TITLE 9

Counties

New Castle County

CHAPTER 11. County Executive and County Council

Subchapter I. Powers of the Government of New Castle County

§ 1101. General powers.

(a) Granted. — The Government of New Castle County as established by this chapter shall assume and have all powers which, under the Constitution of this State, it would be competent for the General Assembly to grant by specific enumeration, and which are not denied by statute, including, but not limited to, any powers conferred prior to May 26, 1965, by the General Assembly upon New Castle County, or upon the Levy Court of New Castle County, or upon the Levy Court Commissioners of New Castle County, or upon the officers or employees of New Castle County, or upon counties generally, or upon Levy Court Commissioners generally. This grant of power includes the power to fix the tax rate upon the assessed valuation of all real property in New Castle County subject to assessment by the County. This grant of power further includes the power to fix the fees of the Recorder of Deeds in New Castle County for services, any statute denying such right to the contrary notwithstanding. This grant of power further includes the power to impose a surcharge on any application for a building permit issued by New Castle County in an amount not to exceed .5% of the residential construction value and of the first million dollars of commercial construction value applicable to said building permit application, to provide funding for volunteer fire companies except that this surcharge shall not be added to building permits applied for by an organization exempt from tax under § 501(c)(3) of the federal Internal Revenue Code [26 U.S.C. § 501(c)(3)] which provides owner-occupied housing to low and moderate income households by rehabilitating residential properties and reselling said properties without profit, nor to the Delaware State Housing Authority nor to any applicant funded by the Delaware State Housing Authority. This grant of power does not include the power to enact private or civil law concerning civil relationships, except as incident to the exercise of an expressly granted power, and does not include the power to define and provide for the punishment of felonies. This grant of power shall also include the power to impose and collect by ordinance a tax upon the transfer of real property situate within the unincorporated areas of the County, subject to the conditions and limitations provided in § 8102 of this title.

(b) Construction. — The powers of New Castle County shall be construed liberally in favor of the County, and specific mention of particular powers in this title shall not be construed as limiting in any way the general powers stated herein.

9 Del. C. 1953, §  1101;  55 Del. Laws, c. 85, §  157 Del. Laws, c. 768, §  167 Del. Laws, c. 415, §  271 Del. Laws, c. 400, §  177 Del. Laws, c. 268, §  1

§ 1101A. Definitions [Effective until July 1, 2022].

For purposes of this chapter, beginning for the fiscal year 2023 budget:

(1) “Chief Financial Officer” means the Chief Financial Officer of New Castle County or a designee.

(2) “Fire protection” means the prevention and extinguishment of fires; maintenance of apparatus and equipment, including ambulances, rescue trucks, aerial, or platform trucks and rescue boats; provision of basic life support; and operation of stations.

(3) a. “Local service function” or “LSF” means a local governmental service, or a group of closely allied governmental services, that is all of the following:

1. A service for which, New Castle County or any municipality, as distinguished from the State, has a primary responsibility for provision and financing, under the Constitution, Code, or judicial decision.

2. Performed or financially supported by New Castle County and by at least 1 municipality, in whole or in part, instead of New Castle County.

3. Funded by New Castle County, in whole or in part, through property tax revenue.

b. “Local service function” or “LSF” may include any of the following:

1. Planning and zoning, including subdivision regulations.

2. Adoption and enforcement of ordinances for the protection of persons and property from hazards in the use, occupancy, condition, alteration, maintenance, repair, sanitation, removal, and demolition of buildings, structures, and appurtenant grounds; the operation of equipment; and outdoor signs, including codes and regulations for any of the following:

A. Zoning.

B. Building.

C. Plumbing.

D. Property maintenance.

3. Programs for redevelopment, affordable housing, and urban renewal.

4. Parks and park related activities and recreational programs.

5. Police protection.

6. Fire protection.

7. 9-1-1 communications.

8. Animal control.

9. Public works, including maintenance and operation of sanitary and storm sewers, drainage systems, sewage disposal facilities, and refuse disposal facilities, including trash and garbage collection disposal.

10. Lighting of streets, roads, alleys, and other public places.

11. Maintenance and operation of the water supply system.

12. Library system.

(4) “Municipality” means a municipal corporation located within New Castle County and incorporated by an act of the General Assembly.

(5) “New Castle County service percentage” means the degree to which New Castle County provides a local service function within a municipality, determined by subtracting the degree to which a municipality provides the local service function from 100%. The New Castle County service percentage in the unincorporated area equals 100%.

83 Del. Laws, c. 7, § 1

§ 1101A. Definitions [Effective July 1, 2022].

For purposes of this chapter:

(1) “Chief Financial Officer” means the Chief Financial Officer of New Castle County or a designee.

(2) “Fire protection” means the prevention and extinguishment of fires; maintenance of apparatus and equipment, including ambulances, rescue trucks, aerial, or platform trucks and rescue boats; provision of basic life support; and operation of stations.

