CHAPTER 389

FORMERLY

HOUSE BILL NO. 245

AS AMENDED BY SENATE AMENDMENT NOS. 1 AND 2

AN ACT TO AMEND TITLE 7, DELAWARE CODE RELATING TO TAX LAGOONS.

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

(Three-Fourths Majority of all members elected to each house thereof concurring therein):

Section 1. Amend Title 7, Delaware Code by adding a new chapter thereto to read as follows:

"CHAPTER 43. DREDGING AND MANAGEMENT OF LAGOONS.

Subchapter I. General Provisions

§ 4301. Declaration of policy.

It is declared that the removal of accumulated sediment from artificially constructed lagoons and the management of such lagoons for navigational improvement shall be considered a public benefit and conducive to the public health, safety and welfare.

§ 4302. Purpose.

It is the purpose of this chapter in carrying out the policy declared in § 4301 of this title to provide a basis for a uniform system for establishing, financing, administering, maintaining and dissolving lagoon organizations in the State under the supervision of the Department of Natural Resources and Environment Control to the end that the improvement and management of these waterways may be accomplished in a workable and practicable manner.

§ 4303. Definitions.

For the purposes of this chapter, unless otherwise specifically defined, or another intention clearly appears, or the context requires a different meaning:

(1) 'Benefits' include, but shall not be limited to, the privilege of participating in a cooperative system for the management of water and sediment from one's lands by a tax lagoon formed under this chapter.

(2) 'Dredging' means water and sediment management, by lagoon areas, to safely remove accumulated sediment.

(3) 'Landowner' or 'owner' means that person or group of persons in whom the entire title to a certain tract of land is vested.

(4) 'Taxable' means any person entitled to vote under this chapter.

(5) 'Water Management' means the improvement of water by intentional means for the purpose of navigation.

(6) 'Sediment management' means the removal, storage, or application of sediment or earth by intentional means, including but not limited to, the dredging thereof of subaqueous lands.

(7) 'Lagoon' means a man made body of water constructed for the purpose of residential housing and mooring of recreational boats and directly connected to tidal waters.

Subchapter II. Boards of Lagoon Management commissioners

§ 4304. Lagoon management commissioners; membership; qualifications; term; vacancies; secretary.

(a) A board of lagoon management commissioners, consisting of 3 lagoon management commissioners and 3 alternate lagoon management commissioners, is continued for each county within the State. Upon the expiration of the terms of office of the present and all future management commissioners, the resident associate judge for each county shall appoint lagoon management commissioners and alternate lagoon management commissioners, who may be selected from lists of 10 or more names submitted by the Division of Soil and Water Conservation. Each lagoon management commissioner and alternate lagoon management commissioner shall be a resident landowner of the county from which he is appointed, shall have some knowledge of lagoon management such as sedimentation problems and its impact on navigation and shall be familiar with land values within such county.

(b) The term of office for each lagoon management commissioner shall be 3 years. The term of office for the alternate lagoon management commissioners shall be 1 year each. A lagoon management commissioner or alternate lagoon management commissioner may be reappointed to succeed himself. All appointments shall be effective as of August 1 of each year.

(c) In the case of the death, resignation or removal from office of a lagoon management commissioner, the vacancy shall be filled by the appointment of 1 of the alternate lagoon management commissioners to serve for the remainder of the term of the vacating lagoon management commissioner.

(d) Except in the case of death or removal from office, a lagoon management commissioner shall hold office until his successor has been appointed.

(e) The Division of Soil and Water Conservation shall serve as secretary, without voting authority, for each of the county boards of lagoon management commissioners.

§ 4305. Disqualification of members.

In those cases where any member of the board of lagoon management commissioners owns lands within the boundary of a proposed tax lagoon, such member shall not serve as a member of said board on that particular tax lagoon and an alternate lagoon management commissioner shall serve in the member's stead.

§ 4306. Chairman; quorum; voting.

A chairman of each board of lagoon management commissioners shall be designated by the members thereof and such designation may be changed from time to time. A majority of the lagoon management commissioners of each board shall constitute a quorum and the concurrence of a majority in any matter within their duties shall be required for its determination.

§ 4307. Compensation; expenses and reimbursement.

(a) The lagoon management commissioners shall be entitled to receive reimbursement for their expenses necessarily incurred in the discharge of their duty at a per diem rate set by the Secretary of the Department of Natural Resources and Environmental Control, not to exceed $50, plus mileage reimbursement at the rate established in § 7102 of Title 29, as amended. The lagoon management commissioners shall be reimbursed for said expenses by the landowners petitioning to have a tax lagoon formed. Such reimbursement shall be made from funds deposited in advance by the petitioners at the time the petition is filed or from the first moneys collected by the tax lagoon after it is organized, the manner to be decided by the Division of Soil and Water Conservation.

(b) Lagoon management commissioners will be reimbursed for their expenses incurred in the discharge of their duties in connection with the formation of a tax lagoon after the lagoon order has become effective, or at such time as the Superior Court issues an order denying the petition for the formation of the tax lagoon.

§ 4308. Employment of qualified personnel.

The Department of Natural Resources and Environmental Control shall employ personnel qualified by experience in structural engineering, bulk heading, dredging and soil work, to assist it in carrying out its functions under this chapter and to perform related duties within the Division of Soil and Water Conservation.

§ 4309. Employment of personnel; purchase of supplies and equipment.

The Department may employ such personnel and obtain by purchase or otherwise such supplies and equipment as are necessary to carry out this chapter.

Subchapter III. Formation of Tax Lagoon; Procedure

§ 4310. Nature of a tax lagoon.

A tax lagoon organized under this chapter shall constitute a governmental subdivision of this State and a public body, corporate and politic, exercising public powers.

§ 4311. Petition for formation of a tax lagoon; assistance by Division of Soil and Water Conservation.

(a) Whenever 1 or more of the owners of any lands desire their lagoons to be dredged or managed, they may present a petition for the formation of a tax lagoon to the Superior Court of the county in which all or the major portion of the area involved is located, through the Division of Soil and Water Conservation.

(b) The services of the Division of Soil and Water Conservation shall be available to assist the landowners in the preparation of such petitions.

