CHAPTER 209

FORMERLY

SENATE BILL NO. 237

AS AMENDED BY HOUSE AMENDMENT NOS. 1,2 AND 3

AN ACT TO AMEND TITLE 17, CHAPTER 13, DELAWARE CODE, RELATING TO THE VACATION, ABANDONMENT AND CLOSURE OF PUBLIC ROADS, BRIDGES AND OTHER RIGHTS OF WAY.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Section 1301 through 1307, Chapter 13, Title 17, Delaware Code by striking said sections in their entirety and inserting In lieu thereof the following:

"§1301. Jurisdiction of Superior Court and Department of Transportation

(a) The Superior Court shall have Jurisdiction to vacate public roads, bridges and all other rights of way, including, but not limited to alleys, pathways, walkways and the like, whether within the jurisdiction of the Department, the County in which it is located, municipalities, towns, any governmental authority or the general public; including areas, not within the jurisdiction of a governmental authority, but for which the general public or specific members of the public have acquired an interest. The Court shall, in its final order, decide all questions raised concerning the vacation or collateral issues Including the award of damages and shall further have the authority to review any decision made by the Department, County, or other governmental authority concerning the abandonment or vacation of such rights of way.

(b) The Department shall have Jurisdiction and authority to conduct such administrative hearings and procedures as defined herein to vacate or abandon public roads, bridges and all other rights of way, as provided herein.

(c) This chapter shall not preclude the Department from seeking equitable relief in the Court of Chancery for this State on any issue, including, but not limited to injunctive relief, actions to acquire or quiet title, declaratory judgment or any other matter in the nature of an equitable remedy.

§1302. Petition for Vacation and/or Abandonment; Notice Requirements

(a) In any action commenced in Superior Court, five or more residents of the county in which the road, bridge or right- of way desired to be vacated or to he abandoned is located, the Department, or the County in which the road or bridge is located, may apply to the Superior Court of such County for the vacation or declaration of abandonment thereof, by first giving notice to the Department, and to the County, if neither Ls the applicant, and to all persons owning property abutting or contiguous to, or which is accessible only by, along or across that part of the road, bridge or right- of- way desired to be vacated, or declared to be abandoned, by mailing to the Department, the County and to such persons or their legal representatives, if known, at their last known address, written notice of their intent to file such petition with the Court at least ten (10) days prior to filing.

(b) Upon the filing of any petition in Superior Court to vacate or to seek a declaration of abandonment of any road, bridge, or other right of- way, formal notice shall be provided by the petitioner to the Secretary of the Department, and the chief executive officer(s) of the County in which the right of way is located, by service of process as provided by law. Written notice by registered mail, return receipt requested to such party or their legal representative at their last known post office address at the time of the filing of the application, shall also be made upon all persons owning property abutting or contiguous to or which is only accessible by, along or across that part of the road, bridge or right of- way desired to be vacated or declared to be abandoned and by posting signs at 100 foot intervals along such road, bridge or right-of- way desired to be vacated or declared to be abandoned clearly indicating such intent, at least 20 days prior to the hearing date set by the Court on such petition and also by publishing notice at least once per week for two consecutive weeks, to all such parties in interest in a newspaper of general circulation in the County M which said road, bridge or right- of way is located, clearly providing the place, time and hearing date on the petition set by the Court, at least twenty (20)days prior thereto.

(c) In all cases in which an order of abandonment or vacation is sought by administrative action by the Department, such action may be commenced by the Department, the County or other governmental authority or five or more residents of the County in which the road is located, in accordance with the terms of this chapter.

§1303. Definitions

For purposes of this chapter the following definitions shall apply:

(a) 'Abandonment' shall mean the loss of all right, title and interest and jurisdiction in any road, bridge or other right- of- way, previously held by the Department. other governmental authority or the general public and originally created solely by public use, in which the Department, other governmental authority or the general public have clearly indicated an intent to surrender all right, title, interest and jurisdiction therein through lack of use, care or maintenance thereof.

(b) 'Public Use' shall mean the consistent use by one or more members of the general public for a minimum period of seven (7) years over an area to which no other person or entity has a clear, legal or equitable right. This section shall not apply to any area owned or controlled by the Department or other governmental authority.

(c) 'State Maintained Street' shall mean any road, bridge or other right-of-way regardless of use which is within the control or jurisdiction of the Department.

