CHAPTER 423

FORMERLY

HOUSE BILL NO. 446

AS AMENDED BY HOUSE AMENDMENT NOS. 1, 2, HOUSE AMENDMENT 1 TO HOUSE AMENDMENT NO. 2,

AND HOUSE AMENDMENT NO. 3

AN ACT TO AMEND DELAWARE CODE, TITLE 10, RELATING TO THE VACATION OF DEDICATED OPEN SPACE AND PARKLAND.

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

Section I. Amend Delaware Code Title 10, Part IV by adding a new Chapter 62 as follows:
"CHAPTER 62. VACATING THE DEDICATION OF OPEN SPACE AND PARKLAND

§6201. Jurisdiction of Superior Court.

(a) The Superior Court shall have exclusive jurisdiction to vacate any dedication of open space or parkland accepted by any county or municipality whether or not title has been accepted. The Court shall, in its final order, decide all questions raised concerning the vacation including the award or damages.

(b) The several counties and municipalities are prohibited from vacating any dedication of open space or parkland except in accordance with the procedures established in this Chapter.

(c} This Chapter shall not preclude any county or municipality 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.

§6202. Application of Chapter.

(a) This Chapter establishes and shall exclusively govern procedures by which a dedication accepted by a county or municipality may be vacated. This Chapter shall not apply, however, to the vacation of streets, roads, or highways dedicated for the use of the general public or to easements or rights of way for drainage or utilities related to said streets, roads, or highways.

(b1 Neither through the procedures established in this Chapter, nor through any other procedure in law or in equity shall the dedication of any parcel of land be vacated, which parcel is part of a public park or recreation area which:

(1) Is five acres or more in size; and

(2) Has been operated or maintained as a public park or recreation area for one year or longer.

§6203. Petition for vacation; notice requirements.

(a) In any action commenced In Superior Court, the person who holds legal title to the dedicated open space or parkland, the owner of the property abutting said dedicated, or the county or municipality in 010 said dedicated property is located, may apply to the Superior Court of such county or municipality for the vacation thereof, by first giving notice to the county or municipality if it is not the applicant, to the person holding the legal title to said dedicated property, to all persons owning property abutting or contiguous to said dedicated property, and to all persons owning property within a subdivision in which said dedicated property is located, by mailing to 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 10 days prior to filing.

(b) Upon filing any petition in Superior Court to vacate a dedication, formal notice shall be provided by the petitioner to the chief executive officer(s) of the county or municipality in which the dedicated property is located, by service of process as provided by law. Written notice by registered mall, return receipt
requested, to such party or legal representative at their at known post office address at the time of the filing of the application shall also be made upon the person holding legal title to said property, upon all persons owning property abutting or contiguous to said dedicated property, upon all persons owning property within a subdivision In which said dedicated property is located and upon any persons owning property not in the subdivision but within two-hundred yards of said dedicated property and by posting signs along the lot lines of the dedicated property proposed to be vacated clearly indicating the intent to vacate said property, at least 20 days prior to the hearing date set by the Court on such petitions and also by publishing notice at least once a week for 2 consecutive weeks to all such parties In Interest In a newspaper of general circulation in the county or municipality In which said dedicated property is located, clearly providing the place, time and hearing date on the petition set by the Court, at least 20 days prior thereto.

§6204. Vacation defined.

Vacation shall mean the abandonment of the dedication covenant to any county or municipality in any dedicated property accepted by a county or municipality when said county or Municipality, legal title holder, or abutting landowner has clearly shown an intent to abandon through lack of use, care or maintenance thereof any dedicated property originally created solely for public use.

§6205. Vacation 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 county or municipality in which the dedicated property is located, the legal Title holder, all abutting landowners, all residents of the subdivision, or all interested parties, any present relevant evidence regarding the necessity or advisability of the continued use of the dedicated property for the benefit of the general public or interested parties. Upon conclusion of the hearing, Superior Court shall order whether the said dedicated property shall be vacated.

(a) The Court shall also decide such other collateral issues which are raised at the hearing, including, but not limited to, whether the county or municipality holds title to the dedicated property by deed transfer or some other means, whether the county or municipality or the general public has an Interest In such property by virtue of the dedication, whether such parties have a compensable interest and to whom the land shall revert In the event of vacation, including the abutting landowners.

(a) There is a rebuttable presumption, as to any dedicated property, that it shall continue as dedicated property.

(a) In determining whether any dedicated property should be vacated, the Court shall make a determination as to whether the county or municipality or the general public has a use or need for the continued existence for such dedicated property and the judgment of the county or municipality to keep it open shall be paramount. In making a determination in this regard, the Court shall consider such items as may be pertinent including, but not limited to, fitness for use as a public property, service and maintenance of the respective property, the financial impact upon any interested party, the effect of the proposed vacation upon adjacent streets, roads, or highways, and other matters which the Court may deem pertinent.

(a) Any County or municipality maintained property shall not be vacated without the consent of the county or municipality In which it is located.

§6206. Open space jurors; appointment and direction as to return.

