Delaware’s General Assembly is weighing a major piece of legislation designed to address what lawmakers describe as a significant and growing shortage of affordable housing across the state. The measure, Senate Substitute No. 2 for Senate Bill 23, would amend multiple sections of the Delaware Code to boost the overall supply of housing and improve affordability for residents at all income levels.
The bill acknowledges that while Delaware has seen rapid development in recent years, that growth has not kept pace with the demand for affordable homes. An earlier effort — Senate Joint Resolution No. 8 from the first session of the 153rd General Assembly — created a pilot program to encourage local zoning reforms, and some jurisdictions took part. However, lawmakers say the problem is too widespread to be solved by scattered local efforts alone.
This latest version of the bill is the second Senate substitute for Senate Bill 23 and includes a number of changes from both the original bill and the first substitute. Here is a breakdown of what is new in Senate Substitute No. 2:
Under the updated measure, if a county fails to rezone its land in line with its comprehensive plan within 12 months, a property owner’s rezoning application must be approved — provided the requested zoning is consistent with the plan. A county can only deny the application if it puts its reasons in writing, showing the request conflicts with the plan or fails to meet procedural requirements. If neither condition applies, the application must be approved within 120 days, extended from the previous 90-day window, unless the applicant agrees in writing to a longer timeline.
The bill also revises requirements around affordable housing plans that local governments must create. The original Senate Bill 23 required at least four mandatory elements in those plans. The first substitute bumped that to five by making one optional element mandatory — specifically, requiring jurisdictions with more than 10,000 residents to identify at least one zoning area where emergency shelters, group homes, recovery homes, or similar supportive housing would be allowed without special permits. Senate Substitute No. 2 walks that back, making the element optional again and removing the 10,000-population threshold, so all jurisdictions — regardless of size — can choose to include it.
The new version also shifts the Delaware State Housing Authority’s role from one of approval to one of collaboration. Rather than requiring the Authority’s director to sign off on all affordable housing plans, local governments would instead work alongside the Authority to develop their plans.
To avoid duplicating work already underway, the bill gives local jurisdictions credit for affordable housing steps they have already taken. Any elements of affordable housing plans adopted on or after July 15, 2024, would count toward meeting the bill’s requirements.
Jurisdictions that are close to finishing their comprehensive plans also get some relief. If a local government is set to adopt its next comprehensive plan before February 1, 2027, it would be exempt from certain provisions of the Affordable Housing Act until its next five-year comprehensive plan review.
A new section in the bill addresses what is known as “by-right” residential development — meaning projects that are already permitted under existing zoning rules. Under the new language, those applications would go through an administrative review process focused solely on whether the project meets objective standards. A planning commission or similar body could still be involved, but only to check compliance with those standards, not to exercise broader discretion.
The bill also slightly adjusts the Governor’s role in reviewing comprehensive plans. Earlier versions said the Governor’s review would focus in part on consistency with state development policies. The new language instead requires plans to “demonstrate consideration” of those policies — a change intended to give local governments more flexibility rather than requiring them to simply mirror state priorities.
New definitions for “homeownership unit,” “rental unit,” and “by-right” are added to Title 29 of the Delaware Code under this substitute.
The bill clarifies that mixed-use developments referenced in affordable housing plans must have a majority residential component. It also expands the menu of options local jurisdictions can choose from when meeting their affordable housing obligations, adding an eleventh option that allows a jurisdiction to propose its own strategy — one not already on the list — as long as the Delaware State Housing Authority approves it as meeting the goals of the law.
The timeframe for counties to make a completeness determination on rezoning applications submitted under the bill’s enforcement provisions is extended from 10 days to 21 days.
Several changes that were already in the first substitute also carry over to this version. Both substitutes dropped a provision that would have given county comprehensive plans the full force of law, keeping in place the current rule that only the land use map portion carries legal weight. Both also cut the time counties have to rezone land to match their comprehensive plans from 18 months to 12 months, and extended the window for local governments to revise comprehensive plans returned by the Governor from 20 days to 45 days.
Reporting requirements have also been streamlined in both substitutes compared to the original bill, though reporting remains mandatory. The Delaware State Housing Authority and the Office of State Planning Coordination are still required to publish reported information on the Housing Authority’s website each year so the public can track how local governments are meeting their obligations.
Because the bill would indirectly affect the charters of one or more incorporated municipalities through its amendments to Title 22 of the Delaware Code, it requires approval by a two-thirds majority of the legislature under Article IX, Section 1 of the Delaware Constitution.
