§ 131 General jurisdiction.
(a) All the public roads, causeways, highways and bridges in this State which have been or may hereafter be constructed, acquired or accepted by the Department of Transportation shall be under the absolute care, management and control of the Department.
(b) All roads and streets situate in unincorporated suburban communities throughout the State which were built or created between July 1, 1935, and July 1, 1951, whether paved or unpaved, shall henceforth be under the absolute care, management and control of the Department and shall be maintained, repaired and reconstructed by the said Department.
(c) The Department shall immediately commence the necessary preliminary work in order to bring these roads up to proper standards as soon as possible with due consideration for the immediate needs of certain areas.
(d) The general jurisdiction conferred upon the Department by this section shall be exercised by it by the establishment and supervision of any and all policies which may be necessary or appropriate to implement such jurisdiction.
(e) All roads and streets not dedicated to the public use and intended to be private, as indicated on the filing plan, situated in an unincorporated suburban community within the State, shall be constructed in accordance with rules and regulations adopted by the county in which such road or street is located. Such rules and regulations for construction of private subdivision streets and roads shall, in addition to specifying standards for the design and construction of such private streets and roads, establish a mechanism to provide for the perpetual maintenance of such private streets and roads, but in no event shall the State or county be responsible for such maintenance. In addition, the following provisions shall apply to all such streets and roads:
(1) In the event that the county has not adopted rules and regulations for construction of private subdivisions, streets and roads or such rules and regulations have been established and there is no mechanism contained therein to provide for the perpetual maintenance of private subdivision streets or roads, all such roads or streets shall be constructed in accordance with standards set forth by the Department of Transportation, Division of Highways, for streets and roads dedicated to public use.
(2) Private roads or streets shall not be accepted for maintenance by the State until:
a. The right-of-way for the streets and roads has been dedicated to the public use, accepted by the State and the streets and roads constructed or reconstructed at the expense of the property owners in accordance with the standards established by the Department of Transportation, Division of Highways, for streets and roads dedicated to public use in accordance with Chapter 5 of Title 9; and
b. The Department's Division Engineer, Maintenance Engineer and Subdivision Engineer, if applicable, for the division in which the roads are situated have each certified that the roads to be accepted by the State have been constructed or reconstructed in accordance with the construction plans approved by the Department; and
c. Copies of such certifications have been forwarded to the members of the General Assembly in whose districts the roads to be accepted are situated.
(3) In the event any real property with road frontage or a private road or street, constructed or reconstructed pursuant to this section, which road or street is not to be maintained by the State, is conveyed subsequent to such construction or reconstruction, the deed conveying such real property shall contain a statement that such private street or road is not maintained by the State.
(4) Any private road, street or thoroughfare in the State shall be constructed either in accordance with state standards and pursuant to department rules and regulations or pursuant to rules and regulations established by the county. In either event, a mechanism for perpetual maintenance must be established. The State and county shall have concurrent jurisdiction to enforce the requirements of this section by legal or equitable means. The county shall withhold the issuance of building or occupancy permits for any structure abutting such road, street or thoroughfare to insure compliance with the requirements of this section.
(f) The Department of Transportation, Division of Highways, is hereby authorized to inspect all suburban community street construction and to establish and collect fees for the inspection of said street construction in amounts deemed necessary to defray costs of administering this section. All fees collected shall be placed to the credit of the Department of Transportation, Division of Highways.
(g) All roads and streets situated in unincorporated suburban communities throughout the State which were built between July 1, 1951, and July 1, 1975, whether paved or unpaved, shall, upon dedication of a right-of-way to public use, henceforth be under the absolute care, management and control of the Department of Transportation, Division of Highways, and shall be maintained, repaired and reconstructed by the said Department of Transportation, Division of Highways. Said right-of-way shall be determined by the Department of Transportation, Division of Highways, in accordance with physical conditions, but in no case shall be less than 30 feet in width. Dedication of the right-of-way must occur prior to June 30, 1978, to qualify for the aforementioned responsibilities under the auspices of this section.
(h) The Department of Transportation, Division of Highways, is hereby authorized and directed to immediately inventory all streets which may fall within this category and upon completion begin the necessary maintenance. Work to bring these roads up to proper standards, with due consideration for the immediate needs of certain areas, shall be undertaken as time and funds permit.
(i) In connection with the Department's review of subdivision proposals affecting the transportation system, it is authorized to collect fees for the costs of administering the subdivision approval process. The fees for such purposes shall be as follows:
Initial stage fee:
1. Plan review, residential subdivisions of 5 lots or more: $400 plus $10 per lot;
2. Plan review, nonresidential property: $500 plus $20 per lot or $20 per 1,000 square feet of gross floor area, whichever is greater.
Construction stage fee:
1. Residential subdivisions of 5 lots or more: 125% of initial stage fee;
2. Nonresidential property: 150% of initial stage fee.
For review of residential subdivisions of 4 lots or less, in lieu of the staged fees set forth above, there shall be a single fee of $100. If all or a portion of the property subject to this fee is re-subdivided within 10 years of the payment of this fee, that subdivision shall be treated for fee purposes as if planned for 5 lots or more. All fees collected shall be deposited to the credit of the Transportation Trust Fund, established in Title 2.
40 Del. Laws, c. 107, §§ 1, 2; Code 1935, § 1645; 17 Del. C. 1953, § 131; 50 Del. Laws, c. 380, § 1; 53 Del. Laws, c. 39, § 4; 57 Del. Laws, c. 671, § 1C; 60 Del. Laws, c. 185, § 1; 60 Del. Laws, c. 450, § 1; 60 Del. Laws, c. 503, § 18; 63 Del. Laws, c. 130, § 1; 64 Del. Laws, c. 312, § 1; 71 Del. Laws, c. 150, § 82; 71 Del. Laws, c. 378, §§ 87, 88; 76 Del. Laws, c. 328, § 1.;
§ 132 General powers and duties.