(d) 'Vacation' shall mean the transfer of all right, title, interest and jurisdiction in any road, bridge or other right- of- way when the Department, other governmental authority or the general public have clearly indicated an intent to abandon through lack of use, care or maintenance thereof any road, bridge or other right- of- way originally created solely by public use.

§1304. Vacation and Abandonment Hearing

(a) In all proceedings in Superior Court, after all interested parties have received notice in accordance with this Chapter, a hearing shall be held in Superior Court, at which time, each party before the court, including the Department. the County in which the right- of- way is located. all abutting land owners or all interested parties, may present relevant evidence regarding the necessity or advisability of the continued use of the road, bridge or right- of- way for the benefit of the general public or interested parties. Upon conclusion of the hearing, the Superior Court shall order whether said road, bridge, or other right- of- way shall be vacated or declared to be abandoned. Any administrative hearing conducted by the Department shall address the same issues and utilize the criteria defined in this chapter.

(b) The Court shall also decide such other collateral issues which are raised at the hearing. including, but not limited to, whether the Department holds title to the road, bridge or other right-of- way by virtue of 17 Del.C. §509, by deed transfer or by some other means; whether the Department. County. other governmental authority, or the general public has an interest in such road, bridge, or right- of- way by virtue of dedication, easement, or some other means: whether such parties have a compensable interest and to whom the land, bridge or other right-of-way shall revert in the event of vacation or declaration of abandonment.

(c) Any administrative hearing to consider the question of abandonment or vacation shall be conducted in accordance with the terms of this chapter.

(d) There is a rebuttable presumption, as to all roads, bridges or other rights- of-way created or used at any time within this State, that each shall continue in existence until officially vacated or abandoned by judicial or administrative action pursuant to this Chapter.

(e) In determining whether any road, bridge or other right- of- way should be vacated or declared to be abandoned, the Court or the administrative agency shall make a determination as to whether the Department, other governmental agency or general public have a use or need for the continued existence of such road, bridge, or right-of- way and the judgment of the Department to keep it open shall be paramount. In making a determination in this regard, the Court or the Department shall consider such items as may be pertinent including, but not limited to: alternative routes, fitness for travel of the respective routes, previous relocation of routes performed by public authority, use of the new route as a bypass rather than an independent route, service, maintenance and repair of the respective routes, barricades or other man made or natural obstructions within and along the routes, the financial impact upon any Interested party and any other item which the Court or the Department may deem pertinent.

(f) Any state maintained street shall not be vacated or abandoned without the consent of the Department.

(g) As the result of the public use, as defined herein, the general public may have acquired a right to the use of such right- of- way. if clearly evidenced intent has been demonstrated such as by the grant of an easement or dedication, regardless of whether such area is classified as a state maintained street, as defined herein. Any such right of the general public to use such right- of-way shall not place the responsibility of maintenance with the Department or any other governmental authority, without formal acceptance of such responsibility.

§1305. Right-of-Way Jurors; Appointment and Direction as to Return

(a) If the Superior Court orders that the road, bridge or other right- of-way shall be vacated. or

declared to be abandoned, it shall then appoint five (5) Judicious and impartial right-of-way Jurors of the county to view said road, bridge or right- of-way and make return on a date fixed by the Court. The Court shall authorize the right- of-way Jurors, so appointed, to employ, if necessary, a surveyor, and direct said right of way Jurors to determine who shall enclose the area vacated or abandoned or any part thereof, and what portion of the costs such persons or agencies ought to pay respectively, all of which shall be set out in the return.

(b) The right- of- way jurors named in the commission shall be first sworn or affirmed as shall be directed in the commission.

(c) The return of the jurors shall be made to the Superior Court or to a Judge thereof, who shall file the same in the Office of the Prothonotary.

(d) In all cases such right- of--way Jurors shall assess the damages which the Department, County, governmental authority, owner or other parties in interest will sustain by reason of such road, bridge or right- of- way vacation or abandonment; including but not limited to loss of use, impact upon other roads, bridges or right-of- way, improvements previously made thereto, loss of benefit or esthetic value to the public, inconvenience or the use of road or bridge materials and considering all circumstances of benefit or injury which may accrue to any such party in interest therefrom and make a recommendation to the Court, in the return, as to apportionment thereof.

