CHAPTER 245

FORMERLY

SENATE BILL NO. 217

AN ACT TO AMEND THE CHARTER OF THE TOWN OF MILLSBORO, BEING CHAPTER 457, VOLUME 60, LAWS OF DELAWARE, AS AMENDED, ENTITLED "AN ACT TO REINCORPORATE THE TOWN OF MILLSBORO", TO AMEND SECTION 3, ANNEXATION OF TERRITORY, BY MODIFYING THE PROVISIONS TO CLARIFY PROCEDURES, ELIGIBILITY TO VOTE, AND TO PROVIDE FOR ANNEXATION AGREEMENTS AND CONTIGUITY OF NATURAL FEATURES.

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 Section 3 (Annexation of Territory), of Chapter 457, Volume 60, Laws of Delaware, as amended, being entitled “An Act to Reincorporate the Town of Millsboro”, by striking said Section in its entirety and substituting in lieu thereof the following:

“Section 3. Annexation of Territory. In the event it becomes feasible and necessary in the future for the Town to enlarge its then existing limits and territory, such annexation accomplished pursuant to the following procedures shall be lawful:

3.1 Initiation of annexation proceedings when all owners petition.

3.1.1. The written Petition, by all of the property owners of a territory contiguous to the then existing corporate limits and territory of the Town, with the signature of each such Petitioner duly acknowledged, presented to the Council shall include a description of the territory requested to be annexed, the reasons for the requested annexation, and the zoning designation to be applied.

3.1.2. The Mayor shall, by Resolution, appoint a Committee composed of not less than three (3) of the members of the Council to investigate the possibility of annexation and the appropriateness of the zoning designation.

3.1.3. Not later than ninety (90) days following its appointment by the Mayor, as aforesaid, the Committee shall submit a written report containing its findings and conclusions to the Town Council. The report so submitted shall include the advantages and disadvantages of the proposed annexation both to the Town and to the territory proposed to be annexed, shall contain the recommendation of the Committee whether or not to proceed with the proposed annexation, and the reasons therefor, as well as its recommendation for zoning.

3.1.4. In the event that the Committee appointed by the Mayor concludes that the proposed annexation is advantageous both to the Town and to the territory proposed to be annexed, the Town Council may then pass a second Resolution fixing a time and place for a public hearing on the subject of the proposed zoning to be applied to the property proposed for annexation.

3.1.5. Following the public hearing, the Town Council may then pass a third Resolution annexing such territory to the Town and designating the zoning district of said territory. Such Resolution shall be passed by the affirmative vote of a majority of all the members of Town Council.

3.1.6. In the event that the Committee appointed by the Mayor concludes that the proposed annexation is disadvantageous either to the Town or to the territory proposed to be annexed, the procedure to be followed shall be the same as hereinafter provided as if the annexation were proposed by five (5) or more property owners but less than all the property owners of a territory contiguous to the then limits and territory of the Town.

3.2 Fewer than all property owners petition. If five (5) or more property owners but less than all of the property owners of a territory contiguous to the then limits and territory of the Town by written Petition with the signature of each such Petitioner duly acknowledged shall request the Town Council to annex that certain territory in which they own property, the Petition presented to the Town Council shall include a description of the territory requested to be annexed, the reasons for the requested annexation, and the zoning designation or designations to be applied.

3.2.1. The Mayor shall, by Resolution, appoint a Committee composed of not less than three (3) of the members of the Council to investigate the possibility of annexation.

3.2.2. In the alternative, the Town Council, by a majority vote of the elected members thereof, may, by resolution, propose that a committee composed of not less than three (3) of the members of the Town Council be appointed to investigate the possibility of annexing any certain territory contiguous to the then limits and territory of the Town of Millsboro.

3.2.3. Not later than ninety (90) days following its appointment by the Mayor or Town Council, as aforesaid, the Committee shall submit a written Report containing its findings and conclusions to the Mayor and the Council. The Report so submitted shall include the advantages and disadvantages of the proposed annexation both to the Town and to the territory proposed to be annexed, shall contain the recommendation of the Committee whether or not to proceed with the proposed annexation, and the reasons therefor, as well as its recommendation for zoning.

