CHAPTER 120

FORMERLY

SENATE BILL NO. 153

AN ACT TO AMEND AN ACT ENTITLED “AN ACT TO RE-INCORPORATE THE TOWN OF ELLENDALE” TO UPDATE THE PROCEDURES FOR ANNEXATION OF LANDS INTO THE TOWN, SIMPLIFYING THE PROCESS FOR PARCELS OF TWO CONTIGUOUS ACRES OR LESS WHERE THE OWNER REQUESTS ANNEXATION; AND, IN ALL OTHER SITUATIONS, REQUIRING A FAVORABLE ELECTION OF THE RESIDENTS AND PROPERTY OWNERS OF THE EXISTING TOWN AND OF THE LANDS TO BE ANNEXED AS A CONDITION PRECEDENT TO ANNEXATION

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Amend §40 of Chapter 197, Volume 64, Laws of Delaware, by deleting the same in its entirety and replacing it with a new §40 as follows:

“Section 40. Annexation of Territory. Subject to state laws of general application to municipalities pertaining to annexation of territory, the town shall have power to annex any additional contiguous territory adjoining the corporate limits of the town as hereinbefore set forth or as hereafter extended pursuant to the procedure set forth in this section, and to apply to all such additional territory all laws, ordinances, resolutions, and policies in force in the town so far as they may be locally applicable. For purposes of this section, "contiguous" means that a part of the boundary of the territory sought to be annexed is coterminous with a part of the boundary of the municipal corporation.

40.1 Initiation of annexation proceedings. 

40.1.1   By petition of the property owners .  Any property owner(s) holding record fee simple to real property in territory contiguous to the then-existing corporate limits of the town may petition the Town Council to annex that certain territory in which they own property. Such petition shall be in writing, duly executed and acknowledged by each petitioner, shall describe with reasonable certainty the territory proposed for annexation, indicate the property owned by each petitioner therein, state the reasons for the requested annexation, and identify the proposed zoning district classification(s) for such territory (which proposed zoning classifications shall be consistent with the town's comprehensive plan). The Town Council may, within 90 days following the filing of such petition in the town office, vote to accept such petition and proceed as hereinafter provided, or to reject such petition. Any petition not so accepted within said 90 days shall be null and void.

40.1.2   Resolution of the Town Council.  The Town Council may, at any time, adopt a resolution proposing the annexation of any territory(s) contiguous to the town. Such resolution shall describe, with reasonable certainty, the territory(s) proposed to be annexed, state the reasons for the proposed annexation, and identify the proposed zoning district classification(s) for such territory(s) (which proposed zoning classifications shall be consistent with the town's comprehensive plan). Upon adoption of such resolution, the Town Council shall proceed as hereafter provided. 

40.1.3. For purposes of this section 40, “territory contiguous to the then-existing corporate limits of the town" shall include both real property which, although itself not contiguous to the town's then-existing corporate limits, is contiguous to other real property which is contiguous to the town’s existing corporate limits and is proposed to be included in the annexation, as well as real property which would be contiguous under section 40.9. 

40.2 Preliminary Annexation Procedures.  Whether annexation is proposed by petition of the property owners or by resolution of the Town Council, the following preliminary procedures shall be complied with: 

40.2.1 First Resolution.  The Town Council shall adopt a resolution notifying the property owners and the residents of both the town and the territory proposed to be annexed, that the town proposes to annex certain territory which adjoins its then corporate limits (“First Resolution”). The resolution shall contain a description of the territory proposed to be annexed, shall identify the zoning district classification(s) proposed for such territory if annexed (which proposed zoning classifications shall be consistent with the town's comprehensive plan), shall indicate whether any annexation agreement is being considered in connection therewith, and shall fix a time and place for a public hearing on the subject of the proposed annexation and zoning. Such resolution may also provide that if the annexation is finally approved, the town shall not be obligated to extend any municipal facilities or improvements unless and until the Town Council, in the sole exercise of its reasonable discretion, determines that it is appropriate for the town to do so or the owner or developer of any property so annexed (or any portion thereof) binds itself, with reasonable surety acceptable to the town, to pay in full all costs and expenses to extend or construct such municipal facilities and improvements to serve such lands (in strict accordance with all governing federal, state, and town regulations and standards), subject to an appropriate "recapture agreement" (acceptable to the town) pursuant to which the owner(s) or developer(s) of other lands benefited by the extensions or improvements paid for by the initial owner/developer under the recapture agreement would pay to the town their equitably-determined proportionate share of such costs and expenses (as a condition precedent to obtaining such extensions and/or improvements) which amounts the town would, upon receipt, rebate to the owner or developer which had originally paid for those extensions and/or improvements.