(3) a. “Local service function” or “LSF” means a local governmental service, or a group of closely allied governmental services, that is all of the following:

1. A service for which, New Castle County or any municipality, as distinguished from the State, has a primary responsibility for provision and financing, under the Constitution, Code, or judicial decision.

2. Performed or financially supported by New Castle County and by at least 1 municipality, in whole or in part, instead of New Castle County.

3. Funded by New Castle County, in whole or in part, through property tax revenue.

b. “Local service function” or “LSF” may include any of the following:

1. Planning and zoning, including subdivision regulations.

2. Adoption and enforcement of ordinances for the protection of persons and property from hazards in the use, occupancy, condition, alteration, maintenance, repair, sanitation, removal, and demolition of buildings, structures, and appurtenant grounds; the operation of equipment; and outdoor signs, including codes and regulations for any of the following:

A. Zoning.

B. Building.

C. Plumbing.

D. Property maintenance.

3. Programs for redevelopment, affordable housing, and urban renewal.

4. Parks and park related activities and recreational programs.

5. Police protection.

6. Fire protection.

7. 9-1-1 communications.

8. Animal control.

9. Public works, including maintenance and operation of sanitary and storm sewers, drainage systems, sewage disposal facilities, and refuse disposal facilities, including trash and garbage collection disposal.

10. Lighting of streets, roads, alleys, and other public places.

11. Maintenance and operation of the water supply system.

12. Library system.

(4) “Municipality” means a municipal corporation located within New Castle County and incorporated by an act of the General Assembly.

(5) “New Castle County service percentage” means the degree to which New Castle County provides a local service function within a municipality, determined by subtracting the degree to which a municipality provides the local service function from 100%. The New Castle County service percentage in the unincorporated area equals 100%.

83 Del. Laws, c. 7, § 183 Del. Laws, c. 7, § 10

§ 1102. Transfer of functions [Effective until July 1, 2022].

(a) The term “local service function,” as used in this chapter, shall mean a local governmental service, or a group of closely allied governmental services, performed by New Castle County, or by a municipality within New Castle County, for its inhabitants and for which, under constitutional and statutory provisions and judicial interpretations, the County, or any municipality as distinguished from the State, has a primary responsibility for provision and financing. Without in any way limiting the foregoing, the following are examples of local service functions:

(1) Planning and zoning including subdivision regulations;

(2) Adoption and enforcement of ordinances and regulations for the protection of persons and property from hazards in the use, occupancy, condition, alteration, maintenance, repair, sanitation, removal and demolition of buildings and structures or any parts thereof and grounds appurtenant thereto, in the operation of equipment therein, and of outdoor signs including, but not limited to, zoning ordinances and regulations thereunder, building codes and regulations thereunder, plumbing codes and regulations thereunder or other such codes;

(3) Programs for redevelopment, low rent housing and urban renewal;

(4) Parks and park related activities and recreational programs;

(5) Police protection;

(6) Fire protection;

(7) Public works including, but not limited to, maintenance and operation of sanitary and storm sewers, drainage systems, sewage disposal facilities, refuse disposal facilities, including trash and garbage collection disposal;

(8) Lighting of streets, roads, alleys, and other public places;

(9) Maintenance and operation of water supply system;

(10) Library services.

(b) The term “municipality,” as used in this chapter, shall mean any municipal corporation located within New Castle County, and incorporated pursuant to law by the General Assembly of this State, which performs for its residents any local service function and pays the cost thereof out of its own revenue sources.

(c) Except as provided under subsection (e) of this section, responsibility for a local service function or a distinct activity or portion thereof exercised by a municipality located within New Castle County, may be transferred to the County by the concurring affirmative action in the form of an ordinance of the County Council of New Castle County and of the governing body of the municipality concerned. Responsibility for a local service function or a distinct activity or portion thereof not exercised by New Castle County, or by a municipality located within New Castle County, as of January 3, 1967, or exercised by New Castle County as of January 3, 1967, may be transferred to a municipality located within New Castle County by the concurring affirmative action in the form of an ordinance of the County Council of New Castle County and of the governing body of the municipality concerned.

(d) The expression of official action transferring a local service function shall make explicit:

(1) The nature of the local service function transferred;

(2) The effective date of such transfer;

(3) The manner in which affected employees engaged in the performance of the function will be transferred, reassigned or otherwise treated;

(4) The manner in which real property, facilities, equipment or other personal property required in the exercise of the function are to be transferred, sold or otherwise treated;

(5) The method of financing to be used in the exercise of the function received;

(6) Other legal, financial, and administrative arrangements necessary to effect transfer in an orderly and equitable manner.

(e) Notwithstanding any other provision of law, for fire protection that is partially financially supported but not directly provided by New Castle County and that is also partially financially supported but not directly provided by a municipality, New Castle County shall convert the net New Castle County fire protection cost into a real property tax rate for each municipality and the unincorporated area under its jurisdiction that does not directly provide fire protection by calculating all of the following for each municipality and the unincorporated area:

(1) The “service area share”, which equals the taxable assessed value of real property within the municipality or the unincorporated area not directly providing fire protection divided by the sum of the taxable assessed value for all real property in the unincorporated area and all municipalities not directly providing fire protection.

