On July 13, 2026, Delaware Governor Matt Meyer signed into law revisions and additions to the Delaware Code pertaining to affordable housing. Senate Substitute No. 2 to Senate Bill No. 23 (“SB 23”) aims to increase the State’s overall housing supply and promote a greater diversity of housing options, including affordable housing. Affordable housing is defined as housing that is affordable to households making up to 80% of the Area Median Income (“AMI”) for rental units and up to 120% of the AMI income for homeownership units.
SB 23 establishes the “Affordable Housing Act,” which requires all counties and municipalities with more than 2,000 residents to develop comprehensive plans containing an affordable housing plan that satisfies certain criteria. The mandatory criteria include:
- clearly stating the jurisdiction’s goals and objectives for increasing the housing supply for residents at all income levels;
- describing existing or planned efforts to develop affordable housing;
- providing a timeline for achieving the jurisdiction’s affordable housing objectives;
- increasing the maximum permitted residential density;
- authorizing a mix of housing types without requiring conditional use permits or special exceptions; and
- reevaluating bulk and open-space requirements to achieve maximum residential density.
The Affordable Housing Act also requires these counties and municipalities to incorporate additional optional criteria into their affordable housing plans. Counties and municipalities must include at least five of the following 11 criteria:
- density bonuses or development incentives for developments that include affordable housing;
- the creation of transit-oriented zoning districts with higher densities along established transportation routes;
- expedited permit review for residential developments that include affordable housing;
- fee waivers, reductions, or deferrals for residential developments that include affordable housing;
- reductions or waivers of local impact fees for affordable housing units;
- the adoption of codes or standards that facilitate diverse housing options in designated growth areas;
- an ordinance allowing single-room occupancy housing as a permitted use in at least one residential zoning district;
- an ordinance allowing transitional housing, emergency housing shelters, group homes, recovery homes, or other supportive housing as permitted uses in at least one residential zoning district;
- an ordinance allowing the conversion of commercial, office, and retail space to residential use or predominantly residential mixed-use development as a permitted use in at least one zoning district;
- the designation of at least one residential zoning district in which multifamily housing is permitted by right; and
- the implementation of another strategy approved by the Delaware State Housing Authority.
Further, by-right residential development applications that comply with the Affordable Housing Act are subject to administrative review only. While a jurisdiction may still hold a public meeting regarding a by-right application, the meeting cannot be conducted as a public hearing, is limited to determining compliance with applicable requirements, and limits public comment to written submissions.
Jurisdictions must update their zoning maps within 12 months after adopting a comprehensive plan to rezone all lands to be consistent with the future land use map. If a jurisdiction does not update its zoning maps within this timeframe, it must approve a rezoning application within 21 days after submission if the application is consistent with the comprehensive plan.
Jurisdictions that adopt a new comprehensive plan before February 1, 2027, are exempt from these requirements until their next five-year comprehensive plan review. Any jurisdiction that adopted a comprehensive plan on or after July 17, 2024, that contains any of the criteria described above, may count those criteria toward satisfying the applicable requirements.