(a) The Department shall acquire full information concerning the roads of this State, the nature and improvement thereof, the needs thereof and the character and amount of traffic thereon and such other details as may be necessary or desirable for the Department to have in the performance of its duty of determining upon and laying out, without regard to any personal advantage or disadvantage or bias toward any person or persons, community or political party or organization, consistent and congruous route or routes of state highways with a view to establishing such a consistent, congruous, comprehensive and permanent system of state highways along the route or routes of travel as will accommodate the greatest needs of the people of this State.
(b) The Department shall:
(1) Determine upon, lay out, construct or reconstruct state highways so as to make roads which, with reasonable maintenance, shall be permanent;
(2) Maintain all state highways under its jurisdiction;
(3) Maintain a system of accounting adequate to give in detail the expenditures of the Department and the costs of its works;
(4) Keep full and accurate minutes of all meetings and records of all proceedings of the Department, which minutes and records shall be public records;
(5) Reimburse the owner thereof for the expense (as hereinafter defined) of the relocation of public utility facilities necessitated by any project where the State is to be reimbursed by at least 90% of the cost of such project from federal funds or by the federal government or any agency thereof, such expense to be the amount paid by such owner properly attributable to such relocation after deducting therefrom any increase in the value of the new facilities and any salvage value derived from the old facilities;
(6) Install on state land the tile necessary, in the opinion of the Department, to provide adequate entrances and exits to and from the property of adjoining landowners provided:
a. The tile is supplied by the adjoining landowners;
b. The tile conforms to the specifications established from time to time by the Department; and
c. The property is a single residential lot occupied or to be occupied by the land owners and intended for residential use only; or
d. The property is agricultural use land. "Agricultural use land" shall mean land devoted to the production for sale of plants and animals useful to humans, including but not limited to: Forages and sod crops; grains and feed crops; dairy animals and dairy products; poultry and poultry products; livestock, including beef cattle, sheep, swine, horses, ponies, mules or goats, including the breeding and grazing of any or all of such animals; bees and apiary products; fur animals; trees and forest products; or when devoted to and meeting the requirements and qualifications for payments or other compensation pursuant to soil conversation program under an agreement with an agency of the federal government.
Nothing contained in this subsection shall relieve the Department from the responsibility for replacing tile originally installed by the Department or any governmental agency and subsequently damaged by operations of the Department;
(7) Maintain the Van Buren Street Bridge over the Brandywine Creek;
(8) Provide relocation assistance to persons displaced as a result of the acquisition for highway purposes of real property upon which they live or conduct a business or farm operation in accordance with Chapter 91 of Title 29.
(c) To these ends the Department may:
(1) Determine upon and lay out a system of state highways;
(2) Take over and convert into state highways any public road by whatever name such road or part thereof, or under whatever authority or control such road or part thereof, may have theretofore existed;
(3) Lay out, open, widen, straighten, grade, extend, construct, reconstruct and maintain any state highway or proposed state highway for the purpose of the improvement of state highways;
(4) Acquire by condemnation or otherwise any land, easement, franchise, material or property, which, in the judgment of the Department, shall be necessary therefor, provided that the Department shall not reconstruct a highway unless there will result a net saving or reconstruction, further provided that § 145 of this title shall not be deemed to be inconsistent with the provisions hereof;
(5) Have access to and make copies of maps, surveys, data or information which any state agency may possess concerning any road in the State;
(6) Employ and discharge professional or technical experts, surveyors, agents, assistants, clerks, employees and laborers, skilled and unskilled, and also such advisers and consultants as may be required to accomplish the purposes of the chapter and the other responsibilities of the Department. In the event that the size of the capital improvement program requires overtime to administer in a timely manner, or in the event that: (i) The federal government makes available additional funding for transportation projects which are part of the Department's capital improvement program; and (ii) use of these funds in a particular federal fiscal year is required to access these funds; and (iii) overtime is required to administer the program within that federal fiscal year to assure the use of these funds, then for these purposes the Department may pay overtime moneys to those employed pursuant to this subsection, any relevant Delaware law, rule or regulation to the contrary notwithstanding;
(7) Secure offices and quarters for the Department and furnish the same;
(8) Exclusively grant franchises and licenses to public service corporations or to corporations furnishing gasoline or petroleum products to the air field installation operated by the federal government in Kent County, to use the state highways, in whole or in part, for a term not exceeding 50 years; provided, however, that any franchise or license granted to any such corporation furnishing gasoline or petroleum products to said air field installation shall restrict the use of said state highways to the transmission of gasoline or petroleum products to said air field installation. Any franchise or license owned by any public service corporation on April 2, 1917, shall not be affected by this chapter;
(9) Make and enter into any and all contracts, agreements or stipulations for the execution of the purposes of this chapter;
(10) Purchase all machinery, tools, supplies, material and instrumentalities whatsoever which may be necessary for the full performance of its duties;
(11) Call upon the Attorney General for the Attorney General's opinion or advice touching its duties or powers;
(12) Accept lands by easement or lease in the name of the State in areas where it is deemed necessary to establish dumping areas for the use of the public, supervise and control all areas so accepted and provide suitable passageways to the dumping areas and further, police the areas in order to prevent the spread of pests and disease and make such other regulations and rules as shall be deemed necessary for the purpose of carrying out the intent and purpose of this paragraph;
(13) Enter upon the lands or waters of any person for the purpose of surveys, repairs, reconstruction and operation of publicly financed improvements but subject at all times to responsibility for all and any damages which shall be done to the property of any such person or persons. Water levels to be maintained back of publicly financed sluices, water control structures, dams and similar structures shall be at a level that will not cause damage to adjoining property, such as seepage of water into basements and wells, and that no lands shall be flooded without the owners' full consent; and
(14) Place vending machines and/or other items that will enable drivers to be more rested and refreshed in safety roadside rest areas, unless prohibited by federal laws, rules or regulations. Any profits derived from such items shall be credited to the Department of Transportation Safety Roadside Rest Area Fund.
a. There is hereby created within the State Treasury a special fund to be designated as the Department of Transportation Safety Roadside Rest Area Fund which shall be used in the operation and maintenance of the roadside rest areas under the jurisdiction of the Department.
b. Any profits realized by the Department from items available at existing roadside rest areas that are for the purpose of enabling drivers to be more rested and refreshed shall be deposited in the State Treasury to the credit of said Department of Transportation Safety Roadside Rest Area Fund. Such profits shall be used by the Department for the operation and maintenance of the safety roadside rest area facilities within its jurisdiction.