40.2.2 Referral to Planning Commission.   The Town Council shall forward a copy of the aforesaid resolution, along with any proposed annexation agreement(s) in connection therewith, to the Planning Commission for its advisory review and comment. The Planning Commission's recommendations and comments shall be submitted to the Town Council at or before the public hearing held pursuant to section 40.2.4, provided that if such recommendations or comments are not received from the Planning Commission at or prior to such public hearing, the Town Council may proceed without the benefit thereof.

40.2.3 Compliance with State Statutes of General Application. To the extent required thereby, the Town Council shall comply with the applicable provisions of 29 Del.C. Chapters 92 and 93, and 22 Del.C. Section 101 (as those provisions may from time to time hereafter be amended, or in accordance with any future corresponding provisions of law).

40.2.4 Public Hearing. The Town Council shall provide notice of the public hearing at least 30 days prior to the date of such hearing. Notice thereof shall be given as follows:

(1) Form of Notice. All notices required by this section shall set forth the following information:

(A) subject of the hearing (to consider annexation petition)

(B) date, time, and place of the hearing

(C) description of the subject property(s), to include approximate size, street address, owners of record, location in relation to nearest road(s), tax map parcel number, and deed reference

(D) description of any applicable annexation agreement

(E) the right to submit written comments prior to the conclusion of the public hearing

(2) Notice by Mail. A copy of such written notice shall be mailed to:

(A) the record owner(s) of the subject parcel(s); written notice to one co-owner shall suffice as notice to all

(B) the record owner(s) of all abutting parcels; written notice to one co-owner shall suffice as notice to all

(C) the Delaware Office of State Planning Coordination

(D) the Sussex County Council

(E) the Delaware Department of Public Safety and Homeland Security

(F) the Ellendale Volunteer Fire Company

(G) the Milford School District

(H) the Delaware Department of Transportation

(3) Notice by Posting. A copy of such notice shall be posted:

(A) at the Ellendale Town Hall

(B) at not less than two other public places in the Town

(C) on each parcel of land which is the subject of the annexation petition

(4) Notice by Publication. A copy of such notice shall be published at least once in a newspaper of general circulation in the Town and its general environs.

(5) Controlling Date. Where all forms of notice are not provided on the same date, the date of the last form of notice shall be controlling as regards calculating the number of days notice provided.

(6) Conduct of Public Hearing. At the time, date, and place specified in the resolution proposing annexation (or at any revised date, time, or place if duly noticed as provided in section 40.2.4) the Town Council shall sit to hear comments and opinion from any concerned party (and to receive the recommendations and comments of the Planning Commission, if any) regarding the proposed annexation, any proposed annexation agreement(s) and the proposed zoning district classification(s). In addition to speaking at such hearing, or in lieu thereof, any interested party may submit written comments to the Town Council at any time prior to the conclusion of the hearing. Where such annexation was proposed by the Town Council under section 40.1.2, the owners of record of such lands may submit their written and notarized consent to such annexation prior to the conclusion of the public hearing. Such public hearing shall be for the purpose of obtaining public opinion and legislative fact finding, and the Town Council shall remain free to exercise complete legislative discretion in making its determination with regard to any proposed annexation. 

40.3. Where Annexation of Two Contiguous Acres or Less Requested or Consented to by Record Owners. Where an annexation proposal involving two contiguous acres or less is either initiated at the written petition of all of the owner(s) of record of such parcel(s), or consented to in a notarized writing signed by all the owners of record of such parcel(s) and submitted to the Town Council no later than the conclusion of the public hearing held pursuant to section 40.2.4, the Town Council may, at any duly noticed regular or special meeting held within six months of the public hearing, vote to accept or to reject such proposed annexation(s) and, if to accept, to proceed in accordance with section 40.5.