§ 4312. Form of petition.

A petition for the formation of a tax lagoon shall be in the following form:
PETITION
To the Superior Court of ........ County through the Division of Soil and Water Conservation:

Whereas the undersigned (is) (are) the owner(s) of subaqueous lands within lagoon areas subject to sedimentation or in need of water management situated in .......... Hundred(s) .......... County (Counties), and the State of Delaware, said lands being more particularly described as follows .......................................
..............................................................................
..............................................................................
........................................................................; and
Whereas the dredging and the prevention of sedmentation of said subaqeuous lands within lagoons, would be a public benefit and conducive to the public health, safety and welfare; and

Whereas the undersigned desire that a Tax Lagoon be formed under the provisions of Chapter 43, Title 7 of the Delaware Code, said Tax Lagoon to be known as ............. Tax Lagoon;

The undersigned therefore request the Division of Soil and Water Conservation to make the investigation required under the above cited chapter and, if the findings thereon be favorable, to file this petition in the office of the Prothonotary of ............. County so that the Superior Court of said County may take the necessary steps required by law to issue an order establishing ............Tax Lagoon.

Dated this ........ day of ........., ........ at ............, Delaware.
date month year

(Space for Signatures)

§ 4313. Name of tax lagoon.

The name of any tax lagoon established under this chapter shall not be the same as the name of any existing tax lagoon management organization within the same county.

§ 4314. Deposit upon filing of petitions for tax lagoon.

(a) The Division of Soil and Water Conservation shall require that a specified sum be deposited with it by the petitioners before the petition is filed in the office of the Prothonotary to cover filing fees, mailing and other necessary expenses. The amount of the deposit shall be determined by the Division of Soil and Water Conservation and may vary according to the size of the area involved, the complexity of the problem, and other pertinent factors. If the original deposit is not sufficient, the Division of Soil and Water Conservation shall require an additional deposit as soon as the need for such becomes evident.

(b) The Division of Soil and Water Conservation shall keep an account of such deposits and shall return any unused portion thereof to the petitioners upon completion of final action by the Superior Court. When such action is favorable, the petitioners shall be repaid, out of the first moneys collected by the tax lagoon, all expenses of formation charged to them by the Division of Soil and Water Conservation.

(c) From the funds deposited with it pursuant to this section, the Division of Soil and Water Conservation shall pay filing fees, mailing and other necessary expenses incurred in the investigation and formation of a tax lagoon.

§ 4315. Duties of the Division of Soil and Water Conservation upon receipt of petition.

The board of supervisors of the county soil conservation district shall, upon receipt of a petition for the formation of a tax lagoon, shall determine whether the petition is in the form set forth in § 4312 of this title and has been properly executed. If the petition is in the prescribed form and has been properly executed, the board shall immediately notify the Division of Soil and Water Conservation, and by virtue of such action shall have made available to it the services of the Department of Natural Resources and Environmental Control to assist it with the investigation concerning the possible formation of the tax lagoon.

§ 4316. Investigation; hearing.

The Division of Soil and Water Conservation shall cause an investigation to be made in order to ascertain the general location and approximate boundaries of the proposed tax lagoon, and to obtain other information to determine whether the formation of the tax lagoon is practicable and feasible and is in the interest of the public health, safety and welfare. The Division of Soil and Water Conservation may hold such hearings as it deems necessary in order to assist it in making such determination.

§ 4317. Filing of petition and report; action by district when formation is found to be not practicable and feasible.

(a) If the Division of Soil and Water Conservation determines that the formation of the proposed tax lagoon is practicable, feasible and in the interest of the public health, safety and welfare, it shall file the petition in the office of the Prothonotary of the county in which all or the major portion of the land involved is located.

(b) Where the Division of Soil and Water Conservation determines that the formation of the proposed tax lagoon is not practicable and feasible or is not in the interest of the public health, safety and welfare, it shall so notify all of the petitioners involved, and a new petition for the formation of that tax lagoon may not be refiled for a period of 1 year from the date of said notice.

§ 4318. Determinations to be made by board of lagoon management commissioners.

(a) Upon the filing of a petition for the formation of a tax lagoon in the office of the Prothonotary of a county, the board of lagoon management commissioners of such county, acting as officers of the Court, shall, at the direction of the resident judge thereof, go upon the lands that may be included in the tax lagoon and determine the approximate dimensions and volume of the required dredging; the approximate sizes, locations and specifications for required disposal facilities and other necessary works of improvement; the location of public roads and railroads, and public utility installations within the proposed tax lagoon; the exterior boundaries of the tax lagoon; the approximate boundaries of each parcel or piece of land within the tax lagoon; the location and extent of needed permanent rights-of-way; the estimated total cost of all required tax lagoon works of improvement; the damages to lands, if any, which will result from the dredging of the tax lagoon; and an equitable basis, considering relative benefits to each landowner, for the distribution of costs. The board of lagoon management commissioners shall obtain from the Division of Soil and Water Conservation such assistance and information as is needed in making the required determinations.

(b) When all of the landowners involved, with the approval of the board of lagoon management commissioners and with the cooperation of the Division of Soil and Water Conservation, (1) jointly make the determinations regularly assigned to the lagoon management commissioners in subsection (a) of this section and in § 4319 of this title, and (2) prepare the assessment list required by § 4321 of this title, and (3) supply any additional data necessary to complete the report of the board of lagoon management commissioners required by § 4322 of this title and (4) personally sign a statement to the effect that they approve the formation of the tax lagoon, the board of lagoon management commissioners shall prepare their report from said determinations and such data without going upon the lands involved.

§ 4319. Existing works of improvement; compensation for work done thereon.

The board of lagoon management commissioners may deem adequate any works of improvement already performed, including but not limited to dredging and may allow a fair compensation to landowners for work previously done by them on such works of improvement.

§ 4320. Factors in determination of cost.

(a) In determining the total cost of the proposed tax lagoon works of improvement, the board of lagoon management commissioners shall include, among other things, the estimated costs of dredging, the estimated cost of forming the tax lagoon, the amount of damages, if any, awarded to landowners and the amount of compensation, if any, to be paid to landowners for works of improvement previously performed and deemed adequate under § 4319 of this title.