3.2.4. In the event that the Committee appointed by the Mayor or Town Council concludes that the proposed annexation is advantageous both to the Town and to the territory proposed to be annexed, within sixty (60) days after receiving a report, a second Resolution shall propose to the property owners and residents of both the Town and the territory proposed to be annexed that the Town proposes to annex certain territory contiguous to its then limits and territory. The second Resolution shall contain a description of the territory proposed to be annexed and shall fix a time and place for a public hearing on the subject of the proposed annexation and zoning.

3.2.5. In the event that the Committee appointed by the Mayor or Town Council concludes that the proposed annexation is disadvantageous either to the Town or to the territory proposed to be annexed, the Resolution proposing annexation to the property owners and residents shall require the affirmative vote of three-fourths (3/4) of all the members of the Mayor and Council. If the Resolution shall fail to receive the affirmative vote of three-fourths (3/4) of the members of the Town Council, the territory proposed to be annexed shall not again be considered for annexation for a period of at least one (1) year from the date that the Resolution failed to receive the required affirmative vote.

3.2.6. The said second Resolution adopted by the Town Council setting forth the above information shall be printed in a newspaper having a general circulation in the Town at least fifteen (15) days prior to the date set for the public hearing, or, at the discretion of the Town Council, the said Resolution shall be posted in four (4) public places both in the Town and in the territory proposed to be annexed.

3.2.7. Following the public hearing, but in no event later than forty-five (45) days thereafter, a third Resolution, adopted by a majority of the members of the Town Council, shall order a Special Election to be held not less than thirty (30) nor more than ninety (90) days after the said public hearing on the subject of the proposed annexation. Passage of this Resolution shall ipso facto be considered the determination of the Council to proceed with the matter of the proposed annexation.

3.2.8. The notice of the time and place of said Special Election shall be printed within thirty (30) days immediately preceding the date of this Special Election in at least two (2) issues of one (1) newspaper having a general circulation in the Town, or, in the discretion of the Town Council, the said notice may be posted in four (4) public places, both in the Town and in the territory proposed to be annexed at least fifteen (15) days prior to the date set for the said Special Election.

3.2.9. At the Special Election, every property owner, whether an individual, partnership, corporation or other entity, both in the Town and in the territory proposed to be annexed shall have one (1) vote. Every resident of either the Town or of the territory proposed to be annexed over the age of eighteen (18) years who is not a property owner shall have one (1) vote. In the case of property owned by more than one (1) person, firm, corporation, other entity or any combination thereof whether as tenants in common, joint tenants or as tenants by the entireties, each such joint owner shall have one (1) vote.

In the event that a person owns property or has an ownership interest in property both in the Town and in the territory proposed to be annexed and resides in either place, he or she may vote only where he or she resides. In the event that a person owns property both in the Town and in the territory proposed to be annexed but does not reside in either place, he or she may vote only in the Town and not in the territory proposed to annexed. Property owners whose property is exempt from taxation or is not assessed for taxation shall not be entitled to vote. The books and records of the Town, in the case of property owners and residents of the Town, and the books and records of the Board of Assessment of Sussex County, in the case of property owners and residents of the territory proposed to be annexed, shall be conclusive evidence of the right of such property owners and residents to vote at the Special Election.

3.2.10. In the event that an individual on behalf of a partnership, corporation, or other entity holds an unrevoked Power of Attorney duly executed and acknowledged specifically authorizing the said individual to vote at the said Special Election, a duly authenticated copy of the Power of Attorney shall be filed in the Office of the Town. Said Power of Attorney so filed shall constitute conclusive evidence of the right of said person to vote in the Special Election.

