May 22, 2013
NEW CASTLE COUNTY, upon the relation of the County Executive, Plaintiff,
DONALD L. PELLICONE; 2, 657 square feet, a Permanent Taking of One Easement; 4, 672 square feet, a Temporary Taking of One Easement, situated in Christiana Hundred, New Castle County, State of Delaware; and UNKNOWN OWNERS, Tax Parcel No. 07-043.20-043, and DONALD L. PELLICONE; 6, 446 square feet, a Temporary Taking of One Easement, Situated in Christiana Hundred, New Castle County, State of Delaware, and UNKNOWN OWNERS, Tax Parcel No. 07-043.40-050, Defendants
Submitted: April 14, 2013
Gregory B. Williams, Esquire and Mian R. Wang, Fox Rothschild LLP, Attorney for Plaintiff New Castle County.
Richard L. Abbott, Esquire Attorney for Defendant Donald L. Pellicone.
MEMORANDUM OPINION AND ORDER GRANTING POSSESSION
Eric M. Davis Judge
This is an action under the power of eminent domain brought by Plaintiff New Castle County ("NCC"), by and through the County Executive of New Castle County, for the taking of three easements. On March 12, 2013, NCC filed a Notice of Intention to Take Possession with Certificate of Deposit (the "Notice). Through the Notice, NCC seeks entry of an Order of Possession under 10 Del. C. §6110 and Superior Court Civil Rules of Procedure 71.1 ("Rule 71.1"). Defendant Donald L. Pellicone filed a Response in Opposition to Request for Possession (the "Response") and Defendant Donald L. Pellicone's Motion to Dismiss (the "Motion to Dismiss"). The Court held a hearing on the Notice, the Response and the Motion to Dismiss on April 15, 2013. For the reasons set forth below, the Court will GRANT the relief requested by NCC.
A review of the docket in this action demonstrates an inordinate number of filings, responses, requests, supplements and alike. In order to get a proper prospective of the present state of this rather straightforward proceeding, the Court will identify the pleadings and filings considered by the Court in deciding this matter.
NCC initiated this action by filing a complaint (the "Complaint") on March 6, 2013. In addition to certain other exhibits, NCC attached an Affidavit of Necessity executed by Thomas P. Gordon, the NCC Executive, to the Complaint. NCC also filed the Notice. Moreover, NCC deposited into the Court a sum of $15, 529.33. A hearing on the Notice was set for April 15, 2013.
In response, Mr. Pellicone filed an Emergency Motion to Stay Proceedings on March 13, 2013. The next day, Mr. Pellicone also filed a notice of depositions. On March 18, 2013, NCC filed a Motion for a Protective Order and its Response in Opposition to Defendant's Emergency Motion to Stay Proceedings. A series of letters to the Court followed and the Court scheduled a hearing on Mr. Pellicone's Emergency Motion to Stay Proceedings for April 3, 2013.
Mr. Pellicone filed his answer to the complaint on March 20, 2013. In addition, on March 20, 2013, Mr. Pellicone filed a Response in Opposition to Request for Possession. The next day, Mr. Pellicone filed his (i) Response in Opposition to Motion for Protective Order, Countermotion to Compel and Motion to Shorten Discovery Response Time; (ii) Motion to Continue Order of Possession Hearing; and (iii) Motion to Dismiss.
At the hearing on April 3, 2013, the Court denied Mr. Pellicone's Emergency Motion to Stay Proceedings and Motion to Continue Order of Possession Hearing. The Court did allow the parties limited discovery prior to the hearing on the Notice – document exchange and a Rule 30(b)(6) deposition of a representative of NCC. Mr. Pellicone deposed Anthony G. Schiavi, NCC Assistant County Engineer, on April 9, 2013.
After the hearing, the parties again provided the Court with a series of letters and filings. Included in this were: (i) Mr. Pellicone's Memorandum of Law in Support of His Motion to Dismiss; (ii) NCC's Response in Opposition to Defendant's Motion to Dismiss; (iii) Mr. Pellicone's Order of Possession Hearing Exhibits; (iv) Mr. Pellicone's Revised Order of Possession Hearing Exhibits; (v) NCC's Affidavit of Anthony Schiavi in Support of New Castle County's Motion for Order of Possession; (vi) NCC's Affidavit of Catherine DiCristofaro in Support of New Castle County's Motion for Order of Possession; (vii) Letter, dated April 12, 2013, from Richard L. Abbott, Esquire, to the Honorable Eric M. Davis providing case law regarding 9 Del. C. § 1525; (viii) Mr. Pellicone's Emergency Motion to Strike Affidavit of Catherine DiCristofaro or to Continue Hearing; and (ix) NCC's Answering Memorandum of Law in Response to Defendant's Memorandum of Law in Support of its Motion to Dismiss.