§1306. Damages- Hearing

(a) On a day fixed by the Court, a hearing shall then be had on the issue of damages as presented in the return. At such hearing all interested parties may present evidence and argument regarding the question of damages, their amount and apportionment, as are permitted under this section or at the discretion of the Court. At the close of said hearing, the Court shall enter an order affixing damages in such manner as it determines the evidence warrants.

(b) All damage questions shall be decided as provided in this chapter and shall include the right of the Department to recover the actual value of the real property, if it holds title thereto; to recover reasonable expenses for its loss of use of said vacated land, bridge, or right--of-way, whether jurisdiction has been acquired by title, dedication, easement or some other means; and any reasonable costs and expenses incurred as a result of said vacation or abandonment resulting from an impact to other lands, bridges or rights- of-way, within the jurisdiction of the Department.

(c) Payment of damages shall be in such amounts and under such terms and conditions as the Superior Court, by order, shall direct. Any order of the Superior Court to vacate or abandon a road, bridge, or right- of- way shall not become final until all damages have been paid in accordance with the Court's order.

(d) Whenever any interested party neglects or omits to pay or tender the amount of ascertained damages to the parties or persons entitled to the same, said interested party shall be subject to the contempt power of the Court, upon proper application by any party or person to whom damages are payable pursuant to the terms of the Court's order regarding same.

(e) Any other provision of this chapter notwithstanding, the Court or the Department in making a determination as to what damages shall be paid by the Department only two factors shall be considered: (1) only persons owning real property abutting the road or part thereof to be vacated or abandoned shall be entitled to recover damages. (2) Any damages which may be otherwise recoverable by such persons from the Department must be offset by a monetary estimate of the benefit to be derived by said abutting real property owner,

(f) Any hearing on damages conducted at an administrative hearing shall be as provided herein. §1307. Appeal

Any interested party before the Superior Court may appeal the Court's decision to the Supreme Court, within thirty (30) days of the final order thereon, regarding the question of whether the road, bridge or right-of- way shall be vacated or abandoned or the question of the amount of damages and their apportionment or any other matter raised at the Superior Court hearing."

Section 2. Amend §1308(b), Chapter 13, Title 17, Delaware Code by striking the words "vacating roads or bridges" and substituting in lieu thereof the following:

"vacating or abandoning roads, bridges or other rights-of--way,"

Section 3. Amend §1309, Chapter 13, Title 17, Delaware Code by striking said section in its entirety and by inserting in lieu thereof the following:

"§1309. Costs of Proceedings

The costs of proceedings for vacating, or abandoning a road, bridge or other tight- of-way shall be paid by the petitioners, unless such petition is granted in which case such costs shall be paid by the party or persons authorized by the return to enclose it and in the pro- rata share fixed by the return, before such enclosure."

Section 4. Amend §1311, Chapter 13, Title 17, Delaware Code by striking said section in its entirety and Inserting in lieu thereof the following:

"§1311. Vacation of Public Roads by Administrative Action of Department; Procedure

In all cases in which the necessity for existing public roads has ceased to exist because they have been superceded by improved roads or highways constructed by the Department whether a state maintained street or otherwise; or their necessity has ceased to exist as a part of the general highway system of the State; the Department may vacate or abandon such public roads or such part thereof as the Department may deem proper, and may determine who shall enclose the same. The Department, may at any time, determine that a public road, not serving the general public and not maintained by the Department for a period of twenty (20) years, shall be abandoned and no longer be under the Department's jurisdiction. The procedure therefor shall be as follows:

(a) Whenever the necessity for the continuation of an existing public road in this State or a portion thereof, shall cease to exist, as stated in this section, the Department, shall by resolution, signed by the Secretary, fix a time and place at which persons interested, including the County wherein the road is located, may be heard with respect to the vacation or abandonment thereof. A copy of the resolution shall be published in a newspaper of the County in which the public road is located in at least two issues thereof, prior to the date fixed for the hearing, and likewise a copy of the resolution shall be sent by mail addressed to the chief executive officer(s) of the County wherein the road is located and to the owners of the land abutting or contiguous to the road, or part thereof. and to owners whose land is accessible only by, along or across that part of the road, at least 20 days prior to the day fixed for the hearing. The copy shall be addressed to the owners at their last known post office addresses, if such can be ascertained by reasonable inquiry, otherwise the publication of the resolution shall be deemed to be sufficient.