40.4    Where Proposed Annexation Exceeds Two Contiguous Acres and/or Not Requested By Or Consented To By All Owners Of Record (“Second Resolution”).  Where the lands proposed for annexation exceed two contiguous acres and/or where all of the owners of record to any parcel of land proposed for annexation have neither requested or consented to annexation by the close of the public hearing, the Town Council may, at any time within the six months following the public hearing, pass a resolution ordering a special election to allow the owners and residents of all lands proposed for annexation and of all lands within the existing municipal limits to approve or reject such annexation (“Second Resolution”). Such special election shall be held not less than 30 days, nor more than 60 days after the date of the resolution ordering the special election. Such resolution shall identify the zoning district classification(s), consistent with the comprehensive plan, which shall be assigned to the territory(s) if annexed, and indicate if the annexation is subject to an annexation agreement. The passage of this resolution shall ipso facto be considered the determination of the Town Council to proceed with the proposed annexation, zoning district classification, and annexation agreement (if applicable) if the results of the election are in favor of the annexation. 

40.4.1 Notice of Special Election. The Town Council shall give notice of the special election not less than 15 days prior to the date of the election as follows:

(1) Form of Notice. All notices required by this section shall set forth the following information:

(A) subject of the special election (to approve annexation)

(B) date, time, and place that the polls will be open

(C) description of the subject property(s), to include approximate size, street address, owners of record, location in relation to nearest road(s), tax map parcel number, and deed reference

(D) the proposed zoning designation(s)

(E) qualifications of voters entitled to vote

(F) If such annexation is subject to an annexation or “re-capture” agreement, and if so, a brief description thereof, and that copies thereof are available for inspection at the Town Hall.

(2) Notice by Mail. A copy of such written notice shall be mailed to:

(A) the record owner(s) of the subject parcel(s)

(B) the residents of the subject parcel(s) as known to the Town

(3) Notice by Posting. A copy of such notice shall be posted:

(A) at the Ellendale Town Hall

(B) at not less than two other public places in the Town

(C) on each parcel of land which is the subject of the annexation election

(4) Notice by Publication. A copy of such notice shall be published at least once in a newspaper of general circulation in the Town and its general environs.

(5) Controlling Date. Where all forms of notice are not provided on the same date, the date of the last form of notice shall be controlling as regards calculating the number of days notice provided.

40.4.2.   Those entitled to vote.   

(1) Qualifications to Vote.  At such special election, any person residing within the existing municipal limits who would be entitled to vote at the annual town election, and any person residing in the area proposed to be annexed who would be entitled to vote at the annual town election if the area proposed to be annexed was already included in the town, shall be entitled to one vote. (For purposes of this section, as to those persons residing in the area proposed for annexation, "lawfully entitled to vote" shall not include "registered to vote" if registration is required for town elections). In addition, each legal entity or natural person holding record title in its own name to lands located within the existing municipal limits or in the territory proposed to be annexed, shall be entitled to one vote. All persons appearing to vote shall be required to provide satisfactory proof of identity and of their property ownership or residency.

(2)  “One man, One Vote”. These provisions shall be construed so as to permit only "one-man, one vote." Where a voter is entitled to vote by virtue of both residence and ownership of property, that voter shall be entitled to only one vote; where a voter is entitled to vote by ownership of two or more properties, that voter shall be entitled to only one vote. Provided, however, that a voter qualifying to vote in the election conducted for the residents and property owners of the existing municipal limits and also in the election conducted for the residents and property owners of the lands proposed to be annexed shall be entitled to cast one vote in each election.

(3)  Powers of Attorney. Any legal entity (other than a natural person) entitled to vote must cast its vote by a duly executed and acknowledged power of attorney. Any natural person may cast his/her vote by a duly executed and notarized power of attorney. Such power of attorney shall be surrendered to the board of special election. Such power of attorney so filed shall constitute conclusive evidence of the right of said person to vote in the special election on behalf of the legal entity or natural person granting the power.