(d) The Department may also do whatever is incidental and germane to the scope of the duties and powers conferred on it by law.
(e) The general powers and duties conferred upon the Department by this section shall be exercised by it by the establishment and supervision of any and all policies pursuant to which such powers and duties shall be carried out.
(f) Whenever the Department of Transportation widens, constructs or reconstructs any major arterial, minor arterial, collector road or proposed road in an urbanized area of this State, the Department shall incorporate within such plans, layout, widening, construction or reconstruction the construction of sidewalks, provided there is a need for sidewalks or that it can be reasonably anticipated that the need for sidewalks will exist. The Department shall have the responsibility for determining whether such need for sidewalks does or will exist for all or any part of any such project and, before arriving at a decision as to the need of such sidewalk construction, shall consult with the county department of planning, the State Planning Office, the Department of Education and the local school district in which the proposed new road construction or road widening construction is to take place. The cost of such sidewalk construction shall be included in the total cost of the new road construction or road widening project. This subsection shall apply only to projects funded pursuant to acts authorizing the State to borrow money and issue bonds and notes for capital improvements, enacted after January 1, 1973.
(g) The Department shall have exclusive original supervision and regulation of all public carriers and also over their property, property rights, equipment, facilities, franchises, rates, fares, tariffs, regulations, practices, measurements and services.
(h) The Department may work in conjunction with any political subdivision of the State and with any private organization to plan and construct such bicycle and pedestrian transportation facilities as may be appropriate. In carrying out this portion of its overall program, the Department may take into consideration in scheduling its projects those in which the affected local community is willing to contribute a matching share (whether in cash, rights of way, or other in-kind services) in order to accomplish the project.
29 Del. Laws, c. 63, § 5; Code 1935, § 5722; 17 Del. C. 1953, § 132; 49 Del. Laws, c. 262; 51 Del. Laws, c. 141, § 1; 51 Del. Laws, c. 328; 52 Del. Laws, c. 295; 53 Del. Laws, c. 39, §§ 5, 6, 13; 54 Del. Laws, c. 251; 55 Del. Laws, c. 14; 56 Del. Laws, c. 101; 57 Del. Laws, c. 327, § 1; 57 Del. Laws, c. 671, § 1F; 57 Del. Laws, c. 754, § 2; 58 Del. Laws, c. 585; 59 Del. Laws, c. 393, § 4; 60 Del. Laws, c. 386, § 1; 60 Del. Laws, c. 503, § 18; 62 Del. Laws, c. 384, § 1; 68 Del. Laws, c. 98, § 1; 68 Del. Laws, c. 156, § 47; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 65, § 19; 73 Del. Laws, c. 351, § 1; 75 Del. Laws, c. 98, § 95.;
§ 133 Road improvements; additions to state system.
With respect to roads or portions thereof, the Department shall determine which if any, shall be improved and which, if any, shall be added to the state highway system.
§ 134 Authority in incorporated towns and cities; construction and maintenance of highways; local authority.
(a) The Department shall have no power, authority or jurisdiction of the streets of any incorporated city or town, except as otherwise provided in this section, unless such power, authority and jurisdiction shall be voluntarily given and surrendered by such city or town to the Department and then only upon such terms as the Department shall prescribe.
(b) When in the judgment of the Department the route for the construction or reconstruction of any state highway should continue through any incorporated city or town, the Department shall construct and maintain the highway through such incorporated city or town, such construction and maintenance to be at the sole expense of the Department. Whenever the Department shall construct a state highway through any incorporated city or town, it shall not change the widths of the streets of the city or town, except with the consent of the duly constituted governing body of the city or town.
(c) Whenever the Department shall construct a state highway through an incorporated city or town, it shall have the whole and sole control over such construction and over the maintenance of the highway through the city or town, and such highway shall not be undermined, broken open or anywise torn up for any purpose, except by the permit in writing of the Department.
(d) With respect to state highways within their corporate limits, incorporated cities and towns in the State may erect and maintain such traffic control signals as shall be authorized by proper ordinance of the city or town and by the Department.
(e) Local authorities, on the basis of an engineering study and traffic investigation within their respective jurisdictions, may prohibit the operation of trucks or other commercial vehicles or impose limitations as to the weight thereof on designated highways which prohibitions and limitations shall be posted as set forth in § 4505 of Title 21; except that the alteration of weights or the prohibitions of trucks or other commercial vehicles shall not be effective on any state-maintained highway until such alteration has been approved by the Department.
(f) Local authorities, within their respective jurisdictions, may create "historic districts" which encompass 1 or more state-maintained roads, and the standards for traffic signs and traffic markings on any such road may be altered by the Department of Transportation to be more compatible with the time period of the historic district, unless:
(1) The posted speed limit on the road is above 25 miles per hour;
(2) There are more than 2 through-travel lanes on the road;
(3) The road is a U.S. or Delaware route; or
(4) The road has no reasonable alternative route which can adequately handle the traffic.
Any traffic signs or traffic markings that are proposed under this subsection must be approved by the Department of Transportation.
(g) Each rule and regulation adopted pursuant to this section shall be in the form of a resolution signed by the Secretary. A permanent record of these shall be kept by the Department and at the time of adoption a copy of each shall be forwarded to the Department of Safety and Homeland Security, to the New Castle County Police, if within their jurisdiction, and to the incorporated city or town in which the highway lies.
