TITLE 7

Conservation

Agricultural and Soil Conservation; Drainage and Reclamation of Lowlands

CHAPTER 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES

Subchapter III. Formation of Tax Ditch; Procedure


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

48 Del. Laws, c. 151, § 43; 7 Del. C. 1953, § 4116.;

(a) Whenever 1 or more of the owners of any lands desire their lands to be drained or protected from flooding, or the waters of their lands to be managed they may present a petition for the formation of a tax ditch to the Superior Court of the county in which all or the major portion of the area involved is located, through the board of supervisors of the soil conservation district of the county.

(b) The services of the Division of Watershed Stewardship shall be available to assist the landowners in the preparation of such petitions.

48 Del. Laws, c. 151, § 7; 7 Del. C. 1953, § 4117; 50 Del. Laws, c. 276, § 8; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, §§ 10, 11; 77 Del. Laws, c. 430, §§ 8, 9.;

A petition for the formation of a tax ditch shall be in the following form:

PETITION

To the Superior Court of ________ County through the Board of Supervisors of the Soil Conservation District of _________ County:

Whereas the undersigned (is) (are) the owner(s) of certain lands subject to overflow or in need of water management situated in __________ Hundred(s) __________ County (Counties), and the State of Delaware, said lands being more particularly described as follows

; and

Whereas the draining and the prevention of flooding of said lands, and/or the management of water for resource conservation on said lands would be a public benefit and conducive to the public health, safety and welfare; and

Whereas the undersigned desire that a Tax Ditch be formed under the provisions of Chapter 41, Title 7 of the Delaware Code, said Tax Ditch to be known as _____________ Tax Ditch;

The undersigned therefore request the Soil Conservation District of and, if the findings thereon be favorable, to file this petition in the office of the Prothonotary of _____________ County so that the Superior Court of said County may take the necessary steps required by law to issue an order establishing

Dated this ________ day of _________, ________ at ____________, Delaware.

             date month year

(Space for Signatures)

48 Del. Laws, c. 151, § 8; 7 Del. C. 1953, § 4118; 70 Del. Laws, c. 246, §§ 12, 13.;

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

48 Del. Laws, c. 151, § 71; 7 Del. C. 1953, § 4119.;

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

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

(c) From the funds deposited with it pursuant to this section, the county soil conservation district shall pay filing fees, mailing and other necessary expenses incurred in the investigation and formation of a tax ditch.

48 Del. Laws, c. 151, §§ 14, 15; 7 Del. C. 1953, § 4120.;

The board of supervisors of the county soil conservation district shall, upon receipt of a petition for the formation of a tax ditch, determine whether the petition is in the form set forth in § 4118 of this title and has been properly executed. If the petition is in the prescribed form and has been properly executed, the board shall immediately notify the Division of Watershed Stewardship, and by virtue of such action shall have made available to it the services of the Department of Natural Resources and Environmental Control to assist it with the investigation concerning the possible formation of the tax ditch.

48 Del. Laws, c. 151, § 9; 7 Del. C. 1953, § 4121; 57 Del. Laws, c. 739, § 183; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 14; 77 Del. Laws, c. 430, § 10.;

The county soil conservation district shall cause an investigation to be made by the Division of Watershed Stewardship in order to ascertain the general location and approximate watershed boundaries of the proposed tax ditch, and to obtain other information to assist the district to determine whether the formation of the tax ditch is practicable and feasible and is in the interest of the public health, safety and welfare. The district may hold such hearings as it deems necessary in order to assist it in making such determination.

48 Del. Laws, c. 151, § 10; 7 Del. C. 1953, § 4122; 50 Del. Laws, c. 276, § 7; 59 Del. Laws, c. 560, § 2; 77 Del. Laws, c. 430, § 11.;

The Division of Watershed Stewardship shall make a formal report of its investigation to the county soil conservation district together with its recommendations.