40.4.3   Conduct of the special election . The Town Council shall conduct two simultaneous elections: one for the residents and property owners within the existing municipal limits, and one for the residents and property owners of the lands proposed for annexation. The Town Council may cause voting machines, electronic voting systems, or paper ballots to be used in the special election, as required by law, the form of ballot to be printed as follows: 

_________ For the proposed annexation.

_________ Against the proposed annexation.

40.4.4 Board of Special Election. At the same meeting where the Town Council sets the date for the special election, the Town Council shall appoint three persons to act as a board of special election. One of the said persons so appointed shall be designated the presiding officer. The board of special elections shall oversee the conduct of the special election and shall be the sole and final judges of the legality of the votes offered at such special election. It shall keep a true and accurate list of all natural persons and other legal entities voting. Voting shall be conducted in a public place as designated by the resolution calling the special election. The polling place shall be open for such period of time as the Town Council determines to be reasonable and appropriate under the circumstances, not less than six hours, as set by the Town Council, 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. The Board shall provide for two separate ballot boxes or voting machines, one of which shall be for the qualified voters from within the existing municipal limits and one of which shall be for the qualified voters of the lands proposed for annexation. All ballots cast shall be deposited in the appropriate designated ballot box(es) or cast on the appropriate designated voting machine(s).

Immediately upon the closing of the polls, the Board shall separately count the ballots from each ballot box or voting machine in favor of annexation and the ballots against annexation and shall promptly and publicly announce the results thereof. The Board shall prepare a report of its activities and transmit such report (signed by all members of the Board), together with any records and documents (including all powers of attorney and ballots, whether accepted or rejected by the Board as invalid) to the Town Council within five days following the special election. Each member of the Board of Election shall be paid such reasonable sum as determined by the Town Council for their services in connection therewith. The Board of Special Election shall automatically be dissolved at the Town Council meeting where the report of the Board is accepted by the Town Council.

40.4.5 Expenses of Annexation Election. The Town shall pay all expenses necessary to conduct any special annexation election, including the cost of providing public notice, printing ballots, preparing ballot boxes, compensation of the members of the Special Board of Election, and any other documented and reasonable costs incurred by the Special Board of Election in connection with the holding of the special election. The Town may charge fees to the owners of properties seeking annexation to recover all of the Town’s expenses related to conduct the special election for the annexation(s).

40.4.6   Results of special election.   

(a)   In order for the annexation to succeed, it shall be approved by a majority of the votes cast in both the election conducted for the voters within the existing municipal limits, and by a majority of the votes cast in the election conducted for the voters within the lands proposed for annexation.

(b)   If the vote is favorable to the proposed annexation, the Town Council shall at its first meeting following the special election proceed in accordance with section 40.5 to adopt a resolution annexing the said territory and including it within the limits of the town (“final resolution”), as well as an ordinance designating the zoning district classification(s) of the territory(s) so annexed.

40.5. Adoption of Final Resolution; Notice to Agencies.

40.5.1 Final Resolution. Whether acting pursuant to section 40.3 (annexation requested or consented to) or 40.4 (majority of votes at annexation election cast in favor of annexation) the Town Council shall adopt a resolution annexing the said territory and including it within the limits of the town (“final resolution”). Contemporaneous therewith, the Town Council shall also adopt an ordinance designating the zoning district classification(s) of the territory(s) so annexed, which shall be consistent with the town's comprehensive plan. If the initial resolution proposing annexation provided that the town was not obligated to extend municipal facilities or improvements to the annexed lands as provided in section 40.2.1, the resolution annexing such lands shall contain the same or substantially similar provisions.

40.5.2 Upon the adoption of said resolution of annexation, copies thereof, signed by the President, and certified by the secretary, together with a plot of the area annexed, shall forthwith be filed for record in the office of the Recorder of Deeds in and for Sussex County, and delivered or mailed to the Office of State Planning, the Sussex County Administrator, the Milford School District, the Ellendale Volunteer Fire Company, the Office of State Homeland Security, and the Delaware Department of Transportation; provided however, that the failure to record such resolution, or the failure to deliver or mail a copy thereof to all or any of the agencies specified herein shall not in any way effect the validity of the annexation, but such recording may be enforced by writ of mandamus or mandatory injunction.

40.5.3 Effect of Annexation. From the moment of adoption of the “final” resolution as set forth in section 40.5, the lands so annexed shall be included within the municipal boundaries of the Town and shall be subject to all of the jurisdiction and authority of the Town, the same as any other lands located within the Town’s corporate limits.

40.6 Simultaneous annexation proceedings. Provided that such parcels otherwise meet the requirements of this charter for contiguity, nothing herein shall be deemed to require the Town Council to include all contiguous parcels proposed for annexation as one "territory" in one annexation election, but the Town Council may, in its sole discretion, simultaneously conduct an annexation election on each such parcel, or on such combinations of contiguous such parcels, as it deems appropriate; nor shall anything herein prevent the Town Council, in its sole discretion, from combining two or more contiguous parcels proposed for annexation into one "territory" for purposes of conducting an annexation election.