(h) Pursuant to this section, the Department is authorized to perform all engineering studies and traffic investigations necessary to implement this section and Chapter 41 of Title 21, and to install, maintain, operate and remove all traffic-control devices necessary to comply with this section and Chapter 41 of Title 21. Where concurrent authority is granted, the incorporated town or city shall have the responsibility for traffic-control devices.
(i) Nothing in this section shall be construed as granting to the Department or to the local jurisdiction the right to make any rules and regulations respecting the use of highways in incorporated areas contrary to the Code.
29 Del. Laws, c. 63, § 5; 30 Del. Laws, c. 69; 32 Del. Laws, c. 53; Code 1935, §§ 5722, 5728; 17 Del. C. 1953, § 134; 60 Del. Laws, c. 701, § 1; 66 Del. Laws, c. 127, §§ 1, 2; 74 Del. Laws, c. 110, § 138.;
§ 135 Authority to construct dual and express highways.
(a) The Department may divide or separate any state highway into separate roadways wherever there is particular danger to the travelling public of collision between vehicles proceeding in opposite directions or from cross traffic, by constructing curbs, central dividing parkways or other physical separations, or by signs, marks or other devices, in or on the roadway, appropriate to designate the dividing line.
(b) The Department may designate as express highways, and control public or private access thereto, the westerly approach or approaches to the Delaware Memorial Bridge and any road or roads heretofore or hereafter constructed by the Department for the purpose of connecting such Bridge or its westerly approach or approaches with any existing highway in this State.
§ 136 Improvements of roads leading to institutions.
The Department may widen, straighten, grade, reconstruct and otherwise improve and maintain any road, lane or entrance leading from any public road to any institution which is owned or controlled in whole or in part by the State. The Department shall have the same rights, powers and privileges for the purpose of performing and carrying out the duty hereby imposed as it has for the purpose of constructing state highways in general.
§ 137 Acquisition and sale of real property.
(a)(1) The Department, in the name of the State, may only acquire private or public property and property rights needed to provide public thoroughfares such as pathways, roads, streets, highways, or to preserve the traffic capacity in existing thoroughfares in accordance with § 145(d) of this title, sidewalks, bus shelters, parking areas in support of public transit, maintenance yards and similar public transportation related facilities, including rights to access, air, view and light by gift, devise, purchase or in the exercise of the power of eminent domain, acquire the same by condemnation by proceeding in the manner prescribed in Chapter 61 of Title 10, be authorized by law to acquire such property or property rights for the purposes set forth in this section and within its jurisdiction. Property rights so acquired shall be in fee simple absolute or such lesser interest as the Department may deem appropriate. Except as provided in paragraph (a)(2) of this section, no acquisition of real property or property rights shall be made without Department approved final right-of-way plans depicting the proposed acquisitions and that approval coming only after the project has been developed and plans prepared in accordance with all applicable governing laws, rules and regulations pertaining to the development of transportation projects.
(2) The acquisition of real property by the Department in advance of final right-of-way plan approval, shall be reviewed by a committee consisting of the Secretary of the Department of Natural Resources and Environmental Control, the Secretary of the Department of Transportation, the Secretary of the Department of Agriculture, the Director of the Division of Small Business, the Governor's Chief of Staff, a member of the Senate designated by the President Pro Tempore of the Senate, a member of the House of Representatives designated by the Speaker of the House of Representatives, a member of the public designated by the President Pro Tempore of the Senate and a member of the public designated by the Speaker of the House of Representatives to determine the consistency of such action with the State's overall goals for land use planning. If it determines that the acquisition will be inconsistent with State planning goals, the committee may disapprove the acquisition.
(3) The Department shall provide to the Governor and General Assembly, on or before December 31 of each year, a report identifying all properties acquired in the preceding 12 month period in connection with acquisitions made pursuant to paragraph (a)(2) of this section.
(4) For the purposes of acquiring real property for pathways that go through dedicated open space in a recorded residential subdivision, where the proposed pathway is not adjacent to the existing right of way, the Department is not authorized to exercise its eminent domain power to acquire land for such pathway, unless a majority of the residents of the recorded residential subdivision vote to approve within 90 days of notice of its intent to exercise its eminent domain power by the Department. There will be 1 ballot per residence and the ballot may be cast by paper ballot, by proxy, by signing a petition, or electronically from a confirmed valid email address for a resident.
(b) When any property heretofore or hereafter acquired by the Department by gift, devise, purchase or condemnation is no longer needed for transportation purposes the Department shall attempt to dispose of the property as follows:
(1) If at the time of the Department's determination to dispose of the property, the property is subject to a revenue producing lease agreement which has been in force for a period of at least 5 years, the Department shall, in writing, notify the tenant that the property is no longer needed for transportation purposes. Such notice shall inform the tenant of the Department's desire to sell the property, and include a copy of the Department's approved appraisal and a purchase agreement containing the terms and conditions for sale to the tenant. The sale price shall not be less than the approved appraised value. If the tenant elects to purchase the property, the tenant shall execute and return the purchase agreement to the Department within 30 days of such notice. Such notice is not required if the tenant has, in writing, waived any desire to purchase the property, or if the property is subject to multiple leases. Failure of the tenant to respond to the notice within 30 days shall constitute a waiver of the tenant's rights hereunder.
(2) If the provisions of paragraph (b)(1) of this section do not apply, or were forfeited through lack of response, or were waived by the tenant, or the tenant fails to comply with the terms and conditions of the purchase agreement, the Department shall, in writing, notify the owner from whom the property was acquired, if the property had been acquired within the immediately preceding 5 years, that the property is no longer needed for transportation purposes. In the event that the previous owner is deceased, the Department may proceed with the provisions for sale identified in paragraph (b)(3) of this section. Such notice shall inform the prior owner of the Department's desire to sell the property at the approved appraised value, and shall include a copy of the Department's approved appraisal and a purchase agreement containing the terms and conditions for the sale to the prior owner. The sale price shall not be less than the approved appraised value. If the prior owner elects to purchase the property, he/she shall execute and return the purchase agreement to the Department within 30 days of such notice. Such notice is not required if the prior owner has, in writing, waived his/her right to repurchase the property. Failure of the prior owner to respond to the notice within 30 days shall constitute a waiver of their rights hereunder.
