CHAPTER 413

FORMERLY SENATE BILL

NO. 626 AS AMENDED BY

SENATE AMENDMENT NO. 1

AND HOUSE AMENDMENT NOS. 1 & 2

AN ACT TO AMEND TITLE 29 OF THE DELAWARE CODE BY CREATING A PART VIII, CHAPTERS 91 and 92, TO PROVIDE FOR UNIFORM AND EQUITABLE TREATMENT OF PERSONS DISPLACED FROM THEIR HOMES, BUSINESS OR FARMS AS A RESULT OF THE ACQUISITION FOR FEDERAL OR STATE-SPONSORED CONSTRUCTION PROGRAMS OF REAL PROPERTY AND TO AMEND CHAPTER 19 OF TITLE 17, DELAWARE CODE.

WHEREAS, the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 establishes a new and different program of relocation assistance and uniform real property acquisition policy; and

WHEREAS, the declared purpose of this program is to insure that a few individuals do not suffer disproportionate injuries as a result of a displacement caused by Federal construction programs and projects; and

WHEREAS, continued eligibility of the State of Delaware for various types of Federal aid is made contingent upon compliance with the terms and provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970; and

WHEREAS, the General Assembly hereby finds and declares that it is in the public interest to establish a uniform policy for the fair equitable treatment for persons displaced by the acquisition of real property by State and local land acquisition programs, by building code enforcement activities, or by a program of voluntary rehabilitation of buildings or other improvements conducted pursuant to governmental supervision; and

WHEREAS, the General Assembly further finds and declares that relocation assistance and assistance in the acquisition of replacement housing are proper costs of any State or federally financed program or project.

NOW, THEREFORE,

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Chapter 19, Title 17 of the Delaware Code, is hereby amended by striking said chapter in its entirety.

Section 2. Title 29 of the Delaware Code, is hereby amended by adding thereto a new Chapter 91 dealing with uniform relocation assistance.

CHAPTER 91. UNIFORM RELOCATION ASSISTANCE

§ 9101. Definitions

As used in this Chapter:

(1) The term "Agency" means any department, agency or instrumentality of the State or of a political subdivision of the State; or any department, agency or instrumentality of two or more political subdivisions of the State.

(2) The term "person" means any individual, partnership, corporation or association.

(3) The term "displaced person" meats any person who on or after the effective date of this Chapter moves from real property or moves his personal property from real property, as a result of the acquisition of such real property, in whole or in part, or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by an agency; and solely for the purposes of Section 9102 (a) and (b) and Section 9106 of this Chapter, as a result of the acquisition of or as the result of the written order of the acquiring agency to vacate other real property on which such person conducts a business or farm operation for such program or project.

(4) The term "business" means any lawful activity excepting a farm operation, conducted primarily:

(A) for the purchase, sale, lease and rental of personal and real property, and for the manufacture, processing, or marketing of products, commodities, or any other personal property;

(B) for the sale of services to the public;

(C) by a nonprofit organization; or

(D) solely for the purpose of Section 9102 (a) of this Chapter for assisting in the purchase, sale, resale, manufacture, processing, or marketing of products, commodities, personal property, or services by the erection and maintenance of an outdoor advertising display or displays, whether or not such display or displays are located on the premises on which any of the above activities are conducted.

(5) The term "farm operation" means any activity conducted solely or primarily for the production of one or more agricultural products or commodities, including timber, for sale or home use, and customarily producing such products or commodities in sufficient quantity to be capable of contributing materially to the operator's support.

§ 9102. Moving and related expenses

(a) Whenever the acquisition of real property for a program or project undertaken by an agency will result in the displacement of any person on or after the effective date of this Chapter, the agency shall make a payment to any displaced person upon proper application as approved by the agency for:

(1) actual reasonable expenses in moving himself, his family, business, farm operation, or other personal property;

(2) actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but not to exceed an amount equal to the reasonable expenses that would have been required to relocate such property, as determined by the agency and;

(3) actual reasonable expenses in searching for a replacement business or farm.

(b) Any displaced person eligible for payments under subsection (a) of this section who is displaced from a dwelling and who elects to accept the payments authorized by this subsection in lieu of the payments authorized by subsection (a) of this Section may receive a moving expense allowance, determined

according to a schedule established by the agency not to exceed $300; and a dislocation allowance of $200.

