CHAPTER 589

FORMERLY HOUSE BILL

NO. 951

AN ACT TO AMEND CHAPTER 264, VOLUME 52, LAWS OF DELAWARE, ENTITLED "AN ACT TO REINCORPORATE THE TOWN OF MAGNOLIA.

Be it enacted by the General Assembly of the State of Delaware (two-thirds of all members elected to each house thereof concurring therein):

Section 1. Chapter 264, Volume 52, Laws of Delaware, is amended by adding a new Section 32 to read as follows:

ANNEXATION OF TERRITORY

Section 32. In the event that it becomes feasible or necessary in the future for The Town of Magnolia to enlarge its then existing limits and territory, such annexation accomplished in accordance with the following procedures shall be lawful:

(a) If five (5) or more property owners resident in a territory contiguous to the then limits and territory of The Town of Magnolia, by written petition with the signature of each such petitioner duly acknowledged, shall request the Town Council to annex that certain territory in which they reside and own property, the Mayor of The Town of Magnolia shall appoint a committee composed of not less than three (3) of the elected members of the Town Council to investigate the possibility of annexation. The petition presented to the Town Council shall include a description of the territory requested to be annexed and the reasons for the requested annexation; or, the Town Council, by a majority vote of the elected members thereof, may, by resolution, propose that a committee, composed of not less than three (3) of the elected members of said Town Council, be appointed by the. Mayor to investigate the possibility of annexing any certain territory contiguous to the then limits and territory of The Town of Magnolia.

(b) Not later than ninety (90) days following its appointment by the Mayor, as aforesaid, the committee shall submit a

written report containing its findings and conclusions to the Mayor and Town Council. The report so submitted shall include the advantages and disadvantages of the proposed annexation both to the Town and to the territory proposed to be annexed and shall contain the committee's recommendations whether or not to proceed with the proposed annexation and the reasons therefor. In the event that the committee appointed by the Mayor concludes that the proposed annexation is advantageous both to the Town and to the territory proposed to be annexed, within thirty (30) days after receiving the report, a second resolution shall then be passed by the Town Council proposing to the property owners and residents of both the Town and the territory proposed to be annexed that the Town purposes to annex certain territory contiguous to its then limits and territory. In the event that the committee appointed by the Mayor concludes that the proposed annexation is disadvantageous either to the Town or to the territory proposed to be annexed, within thirty (30) days after receiving the report of the committee, the resolution proposing to the property owners and residents of both the Town and the territory proposed to be annexed shall be passed by the affirmative vote of two-thirds of the elected members of the Town Council. If the resolution shall fail to receive the affirmative vote of two-thirds of the elected members of the Town Council, the territory proposed to be annexed shall not again be considered for annexation for a period of one year from the date that the resolution failed to receive the required affirmative vote. The second resolution shall contain a description of the territory proposed to be annexed and shall fix a time and place for a public hearing on the subject of the proposed annexation. The resolution adopted by the Town Council setting forth the above information shall be printed in a newspaper published in the Town of Magnolia at least one week prior to the date set for the public hearing, or, if no newspaper is published in the Town, publication shall be had in a newspaper having a general circulation both in the Town and in the territory proposed to be annexed, or, at the discretion of the Town Council the said resolution shall be posted in five (5) public places both in the Town and in the territory proposed to be annexed.

(c) Following the public hearing, but in no event later than thirty (30) days thereafter, a resolution shall then be passed by a majority of the Town Council ordering a Special Election to be held not less than thirty (30) days nor more than sixty (60) days

after the said public hearing on the subject of the proposed annexation. The passage of this resolution shall ispo facto be considered the Town Council's determination to proceed with the matter of the proposed annexation.

(d) The notice of the time and place of holding the said Special Election shall be printed within thirty (30) days immediately preceding the date of the Special Election in at least two (2) issues of a newspaper published in the Town, or, if no newspaper is published in the Town, the notice may be printed within thirty (30) days immediately preceding the date of the Special Election in two (2) issues of a newspaper having a general circulation both in the Town and in the territory proposed to be annexed, or, in the discretion of the Town Council, the said notice may be posted in five (5) public places both in the Town and in the territory proposed to be annexed, at least fifteen (15) days prior to the date of the Special Election.