48 Del. Laws, c. 151, § 11; 7 Del. C. 1953, § 4123; 57 Del. Laws, c. 739, § 184; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 15; 77 Del. Laws, c. 430, § 12.;

The county soil conservation district shall, upon the basis of the information obtained under this chapter, determine whether the formation of the proposed tax ditch is practicable and feasible and is in the interest of the public health, safety and welfare.

48 Del. Laws, c. 151, § 12; 7 Del. C. 1953, § 4124.;

(a) If the county soil conservation district determines that the formation of the proposed tax ditch is practicable, feasible and in the interest of the public health, safety and welfare, it shall file the petition in the office of the prothonotary of the county in which all or the major portion of the land involved is located, together with the report of the Division of Watershed Stewardship and such other relevant information as the district deems appropriate.

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

48 Del. Laws, c. 151, § 13; 7 Del. C. 1953, § 4125; 50 Del. Laws, c. 276, § 8; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 16; 77 Del. Laws, c. 430, § 13.;

(a) Upon the filing of a petition for the formation of a tax ditch in the office of the prothonotary of a county, the board of ditch commissioners of such county, acting as officers of the Court, shall, at the direction of the resident judge thereof, go upon the lands that may be included in the tax ditch and determine the approximate sizes, grades and locations of the required drainage ditches; the approximate sizes, locations and specifications for required dikes, levees, structures and other necessary works of improvement; the location of public roads and railroads, and public utility installations within the proposed tax ditch; the exterior boundaries of the tax ditch; the approximate boundaries of each farm, parcel or piece of land within the tax ditch; the location and extent of needed permanent rights-of-way; the estimated total cost of all required tax ditch works of improvement; the damages to lands, if any, which will result from the construction of the tax ditch; and an equitable basis, considering relative benefits to each landowner, for the distribution of costs. The board of ditch commissioners shall obtain from the county soil conservation district such assistance and information as is needed in making the required determinations.

(b) When all of the landowners involved, with the approval of the board of ditch commissioners and with the cooperation of the county soil conservation district and the Division of Watershed Stewardship:

(1) Jointly make the determinations regularly assigned to the board of ditch commissioners in subsection (a) of this section and in § 4127 of this title, and

(2) Prepare the assessment list required by § 4129 of this title, and

(3) Supply any additional data necessary to complete the report of the board of ditch commissioners required by § 4130 of this title, and

(4) Personally sign a statement to the effect that they approve the formation of the tax ditch,

the board of ditch commissioners shall prepare their report from said determinations and such data without going upon the lands involved.

48 Del. Laws, c. 151, § 16; 7 Del. C. 1953, § 4126; 50 Del. Laws, c. 276, § 9; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, §§ 17-22; 77 Del. Laws, c. 430, § 14.;

The board of ditch commissioners may deem adequate any works of improvement already constructed, including but not limited to ditches and structures and may incorporate these in the tax ditch, and may allow a fair compensation to landowners for work previously done by them on such works of improvement.

48 Del. Laws, c. 151, § 17; 7 Del. C. 1953, § 4127; 50 Del. Laws, c. 276, § 10.;

(a) In determining the total cost of the proposed tax ditch works of improvement, the board of ditch commissioners shall include, among other things, the estimated costs of construction, the estimated cost of forming the tax ditch, the amount of damages, if any, awarded to landowners and the amount of compensation, if any, to be paid to landowners for works of improvement previously constructed and deemed adequate under § 4127 of this title.

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

48 Del. Laws, c. 151, § 18; 7 Del. C. 1953, § 4128; 50 Del. Laws, c. 276, § 11.;

After determining the basis for distribution of costs among the landowners, the board of ditch commissioners shall prepare an assessment list which shall show the names of all owners of property, wholly or partly within the watershed of the proposed tax ditch, together with addresses and descriptions of those properties as currently recorded by the board of assessment of the county. The list shall also show, for each property, that portion, expressed in acres, which is within the watershed or drainage area. The cost-sharing or assessment base, expressed in dollars, for each of said properties shall also be shown. The sum of the individual property assessment bases shall be termed the total assessment base which in all cases shall be equal to or greater than the total cost of the proposed tax ditch works of improvement. The assessment list, as modified by the ditch order, described in § 4137 of this title, shall be the basis for all taxes levied under this chapter.

