancement of the project. Project deferral may be considered in cases where a project is located in an active transportation study area, or in an area where a study is about to be initiated, where the results could have a significant impact on or eliminate the need for the subject project.
Project denial may be considered in cases where the project would cause abutting property to lose access or be reduced in value to the extent that it would be rendered unusable, economically. Deferral or denial under these conditions shall be at DelDOT's discretion.
After the project is accepted by DelDOT, plan preparation for preliminary engineering and final design of transportation improvements (also known as "construction plans") shall be in accordance with DelDOT plan development standards.
Right-of-Way (ROW) plans shall be in accordance with DelDOT's Right-of-Way Manual. Additionally, right-of-way shall be verified through deed research, examination of plot plans and DelDOT highway, bridge and subdivision archives.
Public input for land development is most critical during the exploratory sketch plan phase of the land use process and should be part of the local land use agency's process. During the design of transportation improvements, DelDOT and the developerwill solicit public input in a formal setting and provide information such as the implementation process, maintenance and protection of traffic (MOT), and potential impacts (e.g. travel time charts showing different alternative routes and projections showing how long the public will be inconvenienced).
DelDOT's Public Involvement Policy O-03 illustrates the range and levels at which the public has an opportunity to participate in the planning process. This policy states that public involvement processes shall be proactive and provide complete information, timely public notice, full public access to key decisions, and opportunities for early and continuing involvement. DelDOT shall consult with state and local governmental representatives once the concept plan is submitted. DelDOT, with the participation of the relevant developer, is committed to educating the public about transportation issues, services and projects, as well as soliciting information, reaching consensus, and providing a way for the general public to express their needs, ideas, concerns, and perspectives relating to the transportation system.
Public input under the road improvement process shall be in accordance with DelDOT's Public Involvement Policy O-03.
Regardless of whether a developer or DelDOT takes the lead in making the transportation improvement, a minimum of one public meeting shall be held after preliminary plan review. The need for other meetings, for example showing implementation and maintenance of traffic, will be determined by DelDOT and included in the agreement between DelDOT and the entity seeking development approval. The scope of these additional meetings can vary, depending on the impacts of the proposed transportation improvements. All adjacent property owners shall be notified by regular mail in writing 14 days prior to the public meeting, and offered an opportunity to comment. A notice shall be placed in a local newspaper of general circulation advertising the public meeting date and location for the proposed improvement, its scope, an indication of the expected project duration and the opportunity to discuss to what extent the public will be affected by the project.
The developer's engineer, who must be a Delaware-registered professional engineer, shall prepare and submit to DelDOT for review and approval all construction plans, right-of-way plans, specifications, and estimates for the project. The design of roadway improvements shall be in accordance with the latest standards published by the American Association of State Highway and Transportation Officials (AASHTO), DelDOT's Road Design Manual, and the Manual on Uniform Traffic Control Devices (MUTCD).
The plan submissions will be required to undergo separate reviews for construction and right-of-way plans:
The construction plan submission will consist of a preliminary, semi-final, and final (or contract) plan submission. The submittals shall include design plans, specifications and cost estimates for construction of the project.
The right-of-way plan submissions shall include a semi-final and final plan submission.
The developer's engineer shall establish review dates with concurrence from DelDOT for all construction and right-of-way plans. These plans shall be reviewed by DelDOT's Chief Engineer. The developer's engineer shall coordinate with the utility companies to determine existing utility locations and possible relocations.
Existing deeds and recorded plot plans shall be acquired and applicable DelDOT highway, bridge and subdivision plans shall be obtained to establish and verify the existing right-of-way. The engineer shall attest to the right-of-way shown on the plans.
The engineer will work through DelDOT's Development Coordination Section and the Pavement Management Section for pavement evaluation and design verification. This may include the need for pavement cores and subgrade soils analysis.
The engineer will work with DelDOT's Design Services for hazardous material and/or contaminated site delineation. The developer shall be responsible for any site remediation required. The engineer shall prepare, apply for, and obtain all necessary permits and environmental or historic documentation required by federal, state, and local authorities. Copies of the permits and supporting documentation shall be provided to DelDOT prior to a Notice to Proceed being issued for construction of the project.
DelDOT will determine the level of inspection required for each project. Inspection will be provided by DelDOT Public Works staff, DelDOT construction staff, or an inspection consultant currently under contract with DelDOT for inspection services.
DelDOT's Real Estate right-of-way acquisition process can be used to secure roadway improvements triggered by development, only after the developer has exhausted all efforts to obtain the needed private property through voluntary good faith negotiations. The developer shall consult with the Real Estate Section, develop an acquisition plan and implement that plan with DelDOT oversight. Land acquisition shall be in accordance with DelDOT's most current Real Estate Management Manual. DelDOT engages the property owners and tenants in a process of notification, appraisal, and negotiations. DelDOT's Real Estate Section, or a qualified entity, with prior approval by DelDOT, shall procure the necessary rights-of-way.
Based on the complexity, DelDOT's Real Estate Section will determine whether an appraisal is necessary or if a valuation waiver method can be used. In instances where temporary access to a property is required, DelDOT shall determine the lease value of the property for the duration of the project.
Process Steps:
The developer shall hire a Delaware-registered professional engineering firm possessing a Certificate of Authorization for all offsite improvement projects. If the developer designs the transportation improvements, the cost of which the developer has responsibility, (Alternative One), the developer shall provide DelDOT with 100% of the right-of-way costs upon completion of the preliminary engineering and final determination of right-of-way. DelDOT or a qualified entity, with prior approval by DelDOT,will acquire the determined right-of way in accordance with the real estate process in section B.3.5 and DelDOT's Real Estate Management Manual.
The developer shall hire a qualified contractor as determined by DelDOT to implement the identified improvements. The contractor shall be one that is listed on the DelDOT Registry of Contractors.
The developer shall also enter into a construction inspection agreement with a firm currently under contract to DelDOT or a firm currently on the Registry of Contractors to provide such services with DelDOT.
If DelDOT designs and constructs the transportation improvements (Alternative Two), prior to initiation of design services the developer shall provide DelDOT with a certified check for the estimated total cost of preliminary engineering and final design costs as approved by DelDOT. Upon final determination of the required improvements and at the same time as final site plan and preliminary entrance plan is submitted for DelDOT's review and approval, the developer and DelDOT will reconcile any differences between the estimated design costs and actual costs.
Prior to DelDOT acquiring right-of-way for the offsite improvements, the developer shall provide DelDOT with security in the amount of 100% of the estimated final construction and right-of-way acquisition costs as approved by DelDOT.
The following forms of security shall be acceptable:
. Surety Bond issued by a bonding company licensed in Delaware.
. Commercial letter of credit issued by a lending institution licensed in Delaware.
. Certified check with escrow agreement.
DelDOT shall issue a Notice to Proceed (NTP) for the construction after the right-of-way acquisition is completed. Upon final determination of the required right-of-way acquisition and construction costs, the developer and DelDOT will reconcile any differences between the estimated right-of-way acquisition and construction costs and the actual costs.
At no time will DelDOT have responsibility for the cost of scheduling, planning, public participation, design, right-of-way acquisition, construction or inspection related to improvements except as provided for in the section 4.0 of these regulations.]
2 Del. Admin. Code § 2308-3.0