3.2.11. The Town Council shall cause voting machines to be used in the Special Election, the form of ballot to be printed as follows:

[ ] For the proposed annexation

[ ] Against the proposed annexation

3.2.12. The Mayor shall appoint three (3) persons to act as a Board of Special Election, at least one (1) of whom shall own property in the Town and at least one (1) of whom shall own property in the property proposed to be annexed. One (1) of the said persons so appointed shall be designated the Presiding Officer. Voting shall be conducted in a public place as designated by the Resolution calling the Special Election. The Board of Special Election shall have available, clearly marked, two (2) voting machines. All votes cast by those persons, partnerships, corporations or other entities authorized to vote as residents or property owners in the territory proposed to be annexed shall be accomplished on one such voting machine and all ballots cast by those persons, partnerships, or corporations who are authorized to vote as residents or property owners of the Town shall be accomplished on the other such voting machine. The polling place shall be open from 1:00 p.m., prevailing time until 7:00 p.m., prevailing time, on the date set for the Special Election. All persons in the polling place at the time of the closing of the polls shall be permitted to vote, even though such votes are not cast until after the time for the closing of the polls.

3.2.13. Immediately upon the closing of the polling place, the Board of Special Election shall count the ballots for and against the proposed annexation and shall announce the result thereof; the Board of Special Election shall make a Certificate under their hands of the votes cast for and against the proposed annexation and the number of void votes and shall deliver the same to the Town Council. Said Certificate shall be filed with the papers of the Council.

3.2.14. In order for the territory proposed to be annexed to be considered annexed, a majority of the votes cast both from the Town and from the territory proposed to be annexed must have been cast in favor of the proposed annexation. In the event that the Special Election results in an unfavorable vote for annexation, no part of the territory considered at the Special Election for annexation shall again be considered for annexation for a period of at least one (1) year from the date of said Special Election. If a favorable vote for annexation shall have been cast, the Town Council shall cause a description and a plot of the territory so annexed to be recorded in the Office of the Recorder of Deeds, in and for Sussex County, but in no event shall said recordation be completed more than ninety (90) days following the date of the said Special Election. The territory considered for annexation shall be considered to be a part of the Town from the time of recordation. The failure to record the description or the plot within the specified time shall not make the annexation invalid, but such annexation shall be deemed to be effective at the expiration of the ninety (90) day period from the date of the favorable Special Election.

3.3 Annexation Agreement.

3.3.1. Notwithstanding any provision herein to the contrary, where, pursuant to this §3 of this Charter, annexation proceedings are initiated by a property owner(s) holding record title to real property in territory contiguous to the then existing corporate limits of the Town, such petition may be made contingent upon an annexation agreement with the Town which agreement may address any matters which would be relevant to the subject lands, if annexed. By way of example and not in limitation, such agreement may address zoning, subdivision approval, tax relief, public utilities, and public improvements. In the event the Town Council approves such an agreement and votes to accept a petition under this §3 of this Charter, such Annexation Agreement shall be deemed a material part of the annexation and shall be included in all subsequent steps of the annexation procedure; that is, (1) the resolutions and notices adopted by the Town Council shall recite that the proposed annexation includes and is subject to an annexation agreement, shall briefly summarize its terms, and shall state that copies of the Agreement are available upon request at the Town Hall; (2) if the results of the election are favorable to the proposed annexation as provided by §3.2.14 of this Charter, the resolution annexing the territory shall recite that the annexation is subject to an annexation agreement and shall incorporate the terms of such agreement by specific reference; and the parties shall be bound to honor the provisions of such agreement unless released therefrom by the other party.

3.3.2. Provided, further, that no agreement made at the time of annexation under this §3.3 shall extend beyond seven (7) years from the date the property is annexed into the Town; and such agreements shall be null and void, and unenforceable after the expiration of seven (7) years.

3.3.3. An annexation agreement may be modified or amended by mutual agreement of the petitioner and the Town Council at any time prior to the resolution ordering the special election pursuant to §3.2.7 of this Charter, but any material modification or amendment shall be deemed to be the withdrawal of the original petition and the filing of a new petition under §3.1. or §3.2.

