CHAPTER 371

FORMERLY

HOUSE BILL NO. 630

AN ACT TO AMEND CHAPTER 83, TITLE 9, AND CHAPTER 9, TITLE 3, DELAWARE CODE, TO DIRECT ROLL-BACK TAXES COLLECTED ON CONVERTED AGRICULTURAL LANDS TO THE SCHOOL DISTRICTS, INCLUDING PROVISIONS FOR ADMINISTRATION, ENFORCEMENT AND COLLECTION OF SUCH ROLL-BACK TAXES.

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

Section 1. Amend Title 9, Delaware Code, §8335(d) by adding a

paragraph (3) to subsection (d) to read as follows:

"(3) Roll-back taxes as provided herein shall become payable when the land is applied to a use other than agricultural, horticultural or forestry. The terms "Applied to a use other than agriculture" and "change in use for purposes of this subsection (d) shall include any of the following:

The actual use of the land for an activity other than agricultural, horticultural or forestry;

The rezoning of the land to a nonagricultural category;

The subdivision of the land which allows for a nonagricultural usage;

The approval of a site plan or issuance of a certificate of occupancy which allows for a nonagricultural usage; and

The loss of eligibility for valuation under §§8330-8337 of this Title."

Section 2. Amend Title 9, Delaware Code, §8335(d) by adding a new

paragraph (4) to subsection (d) to read as follows:

"(4) Roll-back taxes hereunder shall be paid within ninety (90) days of their due date, and payment thereafter shall include a penalty of six percent (6%) of the amount due for the first month thereafter, and one percent (1%) of the amount due for each consecutive month until payment is made. The amount due for roll-back tax shall become a lien on the land which was subject to a change in use or applied to a use other than agriculture as of the due date. The school tax component of the roll-back tax shall be paid to the respective school districts which established the tax rates applicable to the lands through a payment first to the appropriate county receiver of taxes, treasurer, or director of finance, who collects school taxes. The balance of the roll-back tax shall, when collected by the appropriate county receiver of taxes, treasurer, or director of finance, be paid to the Delaware Agricultural Lands Preservation Foundation; provided, however, that seven and a half percent (7-1/2%) of such balance shall be withheld and paid to the county as a charge for administration. For purposes of this paragraph, the due date shall be the earlier of the date following conversion under paragraph (3) above which is established by the respective counties for annual taxes or the date indicated by the county in any special billing for roll-back taxes."

Section 3. Amend Title 9, Delaware Code, §8336(a) by adding a new sentence to the end of subsection (a) to read as follows:

"With respect to new applications, eligibility of the land for valuation, assessment and taxation under this section shall be conditioned upon advance execution by the landowner of a certification, in recordable form, as provided by the Delaware Agricultural Lands Preservation Foundation, which certification indicates that a roll-back tax is due and payable to the school districts and the Foundation under the provisions of 9 DEL. D., §8335(d) at such time that the land is subjected to a change in use or applied to a use other than agricultural, horticultural or forestry, as

such terms are defined, and that a failure to pay the roll-back tax when due results in the imposition of a lien on the land for non-payment."

Section 4. Amend Title 3, Delaware Code, §921(c) by deleting subsection (c) in its entirety retroactive to the date of its adoption and substituting in lieu thereof a new subsection (c) to read as follows:

"(c) All monies collected by the respective county receiver of taxes, treasurer or director of finance as the Foundation's share of roll-back taxes under the provisions of 9 Del. C., §8335(d) shall, when collected and after deduction of the seven and a half percent (7-1/2%) administration charge, be transferred to the Foundation for use in carrying out the purposes of this Chapter. The Foundation shall be entitled to adopt and impose procedures and requirements to assure collection of its share of roll-back taxes and the Foundation shall be entitled to notify county taxing authorities of lands subject to the agricultural lands preservation assessment and upon such notification such county taxing authorities shall include the amount due on the property tax statements submitted with respect to the converted lands. Non-payment of the Foundation's share of the roll-back tax, including penalties, shall when payable result in the imposition of a lien on the land for non-payment, which lien shall qualify for all purposes as a lien under the provisions of 25 Del. C., §2901."

Section 5. Amend Title 3, Delaware Code, §921 by adding a new subsection (e) to read as follows:

"(e) All monies directed to the Foundation under this Chapter, either directly or indirectly, shall be for the exclusive benefit of the Foundation in carrying out the purposes of this Chapter. Such funding shall be considered separate and distinct from any other funding authorization, even though the funding amount may be determined on the basis of tax rates, assessments, or by other means used by other entities."

Section 6. Amend Title 3, Delaware Code, §920 by adding a new subsection (d) to read as follows:

"(d) The Foundation shall be entitled to take action, including an action by monition, in any Court of competent jurisdiction to enforce liens and to collect the Foundation's share of roll-back taxes, including penalties, which are due under the provisions of §921(C) of this Chapter. In any such action the Foundation shall be entitled to proceed through its legal counsel, without the need of obtaining any prior approval, and the Foundation shall, if it prevails, be entitled to recover its reasonable costs and expenses, including reasonable attorney's fees. Nothing contained herein shall preclude a county or school district from pursuing legal action to collect, on behalf of the Foundation, the Foundation's share of the roll-back tax through either independent action or as part of another action. Upon collection of the Foundation's share of the roll-back tax through such legal action the amount collected, after deduction of the seven and a half percent (7-1/2%) administration charge, shall be forwarded to the Foundation."

Section 7. Amend Title 3, Delaware Code, §903(a)(5) by deleting the words "three (3) years" as they appear in such paragraph and by substituting in lieu thereof the words "two (2) years"

Approved July 13, 1992.