(b) The estimated cost of interest which will develop if the tax lagoon borrows money to finance the dredging of the lagoon shall not be included in the total cost of the proposed tax lagoon works of improvement.

§ 4321. Assessment list.

After determining the basis for distribution of costs among the landowners, the board of lagoon management commissioners shall prepare an assessment list which shall show the names of all owners of property, who it deems will benefit from the proposed tax lagoon, together with addresses and descriptions of those properties as currently recorded by the board of assessment of the county. The list shall also show if the properties are located on the tax lagoon. The cost-sharing or assessment base, expressed in dollars, for each of said properties shall also be shown. The sum of the individual property assessment bases shall be termed the total assessment base which in all cases shall be equal to or greater than the total cost of the proposed tax lagoon works of improvement. The assessment list, as modified by the lagoon order, described in § 4329 of this title, shall be the basis for all taxes levied under this chapter.

§ 4322. Proposed report of board of lagoon management commissioners.

The board of lagoon management commissioners, with the assistance of the Division of Soil and Water Conservation, shall prepare a proposed report containing the following determinations and information:

(1) The name of the proposed tax lagoon;

(2) The hundred and the county in which the proposed tax lagoon is situated;

(3) A map, drawing or aerial photograph, to a suitable scale, on which the following is shown:

a. The main lagoon, all prongs, all subprongs and other divisions of the proposed tax lagoon;

b. All dikes, levees, structures and other works of improvement of the proposed tax lagoon;

c. All railroads, public highways and all public utility installations near the points where such reach, cross or pass close to any part of the proposed tax lagoon;

d. The exterior boundaries of the tax lagoon;

e. The approximate boundaries of each parcel or piece of land within the proposed tax lagoon, together with the identification of each parcel or piece of land by name or code number;

f. The location and extent of rights-of-way, including overhead and underground clearances where necessary, assigned to the tax lagoon for dredging operations;

(4) The estimated total cost of the proposed tax lagoon works of improvement;

(5) The assessment list required under § 4321 of this title;

(6) Factors which influenced the determination of relative benefits and the basis for distribution of costs among the landowners, and other pertinent information;

(7) The names of all landowners awarded damages or to be paid compensation for works of improvement previously constructed and deemed adequate under § 4319 of this title; and the amount of damages or compensation to which each such landowner is entitled; and factors which influenced the determination of the damages awarded and compensation to be paid;

(8) The number of lagoon managers, not less than 2 nor more than 5, required to conduct the business affairs of the proposed tax lagoon.

§ 4323. Notice of hearing on establishment of tax lagoon.

Upon completion of the proposed report required by § 4322 of this title, the board of lagoon management commissioners shall notify all owners of property in the proposed tax lagoon area, of a hearing concerning the establishment of said tax lagoon to be held in the county in which all or the major portion of the lands involved is located. The notice shall be mailed by 1st-class mail at least 20 days prior to the hearing and shall designate the time and place thereof. It shall also state that the purpose of the hearing is to consider the formation of a tax lagoon which may affect the lands of the person notified and to hold a referendum among the affected landowners concerning the establishment of a tax lagoon. In addition, the notice shall state the place where a copy of the above proposed report of the board of lagoon management commissioners will be open to inspection for at least 5 days, excepting Saturday and Sunday, prior to the hearing date.

§ 4324. Hearing; adoption of proposed report; right to adjourn hearing; referendum.

At the time and place designated in the notice, the board of lagoon management commissioners, with the assistance of the Division of Soil and Water Conservation, shall hold a hearing at which all persons interested shall have an opportunity to express their opinions on and objections to the proposed report required by § 4322 of this title. The board of lagoon management commissioners shall make such changes in the proposed report as it deems warranted from evidence presented at the hearing, and shall then adopt the report and declare it final. If, however, as a result of the hearing, the board of lagoon management commissioners deems it advisable, it may adjourn the hearing in order to enable it to reexamine and modify its report in the light of the opinions and objections expressed at the hearing. The hearing may be adjourned to a fixed future date with no additional notification required or adjourned to an unspecified future date for which the notification and display procedures of § 4323 of this title will again apply. At the conclusion of the hearing, a referendum shall be held under the supervision of the board of lagoon management commissioners and the Division of Soil and Water Conservation. The referendum shall afford each landowner the opportunity to cast a ballot for or against the formation of the proposed tax lagoon in accordance with the final report of the board of lagoon management commissioners. Each landowner shall be entitled to the same number of votes as the number of dollars shown as the assessment base for the lands by the board of lagoon management commissioners. A referendum to approve a proposed tax lagoon shall be adopted only if passed by a three-fourths majority.

§ 4325. Contents of report; filing.

After holding the hearing and supervising the referendum provided for in § 4324 of this title, the board of lagoon management commissioners shall file the original and 2 copies of its final report in the office of the Prothonotary of the county in which all or the major portion of the lands involved is located, and shall attach to the report a certificate stating the results of the referendum and the place where and the time when it was held. The board of lagoon management commissioners shall also prepare and attach to the report a statement showing:

(1) Whether the board of lagoon management commissioners has fully discharged the duties assigned to it as prescribed by law;

(2) Whether the proposed tax lagoon is practicable and feasible and in the interest of the public health, safety and welfare;

(3) Whether in laying out the tax lagoon, the lands of every landowner assessed are directly or indirectly affected by some part of the proposed tax lagoon;

(4) Any objections made to the report of the board of lagoon management commissioners which did not warrant further changes in the report and the reasons therefor;

(5) Whether, in the opinion of the board of lagoon management commissioners, the benefits that will result from the construction of the proposed tax lagoon will exceed the total cost;

(6) Any other recommendations or information which the board of lagoon management commissioners deems pertinent.

§ 4326. Signing of lagoon management commissioners' report; dissent.

The report of the board of lagoon management commissioners, including the statement required by § 4325 of this title, shall be signed by all of the lagoon management commissioners concurring therein. Any lagoon management commissioner who dissents therefrom shall attach to the report the reasons for his dissent.

§ 4327. Waiving of lagoon management commissioners' hearing and referendum.