(b) The Department shall, on the day and time fixed, proceed to hear persons interested and shall consider any objection to the vacation or abandonment of the road, or part thereof and shall make a determination concerning the same. If the Department determines that no necessity exists for continuation of the public road, or part thereof, it may order the same to be vacated or abandoned and may determine who shall enclose the same. The order of the Department shall be entered in the road books or records of the County in which the public road is located, after any appeal time as lapsed, together with a description of the road, or part thereof, ordered to be vacated or abandoned and thereupon the road, or part thereof, shall cease to exist as a public road, and the persons entitled to enclose the same may proceed to use and occupy the vacated or abandoned road.

(c) The Department may vacate any public road in this State running parallel with an improved highway in this State, provided, that all the abutting property owners along the public road consent to the vacating of such public road and signify such consent In writing and provided further that such vacation shall have no significant adverse impact upon any party or person owning property which is only accessible by, along or across that part of the road to be vacated; provided however, that circuity of access alone shall not be considered significant adverse Impact for purposes of this section.

(d) Whenever any public road is vacated or abandoned pursuant to this section, unless specifically determined otherwise by the Department, the abutting property owners on either side thereof shall be permitted to extend the boundaries of their respective property to the middle of such vacated or abandoned public road and shall own all of that land to said middle of the vacated or abandoned public road. If required, the Department may issue a deed of such land suitable for filing.

(e) The Department, at an administrative hearing conducted after prior notice to all interested parties as provided in this chapter, may determine and award an apportionment of damages under the criteria set forth in this chapter. Such award of damages shall be strictly enforceable by any party or person by application to the Superior Court, which may then adopt, modify or remand such award in the form of an enforceable order."

Section 5. Amend §1312, Chapter 13, Title 17, Delaware Code by striking said section in its entirety and inserting in lieu thereof the following:

"§1312. Appeal from Administrative Decision

Any interested party appearing before the Department may appeal such administrative decision to the Superior Court within 30 days of the final order therefrom. Regarding the- question of whether the road shall be vacated or abandoned or the question of the amount of damages and their apportionment. Any appeal not made pursuant to this section shall be barred and the decision of the Department shall be strictly enforceable by the Superior Court, pursuant to this chapter."

Section 6. Amend Chapter 13, Title 17 of the Delaware Code by adding a new §1313 as follows: §1313. Road Closures.

(a) For purposes of this section, the following definitions shall apply:

(1) "Closure" means the physical erection of temporary or permanent barricades and/or construction or reconstruction in any manner inhibiting the movement of vehicular or pedestrian traffic at any point along or adjacent to any road, street, bridge or other right-of way.

(2) "Governmental Authority" means the Department of Transportation in the case of any State maintained road, street, bridge or other right- of- way, or any other county, municipality or other political subdivision having the care, custody, control or jurisdiction of any road, street, bridge or other right- of- way.

(3) "Private Owner" - means any non- public owner or owners of any land dedicated to public use or to which the public may otherwise have a right to use as a road, street, bridge or other right- of- way.

(4) "Notice" means publication once a week for two consecutive weeks in a newspaper of general circulation within the county in which such road, street, bridge or other right- of- way is located and written correspondence from the petitioner to each governmental authority or private owner having jurisdiction of or owning property abutting such road, street, bridge or other right of way in the form of a registered letter, return receipt requested.

(b) The Superior Court may, upon hearing and notice as provided in this Section and upon a specific finding of the existence of a safety hazard or other valid public purpose, order temporary or permanent closure of any road, street, bridge or other right- of- way within this State. The Court In making its determination, may further order, the Governmental Authority having control or jurisdiction of such road, street, bridge or other right- of way to prepare a statistical and factual report to be submitted to the Court detailing the usage of the road, the specific safety or other valid public purpose or reason ordering its closure and the impact such action will have upon the users of such road, street, bridge or other right-of- way.

(c) Upon the receipt of any report prepared by the Governmental Authority relating to any right- of way within its respective control or jurisdiction, the Court may order a hearing or take any other such action which it determines to be necessary to evaluate and determine whether such road, street, bridge or other right- of way should be closed and the means and methods of such closure.

Section 5. Strike the words "freeholder" or "freeholders" wherever it appears in this chapter and substitute in lieu thereof the words "juror" or "jurors" respectively.

Approved September 6, 1985