(2) The “apportioned gross amount”, which equals the service area share multiplied by the net New Castle County fire protection cost for fire protection.

(3) The “net New Castle County fire protection cost”, which is New Castle County’s contribution of funds or in-kind services to volunteer fire companies within New Castle County, increased by indirect costs applicable to fire protection and decreased by service charges, grants, or other revenue that New Castle County directly attributes or otherwise apportions to fire protection.

(4) The “credit percentage”, which equals the municipality’s actual direct contribution of funds or in-kind contributions of goods or services to a volunteer fire company in the previous year, divided by the municipality’s apportioned gross amount. The “credit percentage” may not exceed 100%. The “credit percentage” is 0% for the unincorporated area.

(5) The “New Castle County fire protection percentage”, which equals 100% minus the municipality’s or the unincorporated area’s credit percentage. The “New Castle County fire protection percentage” for the unincorporated area is 100%.

(6) The “weighted service share”, which equals the municipality’s or the unincorporated area’s service area share multiplied by the municipality’s or the unincorporated area’s New Castle County fire protection percentage.

(7) The “total weighted service amount”, which equals the sum of the weighted service shares.

(8) The “final service weight”, which equals the municipality’s or the unincorporated area’s weighted service share divided by the total weighted service amount.

(9) The “apportioned net fire protection cost”, which equals the final service weight multiplied by the net New Castle County fire protection cost for fire protection.

(10) The “individual fire protection tax rate”, which equals the municipality’s or the unincorporated area’s apportioned net fire protection cost divided by the taxable assessed value of real property in the respective municipality or the unincorporated area. This calculation may be adjusted to raise sufficient revenues after accounting for the historical county-wide level of nonpayment of county real property tax.

9 Del. C. 1953, §  1102;  55 Del. Laws, c. 85, §  171 Del. Laws, c. 401, §  1582 Del. Laws, c. 233, § 1

§ 1102. Local service functions; subcategories; responsibility for performance [Effective July 1, 2022].

(a)

New Castle County may divide a local service function into subcategories on forms used under § 1128 of this title. A subcategory of a local service function constitutes a local service function.

(b) The responsibility for all or part of a local service function in a municipality is established as set forth under the approved budget enacted for fiscal year 2023 under § 1155 of this title, or by the later of any of the following:

(1) A municipality provides timely notice of a change in degree of performance of a local service function to New Castle County under § 1127(d)(2) of this title.

(2) New Castle County and a municipality enact ordinances transferring responsibility for performance of a local service function under subsection (c) of this section.

(3) A service performed by a municipality is classified as a local service function under subsection (d) of this section.

(4) A new local service function is established under § 1128 of this title.

(c) (1) Responsibility for the performance or funding of a local service function may be transferred between New Castle County and a municipality by concurring affirmative action in the form of an ordinance enacted by the County Council of New Castle County and of the governing body of the municipality.

(2) The ordinances transferring a local service function under paragraph (c)(1) of this section must state all of the following:

a. The nature of the local service function transferred.

b. The effective date of the transfer.

c. The manner in which affected employees engaged in the performance of the local service function will be transferred, reassigned, or otherwise treated.

d. The manner in which real property, facilities, equipment, or other personal property required in the exercise of the local service function will be transferred, sold, or otherwise treated.

e. The method of financing to be used in the exercise of the local service function received.

f. Other legal, financial, and administrative arrangements necessary to effect transfer of the local service function in an orderly and equitable manner.

(d) (1) If a municipality is performing a service that is included in the New Castle County general operating budget, the municipality may request that the service be classified as a local service function in the next fiscal year by providing a notice to New Castle County by August 1 that states all of the following:

a. The service that is included in the New Castle County general operating budget.

b. The degree of performance.

c. The date municipality began performing the service.

(2) New Castle County may request, and the municipality must provide, additional information that may reasonably be needed to determine the degree of performance of the service by the municipality.

(3) By November 1, New Castle County shall notify the municipality of New Castle County’s determination regarding the municipality’s request under paragraph (d)(1) of this section.

(4) If a municipality is unable to reach agreement with New Castle County regarding the municipality’s request under paragraph (d)(1) of this section, the municipality may demand arbitration under the procedure in § 1128(d) of this title.

(e)

[Repealed.]

9 Del. C. 1953, §  1102;  55 Del. Laws, c. 85, §  171 Del. Laws, c. 401, §  1582 Del. Laws, c. 233, § 183 Del. Laws, c. 7, § 10

§ 1103. Exercise of powers.

All powers of the government of New Castle County shall be carried into execution as provided by this title or by other law of this State or if this title or other law of this State makes no such provision, as provided by ordinance or resolution of the County Council of New Castle County.

9 Del. C. 1953, §  1103;  55 Del. Laws, c. 85, §  171 Del. Laws, c. 401, §  15