3.4. Additional Annexation Procedures.

3.4.1. If the territory proposed to be annexed includes only territory which is exempt from taxation, which is owned by the State of Delaware, or which is not assessed on the books of the Board of Assessment of Sussex County, no election shall be necessary and the Town Council may proceed to annex such territory by (1) receiving a certified copy of a Resolution requesting such annexation if such property is owned by a corporation; (2) by a written Petition with the signature of each such Petitioner duly acknowledged if such property is owned by an individual, requesting the Town Council to annex that certain territory in which they own property; or (3) by resolution of the Town Council.

3.4.2. The certified copy of the Resolution or the Petition shall include a description of the territory requested to be annexed, the zoning designation to be applied, and the reasons for the requested annexation.

3.4.3. Upon receipt of the certified copy of the Resolution or the Petition, the Mayor shall, by resolution, appoint a committee composed of not less than three (3) of the members of the Council to investigate the possibility of annexation.

3.4.4. Not later than ninety (90) days following its appointment by the Mayor, as aforesaid, the Committee shall submit a written report containing its findings and conclusions to the Town Council. The report so submitted shall include the advantages and disadvantages of the proposed annexation both to the Town and to the territory proposed to be annexed and shall contain the recommendation of the Committee whether or not to proceed with the proposed annexation and the reasons therefor as well as its recommendation for zoning.

3.4.5. In the event that the Committee appointed by the Mayor concludes that the proposed annexation is advantageous both to the Town and to the territory proposed to be annexed, the Town Council may then pass a second Resolution fixing a time and place for a public hearing on the subject of the proposed zoning to be applied to the property proposed for annexation. Such Resolution, to be effective, shall be passed by the affirmative vote of a majority of all the members of the Town Council.

3.4.6. Following the public hearing, the Town Council may then pass a third Resolution annexing such territory to the Town and designating the zoning district of said territory. Such Resolution shall be passed by the affirmative vote of a majority of all the members of Town Council.

3.4.7. If the Resolution fails to receive the required number of votes, no part of the territory proposed for annexation shall again be proposed for annexation for a period of at least one (1) year from the date that the Resolution failed to receive the required votes.

3.4.8. If the Resolution receives the required number of votes, the Town Council shall cause a description and a plot of the territory so annexed to be recorded in the Office of the Recorder of Deeds, in and for Sussex County, and in no event shall such recordation be completed more than ninety (90) days following the passage of the Resolution. The territory considered for annexation shall be considered to be a part of the Town from the time of recordation. The failure of the Town Council to record the description and plot within the time hereinbefore specified shall not make the annexation invalid, but such annexation shall be deemed to be effective at the expiration of the ninety (90) day period from the date of the passage of the Resolution.

3.5. Highways, Streets, Roads and Alleys; Ponds, Canals, Streams, and Other Waters. Contiguity with the Town’s existing corporate limits, or with other territory which is itself contiguous with the Town’s existing corporate limits, shall not be deemed interrupted by the existence of any highway, street, road, alley, pond, canal, stream, or other body of water which passes through, or lies within the territory to be annexed.

3.6. Limitations. No action contesting the annexation of any territory under this section shall be brought after the expiration of sixty (60) days from the publication of a notice in at least two (2) newspapers, both of general circulation in the Town and in the territory annexed, which notice shall contain the following information:

3.6.1. Notice that the Town has annexed such territory and a description thereof.

3.6.2. Notice that any person or other legal entity desiring to challenge such annexation must bring his or her or its action within sixty (60) days from the date of publication of such notice or forever be barred from doing so.

3.6.3. Such notice shall be in bold print or bordered in black in such manner as to call attention thereto.

3.6.4. In addition to publication as herein provided, the Town Council shall cause a public notice, containing the information set out in subsections §3.4.3.1. and §3.4.3.2. above (using date of ‘posting’ for date of ‘publication’), to be posted in at least five public places in the Town and in at least one place, viewable to the public, in the territory proposed to be annexed.

3.6.5. In the event the publications and/or postings do not appear on the same date, the date of the last publication or posting shall control.”

Approved May 19, 2004