(e) At the Special Election, every property owner, whether an individual, a partnership, or a corporation, both in the Town and in the territory proposed to be annexed, shall have one (1) vote for each One Hundred Dollars ($100.00) of assessment as shown by the books of the Town in the case of Town property owners and by the records of the Board of Assessment of Kent County in the case of property owners in the territory proposed to be annexed. Every citizen of either the Town or of the territory proposed to be annexed who is not a property owner shall have one (1) vote. In the case of property owned by a husband and wife jointly, the husband and wife shall each have one (I) vote for each Two Hundred Dollars ($200.00) of assessment. In the event that a person is the owner of property in the Town and is also an owner of property in the territory proposed to be annexed and resides in either place, he may vote only where he resides. In the event that a person is the owner of property in the Town and is also an owner of property in the territory proposed to be annexed and resides in either place, he may vote only where he resides. In the event that a person is the owner of property in the Town and is also an owner of property in the territory proposed to be annexed but does not reside in either place, he may vote only in the Town, and not in the territory proposed to be annexed. Property owners whose property is exempt from taxation or is not assessed shall not be entitled to vote. The books and records of The Town of Magnolia in the case of Town property owners and the books and records of

the Board of Assessment of Kent County in the case of property owners in the territory proposed to be annexed shall be conclusive evidence of the right of such property owners to vote at the Special Election. In the event that an individual holds a Power of Attorney duly executed and acknowledged and specifically authorizing said person to cast the votes of a partnership or corporation at the said Special Election, a duly authenticated copy of the Power of Attorney shall be filed in the office of the Town Clerk. Said Power of Attorney as so filed shall constitute conclusive evidence of the right of the person so named to cast the votes of another person or to cast the votes of a partnership or a corporation at the Special Election.

(f) The Council shall cause to be prepared, printed and have available a sufficient amount of ballots not less than five (5) days prior to the date of the Special Election.

(g) The form of the ballot shall be as follows:

( ) For the proposed annexation.

( ) Against the proposed annexation.

Please mark your preference.

On the reverse side of the ballot shall be the following: This ballot casts votes.

(h) The Mayor shall appoint three (3) persons to act as a Board of Special Election, at least one of whom shall reside and be the owner of property in the Town, and at least one of whom must reside and be the owner of property in the territory proposed to be annexed. One of the said persons so appointed shall be designated the Presiding Officer. Voting shall be conducted in the Town Hall and the Board of Special Election shall have available, clearly marked two (2) ballot boxes. All ballots cast by those persons, partnerships, or corporations authorized to vote as residents or property owners in the territory proposed to be annexed shall be deposited in one such ballot box, and all ballots cast by those persons, partnerships or corporations who are authorized to vote as residents or property owners of the Town shall be deposited in the other such ballot box. The polling places

shall be opened from 12:00 noon, prevailing time, until 7:00 p.m., prevailing time, on the date set for the Special Election.

(i) Immediately upon the closing of the polling place, the Board of Special Election shall count the ballots for and against the proposed annexation and shall announce the result thereof; the Board of Special Election shall make a certificate under their hands of the number of votes cast for and against the proposed annexation, and the number of void votes, and shall deliver the same to the Town Council. The said certificate shall be filed with the papers of the Council.

(j) In order for the territory proposed to be annexed to be considered annexed, a majority of the votes cast both from the Town and from the territory proposed to be annexed must have been cast in favor of the proposed annexation. In the event that the Special Election results in an unfavorable vote for annexation, no part of the territory considered at the Special Election for annexation shall again be considered for annexation for at least a period of one (1) year from the date of the Special Election. If a favorable vote for annexation shall have been cast, the Town Council of The Town of Magnolia shall cause a description and a plot of the territory so annexed to be recorded in the Office of the Recorder of Deeds for Kent County, in Dover, Delaware, without approval of any board, agency, commission or governing body being required. In no event shall such recordation be completed more than ninety (90) days following the favorable referendum. The territory considered for annexation shall be considered to be a part of The Town of Magnolia from the time of said recordation. The failure to record the description and plot within the specified time shall not make the annexation invalid but such annexation shall be deemed to be effective at the expiration of the ninety (90) day period from the date of favorable Special Election.