(3) If the provisions of paragraphs (b)(1) and (2) of this section have been satisfied without sale, the Department shall determine if the property has independent utility and in such cases shall offer the property for sale to the general public at a public auction sale. The Department shall notify the public of the sale by posting a "Notice of Sale" on the property at least 2 weeks before the sale and by publishing a "Notice of Sale" for at least 1 day a week for 2 consecutive weeks in a newspaper having general circulation in the county where the property is located. The "Notice of Sale" shall describe the property to be sold, state the date, time, location of the sale, terms and conditions, and amount of the minimum acceptable bid. The public sale may be conducted by Department personnel or the Department may retain an outside contractor to handle the sale. At the conclusion of the sale, the Department's representative shall announce the name of the highest bidder and the amount of the bid. The Department's representative shall record the results of the sale including the name and amount of the next highest bid. The Department shall have the authority to accept or reject the highest bid as long as such bid is equal to or greater than 85 percent of the approved appraised value. The Department shall offer the property for sale at a price not less than 85 percent of the approved appraised value and shall reject any bid of a lesser amount. The Department may reject any bid for due cause. If the sale is confirmed and the highest bidder defaults, the Department may proceed to the next highest acceptable bidder. In the event that the Department does not receive an acceptable bid, the public sale shall be deemed concluded. The Department may proceed to dispose of the property through absolute auction for whatever price can be obtained, subject, however, to unanimous written approval of the selling price from the Controller General and the Director of the Office of Management and Budget.
(4) Notwithstanding any other provisions of this section, the Department may determine that the property has minimal independent utility for reasons such as, but not limited to, lack of access, irregular shape, poor topography or hydrology, small size and nominal value (less than $3,000 in the opinion of the Department's Chief Review Appraiser). In such event the Department may, without having to perform an appraisal of the property, sell or otherwise convey such property to an adjoining property owner or an organized community civic association or maintenance association for use as community open space at a price to be negotiated by the parties. In cases where more than 1 adjoining property owner indicates an interest in purchasing the property, the Department may elect to offer the property for sale via sealed bid to the highest bidder, or to divide the property to accommodate the interests of all interested owners.
(5) Notwithstanding any other provisions of this section, the Department may convey property by direct sale or trade to an owner of other property which is being acquired for transportation purposes. Such sale shall not abridge the provisions of paragraphs (b)(1) and (2) of this section. The Department shall receive in return a price and/or compensatory property valued at not less than the approved appraised value.
(6) Notwithstanding any other provisions of this section, the Department may convey property by direct sale to a public utility company when such property is needed for public utility purposes, provided the Department receives in return a price not less than the approved appraised value.
(7)a. Notwithstanding any other provisions of this section, the Department may convey property to other governmental entities for public purposes, on terms acceptable to the Department and other agency.
b. Notwithstanding any other provisions of this section or Chapter 9 of Title 3, the Department may convey property to the Delaware Agricultural Lands Preservation Foundation on terms acceptable to the Department and the Foundation.
c. Notwithstanding any other provisions of this section or Chapter 75 of Title 7, the Department may convey property to the Delaware Open Space Council on terms acceptable to the Department and the Council.
(8) As used in this subsection, "approved appraised value" shall mean:
a. When the estimated value of the property is not more than $10,000, an appraisal performed by a qualified Department employee or qualified independent appraiser, reviewed and approved by a qualified Department review appraiser; or
b. When the estimated value of the property exceeds $10,000, an appraisal performed by a qualified independent appraiser, reviewed and approved by a qualified Department review appraiser.
(9) Property rights disposed of pursuant to this section may be in fee simple absolute or such lesser interest as the Department may deem appropriate.
(10) "Notice," as required in paragraphs (b)(1) and (2) of this section, shall be sent by certified mail, return receipt requested, addressed to the tenant or previous owner at the last known postal address obtained after diligent inquiry. If after diligent inquiry a postal address cannot be found, the Department shall publish a notice for at least 1 day a week for 2 consecutive weeks in a newspaper having general circulation in the county in which the property is located. Such published notice shall set forth the name or names of the tenant or previous owner to whom it is directed, that the Department desires to sell the property, a brief description of the property to be sold and the date by which the Department must receive a response. The return receipt of the notice, whether signed, refused or unclaimed, or a copy of the published newspaper notice shall be held and considered to be prima facie evidence of the service of the notice.
(11) The Department shall provide to the Governor and the General Assembly on or before March 31 of each year, a report identifying by size and location all properties being held for projects, properties deemed surplus or excess properties, dates of acquisition, purchase price, previous owner, date the property was determined to be excess and/or surplus, dates and nature of actions undertaken to dispose of such surplus/excess properties and approximate fair market value of each. If properties are deemed nonmarketable they shall be identified as such. The report shall further identify all properties disposed of during the previous year by size and location, date of disposition, appraised value if appraised, amount received from disposition and name of the purchaser, purchasers or owners, including, but not limited to, equitable owners.
36 Del. Laws, c. 106; Code 1935, §§ 5759, 5759A; 43 Del. Laws, c. 264, § 1; 47 Del. Laws, c. 406, § 3; 17 Del. C. 1953, § 137; 58 Del. Laws, c. 256, § 1; 60 Del. Laws, c. 550, § 1; 63 Del. Laws, c. 103, § 1; 65 Del. Laws, c. 75, § 1; 69 Del. Laws, c. 138, § 1; 70 Del. Laws, c. 166, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 257, § 1; 71 Del. Laws, c. 226, § 3; 71 Del. Laws, c. 235, §§ 1-3; 75 Del. Laws, c. 88, §§ 21(9), 33; 80 Del. Laws, c. 246, § 1; 81 Del. Laws, c. 49, § 14; 81 Del. Laws, c. 225, § 1; 81 Del. Laws, c. 374, § 43.;
§ 138 Acquisition of uneconomic remnants of land along right-of-way.
