Notwithstanding any rule, law, or provision to the contrary, the dedication of a right-of-way along a state highway by any property owner pursuing a subdivision of their land, shall not be required where the property being subdivided is a farm or farmland and a right-of way is not deemed by the Department to be necessary due to safety issues that would be directly caused by the requested subdivision and:
(1) The parcel is subdivided into no more than 2 parcels which are continued to be used as a farm or farmland; or
(2) The subdivided parcel or parcels are transferred to a family member or members for purposes of use as a family member or members’ principal residence or farmland.
The Department shall have the burden of proof to establish by clear and convincing evidence that a right-of-way is necessary due to safety issues directly caused by the requested subdivision. Should the Department require a right-of-way dedication pursuant to this section and fail to meet its burden of proof in a court proceeding then the property owner shall be entitled to reimbursement of their reasonable costs including but not limited to reasonable attorney fees incurred as a result of the Department’s action.
75 Del. Laws, c. 39, § 1.
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