Section 2. Chapter 264, Volume 52, Laws of Delaware, Section 3, is amended by striking the words "twenty-two" as they appear in line 2 of paragraph 3 and substituting therefor the word "eighteen".

Section 3. Chapter 264, Volume 52, Laws of Delaware, is amended by adding a new Section 33 to read as follows:

provide, construct, extend, maintain, manage and control a sewer system and/or a sewage treatment and disposal plant and facilities for the health, sanitation and convenience of the inhabitants of the Town; to regulate and prescribe for what private or public purposes the system may be used, the manner of its use, the amounts to be paid by the users thereof, the means whereby such amounts shall be collected and the fines or penalties, or both, for any wilful or negligent injury or damage to, or interference with the said system, plant or facilities; to furnish or refuse to furnish, sewer disposal service from the Town system to places and properties outside the Town limits; in the interest of the public's health, to compel any and all properties in the Town to be connected to the sewer system of the Town; and to contract for and purchase sewer disposal service and to resell the same to users within or without the Town with the same full powers as though such service had been initially provided by the facilities therefor of the municipal corporation itself.

Section 4. Chapter 264, Volume 52, Laws of Delaware is amended by adding a new Section 34 to read as follows:

Section 34. (a) The Town Council may, after a public hearing called and held, by ordinance or resolution, establish charges for the use of a sewage system or any part or parts thereof. Such charges may be based on any of the following: (1) the consumption of water on the premises connected with and served by the sewage system or such part or parts thereof; (2) the number and kind of plumbing fixtures on the premises connected with and served by the sewage system or such part or parts thereof; (3) the number of persons served on the premises connected with and served by the sewage system or such part or parts thereof; (4) the volume and character of sewage, industrial waste and other waste discharged into the sewage system or such part or parts thereof; or (5) any other equitable basis determined by the Town Council including but not limited to any combination of the foregoing.

(b) Such sewage charges, together with the amount of any penalty and interest prescribed by the Town Council and due for nonpayment of such charges, shall constitute a lien upon the real property served by the sewage system or such part or parts thereof for which sewage charges shall have been established and imposed. The lien shall be prior and superior to every other lien or claim except as otherwise may be provided by law.

(c) The Town Council may bring and maintain an action: (1) to collect sewage charges in arrears including penalties and interest; or (2) to foreclose liens for such sewage charges. As an alternative to the maintenance of any such action, the Town Council may annually cause a statement to be prepared stating the amount of each lien for sewage charges in arrears including penalties, the real property affected thereby, and the name of the person in whose name such real property is assessed. The Town Council shall cause to be levied the amounts contained in such statements against the real property at the same time and in the same manner as Town taxes, and such amounts shall be set forth in a separate column in the annual tax rolls. The amount so levied shall be collected and enforced in the same manner and at the same time as may be provided by law for the collection and enforcement of Town taxes.

(d) The ordinance or resolution establishing and imposing sewage charges:

(1) Shall describe the sewer system or the part or parts of the sewer system for which such charges shall be established and imposed.

(2) Shall prescribe the basis for such charges.

(3) Shall provide for the date or dates on which sewage charges shall become due and payable.

(4) May provide for penalties and interest for sewage charges in arrears, or for discounts for the prompt payment of such charges, or for penalties, interest and discounts.

Section 5. Chapter 264, Volume 52, Laws of Delaware, is amended by adding a new Section 35 to read as follows:

Section 35. The Town Council shall have the power to borrow money in the name of the Town for any proper municipal purpose, and in order to secure the payment of the same, to issue bonds or other kinds or forms of certificate or certificates of indebtedness, pledging the full faith and credit of the Town or such other security or securities as the Town Council shall select, for the payment of the principal thereof and the interest due thereon, all of which bonds or other kinds or forms of certificates of

indebtedness issued by the Town shall be exempt from all State, County or municipal taxes; provided, that in no event shall the indebtedness of the Town, for any and all purposes, at any one time exceed in the aggregate twenty-five per centum (25%) of the assessed value of all real estate in the Town subject to assessment for the purpose of levying the annual tax hereinbefore mentioned.

