DelDOT Proposed Walking/Cycling Regulation

DelDOT is revising its regulations. Among the regulations being revised are those that govern access to DelDOT controlled roads by property owners. Among the many proposed changes is a proposed change to the regulations governing the provision of walking and cycling facilities.

The current and proposed new regulations are shown below, with proposed deletions shown as strike throughs and proposed additions shows with underlining:

“Proposed Revisions to the Standards and Regulations for Subdivision Streets and State Highway Access”

Section 3.5.4.2 Sidewalks and Shared-Use Paths

3.5.4.2.1 Sidewalks shall be installed along all DelDOT Arterial, Collector, and Local roadway frontage of the proposed development by the owner or Applicant. DelDOT may require a shared use path be installed at such locations in lieu of a sidewalk.

A. Sidewalks or shared-use paths may be required along the DelDOT frontage roads of the proposed development. If DelDOT requires such facilities, DelDOT will determine whether the facility should be a sidewalk or a shared-use path. Specific requirements related to the warrants for sidewalks and shared-use paths are as follows:

1. Regardless of the location of the project or whether a project is required to actually construct a SUP/Sidewalk or not, the Permanent Easement (PE) for the facility is required on every plan submission and approval.
2. SUP/Sidewalks shall be required for all projects requesting an EPA in all Investment Level Areas as defined by the State Strategies for Policies and Spending maps if the project generates 2,000 Average Daily Trips (ADT).
3. SUP/Sidewalks shall be required for all projects requesting an EPA in all Investment Level I and Investment Level II Areas as defined by the State Strategies for Policies and Spending maps. (If a physical impossibility exists, then the SUP/Sidewalk fee in lieu of construction shall be paid.)
4. SUP/Sidewalks shall be required for all projects requesting an EPA in all Investment Level III and Investment Level IV Areas as defined by the State Strategies for Policies and Spending Maps if the project abuts an existing facility. If the project does not abut an existing facility it will be at the Subdivision Engineer’s discretion. No fee in lieu of construction is required if the SUP/Sidewalk facilities are not required as per the Subdivision Engineer’s determination.

 3.5.4.2.2 For residential subdivisions and developments in developed, developing and planned development areas:

3.5.4.2.2.1 The Applicant shall provide sidewalks along both sides of subdivision streets where the development has a net density of three dwelling units or greater, or DelDOT determines, in its sole discretion, that sidewalk would connect the development to transit or other local destinations;

3.5.4.2.2.2 The Applicant shall provide sidewalks along both sides of development project streets where the development has access to transit or is of such a nature that it is reasonable to assume, as determined by DelDOT, that it will attract pedestrians;

3.5.4.2.2.3 The Applicant shall provide sidewalk along at least one side of a street for a residential subdivision or development that does not meet the density standards in paragraphs a and b or where there are physical or environmental constraints that make sidewalks on both sides of a street impractical.

3.5.4.2.2.4 Other paragraphs of this section notwithstanding, no sidewalk shall be placed along any street that DelDOT determines, in its sole discretion, has physical or environmental constraints.

3.5.4.2.3 For residential subdivisions and developments in rural areas sidewalk shall only be placed in those locations that DelDOT determines are, or will be at some future time, necessary to make pedestrian connections to transit or to land uses that are likely to attract pedestrian traffic.

3.5.4.2.4 Permanent easements. The Applicant shall provide permanent easements as necessary to DelDOT along residential subdivision street or development street frontage for those locations where DelDOT is not requiring the installation of sidewalk at the time of the development’s construction.

There are two important changes – one positive and one negative – in the new walking/cycling regulations proposed, both related to the establishment of the “fee in lieu of construction” regulation.  The positive change is the establishment of the fee – which is an appropriate mechanism for the department to have at its disposal when walking and cycling facilities are inappropriate for one reason or another. The “fee in lieu of construction” allows a developer to contribute to a fund that can then be used to construct such facilities elsewhere. But the negative change is allowing developers in “Level III” (areas lacking most infrastructure and/or environmentally sensitive) and “Level IV” (rural) areas to (at an engineer’s discretion) completely escape the obligation to pay the fee, while developers in “Level I” (municipalities and towns) and “Level II” (small towns, rural villages, suburbs) areas are always obligated to pay it if they don’t build facilities themselves. That’s not fair. DelDOT should not be making it more costly to develop in cities, towns and suburbs than to develop in rural and environmentally sensitive areas.

We are interested in your thoughts about how DelDOT can write this rule better. (We are especially interested in your thoughts if you just happen to be a lawyer!)l Please comment here.

RELATED:

• DelDOT Standards and Regulations for Subdivision Streets and State Highway Access (Current)

• DelDOT Standards and Regulations for Subdivision Streets and State Highway Access – Record Plan Design (Proposed)

• The Strategies for State Policies and Spending