In those cases, when all of the landowners involved, indicate by signed statement that they are familiar with the report of the board of lagoon management commissioners and that they favor the formation of the tax lagoon, the board of lagoon management commissioners shall not hold a hearing and referendum, pursuant to § 4324 of this title, nor shall they give notice thereof as pursuant to § 4323 of this title, but they shall prepare the statement required and file their report, pursuant to § 4325 of this title, without a certificate of referendum.

§ 4328. Action by Superior Court; notice of final hearing.

(a) After the report and statement of the board of lagoon management commissioners have been filed in the office of the Prothonotary of the appropriate county, they shall be carefully reviewed by the Superior Court of the county.

(b) If the report of a majority of the board of lagoon management commissioners is opposed to the formation of the proposed tax lagoon, or if the certificate stating the results of the referendum shows that a majority of all votes cast were opposed to the formation of the tax lagoon, or if such report shows that the total cost of the construction of the tax lagoon will exceed the benefits that will result therefrom, then the Superior Court shall issue an order denying the petition for the formation of the tax lagoon.

(c) If the report of a majority of the board of lagoon management commissioners is in favor of the formation of the proposed tax lagoon, and if the statement attached to said report indicates that the total benefits that will result from the tax lagoon will exceed the total cost of the proposed tax lagoon works of improvement, and if the certificate stating the results of the referendum shows that a three-fourths majority of all votes cast were in favor of the formation of the tax lagoon, then the Superior Court shall set a date for the final hearing on the petition and shall direct the Prothonotary to give notice of the hearing by publication in a newspaper of general circulation in each county in which any of the lands involved are located and by posting a written or printed notice on the door of the courthouse of each such county, such publication and posting to be made not less than 15 days before the time of the final hearing. Notice of the final hearing shall also be given to landowners involved by 1st-class mail. This notice shall be mailed not less than 15 days before the time of the hearing. From the time the report of the board of lagoon management commissioners is filed in the office of the Prothonotary of the appropriate county it shall be open to inspection by any interested person.

(d) In those cases, when all of the landowners involved have indicated by signed statement that they are familiar with the report of the board of lagoon management commissioners and that they favor the formation of the tax lagoon, and if the report of a majority of the board of lagoon management commissioners is in favor of the formation of the proposed tax lagoon, and if the statement attached to the report indicates that the total benefits that will result from the tax lagoon will exceed the total cost of the proposed tax lagoon works of improvement, then the Superior Court shall not hold a final hearing, nor give notice thereof, but shall confirm the report and issue an order granting the petition for the formation of the proposed tax lagoon, the order to become effective immediately, and to be known as the lagoon order. The confirmed report shall be considered a part of the lagoon order.

§ 4329. Final hearing; lagoon order.

At least 10 days prior to the date set for the final hearing before the Superior Court, any interested person may file an objection in writing to the report of the board of lagoon management commissioners. The Superior Court shall review the report of the board of lagoon management commissioners and any objections filed thereto, and make, in consultation with the lagoon management commissioners, such changes as are necessary to render substantial and equal justice to all interested persons. Damages to any 1 landowner shall not be grounds for denying the petition, but may be used to adjust the assessment base of that property or the damages to be paid to that landowner and shall be considered as part of the total cost of the proposed tax lagoon. If the conditions set forth in § 4328(c) of this title, still exist after the objections have been considered and the necessary changes have been made in the report of the board of lagoon management commissioners, the Superior Court shall confirm the report and issue an order granting the petition for the formation of the proposed tax lagoon, said order to be known as the lagoon order. The confirmed report shall be considered a part of said lagoon order. If no objections are presented at the final hearing before the Superior Court the lagoon order shall become effective when issued.

§ 4330. Right to jury trial; procedure.

When objections to the report of the board of lagoon management commissioners are filed in writing with the Superior Court and when the party filing feels aggrieved by the report of the board of lagoon management commissioners, such party may apply to the Superior Court, within 30 days after the issuance of the lagoon order, for an order in the nature of a writ of inquiry to ascertain by the verdict of a jury at the bar of the Court, the full and true value of the relative benefits, damages, injury or loss which will result to the lands of such person from the improvements to the proposed tax lagoon.

§ 4331. Defense of contested lagoon orders; Attorney General.

If the lagoon order is contested, the board of lagoon management commissioners shall defend the order, and in conducting its defense, the board shall be represented by the Attorney General of the State.

§ 4332. Notice of final action on lagoon order.

When the lagoon order has become effective because no objection has been filed, or because the right to appeal therefrom has expired, the Prothonotary shall notify the Division of Soil and Water Conservation and shall forward 2 certified copies of the lagoon order to the Division of Soil and Water Conservation.

§ 4333. Permanent court record.

The lagoon order, together with any amendment thereto, shall be a permanent court record and shall be kept in the office of the Prothonotary of the county wherein it was issued. It shall not be removed from that office except in cases where an emergency so requires. The Prothonotary shall make such docket entries of proceedings as directed by rule of court.

§ 4334. Employment of private engineer by landowners.

If the board of supervisors of the county soil conservation district in which all or the major portion of the area involved is located determines that the formation of a tax lagoon is practicable and feasible and is in the interest of the public health, safety and welfare, the interested landowner or owners may at any time thereafter employ at their expense engineering personnel of their selection to assist the Division of Soil and Water Conservation.

§ 4335. Exclusive procedure for determination of damages.

The determination, assessment or award of damages or other compensation to be paid to any landowner in connection with the formation of a tax lagoon shall be made under and in accordance with this chapter. Chapter 61 of Title 10 shall not be applicable to proceedings to organize a tax lagoon under this chapter.

Subchapter IV. Powers of Tax Lagoon

§ 4341. Meeting to organize tax lagoon; notice.

(a) The Division of Soil and Water Conservation, at its earliest convenience after the lagoon order becomes final, shall call a meeting of the taxables for the purpose of organizing the proposed tax lagoon, including the election of lagoon managers, as called for in the lagoon order, and a secretary-treasurer; the formulation of a plan for dredging the proposed tax lagoon; and for levying taxes to cover the costs of construction and maintenance.