(c) Any displaced person eligible for payments under subsection (a) of this Section who is displaced from his place of business or from his farm operation and who elects to accept the payment authorized by this subsection in lieu of the payment authorized by subsection (a) of this Section, may receive a fixed payment in an amount equal to the average annual net earnings of the business or farm operation, except that such payment shall be not less than $2,500 nor more than $10,000. In the case of a business no payment shall be made under this subsection unless the agency is satisfied that the business (1) cannot be relocated without a substantial loss of its existing patronage, and (2) is not a part of a commercial enterprise having at least one other establishment not being acquired by the agency, which is engaged in the same or similar business. For purposes of this subsection, the term "average annual net earnings" means one-half of any net earnings of the business or farm operation, before Federal, State, and local income taxes, during the two taxable years immediately preceding the taxable year in which such business or farm operation moves from the real property acquired for such project, or during such other period as the agency determines to be more equitable for establishing such earnings, and includes any compensation paid by the business or farm operation to the owner, his spouse, or his dependents during such period.

(d) In addition to all other payments authorized under the provisions of this Chapter, a person displaced by any program or project may receive reimbursement for miscellaneous expenses incurred within 30 days of relocation, which expenses are directly attributable to such relocation and which expenses have in fact been paid and for which a proper receipt can be shown. In no event, however, shall such miscellaneous payments as authorized by this subsection exceed 1% of the appraised residential fair market value of the residence acquired, as determined by such agency. Payments authorized by this subsection shall not be allowed if provided for by any other section of this Chapter.

§ 9103. Replacement housing for homeowners

(a) In addition to payments otherwise authorized by this

Chapter, the agency shall make an additional payment not in

excess of $15,000 or 25% of the appraised residential fair market value of the property acquired, whichever is greater, as determined by the agency, to any displaced person who is displaced from a dwelling actually owned and occupied by such displaced person for not less than one hundred eighty days prior to the initiation of negotiations for the acquisition of the property. Such additional payment shall include the following elements:

(1) The amount, if any, which when added to the acquisition cost of the dwelling acquired, equals the reasonable cost of a comparable replacement dwelling which is a decent, safe, and sanitary dwelling adequate to accommodate such displaced person, reasonable accessible to public services and places of employment and available on the private market. All determinations required to carry out this subparagraph shall be made in accordance with standards established by the Agency providing the additional payment.

(2) The amount, if any, which will compensate such displaced person for any increased interest costs which such person is required to pay for financing the acqusition of any such comparable replacement dwelling. Such amount shall be paid only if the dwelling acquired was encumbered by a bona fide mortgage which was a valid lien on such dwelling for not less than one hundred eighty days prior to the initiation of negations for the acquisition of such dwelling. Such amount shall be equal to the excess in the aggregate interest and other debt service costs of that amount of the principal of the mortgage on the replacement dwelling which is equal to the unpaid balance of the mortgage on the acquired dwelling, over the remainder term of the mortgage on the acquired dwelling, reduced to discounted present value. The discount rate shall be the maximum rate of interest permitted to be paid on savings deposits by any commercial savings bank within the State of Delaware pursuant to the rules and regulations of the Federal Deposit Insurance Corporation pursuant to Section 9108 of this Chapter.

(3) Reasonable expenses incurred by such displaced person for title examination, title insurance, transfer tax, recording fees, and other closing costs incident to the purchase of the replacement dwelling, but not including prepaid expenses or pro-rations.

(b) The additional payment authorized by this subsection shall be made only to such a displaced person who purchases and occupies a replacement dwelling which is decent, safe and sanitary not later than the end of the one year period beginning on the date on which he received final payment of all costs of the acquired dwelling, or on the date on which he moves from the acquired dwelling, whichever is the later date.