40.7  Re-submission of proposed annexation .  Nothing in this section shall prohibit the council from resubmitting a proposal for annexation to the voters of said territory, or any portion thereof, under the authority of this section 40 and in accordance with the provisions hereof. 

40.8 Annexation agreements. Notwithstanding any provision in the municipal charter of the Town of Ellendale to the contrary, the Town Council is hereby authorized to enter into annexation agreements with the owners of record of any lands proposed for annexation as a condition precedent to annexation. By way of example and not in limitation, such agreements may address zoning, subdivision approval, site plan approval, tax relief, public utilities, impact fees, completion and maintenance bonds, and public improvements. No provision of any annexation agreement shall violate the town's comprehensive plan. The Town Planning Commission shall review any annexation agreement submitted and make a report or recommendation thereon to the Town Council no later then the public hearing required by section 40.2.4; provided, however, that if the Planning Commission shall fail to make a report or recommendation by the time of the public hearing, the Town Council may act without such report or recommendation, and, in all events, the Town Council shall not be bound by the report or recommendation of the Planning Commission, but the Town Council shall make the final determination thereon. The Town Council may, with the concurrence of the entity petitioning for annexation, make revisions to the annexation agreement without reconsideration thereof by the Planning Commission. In the event the Town Council approves such an agreement, such annexation agreement, as reviewed and finally approved, shall be deemed a material part of the annexation and shall be included in all applicable subsequent steps of the annexation procedure, that is: (1) the resolutions and notices adopted by the Town Council in connection with any annexation election held pursuant to section 40.4, 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) the final resolution annexing the territory (as provided by section 40.5) shall recite that the annexation is subject to an annexation agreement and shall incorporate the terms of such agreement by specific reference; and (3) the public notice establishing a 60-day statute of limitations to challenge the annexation (pursuant to section 40.10) shall recite that the annexation is subject to an annexation agreement, shall briefly describe the terms thereof, and state that a copy thereof is available for inspection at the Town Hall. The parties shall be bound to honor the provisions of such agreement unless released therefrom by the other party; provided however, that no annexation agreement made at the time of annexation under this section 40.8 shall extend beyond seven years from the date the property is annexed into the town; and such agreements shall be null, void, and unenforceable after the expiration of said seven years.

An annexation agreement may be modified or amended as to minor or non-substantive provisions by mutual agreement of the parties thereto at any time prior to the adoption of the final resolution pursuant to section 40.5; but any significant or substantive modification or amendment shall be deemed to be the submission of a new annexation agreement and shall require that all applicable proceedings, commencing with section 40.2.1, be repeated with the new annexation agreement.

40.9   Property owned by the State of Delaware; highways, streets, roads, alleys, railroads, ponds, canals, streams and other waters.   

(a)   Real property owned by the State of Delaware may be annexed into the town without the State's casting a vote in the special election, provided the state agency having control and supervision thereof does not notify the town, in writing, of its objection to such annexation within 30 days after notice of the public hearing.

(b)   Highways, streets, roads, alleys, and railroads; 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, railroad, pond, canal, stream, or other body of water running parallel with and between the parcel sought to be annexed, but nothing herein shall be construed to allow rights of way, utility easements, waterways, or like features to be annexed in "corridor" fashion or to be utilized as a corridor route for annexation to create contiguity.

40.10   Limitations .  No action contesting the annexation of any territory under this section shall be brought after the expiration of 60 days from the publication of a notice in a newspaper of general circulation in the town and in the territory annexed, which notice shall contain the following information: 

(a)   Notice that the town has annexed such territory and a description thereof, together with the designated zoning and, if subject to an annexation agreement, a brief description thereof and a statement that a copy thereof is available for inspection at the Town Hall;

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

(c)   Such notice shall be in two-column or “display ad” format and in bold print or bordered in black in such manner as to call attention thereto;

(d)   In addition to publication as herein provided, the Town Council shall cause a public notice, containing the information set out in subsections (a) and (b) above (using date of "posting" for date of "publication"), to be posted at the Town Hall and in at least two other public places in the town. In addition a copy shall be posted on each parcel of land subject to the annexation in a place viewable to the public.

(e)   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 July 12, 2007