Agenda - Planning Commission - 04/05/2012

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Zoning Bulletin February 10, 2012 I Volume 6 I No. 3 made and approved before the next application is called for con- sideration or before a recess or adjournment is called, whichever occurs first, the matter shall be carried over to the next regularly scheduled meeting." Validity of Regulations —State Agency Issues Regulations Requiring Buffer Zones on Wetlands, Waterways County says regulations amount to zoning and exceed agency's authority Citation: Delaware Dept. of Natural Resources & Environmental Con- trol v. Sussex County, 2011 WL 6840591 (Del. 2011) DELAWARE (12/29/11)—This case addressed the issue of the valid- ity of 5% 4 and 5 of the Delaware Department of Natural Resources & Environmental Control's ( "DNREC ") "Regulations Governing the Pol- lution Control Strategy for the Indian River, Indian River Bay, Rehoboth Bay and Little Assawoman Bay *Watersheds" (the "PCS Regulations"), which were promulgated in 2008 to effect DNREC's Pollution Control . Strategy ( "PCS ") for the Inland Bays watershed area. The Background/Facts: In an effort to control pollution in the Inland Bays, in June 2008, DNREC promulgated the PCS Regulations. Sections 4.0 (Buffer Zone Establishment) and 5.0 (Sediment and Stormwater Controls) of the PCS Regulations combined to effectuate buffer zones. These buffer zones "limit landowner's uses of their property if the prop- erty is adjacent to an Inland Bay waterway." "Water quality buffers are described as natural areas between the active land uses and wetlands, or water bodies." They are "managed to promote the natural removal of pollutants and to protect wetlands `tcgainst encroachment or physical al- terations." The PCS Regulations required the buffer zone to be 100 feet. In November 2008, Sussex County (the "County ") filed a complaint against DNREC. The County asserted that DNREC exceeded its consti- tutional and statutory authority in promulgating the PCS Regulations. The County's Zoning Ordinance § 115 -193 (the "County Ordinance"), 3 enacted in 1988, regulated buffer zones. Unlike DNREC's PCS Regula- tions, which established a 100 -foot buffer zone, the County Ordinance established only a 50 -foot buffer zone. The County argued that it had sole zoning authority, pursuant to the powers delegated to it by the Gen- eral Assembly. The County argued that s % 4 and 5 of the PCS Regula- tions constituted "zoning" and thus directly conflicted with the County Ordinance and were void. © 2012 Thomson Reuters 9