On April 15, 2013, the Court held a hearing on the Notice. The Court held the hearing pursuant to Rule 71.1 and 10 Del. C. § 6110.
Subsequent to the hearing, Mr. Pellicone supplemented his arguments and papers with an additional letter – Letter, dated April 22, 2013, from Richard L. Abbott, Esquire, to the Honorable Eric M. Davis.
NCC is the party in this eminent domain/condemnation action. NCC is a political subdivision of the State of Delaware with its offices located at 87 Reads Way, New Castle, Delaware 19720.
Through this action, NCC seeks to take one permanent easement (the "Permanent Easement") and two temporary construction easements (the "Temporary Easements"). NCC has determined that the takings are necessary for a public purpose – the widening and altering of Little Mill Creek so as to improve the flow of drainage in order to abate a flooding problem.
Little Mill Creek has suffered recent flooding problems. In 1995, the United States Army Corps of Engineers ("Army Corps of Engineers") completed a Flood Control Feasibility Study. This study proposed improvements of Little Mill Creek. The Army Corps of Engineers proposed to implement these improvements to Little Mill Creek through a two phase project – the "Flood Control Project."  According to NCC, the Army Corps of Engineers has already completed phase one of the Flood Control Project.  Phase two of the Flood Control Project is ongoing and, again according to NCC, will realign, deepen and widen portions of Little Mill Creek in order to reduce the risk of flooding. 
The Flood Control Project is a joint effort between NCC, the Delaware Department of Natural Resources and Environmental Control, New Castle Conservation District and the Army Corps of Engineers.  Within the project, NCC has the responsibility to acquire certain easements and other necessary property interests. NCC is also contributing funding to the Flood Control Project.
NCC seeks to condemn and take the Permanent Easement and the Temporary Easements as part of the Flood Control Project.  NCC began the process of acquiring these easements with Mr. Pellicone in December 2011.  NCC obtained an appraisal and made an offer to purchase.  According to NCC, NCC made the offer to Mr. Pellicone in writing and the offer was rejected.  Subsequently, NCC and Mr. Pellicone met with respect to acquiring the Permanent Easement and the Temporary Easements but the parties were unsuccessful in coming to terms.  Thereafter, NCC advertised and held two public hearings regarding the condemnation of the Permanent Easement and the Temporary Easements.  After the public hearings, NCC Council, through resolution, authorized the NCC Executive to institute condemnation proceedings. In addition, the NCC Executive executed the Affidavit of Necessity.
If successful through the complaint and the Notice, the Permanent Easement will be in favor of NCC through the land of Mr. Pellicone. The Temporary Easements will be in favor of NCC through the land of Mr. Pellicone and will allow the Army Corps of Engineers access to the Little Mill Creek and to work on phase two of the Flood Control Project.
On or about March 8, 2013, NCC deposited with the Court the sum of $15, 529.33. Sharon Agnew, Prothonotary, certified receipt of this deposit on March 8, 2013.
The Parties' Contentions
NCC contends that it is entitled to an Order of Possession under Rule 71.1, arguing that NCC's proposed taking of the Permanent Easement and the Temporary
Easement is a valid exercise of NCC's power of eminent domain. In support, NCC relies upon Title 10, Chapter 61 of the Delaware Code, 9 Del. C. § 1525 and Rule 71.1.
Mr. Pellicone has taken a wide variety of positions throughout the litigation on the Notice. In essence, Mr. Pellicone opposes entry of an Order of Possession because: (i) NCC is merely a "straw" or "middle man" for the Army Corps of Engineers and that the Army Corps of Engineers is a private entity; (ii) NCC does not have the authority to condemn the Permanent Easement and the Temporary Easements under 9 Del. C. § 1525; (iii) NCC's proposed taking is not for the public use; and (iv) NCC has failed to comply with Title 10, Chapter 61 of the Delaware Code and Rule 71.1.
In a condemnation proceeding instituted by a public agency (such as a county of the State of Delaware), the Court may grant an order of possession of the property sought to be condemned. If the Court grants the order of possession, the condemnation proceeding plaintiff will take possession of the property prior to a full adjudication on the merits of the complaint. The condemnation proceeding plaintiff must provide ten (10) days written notice of intention to take possession and deposit with the Court a sum of money estimated by plaintiff to be just compensation for the property sought to be condemned to obtain an order of possession. In addition, the plaintiff needs to support the request with an "affidavit of necessity executed by the chief administrative office of the condemning agency."