§ 9104. Replacement housing for tenants and certain others

In addition to amounts otherwise authorized by this Chapter, the agency shall make a payment to or for any displaced person displaced from any dwelling not eligible to receive a payment under Section 9103 which dwelling was actually and lawfully occupied by such displaced person for not less than ninety days prior to the initiation of negotiations for acquisition of such dwelling. Such payment shall be either:

(1) the amount necessary to enable such displaced person to lease or rent for a period not to exceed four years, a decent, safe and sanitary dwelling of standards adequate to accommodate such person in areas not generally less desirable in regard to public utilities and public and commercial facilities, and reasonably accessible to his place of employment, but not to exceed $4,000; or

(2) the amount necessary to enable such person to make a down payment (including incidental expenses described in Section 9103 (a) (3) on the purchase of a decent, safe and sanitary dwelling of standards adequate to accommodate such person in areas not generally less desirable in regard to public utilities and public and commercial facilities, but not to exceed $4,000, except that if such amount exceeds $2,000, such person must equally match any such amount in excess of $2,000, in making the down payment.

§ 9105. Maximum Federal participation

In determining the amounts to be paid under Section 9102, 9103 and 9104, of this Chapter, the 'agency shall provide payments which will assure maximum Federal participation in Federally assisted projects or programs.

§ 9106. Relocation advisory assistance programs

(a) Whenever the acquisition of real property for a program or project undertaken by the agency will result in the displacement of any person on or after the effective date of this Section, the agency shall provide a relocation assistance advisory program for displaced persons which shall offer the services prescribed herein. If the agency determines that any person occupying property immediately adjacent to the real property acquired is caused substantial economic injury because of the acquisition, it may offer such person relocation advisory services under such program.

(b) Each relocation advisory assistance program required by subsection (a) shall include such measures, facilities or services as may be necessary or appropriate in order to:

(1) determine the need, if any, of displaced persons for relocation assistance;

(2) provide current and continuing information on the availability prices and rentals, of comparable decent, safe and sanitary sales and rental housing, and of comparable commercial properties and locations for displaced businesses;

(3) assist a displaced person displaced from his business or farm operation in obtaining and becoming established in a suitable replacement location;

(4) supply information concerning Federal, State and local housing programs, disaster loan programs, and other Federal, State or local programs offering assistance to displaced persons; and

(5) provide other advisory services to displaced persons in order to minimize hardships to such persons in adjusting to relocation;

(6) secure, to the greatest extent practicable, the coordination of relocation activities with other project activities and other planned or proposed governmental actions in the community or nearby areas which may affect the carrying out of relocation program.

§ 9107. Assurance of availability of housing

(a) Whenever the acquisition of real property for a program or project undertaken by the agency will result in the displacement of any person on or after the effective date of this Section, the agency shall assure that, within a reasonable period of time, prior to displacement there will be available, in areas not generally less desirable in regard to public utilities and public and commercial facilities and at rents or prices within the financial means of the families and individuals displace, decent, safe and sanitary dwellings, equal in number to the number of and available to such displaced person who require such dwelling and reasonably accessible to their places of employment; except that regulations issued pursuant to Section 9108 of this Chapter may prescribe situations when these assurances may be waived.

(b) No person shall be required to move from his dwelling on or after the effective date of this Chapter, on account of any project unless the agency is satisfied that replacement housing, in accordance with Section 9107 (a), is available to such person.

§ 9108. Authority of the agency

(a) The Governor may by proclamation or executive order designate an agency or agencies to establish rules and regulations as may be necessary under the provisions of this Chapter. In lieu of such proclamation or executive order, each agency concerned shall adopt such rules and regulations to assure:

(1) that the payments and assistance authorized by this Chapter shall be administered in a manner which is fair and reasonable, and as uniform as practicable;

(2) that a displaced person who makes proper application for a payment authorized for such person by this title shall be paid promptly after a move, or, in hardship cases, paid in advance; and

(3) that any person aggrieved by a determination as to eligibility for a payment authorized by this Chapter, or the amount of payment, may have his application reviewed by the head of the agency.

(b) The agency may prescribe such other regulations and procedures as it deems necessary or appropriate to carry out the provisions of this Chapter.

(c) If a project cannot proceed to actual construction because comparable replacement sale or rental housing is not available, the agency may enter into such agreements with the Department of Community Affairs and Economic Development, or take such other action, as necessary or appropriate to provide such housing by use of funds authorized for such project.