(b) The Division of Soil and Water Conservation shall send a notice to every taxable, by first-class mail to that landowner's address as currently recorded by the board of assessment of the county, at least 10 days prior to that meeting, stating the time, place and object of the meeting.

(c) A notice of the meeting shall be sent to the chairman of the board of supervisors of the county soil conservation district.

§ 4342. Distribution of lagoon order and this chapter; filing of assessment list.

(a) At the organization meeting of the tax lagoon, the Division of Soil and Water Conservation shall deliver to the managers, when elected, a certified copy of the lagoon order and a copy of this chapter, together with all effective amendments thereto.

(b) The Division of Soil and Water Conservation shall deliver a copy of the assessment list prepared under §4321 of this title, as modified by the lagoon order, to the board of assessment of the county, making such changes in the names of the owners thereon as are warranted by transfers, to new owners, of lands assessed.

§ 4343. Voting rights.

At all meetings, each landowner shall be entitled to the same number of votes as the number of dollars assessed against the land of such owner in the lagoon order. In the event that any lands are held by tenants in common or joint tenants, each such tenant in common or joint tenant shall be entitled to the same number of votes as his fractional share of the total number of dollars assessed against said lands. In the case of lands held by a husband and wife as tenants by the entirety, either the husband or wife may vote all the dollars assessed against their lands.

§ 4344. Voting by proxy.

Any person entitled to vote pursuant to § 4343 of this title may authorize another landowner within the tax lagoon to cast his votes in his stead by executing a proxy. The proxy shall be signed, dated and notarized.

§ 4345. Election of lagoon managers and a secretary-treasurer; terms of office; vacancies.

(a) At the first meeting the taxables shall elect from their group the number of lagoon managers specified in the lagoon order, and a secretary-treasurer.

(b) The term of office of each lagoon manager and of the secretary-treasurer shall be 1 year. If the lagoon managers and secretary-treasurer first elected are elected prior to July 1st of any year, the time elapsing between said election and the first annual January meeting provided for in § 4348 of this title shall be deemed to constitute the first year of their terms of office. However, if the lagoon managers and secretary-treasurer first elected are elected on or after July 1st of any year, their terms of office shall not be deemed to begin until the said first annual January meeting, although they shall assume the duties and responsibilities of their respective offices immediately upon election.

(c) In the event that any tax lagoon officer dies, resigns, ceases to be one of the taxables, or is removed from office, the remaining lagoon officers shall within 60 days, appoint a taxable to serve the remainder of the term of such officer. However, except in the case of death or removal from office, each tax lagoon officer shall continue to serve until a successor has been appointed.

§ 4346. Chairman of lagoon managers; duties.

Immediately after they are elected, the lagoon managers shall designate 1 of their number to serve as chairman. The chairman shall call meetings of the lagoon managers and taxables and shall preside thereat.

§ 4347. Compensation of lagoon managers and secretary-treasurer.

Tax lagoon managers and the secretary-treasurer may be entitled to receive compensation at a rate to be determined by a majority of the eligible votes of those taxables present at the first meeting provided for in § 4348 of this title. The rate of compensation for the tax lagoon managers and secretary-treasurer may be revised only at a regular annual meeting of the taxables.

§ 4348. Annual and other meetings of taxables; notice of meetings.

At the first meeting the taxables shall set a date for the regular annual meeting. This date may not be changed except by action of a majority of the taxables present at a regular annual meeting. The chairperson of the lagoon managers may call special meetings at such times as the circumstances warrant. At least 10 days' notice of all meetings shall be given by the lagoon managers using either of the following methods:

(1) By publishing in a newspaper of general circulation in the area of a tax lagoon, and by posting at 5 conspicuous places in or near the area of said tax lagoon, a notice stating the time, place and object of the meeting; or

(2) By mailing to each affected taxable at the address currently shown on the records of the board of assessment of the county, a notice stating the time, place and object of the meeting.

§ 4349. Meetings of lagoon managers; quorum.

The lagoon managers shall meet as often as necessary to properly conduct the business of the tax lagoon. At such meetings a majority of the lagoon managers shall constitute a quorum and the concurrence of a majority in any matter within their duties shall be required for its determination.

§ 4350. Powers of a tax lagoon.

A tax lagoon organized under this chapter, being a governmental subdivision of this State and a public body, corporate and politic may exercise public powers and, in addition to such other powers as usually pertain to corporations, may:

(1) Levy taxes;

(2) Sue and be sued in the name of the tax lagoon, and suits against the tax lagoon shall be governed by subchapter 10 Del. C. Chapter 40, Subchapter I;

(3) Make and execute contracts and other instruments necessary or convenient to the exercise of its powers;

(4) Borrow money for the purpose of dredging management and administering the tax lagoon;

(5) Acquire, by purchase, exchange, lease, gift, grant, bequest, devise or otherwise, any property, real or personal, or any rights or interests therein;

(6) Cooperate, or enter into agreements with the state or federal governments or any agency or subdivision thereof;

(7) Exercise the power of eminent domain, in accordance with the condemnation procedure prescribed in Chapter 61 of Title 10, with respect to lands outside the boundaries of the tax lagoon which are needed for right-of-way or outlet purposes;

(8) Accept contributions from landowners assessed in the tax lagoon, and disburse such funds for the purposes of performing certain operations, such as, but not limited to, dredging which operations are authorized in the tax lagoon order, but which are not included in the original estimated costs;

(9) Call upon the Division of Soil and Water Conservation for assistance with administrative and operations problems of the tax lagoon.

§ 4351. Duties of lagoon managers.

