HOUSE BILL NO. 410
AN ACT TO AMEND CHAPTER 137, VOLUME 61, LAWS OF DELAWARE, AS AMENDED, TO PROVIDE A PROCEDURE FOR CHANGING THE STREET STRUCTURE OF THE TOWN OF DELMAR.
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. Amend Chapter 137, Volume 61, Laws of Delaware, as amended, by adding a new Section thereto following Section 30 to be designated as "Section 30A" to read as follows:
(a) The Town Council shall have the power and authority to locate, lay-out and open new streets and to widen, close or abandon streets or a part thereof, whenever it shall be deemed to be in the best interest of the Town.
(b) In every case, the procedure to be followed in respect thereto shall be as follows: The Town Council shall adopt a Resolution
favorable to the opening of such new street or to the widening or altering of a Street or to the vacating, abandoning or closing of a street or any part thereof, as the case may be. The Resolution shall give a general description of the street to be opened, widened or altered or of the street, or part thereof, to be vacated, abandoned or closed, as the case may be. The Resolution shall also state the day, hour and place where the Town Council will sit to hear objections and to award just and reasonable compensation to anyone who will be deprived of his property by reason thereof.
(c) A copy of the Resolution setting forth the information shall be printed in a newspaper of general circulation in The Town of Delmar at least one (1) week prior to the date set for the public hearing, or, at the discretion of the Town Council, the said Resolution shall be posted in five (5) public places in the Town at least thirty (30) days prior to the date fixed by the Town Council for the hearing, as aforesaid.
(d) At the time and at the place fixed in the Resolution, the Town Council shall hear such residents or taxables of the Town, or the owners of property affected thereby, as shall attend the hearing. After hearing all objections, the Town Council shall, at said meeting, or at a subsequent date, as it may deem proper, adopt the Resolution to proceed with or abandon the proposed locating, laying-out, widening, altering, vacating, abandoning or closing of any streets or any part thereof contemplated in its aforementioned prior Resolution. In every case where the Town Council shall resolve to proceed with the plan contemplated, or a portion thereof, the Town Council shall award just and reasonable compensation to any person or persons who will thereby be deprived of property by virtue of the execution of the plan so contemplated. Such compensation, if any be awarded, shall be paid by the Treasurer of The Town of Delmar on a warrant drawn upon him by authority of the Town Council, as aforesaid, upon delivery of a good and sufficient deed conveying a fee simple title thereto unto The Town of Delmar, which title shall be free and clear of all liens and encumbrances.
(e) If anyone who shall be deprived of his property by virtue thereof be dissatisfied with the compensation awarded by the Town Council, as aforesaid, such property owner may, within thirty (30) days after the award by the Town Council, as aforesaid, appeal from such award by serving written notice to that effect upon the Secretary of the Town Council or the Mayor of The Town of Delmar, or in their absence from the Town, upon any member of the Town Council.
(g) In order to prosecute said appeal, such property owner shall, within ten (10) days after the award of the Town Council, as aforesaid, apply to the Resident Judge of the Superior Court of the State of Delaware, in and for Sussex County, or should he be absent from the County during that time, such application shall be made to any other Judge of the Superior Court, for the appointment of freeholders to hear and determine the matter of compensation due such property owner by virtue of the deprivation of its property, as aforesaid. Thereupon, the said Resident Judge, or any Judge of the Superior Court, as aforesaid, shall issue a commission under his Hand directed to five (5) impartial freeholders of Sussex County, commanding them to determine and fix the damages which the said property owner shall have sustained by reason of being deprived of his property, as aforesaid. The freeholders, so appointed, shall take into consideration the benefits or advantages that will ensure to the said property owner from any such new street, or otherwise. The freeholders, so appointed, shall make a return of their findings to the said Resident Judge, or other Judge of the Superior Court, as aforesaid, at a time appointed in said Commission.
(h) The freeholders so appointed shall give notice of the day, hour and place where they will meet to view the premises and affix the damages, if any, as aforesaid. Such notice shall be served upon the property owner personally, or by posting a copy thereof on the premises affected, at least five (5) days before the day specified therein as upon which they are to view the premises, as aforesaid. A copy of such notice shall also be served upon the Secretary of the Town Council or upon the Mayor of The Town of Delmar at least five (5) days before the day of such meeting.
(i) The freeholders' names and such commission being first duly sworn or affirmed to fully, fairly and honestly determine the damages to the best of their several abilities, and at the hour and place stated in the notice, as aforesaid, shall view the premises and hear the property owner and his witnesses, and the Town Council and their witnesses, and shall, without delay, determine and fix the damages, If any, which the said property owner will have sustained by reason of being deprived of any property, as aforesaid.
(j) Thereupon, and without delay and in accordance with the Commission by which the said freeholders were appointed, the said freeholders shall make return, in writing, of their proceedings in the premises to the said Resident Judge, or other Judge of the Superior Court, as the case may be. The Resident Judge, or other Judge of the Superior Court, as the case may be, shall cause the said return to be delivered to the Secretary of the Town Council or the Mayor of The Town of Delmar. Such return shall be final and conclusive. The Resident Judge or other Judge of the Superior Court, as the case may be, shall have full power to fill any vacancy among the freeholders.
(k) The amount of damages being ascertained, as aforesaid, The Town of Delmar, shall pay or tender the amount thereof to the property owner or property owners entitled thereto within one (1) month after the same shall be finally ascertained or The Town of Delmar may deposit the same to the credit of such property owner or property owners in any bank in The Town of Delmar within the same period of one (1) month and thereupon, The Town of Delmar may carry into effect the plan contemplated in their Resolution aforementioned.
(1) In the ascertainment and assessment of damages by the freeholders appointed by the Resident Judge of the Superior Court of the State of Delaware, or other Judge of the Superior Court as the case may be, if the damages shall be increased above the amount fixed by the Town Council, or if the Town Council shall decide not take such property, the cost of the appeal shall be paid by The Town of Delmar out of any funds belonging to the said Town. If the said damages be not increased, the cost of the appeal shall be paid by the property owner appealing.
(m) The fees of the freeholder shall be Twenty—Five Dollars ($25.00) per day to each of them and shall be taxed as part of the costs of the action.
(n) After the damages shall be fixed and ascertained by the freeholders, as aforesaid, the Town Council shall have the option of either paying the damages assessed within the period of one (1) month, aforementioned, and proceeding with the improvement or paying the cost only and abandoning the proposed improvements.
(a) for all purposes of this Section, the word "street" shall be deemed and held to comprehend and include sidewalks, lanes, alleys, roadways, boulevards, highways or any other thoroughfare used for pedestrian or vehicular traffic.
Approved April 1, 1994.