(d) In order to encourage and facilitate the construction or rehabilitation of housing to meet the needs of displaced persons who are displaced from dwellings because of any project or program, the agency may enter into agreement with the Department of Community Affairs and Economic Development, or take such other actions, as necessary or appropriate to utilize federal loans for planning and preliminary expenses for additional housing as provided under 42 United States Code, Section 4635.

§ 9109. Administration

In order to prevent unnecessary expense and duplication of functions, and to promote uniform and effective administration of relocation assistance programs for displaced persons, the agency may enter into contracts with any individual, firm, association or corporation for services in connection with those programs, or may carry out its functions under this Chapter through any federal agency or any department or instrumentality of the State or its political subdivisions having an established organization for conducting relocation assistance programs.

§ 9110. Fund availability

Funds appropriated or otherwise available to any agency for the acquisition of real property or any interest therein for a particular program or project shall be available also for obligations and expediture to carry out the provisions of this Chapter as applied to that program or project.

§ 9111. State participation in cost of local relocation payments and services

If a unit of local government or political subdivision of this State acquires real property, and State financial assistance is available to pay the cost, whole or part, of the acquisition of that real property, or of the improvement for which the property is acquired, the cost to the unit of local government or political subdivision of providing the payments and services prescribed by this Chapter shall be included as part of the costs of the project for which State financial assistance is available and the unit of local government or political subdivision shall be eligible for State financial assistance for relocation payments and services in the same manner and to the same extent as other project costs.

§ 9113. Payments not income or resources

No payment received by a displaced person under this Chapter shall be considered as income or resources for the purpose of determining the eligibility or extent of any person for assistance under State law or for the purpose of the Delaware State Income or Corporation Income Tax. Such payments shall not be considered as income or resources to any recipient of public assistance under the provisions of Title 31 of the Delaware Code, and such payments shall not be deducted from the amount of aid to which the recipient would otherwise be entitled.

§ 9114. Eminent domain

Nothing contained in this Chapter shall be construed as creating in any condemnation proceeding brought under the power of eminent domain any element of damages not in existence on the effective date of this Chapter, and the payments authorized by this Chapter are to be in addition to the just compensation established in such proceedings, but only to the extent they are not otherwise included in the condemnation award.

§ 9115. Severability

If any provisions, clause or phrase of this Chapter, or the application thereof to any person or circumstance, is adjudged invalid by any court of competent jurisdiction, such judgement

shall not invalidate the remainder of this Chapter, and the application thereof to other persons or circumstances shall not be affected thereby.

Section 3. Title 29 of the Delaware Code is amended by adding thereto a new Chapter 92 dealing with real property acquisitions policy to read as follows:

CHAPTER 92. REAL PROPERTY ACQUISITION

§ 9201. Declaration of policy and definition

The provisions of this Chapter shall be applicable to the acquisition of real property by State and local land acquisition programs or projects in which Federal, state or local funds are used.

As used in this Chapter the term "agency" shall mean any agency or instrumentality of the State or of a political subdivision of the State; or any department, agency, or instrumentality of two or more political subdivisions of the State.

§ 9202. Expenses incidental to transfer of title

The agency acquiring real property for such use shall as soon as practicable after the date of payment of the purchase price or the date of deposit into court of funds to satisfy the award of compensation in a condemnation proceeding to acquire real property, whichever is the earlier, reimburse the owner, to the extent the agency deems fair and reasonable, for expenses he necessarily incurred for (a) recording fees, transfer taxes and similar expenses incidental to conveying such real property to the State; (b) penalty costs for prepayment for any pre-existing recorded mortgage entered into in good faith encumbering such real property; and (c) the pro rata portion of real property taxes paid which are allocable to a period subsequent to the date of vesting title in the State, or the effective date of possession of such real property by the State whichever is the earlier.

§ 9203. Litigation expenses

Where a condemnation proceeding is instituted by the agency to acquire real property for such use and (i) the final judgment is

that the real property cannot be acquired by condemnation or (ii) the proceeding is abandoned, the owner of any right, title or interest in such real property shall be paid such sum as will, in the opinion of the agency, reimburse such owner for his reasonable attorney, appraisal and engineering fees, actually incurred because of the condemnation proceedings. The awards of such sums will be paid by the agency.