Section 6. Chapter 264, Volume 52, Laws of Delaware, is amended by adding a new section 36 to read as follows:

Section 36. The Town Council shall have the power to acquire, and/or vacate the use of, lands, tenements, personality, property, easements, rights of way, or any interest in property, either within or without the limits of the Town, by way of condemnation and eminent domain, for any proper and lawful municipal purpose or whenever required properly to carry out, exercise or fulfill any power conferred upon or delegated to the municipal corporation by the Charter. Proceedings by way of condemnation in any such case shall be the same as that set out in Title 10, Chapter 61, Delaware Code.

Section 7. Chapter 264, Volume 52, Laws of Delaware, is amended by adding a new Section 37 to read as follows:

Section 37. The Town Council may borrow money and issue bonds or certificates of indebtedness to secure the payment thereof on the faith and credit of The Town of Magnolia, to provide funds for the erection, the extension, the enlargement, the purchase or the repair of any plant, machinery, appliance, or equipment, for the supply, or the manufacture and distribution of electricity or gas for light, heat or power purposes; for the furnishing of water to the public; for the construction, repair or improvements of highways, streets, or lanes, or the paving, curbing or erection of gutters along the same; for the construction or repair of sewers or sewage disposal equipment; or to defray the costs or the share of the Town of the cost of any permanent municipal improvements; provided, however, that the borrowing of money therefor shall have been authorized by the Town Council and shall have been approved by the electors in the manner and at the time following:

(a) Council by resolution shall propose to the electors of

the Town by resolution that a stated amount of the money shall be borrowed for any of the above purposes. The resolution shall state the amount of the money desired to be borrowed, the purpose for which it is desired, the manner of securing the same, and other pertinent facts relating to the loan which are deemed pertinent by the Town Council and in their possession, and shall fix a time and place for hearing on the said resolution.

(b) Notice of the time and place of the hearing on the resolution authorizing said loan shall be printed in a newspaper having a general circulation in the City and or, in the discretion of the Town Council, distributed in circular form at least one week before the time set for said hearing.

(c) A second resolution shall then be passed by Council ordering a special election to be held not less than thirty days and not more than sixty days after said hearing to borrow the said money, for the purpose of voting for or against the proposed loan. The passing of the second resolution calling the special election shall ipso facto be considered Council's determination to proceed in the matter in issue.

(d) The notice of the time and place of holding the said special election shall be printed in two issues of a newspaper having a general circulation in the Town of Magnolia within thirty days prior to the election, and or distributed in circular form at least fifteen days prior to the election or both at the discretion of the Council.

(e) At the special election, every owner of property, whether an individual, partnership or corporation, shall have one (1) vote and the said vote may be cast either in person or by proxy. In the case of property owned jointly by husband and wife, the vote shall be cast by either the husband or wife who first presents himself at the polls. In the case of all other property owned by more than one property owner either as tenants in common or as joint tenants with the right of survivorship, the vote shall be cast by either tenant in common or by either joint tenant who first presents himself at the polls. Property owners whose property is exempt from taxation or is not assessed shall not be entitled to vote.

and have available a sufficient number of ballots not less than five (5) days prior to the date of the Special Election.

(g) The Mayor shall appoint three (3) persons to act as a Board of Special Election to conduct the Special Election.

(h) The Board of Election shall count the votes for and against the proposed loan; and shall announce the result thereof; shall make a certificate under their hands of the number of votes cast for and against the proposed loan, and shall deliver the same to the Council, which said certificates shall be entered on the minutes of the Council, and the original shall be filed with the papers of the Council.

() The form of bond or certificate of indebtedness, the interest rate, the time of payment of interest, the classes, the time of maturity, and provisions as to the registration shall be determined by the Council after said public hearing. The bonds may be sold at either public or private sale as determined by the Town Council. The Council may provide, in its budget, and in fixing the rate of tax, for the payment of interest and principal of said bonds at the maturity or maturities thereof, a sinking fund therefor. The faith and credit of the Town of Magnolia shall be deemed to be pledged for the due payment of the bonds and interest thereon issued under the provisions hereof, when the same have been properly executed and delivered for value, and there shall be no limitation upon the amount of taxes which may be raised by taxation for the payment of interest on and principal of any bonded indebtedness whether incurred before or after the passage of this Act.

(a) The bonded indebtedness shall not at any time exceed in the aggregate the total sum of twenty-five per centum (25%) of the value of the real property situate within the limits of the Town as shown by the last assessment preceding the creation of the said indebtedness.

Approved July 26,1972.