The Court is to enter the order of possession "forthwith" unless the property owner shows "good cause" as to why the order should not be entered. The property owner must demonstrate such good cause through affidavits, depositions and/or verified answer. If so joined, the Court is to address and dispose of the question of good cause without delay. In condemnation proceedings, the property owner carries the burden of overcoming the presumption of regularity and the prima facie case of necessity for a public use presented by the public agency. The Court is to accord proper deference to a public agency's necessity determination, reviewing the determination as to "fraud, bad faith, or gross abuse of discretion." It is only when the condemned property is to be used, owned or occupied by a private party that the burden shifts and the public agency must establish by clear and convincing evidence that the use of eminent domain complies with the definition of "public use" set forth in 29 Del. C. § 9501A(c).
NCC relies upon 9 Del. C. § 1525 for its authority to take the Permanent Easement and the Temporary Easements. 9 Del. C. § 1525(a) provides:
In case the County Council, upon the advice of the Department of Public Works deems it advisable to widen, straighten or alter the course of any part of any small run or creek in the County, such as Chestnut Run or Little Mill Creek at Forest Park, in Christiana Hundred, the County Council and the Department of Public Works may enter upon any land for the purpose of surveying and locating the changes necessary to widen, straighten or alter the course of any part of such run or creek.
The County Council has the power to negotiate the purchase of any land necessary to widen, straighten or alter the course of any small run or creek in New Castle County.In addition, if the County Council cannot agree with the property owner of such land on a purchase of the property, the County Council may acquire the property by condemnation under Chapter 61 of Title 10 of the Delaware Code.
To condemn property, NCC must comply with its obligations under Delaware Law. NCC must notify Mr. Pellicone of the "public use" proposed for the Permanent Easement and the Temporary Easements. Moreover, NCC can only exercise eminent domain if, at least six (6) months prior to the initiation of condemnation proceedings, NCC holds a public hearing to address the acquisition of the property.
The Court holds that NCC has met its obligations under Delaware law. NCC is the proper party in this proceeding. NCC informed Mr. Pellicone that NCC needed to acquire the Permanent Easement and the Temporary Easements by written correspondence and meetings. Moreover, NCC held a public hearing to specifically address the acquisition of these easements on August 21, 2012 – a date more than six (6) months prior to the institution of this present action. NCC also gave notice of the public hearing by publication in a newspaper of general circulation in the County. NCC then filed suit and thereafter filed the Notice, an affidavit of necessity and a deposit. As the record stands, NCC clearly has complied with its obligations under applicable statutory law and procedural rules. NCC has a very strong case for possession here.
On the other side, Mr. Pellicone's other arguments against possession are not persuasive. As such, Mr. Pellicone cannot demonstrate good cause why this Court should not enter an order of possession.
No private party is going to own, occupy or develop the Permanent Easement and the Temporary Easements. NCC is the condemning property. While the Army Corps of Engineers and others will be involved in completing the Flood Control Project, these parties are not private parties and certainly are not owning, occupying or developing these easements for private use. Instead, the Army Corps of Engineers – a division of the United State Army and not a private corporation – is responsible for the design and construction of the Flood Control Project. In the end, however, the Permanent Easement and the Temporary Easements will be in favor of NCC and not the Army Corps of Engineers or any other third party.
Importantly, the Court finds that the proposed use of this taking/condemnation is a public use. This is not a situation where the property will eventually reside with a private party – a situation addressed by 29 Del. C. § 9501A(d). The scope of the Flood Control Project is to widen Little Mill Creek so as to abate flooding. NCC seeks the Permanent Easement and the Temporary Easements for the purposes of the Flood Control Project. NCC, the Army Corps of Engineers, the State of Delaware and others are partnering to complete this project. Although not the primary source of funding, NCC is providing significant funds for the Flood Control Project. These facts are clearly established by the pleadings, the deposition and the affidavits presented by the parties. The Court is unsure how this could be anything other than a public project, for public use and for a public purpose.
Here, Mr. Pellicone has not overcome the presumption of regularity and the prima facie case of necessity for a public use presented by NCC. There is no evidence that NCC exercised fraud, bad faith or gross abuse of discretion when it made a necessity determination here. In addition, Mr. Pellicone has not demonstrated that the burden has shifted to NCC to establish by clear and convincing evidence that the use of eminent domain here complies with the definition of "public use" used in 29 Del. C. § 9501A. Accordingly, the Court holds that NCC is entitled to an order of possession.
It is for these reasons that the Court is holding in favor of NCC and GRANTING the Order.
IT IS ORDERED that NCC has the right of immediate entry upon, and possession of, the property described in the Complaint and in the manner described in the Complaint filed in this civil action;
IT IS FURTHER ORDERED that any and all persons now in possession of, or claiming any rights to possession of the property described in the Complaint, or any part thereof, shall deliver up and surrender full and complete possession of the property to NCC upon demand.