48 Del. Laws, c. 151, § 19; 7 Del. C. 1953, § 4129; 50 Del. Laws, c. 276, § 12.;

The board of ditch commissioners, with the assistance of the Division of Watershed Stewardship, shall prepare a proposed report containing the following determinations and information:

(1) The name of the proposed tax ditch;

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

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

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

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

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

d. The exterior boundaries of the tax ditch;

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

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

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

(5) The assessment list required under § 4129 of this title;

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

(7) The names of all landowners awarded damages or to be paid compensation for works of improvement previously constructed and deemed adequate under § 4127 of this title; and the amount of damages or compensation to which each such landowner is entitled; and factors which influenced the determination of the damages awarded and compensation to be paid;

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

(9) In the case of a previously existent drainage organization, the amount of present assets to be turned over to, or liabilities to be assumed by the proposed tax ditch.

48 Del. Laws, c. 151, § 20; 7 Del. C. 1953, § 4130; 50 Del. Laws, c. 276, § 13; 56 Del. Laws, c. 312, § 3; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, §§ 23, 24; 77 Del. Laws, c. 430, § 15.;

Upon completion of the proposed report required by § 4130 of this title, the board of ditch commissioners shall notify all owners of property, wholly or partly within the watershed of the proposed tax ditch, of a hearing concerning the establishment of said tax ditch to be held in the county in which all or the major portion of the lands involved is located. The notice shall be mailed by 1st-class mail at least 20 days prior to the hearing and shall designate the time and place thereof. It shall also state that the purpose of the hearing is to consider the formation of a tax ditch which may affect the lands of the person notified and to hold a referendum among the affected landowners concerning the establishment of a tax ditch. In addition, the notice shall state the place where a copy of the above proposed report of the board of ditch commissioners will be open to inspection for at least 5 days, excepting Saturday and Sunday, prior to the hearing date.

48 Del. Laws, c. 151, § 21; 7 Del. C. 1953, § 4131; 50 Del. Laws, c. 276, § 14; 70 Del. Laws, c. 246, §§ 25-27.;

At the time and place designated in the notice, the board of ditch commissioners, with the assistance of the Division of Watershed Stewardship, shall hold a hearing at which all persons interested shall have an opportunity to express their opinions on and objections to the proposed report required by § 4130 of this title. The board of ditch commissioners shall make such changes in the proposed report as it deems warranted from evidence presented at the hearing, and shall then adopt the report and declare it final. If, however, as a result of the hearing, the board of ditch commissioners deems it advisable, it may adjourn the hearing in order to enable it to reexamine and modify its report in the light of the opinions and objections expressed at the hearing. The hearing may be adjourned to a fixed future date with no additional notification required or adjourned to an unspecified future date for which the notification and display procedures of § 4131 of this title will again apply. At the conclusion of the hearing, a referendum shall be held under the supervision of the board of ditch commissioners and the Division of Watershed Stewardship. The referendum shall afford each landowner the opportunity to cast a ballot for or against the formation of the proposed tax ditch in accordance with the final report of the board of ditch commissioners. Each landowner shall be entitled to the same number of votes as the number of dollars shown as the assessment base for the lands by the board of ditch commissioners.

48 Del. Laws, c. 151, § 22; 7 Del. C. 1953, § 4132; 50 Del. Laws, c. 276, § 15; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 246, §§ 28, 29; 77 Del. Laws, c. 430, § 16.;

After holding the hearing and supervising the referendum provided for in § 4132 of this title, the board of ditch commissioners shall file the original and 2 copies of its final report in the office of the prothonotary of the county in which all or the major portion of the lands involved is located, and shall attach to the report a certificate stating the results of the referendum and the place where and the time when it was held. The board of ditch commissioners shall also prepare and attach to the report a statement showing:

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

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

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

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

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

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

48 Del. Laws, c. 151, § 23; 7 Del. C. 1953, § 4133; 50 Del. Laws, c. 276, § 16; 70 Del. Laws, c. 246, §§ 30, 31.;

The report of the board of ditch commissioners, including the statement required by § 4133 of this title, shall be signed by all of the commissioners concurring therein. Any ditch commissioner who dissents therefrom shall attach to the report the reasons for his or her dissent.