In addition to the powers now vested in the Department for the acquisition of lands or rights therein by virtue of any statute, the Department may, in its discretion, acquire by gift, devise, purchase or in the exercise of the power of eminent domain, acquire by condemnation by proceeding in the manner prescribed in Chapter 61, Title 10, an entire lot, block or tract of land, if by so doing the interest of the public will be best served even though said entire lot, block or tract is not needed for the right-of-way proper, but only if the portion outside the normal right-of-way is landlocked or is so situated so as to give rise to claims or litigation concerning severance or other damage, the cost of acquisition to the State will be practically equivalent to the total value of the whole parcel of land and the parcel remaining is of little value to the owner.
§ 139 Notice to landowners; written claim for damages.
After the Department has determined upon the road or roads which shall be maintained as state highways, it shall cause notice thereof to be sent by mail, a record of which shall be preserved, to all persons owning property abutting upon or contiguous to such road or roads, and any such owner or the legal representative of any such owner, who after such notice has been given shall construct any building within 60 feet of the center line of any such road, shall be allowed no compensation for such building, upon the condemnation thereof, or the land upon which it is situated, unless such owner shall serve written notice upon the Department within 3 months from the time that the owner receives such notice that the owner claims damages.
§ 140 Educational and safety campaigns.
(a) The Department may conduct throughout the State an educational campaign on street and highway safety.
(b) Such campaign shall be conducted by the Department in the manner which it deems most beneficial to accomplish the purpose thereof, and the Department may use and employ the facilities of the Delaware Safety Council, Delaware Automobile Association and any similar organization.
§ 141 Regulation of traffic; exceptions.
(a) The Department shall have jurisdiction and control of all state highways of this State outside of the limits of incorporated cities and towns for the purpose of regulating traffic and for the use and operation of all vehicles thereover, and may adopt any and all rules and regulations respecting the use of such highways and the operation of all vehicles upon the same.
(b) Each rule and regulation adopted pursuant to this section shall be in the form of a resolution signed by the Secretary or the Secretary's designee. A permanent record of these shall be kept by the Department and at the time of adoption a copy of each shall be forwarded to the Department of Safety and Homeland Security and to the New Castle County police, if within their jurisdiction.
(c) Pursuant to this section, the Department is authorized to perform all engineering studies and traffic investigations necessary to implement this section and Chapter 41 of Title 21, and to install, maintain, operate and remove all traffic control devices necessary to implement Chapter 41 of Title 21 and regulations adopted thereunder.
(d) The Department, on the basis of engineering studies and traffic investigations, may prohibit the operation of trucks or other commercial vehicles or impose limitations as to the weight thereof on designated highways which prohibitions and limitations shall be posted as set forth in § 4505 of Title 21.
(e) Nothing in this section shall be construed as granting the Department the power to make any rules and regulations respecting the use of highways contrary to Delaware law.
29 Del. Laws, c. 63; 34 Del. Laws, c. 78; Code 1935, § 5758; 45 Del. Laws, c. 270; 17 Del. C. 1953, § 141; 60 Del. Laws, c. 701, § 2; 66 Del. Laws, c. 407, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 110, § 138.;
§ 142 Automobile for use of Governor.
The Department shall provide an automobile to the Governor of the State, suitable and befitting the office of Governor, for the use of the Governor. The Department shall provide a new automobile for such use during each biennium beginning with the biennium beginning July 1, 1959. The Department shall dispose of any automobiles replaced pursuant to this section in the same manner as are disposed other Department vehicles.
17 Del. C. 1953, § 144; 52 Del. Laws, c. 55.;
§ 143 Expenses of alteration or relocation of facilities or structures of public utilities.
(a) As used in this section:
(1) "Facility" includes, but is not limited to, structures and appliances and their appurtenances, poles, wires, conductors, transformers, substations, manholes, vaults, valves, conduits, sewer pipes, gas mains, regulator stations, water pipes, water distribution facilities, and service lines;
(2) "Public utility" means a utility defined in § 102(2) and (8) of Title 26.
(b) If required by reason of the construction, reconstruction, relocation, repair, or maintenance of a public highway, the Department of Transportation shall, at its sole expense, make any necessary alteration or relocation of the facilities owned and/or operated by a public utility of a municipality or of any governmental body or political subdivision of the State.
(c) The Department may enter into an agreement with a nonmunicipal or other nongovernmental public utility to reimburse it for up to 50 percent of the cost of the public utility facility's alteration or relocation as part of a highway construction, reconstruction, relocation, repair, or maintenance project if:
(1) The existing public utility facility is located within a highway or public right-of-way by grant of franchise; and
(2) The alteration or relocation is necessitated by special circumstances, including, but not limited to:
a. A major economic development project in which the public utility's cooperation is critical to accomplishing the project in a timely manner;
b. Recovery from natural disasters such as storms or floods; or
c. Compelling benefit to the traveling public.
(d) The determination of whether special circumstances exist under paragraph (c)(2) of this section vests solely with the Secretary. The Secretary shall make written findings detailing the nature of the special circumstances and the costs and benefits to the State in altering or relocating a public utility facility. The determination of the Secretary is a public record. The Secretary shall forward a copy of the determination to the Public Service Commission for filing with the public records of the Commission.
(e) If construction specifications for the alteration or relocation of a nonmunicipal or other nongovernmental public utility facility, authorized by the Department as part of a highway construction, reconstruction, relocation, repair, or maintenance project, require the use of unique materials or supplies, the Department may enter into an agreement with the public utility for the use of the unique materials or supplies in advance of the construction contract. If the public utility is required to store the unique materials or supplies for more than 60 days prior to their incorporation into the construction work, the Department shall enter into an agreement with the public utility to reimburse the public utility for all or a portion of the actual cost incurred for the storage of the unique materials or supplies.