§ 9204. Inverse condemnation proceedings

Where a condemnation proceeding is instituted by the agency the owner of any right, title or interest in real property because of use of his property in any program or project, the court, rendering a judgment for the plaintiff in such proceeding and awarding compensation for the taking of property, or the Department of Justice effecting a settlement of any such proceedings, shall determine and award or allow to such plaintiff, as a part of such judgment or settlement, such sum as will, in the opinion of the court or the Department of Justice, reimburse such plaintiff for his reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred because of such proceedings.

§ 9205. Real property acquisition policies

The agency shall comply with the following policies:

(a) Every reasonable effort shall be made to acquire expeditiously real property by negotiation.

(b) Real property shall be appraised before the initiation of negotiations, and the owner or his designated representative shall be given an opportunity to accompany the appraiser during his inspection of the property.

(c) Before the initiation of negotiations for real property, an amount shall be established which it is reasonably believed is just compensation therefor, and such amount shall be offered for the property. In no event shall such amount be less than the approved appraisal of the fair market value of real property. Any decrease or increase of the fair market value of real property prior to the date of valuation caused by any program or project for which such property is acquired or by the likelihood that the

property would be acquired for such program or project, other than that due to physical deterioration within the reasonable control of the owner, will be disregarded in determining the compensation for the property. The owner of the real property to be acquired shall be provided with a written statement of, and summary of the basis for, the amount established as just compensation. Where appropriate the just compensation for the real property acquired and for damages to remaining real property shall be separately stated.

(d) No owner shall be required to surrender possession of real property before the agreed purchase price is paid or deposited with the court, in accordance with the provisions of Chapter 61, Title 10, for the benefit of the owner an amount not less than the approved appraisal of the fair market value of such property, or the amount of the award of compensation in the condemnation proceeding of such property.

(e) Any program or project shall be so scheduled that, to the greatest extent practicable, no person lawfully occupying real property shall be required to move from a dwelling (assuming a replacement dwelling will be available) or to move his business or farm operation without at least 90 days' written notice from the date by which such move is required.

(f) If an owner or tenant is permitted to occupy the real property acquired on a rental basis for a short term or for a period subject to termination by the agency on short notice, the amount of rent required shall not exceed the fair rental value of the property to a short-term occupier.

(g) In no event shall the time of condemnation be advanced, on negotiations or condemnation and the deposit of funds in court for the use of the owner be deferred, or any other coercive action be taken to compel an agreement on the price to be paid for the property.

(h) If an interest in real property is to be acquired by exercise of power of eminent domain, formal condemnation proceedings shall be instituted. The agency shall not intentionally make it necessary to an owner to institute legal proceedings to prove the fact that the taking of his real property.

(i) If the acquisition of only part of the property would leave its owner with an uneconomic remnant, an offer to acquire the entire property shall be made.

§ 9206. Buildings, structures and improvements

(a) Where any interest in real property is acquired, an equal interest in all buildings, structures, or other improvements located upon the real property so acquired and which is required to be removed from such real property or which is determined to be adversely affected by the use to which such real property will be put shall be acquired.

() For the purpose of determining the just compensation to be paid for any building, structure or other improvement required to be acquired as above set forth, such building, structure or other improvement shall be deemed to be a part of the real property to be acquired notwithstanding the right or obligation of a tenant, as against the owner of any other interest and in the real property, to remove such building, structure, or improvement at the expiration of his term, and the fair market value which such building, structure or improvement contributes to the fair market value of the property to be acquired, or the fair market value of such building, structure or improvement for removal from the real property, whichever is the greater, shall be paid to the tenant therefor.

(a) Payment for such buildings, structures or improvements as set forth above shall not result in duplication of any payments otherwise authorized by the laws of this State. No such payment shall be made unless the owner of the land involved disclaims all interest in the improvements of the tenant. In consideration for any such payment, the tenant shall assign, transfer and release all his right, title and interest in and to such improvements. Nothing with regard to the above-mentioned acquisition of buildings, structures or other improvements shall be construed to deprive the tenant of any right to reject payment and to obtain payment for such property interests in accordance with other laws of this State.

Section 4. All of the laws or parts of laws now in effect inconsistent with the provisions of this Act are repealed, superseded; modified or amended so far as necessary to conform to and give full force and effect to the provisions of this Act.