48 Del. Laws, c. 151, § 24; 7 Del. C. 1953, § 4134; 70 Del. Laws, c. 186, § 1.;

In those cases, when all of the landowners involved, indicate by signed statement that they are familiar with the report of the board of ditch commissioners and that they favor the formation of the tax ditch, the board of ditch commissioners shall not hold a hearing and referendum, pursuant to § 4132 of this title, nor shall they give notice thereof as pursuant to § 4131 of this title, but they shall prepare the statement required and file their report, pursuant to § 4133 of this title, without a certificate of referendum.

48 Del. Laws, c. 151, § 25; 7 Del. C. 1953, § 4135; 50 Del. Laws, c. 276, § 17.;

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

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

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

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

48 Del. Laws, c. 151, § 26; 7 Del. C. 1953, § 4136; 50 Del. Laws, c. 276, § 18; 67 Del. Laws, c. 188, § 1; 70 Del. Laws, c. 246, §§ 32, 33.;

At least 10 days prior to the date set for the final hearing before the Superior Court, any interested person may file an objection in writing to the report of the board of ditch commissioners. The Superior Court shall review the report of the board of ditch commissioners and any objections filed thereto, and make, in consultation with the ditch commissioners, such changes as are necessary to render substantial and equal justice to all interested persons. Damages to any 1 landowner shall not be grounds for denying the petition, but may be used to adjust the assessment base of that property or the damages to be paid to that landowner and shall be considered as part of the total cost of the proposed tax ditch. If the conditions set forth in § 4136(c) of this title, still exist after the objections have been considered and the necessary changes have been made in the report of the board of ditch commissioners, the Superior Court shall confirm the report and issue an order granting the petition for the formation of the proposed tax ditch, said order to be known as the ditch order. The confirmed report shall be considered a part of said ditch order. If no objections are presented at the final hearing before the Superior Court the ditch order shall become effective when issued.

48 Del. Laws, c. 151, § 27; 7 Del. C. 1953, § 4137; 50 Del. Laws, c. 276, § 19; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 246, §§ 34-36.;

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

48 Del. Laws, c. 151, § 28; 7 Del. C. 1953, § 4138; 50 Del. Laws, c. 276, § 20.;

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

48 Del. Laws, c. 151, § 29; 7 Del. C. 1953, § 4139.;

When the ditch order has become effective because no objection has been filed, or because the right to appeal therefrom has expired, the prothonotary shall notify the Division of Watershed Stewardship and the appropriate county soil conservation district accordingly, and shall forward 2 certified copies of the ditch order to the Division of Watershed Stewardship.

48 Del. Laws, c. 151, § 30; 7 Del. C. 1953, § 4140; 50 Del. Laws, c. 276, § 21; 59 Del. Laws, c. 560, § 2; 77 Del. Laws, c. 430, § 17.;

The ditch order, together with any amendment thereto, shall be a permanent court record and shall be kept in the office of the prothonotary of the county wherein it was issued and copies of the ditch order shall be recorded in a Tax Ditch Volume in the office of the recorder of deeds in the county where the tax ditch is located. A filing fee for all new tax ditch orders shall be charged by the office of the recorder of deeds after the effective date of this legislation. It shall not be removed from that office except in cases where an emergency so requires. The prothonotary shall make such docket entries of proceedings as directed by rule of court.

48 Del. Laws, c. 151, § 31; 7 Del. C. 1953, § 4141; 50 Del. Laws, c. 276, § 22; 74 Del. Laws, c. 386, § 1.;

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

48 Del. Laws, c. 151, § 32; 7 Del. C. 1953, § 4142; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 37; 77 Del. Laws, c. 430, § 18.;

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

7 Del. C. 1953, § 4143.;