In addition to the duties specified in other sections of this chapter, the lagoon managers shall:

(1) Determine from the taxables the desired program of operations;

(2) Determine the amount of taxes to be levied to carry out such desired program;

(3) Secure specific authority for borrowing money, in the name of the tax lagoon, by a majority vote of the taxables present at a duly called meeting of the tax lagoon;

(4) At the first meeting, or within 30 days thereafter, prepare, with the assistance of the Division of Soil and Water Conservation, a comprehensive plan for carrying out the desired program, which plan shall include provisions for levying taxes and for financing the program;

(5) Execute warrants, with the assistance of the Division of Soil and Water Conservation, to the receiver of taxes and county treasurer authorizing and requesting the collection of all tax lagoon taxes other than maintenance taxes;

(6) Execute a warrant, with the assistance of the Division of Soil and Water Conservation, to the receiver of taxes and county treasurer authorizing and requesting the annual collection of a tax in the amount of 2 percent of the total assessment base, or in the amount of 2 percent of the total benefits for tax lagoons previously formed under the original provisions of this chapter, said warrant to be marked plainly as being for annual maintenance taxes, and to be issued simultaneously with the issuance of the first warrant for the collection of taxes for construction purposes;

(7) Make a report, at the annual meeting, of their activities during the year preceding such annual meeting;

(8) Provide for work on the tax lagoon;

(9) Provide for adequate maintenance of the tax lagoon.

§ 4352. Duties of secretary-treasurer of tax lagoon.

In addition to any powers and duties set forth elsewhere in this chapter, the secretary-treasurer of the tax lagoon shall:

(1) Keep accurate minutes of all meetings of the lagoon managers and taxables, and such minutes shall be a part of the permanent records of the tax lagoon;

(2) Prepare a complete financial statement at the end of each calendar year, including therein an itemized report of all funds received, all funds expended, all funds due from taxes not yet collected and all sums due and owing by the tax lagoon, and this statement and the records of the secretary-treasurer shall be audited annually by 2 qualified persons and shall become part of the permanent records of the tax lagoon;

(3) Provide for the safekeeping of any funds of the tax lagoon which are placed in his custody;

(4) Attend all meetings of the lagoon managers and taxables.

§ 4353. Bond of secretary-treasurer.

The secretary-treasurer shall, before assuming the duties of his office and within 15 days after his election, furnish a bond in favor of the tax lagoon, in an amount satisfactory to the lagoon managers and with a surety to be approved by the lagoon managers, conditioned for the faithful performance of his duties and for the payment to his successor of all tax lagoon funds. If any person elected secretary-treasurer neglects or refuses to give bond as aforesaid within the time specified, his right to hold such office shall be terminated, and the lagoon managers shall call a special meeting of the taxables to elect a new secretary-treasurer who shall give bond and security as provided in this section.

§ 4354. Failure of lagoon officer to perform duties; remedy; removal.

If any officer of a tax lagoon fails to perform the duties imposed on him by this chapter, any taxable may petition the Superior Court from which the lagoon order was issued and request an order directing said officer to carry out his duties, and upon his failure to comply with the order within the time stated therein, the taxable may further petition the Superior Court for the removal of the officer.

§ 4355. Signatures on instruments issued by tax lagoon.

Any note, bond, warrant or other instrument issued by a tax lagoon pursuant to this chapter shall be signed by the chairman of the lagoon managers and his signature shall be attested by the secretary-treasurer of the tax lagoon.

§ 4356. Liability of tax lagoon officers.

No lagoon manager or other officer of a tax lagoon shall be held personally liable for the obligations of the tax lagoon. The tax lagoon shall indemnify the lagoon managers or other officers in accordance with § 4003 of Title 10 for all tort claims.

§ 4357. Limitation on borrowing power of tax lagoon.

A tax lagoon may borrow money pursuant to this chapter with the consent of a majority of the votes cast at a meeting duly called under § 4348 of this title. No tax lagoon shall borrow money in excess of 90 percent of the total assessment base established by the lagoon order.

Subchapter V. Taxation

§ 4361. Duties of board of assessment; assessment book; assistance by Division of Soil and Water Conservation.

(a) For tax lagoons formed under this chapter, the board of assessment of the county shall transcribe the information shown on the assessment list delivered to it pursuant to subdivision (4) of § 4351 of this title into a special assessment book and it shall keep the same as part of the permanent records of its office. It shall also change the name of the owner shown therein from time to time as such changes are warranted by transfers of the lands assessed, to new owners.

(b) The Division of Soil and Water Conservation shall assist the various boards of assessment of all 3 counties, upon request, to make such changes in their special lagoon assessment books as are warranted by transfers of properties listed therein.

§ 4362. Method of determining tax.

In determining the amount of any taxes to be levied against each owner's lands under this chapter, the lagoon managers shall determine the same in accordance with the ratio which exists between the assessment base for each property and the total assessment base for the tax lagoon.

§ 4363. Warrants by tax lagoons for collection of taxes.

(a) For tax lagoons formed under this chapter, warrants authorizing and requesting the collection of lagoon taxes executed to the receiver of taxes and county treasurer shall be signed by the chairmen of the lagoon managers and the secretary-treasurer or the tax lagoon and shall contain the following information:

(1) The name of the tax lagoon;

(2) The location by county and hundred;

(3) The date said warrant is delivered to the receiver of taxes and county treasurer;

(4) The date that the tax lagoon assessment list was filed with the county assessor;

(5) Total of that assessment list;

(6) Tax rate based on that assessment list;

(7) Total tax to be collected;

(8) Method of payment, if by installments;

(9) Statement as to whether the warrant is for construction, special or maintenance taxes;

(10) Amount and terms of loans, if any, secured by said tax warrant;

(11) Person to be paid directly by receiver of taxes and county treasurer and amounts to be paid to him.

(b) When a tax lagoon includes 2 or more counties, separate tax warrants shall be executed by the lagoon managers to each receiver of taxes and county treasurer thereof.

§ 4364. Same - Duties of receiver of taxes and county treasurer.