(f) If the Department determines that it is beneficial to enter into an agreement with a nonmunicipal or other nongovernmental public utility for the alteration or relocation of its facilities in advance of the commencement of a highway construction, reconstruction, relocation, repair, or maintenance project, the agreement may include provisions for the Department to reimburse the public utility for increased expenses incurred as a result of the advanced move, including, but not limited to, expenses for the maintenance of traffic, tree and vegetation removal, grubbing, grading, test holes, and surveying.
(g)(1) The Department shall reimburse a nonmunicipal or other nongovernmental public utility for the cost of altering or relocating its facility due to a highway construction, reconstruction, relocation, repair, or maintenance project under each of the following circumstances:
a. The Department requires a second alteration or relocation of the same public utility facility within 10 years from the date of completion of the initial alteration or relocation;
b. The Department alters its plan of construction for the project at any time before its completion, in a manner that requires the public utility to alter or relocate its facility that has already been fully or partially altered or relocated in connection with the project;
c. The Department cancels or does not commence a highway construction, reconstruction, relocation, repair, or maintenance project within a period of 2 years from the date of authorization;
d. The Department requests a temporary alteration or relocation of the public utility facility.
(2) The amount of reimbursement to be paid to a public utility under this subsection is the entire cost of alteration or relocation minus any increase in the value of the altered or new facility and any salvage value derived from the old facility.
(h) The Department and a nonmunicipal or other nongovernmental public utility may agree to include in a construction contract between the Department and the Department's contractor or subcontractor a provision to identify specific facility alteration or relocation construction items which will be performed by the Department's contractor or subcontractor instead of by the public utility. The construction items may include, but are not limited to, adjusting manholes and installing conduits, valve boxes, and concrete pads. As part of the agreement, the public utility must agree to reimburse the Department or the Department's contractor or subcontractor for the construction items.
(i) The Secretary may enter into an agreement with a nonmunicipal or other nongovernmental public utility that owns or maintains poles in public rights-of-way to attach Department road signs to the poles under such terms and conditions as the public utility considers necessary in order to provide for the safety of the public utility's employees and contractors and to avoid interference with the public utility's operations. The authority given to the Department in this subsection does not alter the public utility's right to refuse access to its poles if it believes that such access would create a safety hazard or interfere with its operations. If the Department attaches a sign to a pole owned or maintained by a public utility, a person alleging injury to person or property as a result of the attachment has no cause of action against the public utility.
(j) The Department may enter into an agreement with a nonmunicipal or other nongovernmental public utility regarding the alteration or relocation of the public utility's facilities to reimburse the public utility for the public utility's additional expenses incurred due to the enhancement of the public utility's facilities or of its equipment design, location, placement, or specification, if, in the judgment of the Department, the enhancement will result in net cost savings to the Department, will expedite the project, or will otherwise result in increased public benefit and convenience.
§ 144 Millsboro Pond Dam; construction and maintenance.
The Department may construct, reconstruct, maintain and repair a dam across the Millsboro Pond at the site of a presently existing dam adjacent to the Indian River.
17 Del. C. 1953, § 146; 53 Del. Laws, c. 338, § 1.;
§ 145 Corridor capacity preservation.
(a) Application. — This section is applicable only to transportation routes categorized as corridor capacity preservation projects as described herein.
(b) Definitions. — As used in this section:
(1) "Comprehensive development plan" means a comprehensive land use plan, master plan or comprehensive plan as provided in Title 9, 22, or 29.
(2) "Corridor" means a particular route of 1 or more highways of this State, serving predominantly statewide and/or regional travel at a high level of service at the time of the analysis conducted under subsection (d) of this section.
(3) "Corridor capacity" means the ability of a corridor to sustain its level of service for a period of at least 10 years and for up to 20 years.
(4) "Department" means the Department of Transportation.
(5) "Preservation" means to maintain corridor capacity.
(c) Findings. —
(1) Pursuant to federal and state law, the Department is required to develop long-range plans and principles to consider the various appropriate means of meeting the transportation needs of the State. This work is coordinated with the planning efforts of metropolitan planning organizations pursuant to 23 U.S.C. § 134 et seq. As part of these long-range plans and principles, the Department may identify transportation routes requiring corridor capacity preservation in order to:
a. Focus development toward existing locations;
b. Reduce the need for expansion of the transportation system; and
c. Otherwise advance the quality of life of Delawareans and the development policies adopted by the Cabinet Committee on State Planning Issues.
(2) Pursuant to the Quality of Life Act of 1988, Chapters 26, 49, and 69 of Title 9, as well as the Land Use Planning Act, Chapter 92 of Title 29, each county of this State is required to adopt a comprehensive development plan to guide and control future development. Each plan, which is to have the force and effect of law, includes among its purposes the facilitation of the adequate and efficient provision of transportation. These plans are reviewed by the Cabinet Committee on State Planning Issues to determine their compliance with the State's development policies, including the Department's long-range plans and principles. The State is under no obligation to provide infrastructure improvements to support land use or development actions where a county's comprehensive plans are inconsistent with the State's policies. In addition, pursuant to Chapter 3 of Title 22, municipalities are also required to develop comprehensive development plans, with relief of congestion constituting one of the goals of such plans. As part of this coordinated process, therefore, the comprehensive development plans adopted by the counties and municipalities should incorporate the Department's designation of transportation routes requiring corridor capacity preservation.
(3) This legislation is intended to facilitate the acquisition of property interests sufficient to provide corridor capacity preservation in keeping with these comprehensive development plans and the Department's long-range plans.
