Senate Bill 159: A State Mandate Over Local Zoning in Delaware

 By: Jane Brady, Chair, A Better Delaware

This week, the Delaware State Senate passed Senate Bill 159, a bill to pre-empt county zoning decisions in certain specific circumstances.  Coincidentally, those circumstances coincide precisely with the facts related to the denial by
Sussex County Council of a permit for a substation associated with the US Wind offshore wind project.

The bill addresses “conditional use permits for electrical substations.”  The bill prohibits a county from denying a conditional use permit for an electrical substation if it is being proposed to support the operation of a proposed renewable energy generation project of 250 MW or greater, would be located in a heavy industrial area, an electric substation is an allowed use in the zone, and the specific zoning district already has an electric substation located in the zone. Further, it is to apply retroactively to 2023.

There are many reasons people oppose offshore wind projects – their view of the open ocean is marred, property sales and rental values are diminished, the noise, the lights that are visible at night, the adverse impact on fishing and recreation, and the terrible consequences for marine life and the environment.

But none of those reasons are why the Sussex County Council had the authority to, and properly denied, the conditional use request of US Wind.  Sussex County Council has an obligation to act for the benefit of the residents of Sussex County.  The Council determined there was no benefit to their constituents as a result of this project. Why?

First, US Wind calls this project the Maryland Project for a reason. It was started as a result of an agreement between US Wind and the Maryland government for an offshore wind farm to provide electric to Maryland citizens.  Statutes were passed, policies were adopted, and permits were sought from the federal and Maryland authorities. Problems developed when no subdivision of Maryland would permit the transmission lines from the offshore windmills to come ashore in any Maryland site.

In steps (then) Governor Carney, who agreed, per a term sheet he executed, to allow the transmission lines to come into Delaware’s Seashore State Park.  Permits were then sought to disrupt the beach, go under the Indian River Bay and through wetlands to a site where US Wind proposed to construct a substation.  That site was next to the site where the (now) closed Indian River Power Plant is located.  The Department of Natural Resources and Environmental Control (DNREC) granted those permits, which are now being appealed before the Environmental Appeals Board and in the Superior Court.

US Wind, however, also needed a permit for the substation to which the transmission lines would connect.  To build that substation they needed permission for a conditional use from Sussex County.

At the hearing before the Sussex County Council, the members heard testimony that there were no jobs that would be created by this project for Sussex County citizens, except, perhaps, a few, on a temporary basis. The representative from US Wind indicated that the site was expected to be monitored remotely from a location in Maryland.  There also was no guarantee, indeed, no expectation that electricity from the project would be provided to Delaware or Sussex County citizens.  In fact, Maryland was guaranteed the expected output directly.

Further, the entirety of the environmental risk and impact fell directly on Sussex County’s valued natural resources and citizens.  The federal Environmental Protection Agency (EPA) and the National Marine and Fisheries both recommended against going under the Indian River Bay, yet DNREC permitted it. US Wind had originally proposed 4 possible routes to get the electricity generated by the windmills to the substation, only one of which proposed the dredging and disruption caused by going under the Bay. It apparently was the cheaper route, the one US Wind proposed, and the one DNREC chose to permit.

The Council also heard testimony that commercial and recreational fishing, boating and other activities will be affected, and that curtailment of those activities, as well as the sight and sound of the windmills off the coast will affect rental and sales of properties in coastal Sussex County.

The Sussex County Council properly determined that their duty and responsibility to the citizens of Sussex County and the precious natural resources under their care would not benefit from the project as planned and denied the conditional use.

The State could not be any clearer that Senate Bill 159 is intended to undo that ruling, made months ago, on a proper record and for the right reasons. The bill must still be passed by the Delaware House of Representatives to become law.  Contact your representative and let them know you oppose this bill and want them to vote NO. Whether you live in Sussex County, boat in Sussex County, visit the beaches in Sussex County, or just don’t want the State telling your local government what to do the next time they disagree with a ruling overwhelmingly favored by the local residents, you need to be heard.

Jane Brady serves as Chair of A Better Delaware. She previously served as Attorney General of Delaware and as a Judge of the Delaware Superior Court.