All taxes levied by any tax lagoon organized under this chapter shall be collected by the receiver of taxes and county treasurer in the county or counties wherein the lands taxed are located. The receiver of taxes and county treasurer shall accept tax warrants in proper form from such tax lagoons, shall refer to tax lagoon assessment lists on file with the board of assessment of the county and shall collect such taxes warranted annually, pursuant to the terms of the warrants in the same manner as provided by law for the collection of county taxes, and money so collected shall be paid during the months of November, January and July to the receiver designated in the tax warrants. Warrants received not later than May 1st of each year, by the receiver of taxes and county treasurer, shall be processed to be collected during that same year. Tax warrants marked plainly as being for annual maintenance taxes shall be filed by the receiver of taxes and county treasurer in a special binder and the same shall be maintained as part of the permanent records of that office. Such annual maintenance taxes shall be deemed to have been levied by the tax lagoon as of April 30th of each year, except the year in which the original or a revised maintenance tax warrant is delivered to the receiver of taxes and county treasurer, in which case the levy shall be effective from and after the date of the delivery of such warrant. Annual maintenance taxes, once warranted, shall be collected yearly by the receiver of taxes and county treasurer, except that an annual maintenance tax shall not be collected during any tax year when another warrant, whether for construction taxes or special taxes, for an identical portion of the tax lagoon is in effect and is being collected. The receiver of taxes and county treasurer shall accept original tax warrants for annual maintenance taxes signed by the chairman of the lagoon managers and attested by the secretary-treasurer of the tax lagoon. Such warrants may not be withdrawn and may not be revised except with the consent of the county soil conservation district, pursuant to § 4369 of this title.

§ 4365. Installment payment of taxes for construction; lien; amount of first installment.

(a) The lagoon managers may order the tax levied for the cost of dredging to be paid in annual installments and shall designate the method of payment on the tax warrant when it is forwarded to the appropriate receiver of taxes and county treasurer.

(b) In the event that the lagoon managers order the tax levied for the cost of construction to be paid in annual installments, the entire tax shall, nevertheless, constitute a present lien on the lands against which it is levied, and the amount of the first installment shall not be less than the sum of all payments for damages and compensation as set forth in the lagoon order, plus the costs and expenses incurred in the formation of a tax lagoon.

§ 4366. Taxes as security for loans; notation on tax warrant.

A tax lagoon may secure the payment of any loan made to it by entering on the tax warrant provided for in subdivision (5) of § 4351 of this title, a statement setting forth the fact that the taxes shown on the tax warrants have been pledged to secure the payment of a certain designated loan and, if a loan is so secured, by reciting the amount and terms of the loan and from whom it is being obtained, and by directing the receiver of taxes and county treasurer to pay any such taxes collected by him directly to the creditor until the loan is repaid. Such warrant may not be withdrawn and may not be altered or cancelled without the written consent of the creditor until the loan is repaid.

§ 4367. Special tax.

A special tax to raise the funds necessary to carry into effect any of the provisions of this chapter and not otherwise provided for herein, may be levied by the lagoon managers in the same manner as provided in this chapter for levying taxes for original dredging.

§ 4368. Lien of taxes; enforcement.

All taxes levied under this chapter shall constitute a first and paramount lien against the lands to which they apply from and after the date of such levy, subject only to the lien for state and county taxes, which lien may be enforced by sale or otherwise in the same manner as the lien for the county taxes. All such taxes shall be collected by the appropriate receiver of taxes and county treasurer as provided in § 4364 of this title. Penalties for failure to make payment by the due date shall apply to taxes levied under this chapter in the same manner and amount as in the case of county taxes, and funds so received shall be credited to the tax lagoon.

§ 4369. Adjustment of maintenance tax.

When in the opinion of the lagoon managers the amount of the tax levied to defray the cost of maintenance is either insufficient or excessive, they may raise or lower the same for the current and succeeding years with the consent of the Division of Soil and Water Conservation. If the annual maintenance tax is so raised or lowered, it shall be apportioned to each landowner in accordance with § 4362 of this title and a new maintenance tax warrant shall be delivered to the appropriate receiver of taxes and county treasurer.

§ 4370. Limitation on liability of landowner for taxes.

No landowner shall be liable in any manner for any taxes levied by the tax lagoon against the lands of another owner.

Subchapter VI. General Provisions

§ 4381. Payment of damages and compensation.

The damages and compensation awarded by the terms of the tax lagoon order shall be paid to the person entitled thereto out of the first funds available to the tax lagoon under this chapter, and no construction shall commence until said damages and compensation have been paid.

§ 4382. Obstruction of or damage to tax lagoon; civil and criminal liability.

(a) If any person willfully or negligently obstructs or damages any part of a tax lagoon, and upon request of the lagoon managers fails to remove the obstruction or to repair the damage at the person's own expense, the lagoon managers shall see that the obstruction is removed and that the damage is repaired.

(b) The person so obstructing or damaging the tax lagoon shall be liable for all loss or injury caused thereby and the expenses or charges for remedying the same, and said loss or injury, expenses or charges may be sued for and recovered by the lagoon managers in the name of the tax lagoon before any justice of the peace in the county where the obstruction or damage occurred.

(c) Whoever willfully obstructs or damages any part of a tax lagoon, as specified in subsection (a) of this section, or willfully interferes in any way with tax lagoon operations as provided for in this chapter or in a tax lagoon order made pursuant to this chapter, shall be fined not more than $100.

§ 4383. Right of entry upon lands.

The Division of Soil and Water Conservation, engineering personnel hired under § 4334 of this title, the Department of Natural Resources and Environmental Control, the lagoon management commissioners, the lagoon managers, or any of their employees or agents, may enter upon any lands within the tax lagoon at all reasonable times in order to carry out the purpose of this chapter.

§ 4384. Addition of territory to a tax lagoon.

(a) Any landowner who desires his lands to be included within a tax lagoon formed under this chapter, may present a petition for an amendment to the existing lagoon order to include such lands, to the Superior Court of the county which issued said lagoon order through the board of supervisors of the soil conservation district of the same county, and the procedure shall be substantially the same as the method in subdivision (3) of § 4385 of this title, for amending a lagoon order, except that, in addition to establishing an assessment base which will be the basis for all future lagoon taxes, for each parcel of land being included within the tax lagoon, a special assessment, based generally on the approximate total amount of taxes that would have been levied against such parcels of land since the tax lagoon was formed, had such lands been within the original boundaries of said tax lagoon and other considerations, shall be determined by the board of lagoon commissioners and payment thereof prescribed in their report to the Superior Court.