(d) Implementation. — On or before October 1, 1996, and every 3 years thereafter, pursuant to the provisions of 23 U.S.C. § 134 et seq., the Department's long-range plans shall propose transportation routes requiring corridor capacity preservation, if any. The determination of these routes shall be based upon the following criteria: Level of service analysis; input and comment from the counties and municipalities to the need within growth areas; development trends; traffic growth; additional threats to roadway integrity; safety; support for long range planning goals of the Department and the relevant metropolitan planning organization(s); deliverability; economic impacts; social/environmental impacts; and air quality. The location of these routes shall be submitted to the local government bodies of the counties and municipalities for review and then presented to the public at a public hearing. The local governing bodies shall have 90 days to review the locations and respond to the Department. The Department shall, after considering public comments and the responses of the local governing bodies of the municipalities and counties, determine those routes requiring corridor capacity preservation. Each county and municipality shall incorporate these determinations into their comprehensive development plans or amendments thereto. Any subsequent Departmental corridor capacity preservation projects shall be subject to the same approval process as other capital projects. When approved by the Council on Transportation and adopted by the General Assembly, the Department may then proceed to pursue these projects as set forth each year in the Department's Capital Improvement Program. Property interests acquired for these projects under this section shall be in fee simple absolute or such lesser interest as the Department may deem appropriate. Acquisition of such property interests may be obtained by gift, devise, purchase, or in the exercise of the power of eminent domain, by condemnation in the manner prescribed in Chapter 61 of Title 10, subject to the provisions of Chapter 95 of Title 29.
(e) Effect on other powers. — The powers conveyed to the Department by this section are in addition to and not in derogation of any other powers it may have related to corridor capacity preservation, including but not limited to the power to seek voluntary compliance with its policies, to regulate subdivision streets intended for state maintenance, and the power to regulate access to and from state-maintained highways.
§ 146 Access to state-maintained highways.
(a) The Department is authorized to adopt standards and regulations for the location, design, construction, reconstruction, maintenance, use and control of vehicular and pedestrian access to and from any state-maintained highway in order to protect public safety, to maintain smooth traffic flow, to maintain highway right-of-way drainage, to regulate drainage from property leading into or carried by the highway drainage system and any other public purpose, as determined by the Department.
(b) No person, firm, corporation or the like shall construct, open, reconstruct, maintain, modify or use any crossing or entrance onto a state-maintained highway, street or road, including any drainage modifications leading into or carried by the highway drainage system, without first having complied with standards and regulations adopted by the Department and having obtained a permit issued by the Department.
(c) Any person, firm, corporation or the like who constructs, opens, reconstructs, maintains, uses or modifies an entrance onto or an exit from a state-maintained highway, street or road without first having complied with standards and regulations adopted by the Department and having obtained a permit from the Department for such entrance or exit shall be punished by a fine of not less than $100 nor more than $1,000 for each offense, and a further sum in an amount equal to the amount fined for the initial offense for each and every day such violation exists.
(d) For purposes of this section, whenever the use to which a property is being put is changed such that there will be a significant alteration in the character, flow or volume of traffic, as determined within the sole discretion of the Department, a new permit shall be required.
(e) The Justice of the Peace Courts shall have jurisdiction over violations of this section.
(f) In addition to whatever legal or equitable remedies are available, the Department may install barricades across or remove any entrance or exit constructed, opened, reconstructed, maintained, modified or used in violation of this section and the standards or regulations adopted pursuant thereto, at the expense of the property owner.
§ 147 Authority to establish standards for traffic-control devices.
(a) The Department shall adopt a uniform standard for each type of traffic-control device to be used on all highways open to the public in this State. Such standard shall correlate with, and so far as practical, conform to the standards used in other states.
(b) The standards shall be recorded in a manual to be known as the Delaware Manual on Uniform Traffic-Control Devices for Streets and Highways. The manual shall have separate chapters setting individual standards for signs, signals and markings.
(c) Any traffic-control device erected in violation of the manual, except experimental devices erected by the Department, shall be unofficial, unauthorized and unenforceable.
(d) A person or corporation shall not sell or offer for sale in this State any traffic-control device or other device intended to regulate, warn or guide traffic unless it conforms with the state manual and specifications adopted under this section.
§ 148 Trust fund.
All moneys received pursuant to this title as proceeds from the sale, lease or rental of land with or without improvements, regardless of the source of funding for the original purchase of the aforesaid land or improvements, shall be credited to a special fund established by the State Treasurer and transferred quarterly to the Transportation Trust Fund. Such revenues shall be utilized by the Department to carry out the general purposes of this title. Moneys received pursuant to this section that originate from federal funding will be credited to the proper projects/accounts in accordance with established federal guidelines.
§ 149 Authority to adopt regulations governing state land.
(a) The Department shall have the authority to adopt rules, regulations or restrictions governing the use of or the conduct on those lands owned, controlled or in the custody of the Department. Such rules, regulations or restrictions adopted pursuant hereto may be adopted to control such behavior as, but not limited to, loud and tumultuous behavior, the sale or consumption of alcoholic beverages, or sales of goods or services for profit or vending operations of any kind without a permit issued by the Department. The Department shall also have the authority to issue rules and regulations to meet its requirements under federal, state and local environmental laws, including but not limited to the National Pollutant Discharge Elimination System (NPDES) permits required by the Clean Water Act [33 U.S.C. § 1342 et seq.].
(b) Any violation of any rule, regulation or restriction adopted pursuant hereto by the Department shall constitute a class B misdemeanor as defined in Title 11 and any person found to be in violation thereof shall receive a penalty in accordance therewith.
(c)(1) Legislative findings. — The General Assembly finds that the proliferation of sporting and recreational activity taking place in and adjacent to the State's public rights-of-way is growing along with the State's population, and further finds that such mixed-use activity threatens the safety of the recreants as well as members of the motoring public.
(2) In keeping with the General Assembly's legislative findings herein, and in order to promote safe neighborhood recreation, the Department shall make every effort to remove from public rights-of-way devices such as basketball hoops, hockey goals, shuffleboards and the like. The Department is further authorized and directed to establish such regulations as may be necessary and appropriate to enforce this activity. The regulations may include provisions for recreational use agreements with public agencies or other responsible entities for State property under Department control, that the Department may determine as suitable for these activities. Notwithstanding any other provision of state law to the contrary, any repeat offender found in violation of the regulations adopted pursuant to this subsection shall pay a fine of $25 per incident.
§ 150 Lead paint on outdoor structures.
All provisions of this title must comply with Chapter 30M of Title 16.