(a) If the Superior Court orders that the dedication shall be vacated, it shall then appoint 5 judicious and impartial open space jurors of the county or municipality to view said property and make return on a date fixed by the Court. The Court shall authorize the open space jurors, so appointed, to employ, if necessary, a surveyor.

(b) The open space jurors named In the commission shall first be 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 open space jurors shall assess the damages which the county or municipality, legal title holder or other parties in interest will sustain by reason of such property vacation, Including, but not limited to, loss or

use, impact upon Improvements previously made thereto, loss of benefit or aesthetic value to the public, and, considering all circumstances of benefit or injury which may accrue to any such party In interest therefrom, shall make a recommendation to the Court, in the return, as to apportionment thereof.

§6207. 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, but not be limited to, the right of the legal title holder to recover the actual value of the real property, the right of the county or municipality to recover reasonable expenses for its loss of use of said vacated land, whether jurisdiction has been acquired by title, dedication, easement or other means, and any reasonable costs and expenses incurred, as a result of said vacation resulting from an Impact to other lands within the jurisdiction of the county or municipality.

(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 a dedication of property shall not become final until all damages have been paid in accordance with the Court's order.

td) 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.

re) Any other provision of this Chapter notwithstanding, the Court In making determination as to what damages shall be paid by the county or municipality shall consider only two factors:

(I) Only persons owning real property abutting the property or part thereof to be vacated shall be entitled to recover damages: and

(2) Any damages which may be otherwise recoverable by such persons or organizations from the county must be offset by a monetary estimate of the benefit to be derived by said persons or organizations.

§6208. Property Equivalence.

(a) Any other provision of this Chapter notwithstanding, the Chancery Court shall not order that a dedication be vacated unless the legal title holder to the dedicated property, or some other party to the proceeding provides by restrictive covenant, that an amount of open space, at least equivalent In size and comparable or superior to the parcel to be vacated In its utility for recreational purposes, shall be provided for the benefit of the public. For land to be considered
'comparable In Its utility for recreational purposes' the Court need not determine that the land is suitable for specific Identical recreational activities as
provided on the parcel to be vacated, but the Court must find that the land to be provided is of the same general character and quality as the land to be vacated.

(a) The provisions of subsection (a) above may be satisfied with respect to the vacation of any land not located within the boundaries of an Incorporated municipality of this State, by:

(I) Dedicating as public open space, a parcel of land meeting the criteria set forth above, within or immediately adjacent to the subdivision in which the dedicated land was vacated; or

(2) Restricting the same parcel or a parcel of land meeting the criteria set forth above, within or Immediately adjacent to the subdivision in which the dedicated land was vacated; or

(3) Dedicating as public open space, a parcel of land meeting the criteria set forth above, in any area approved by the county government and by the

owners of three-quarters of the lots or parcels within the subdivision In which the dedicated land was vacated.

(c) The provisions of subsection (a) above may be satisfied with respect to

the vacation of any land which Is located within the boundaries of an incorporated municipality of this State, by:

Cl) Dedicating as public open space, a parcel of land meeting the criteria set forth above, within a radius of one-quarter mile from any point on the lot or parcel boundary line of the land which Is to be vacated; or

(2) Restricting the same parcel or a parcel of land meeting the criteria set forth above, within a radius of one quarter mile from any point on the lot or parcel boundary line of the land which Is to be vacated; or

(3) Dedicating as public open space, a parcel of land meeting the criteria set forth above, In any area approved by the municipal government and by the owners of two-thirds of the lots or parcels within a radius of one-quarter mile from any point on the lot or parcel boundary line of the land which Is to be vacated.

(d) The dedication or restrictions required by this section may be provided by submission of a plot plan approved by the county or municipal Planning Department or equivalent agency, or by submission of restrictive covenants.

(e) Any restrictive covenant supplied In accordance with this section must:

(1) Restrict the use of the open space to active or passive recreational
purposes; and

(2) Provide that the said covenants shall be covenants running with the
land, binding upon the declarant, his heirs, administrators, successors and assigns; and

(1) Provide, In the case of private open space, that the said covenants are Imposed for the benefit of the owners of lots within the subdivision in which, or adjacent to, which the open space Is located; and

(1) Provide, In the case of public open space, that the said covenants are Imposed for the benefit of the county or municipality In which the open space is located.

§6209. Appeal.

Any Interested party before the Superior Court may appeal the Court's decision to the Supreme Court, within 30 days of the final order thereon, regarding the question of whether the dedicated property shall be vacated or the question of the amount of damages and their apportionment or any other matter raised at the Superior Court hearing.

§6210 Compensation and expenses of jurors and employees.

(a) The jurors shall be allowed $25 a day for their services and shall be entitled to mileage at the rate of 15 cents a mile going and returning.

(a) The Court shall fix the compensation of all persons properly employed as surveyors, chain carriers, axemen and target bearers, and all other persons, necessary to the economical execution of any order for vacating a dedication of property, including the board and accommodation of persons properly employed in and about the execution of the work.

§6211 Costs of proceedings -

The costs of proceedings for vacating the dedication of property 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 rate share fixed by the return "

Approved July 20, 1988