(b) In those cases when any landowner, directly or indirectly, alters lands to utilize any part of a tax lagoon to benefit land which is not within the original boundary of the tax lagoon as established in the lagoon order and which was not assessed as part of the tax lagoon, or which was not assessed to the prong or part of the tax lagoon utilized by the alteration, and when the landowner or owners have not secured an amendment to the lagoon order in accordance with the procedure set forth in subsection (a) of this section, it shall be assumed that such landowner accepts the liability for payment of a special assessment and costs incurred in processing an amendment to the lagoon order, in addition to all future lagoon taxes, and it shall be the duty of the lagoon managers in the name of the tax lagoon to present a petition for an amendment to the existing lagoon order to include such lands, in the same manner as set forth in subsection (a) of this section and the procedure shall be the same as outlined in that subsection, except that estimated costs of processing the amendment shall be added to the special assessment which will be established by the board of lagoon management commissioners.

(c) In those cases when any landowner desires his lands to be included within a tax lagoon and when agreement can be reached on the part of the landowner and the tax lagoon managers as to the special assessment to be paid and the assessment base to be established as the basis for all future lagoon taxes, then method (1) or method (2) of § 4385 of this title may be used to add the additional territory to the tax lagoon.

§ 4385. Alteration of tax lagoons; amendments to lagoon orders.

If it becomes necessary to change any part of a tax lagoon, such changes may be made in one of the following ways:

(1) The desired or required changes, justified in writing and including any necessary maps or drawings, shall be presented by the tax lagoon managers to the taxables at a regularly called tax lagoon meeting. If a majority vote of the taxables present favors the changes, and providing that such changes do not include any relocations of works of improvement, or of the dredge area, or of the maintenance right-of-way on the lands of any owner without the owner's consent, the tax lagoon managers shall present 3 copies of their request for the changes, including the written justification and any necessary maps or drawings, and also including the results of the referendum, to the Division of Soil and Water Conservation for its approval. Should that approval be given, the change shall be effective at once, and the Division of Soil and Water Conservation shall file the original request with supporting papers in the office of the Prothonotary of the proper county, and return 1 copy to the tax lagoon. Whenever changes are made which affect the tax lagoon assessment list, the Division of Soil and Water Conservation shall notify the board of assessment of the proper county of such changes.

(2) When all landowners affected consent to changes of any part of a tax lagoon, including the assessment list, they shall enter into a written agreement to make such changes and present 3 copies of such agreement, together with any necessary maps or drawings, to the Division of Soil and Water Conservation for its approval. Should that approval be given, the change shall be effective at once, and the Division of Soil and Water Conservation shall file the original request with supporting papers in the office of the Prothonotary of the proper county, and return 1 copy to the tax lagoon. Whenever changes are made which affect the tax lagoon assessment list, the Division of Soil and Water Conservation shall notify the board of assessment of the proper county of such changes.

(3) Any landowner within the boundaries of a tax lagoon, or the tax lagoon managers in the name of said tax lagoon, may, at any time, petition for the amendments of the lagoon order that created the tax lagoon. Such petition shall list the changes that are desired and shall be presented to the Superior Court that issued the tax lagoon order through the board of supervisors of the soil conservation district of the same county. That board of supervisors shall require and handle a deposit from the petitioners in accordance with § 4314 of this title, so far as that section is applicable. As soon as the deposit is received, the board of supervisors shall file the petition in the office of the Prothonotary of the proper county without further investigation. Upon the filing of a petition for amendments to a lagoon order in the office of the Prothonotary of a county, the board of lagoon management commissioners of such county, shall, at the direction of the resident judge thereof, go upon the lands of the tax lagoon watershed, if necessary, review the existing lagoon order, consider the changes requested and make determinations regarding these. The board of lagoon management commissioners shall obtain from the Division of Soil and Water Conservation such assistance and information as may be required. The board of lagoon management commissioners, with the assistance of the Division of Soil and Water Conservation, shall prepare a special proposed report in the nature of 1 or more proposed amendments to the existing lagoon order, together with any maps or drawings deemed necessary. Upon completion of that report, they shall give notice, and hold a hearing and referendum in accordance with §§ 4323 and 4324 of this title so far as these are applicable. After holding the hearing and supervising the referendum, the board of lagoon management commissioners shall file the original and 2 copies of its report in the office of the Prothonotary of the county in which all the major portion of the tax lagoon is located and shall attach to the report a certificate showing the results of the referendum and the place where, and the time when, it was held. The board of lagoon management commissioners shall also prepare and attach to the report a statement showing:

a. The board of lagoon management commissioners has fully discharged the duties assigned to it as prescribed by law.

b. Any objections made to the report of the board of lagoon management commissioners which did not warrant further changes in the report and the reasons therefor.

c. Any other recommendations or information which the board of lagoon management commissioners deems advisable including their determination as to whether the petitioners or the tax lagoon are liable for the costs of this action.

Action by the Superior Court shall follow §§ 4328, 4329, 4330, 4331, 4332, 4333 of this title so far as these sections are applicable.

§ 4386. Lagoons near highways.

The Department of Transportation shall maintain the highway drainage system insofar as is possible in such manner as to prevent silt from such system from obstructing any part of a tax lagoon. If silt enters from the highway system and obstructs a tax lagoon the Department of Transportation shall remove the same within a reasonable time after being given notice of such obstruction by the lagoon managers.

§ 4387. Dissolution of tax lagoon.

After a duly called meeting of the taxables at which a majority of all eligible votes have been cast in favor of dissolving a tax lagoon, created under this chapter, the lagoon managers shall prepare a petition requesting such dissolution to the Superior Court through the Division of Soil and Water Conservation. If the tax lagoon has operated for at least 10 years, and if the Division of Soil and Water Conservation is of the opinion that the dissolution of such tax lagoon is in the public interest, it shall file the petition therefor, together with the recommendations of the Division of Soil and Water Conservation in the office of the Prothonotary of the county in which the original lagoon order was issued. After a petition for dissolution has been so filed, the Superior Court shall issue an order dissolving the tax lagoon. No such order of dissolution shall be issued unless and until all obligations of the tax lagoon have been paid in full and all commitments of the tax lagoon have been fulfilled.

§ 4388. Appropriations to Department of Natural Resources and Environmental Control.

An appropriation to the Department of Natural Resources and Environmental Control for purposes of planning, designing and constructing tax lagoons shall be included in the annual appropriation bill (budget bill) of the General Assembly."

Approved July 09, 2002