January 10, 2014
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: November 14, 2013
Gregory B. Williams, Esquire and Mian R. Wang, Fox Rothschild LLP, Attorneys for Plaintiff New Castle County.
Richard L. Abbott, Esquire, Abbott Law Firm, Attorney for Defendant Donald L. Pellicone.
MEMORANDUM OPINION REGARDING REMAND FOR FURTHER CONSIDERATION
ERIC M. DAVIS JUDGE
On November 14, 2013, after hearing arguments on appeal in this civil action, the Supreme Court of Delaware issued an Order (the "Remand Order"). In the Remand Order, the Supreme Court remanded the matter to this Court for further consideration of three questions. The Remand Order's three questions are:
a) Does Chapter 12 of the [New Castle] County Code require specific procedural steps in order to authorize a County flood project?
b) If so, were those procedural requirements adhered to?
c) Can the Federal Flood Control Project legally constitute a County project? The Supreme Court also ordered this Court to file its opinion after remand with the Supreme Court by January 13, 2013.
On December 5, 2013, as this Court was not involved in the briefing and argument before the Supreme Court, this Court asked the parties if they wished to provide supplemental submissions with respect to the three questions to be addressed on remand. On that same day, counsel for Mr. Pellicone submitted a letter to the Court, taking the position that further submissions were unnecessary, could cause confusion, were not feasible and were not permitted by the Remand Order. On December 5, 2013, NCC submitted a letter that the Court believes sets forth NCC's position on the remanded questions. Because of Mr. Pellicone's opposition to additional submissions, this Court did not order additional submission and did not review the NCC letter dated December 5, 2013 in responding to the questions set forth in the Remand Order.
This is the Court's Memorandum Opinion Regarding Remand for Further Consideration.
History of Action before this Court
On March 6, 2013, Plaintiff New Castle County ("NCC") filed a complaint (the "Complaint") in this Court. Through the Complaint, NCC -- by and through the County Executive of New Castle County -- sought to exercise its power of eminent domain for the taking of three easements (the "Easements"). NCC asserted its authority for the taking pursuant to 9 Del. C. § 1525. On March 12, 2013, NCC filed a Notice of Intention to Take Possession with Certificate of Deposit (the "Notice). Through the Notice, NCC sought 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 a 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. The Court held the hearing pursuant to Rule 71.1 and 10 Del. C. § 6110. Pursuant to those authorities, the hearing was not a final adjudication after trial on the Complaint under 10 Del. C. § 6108 but, rather, a disposal of preliminary questions of law. After considering supplemental filings by the parties, the Court, through a Memorandum Opinion and Order Granting Possession dated May 22, 2013 ("Opinion on Possession"), granted possession in favor of NCC.
Under 10 Del. C. § 6108, this Court was prepared to place this civil action upon the regular trial calendar. Before the action could be placed on the trial calendar, however, Mr. Pellicone sought – among other things -- a stay of proceedings and the right to pursue an interlocutory appeal. This Court denied the requests. Subsequently, Mr. Pellicone eschewed any further litigation or trial before this Court and requested an entry of a final judgment. While objecting to the form of the relief, NCC did not oppose entry of a final judgment. This Court granted that request and, on June 3, 2013, entered a Final Award of Just Compensation. At the request of the parties, the Court revised the form of the Final Award of Just Compensation and entered the Amended Final Award of Just Compensation on June 21, 2013. Mr. Pellicone then pursued his rights of appeal to the Supreme Court under 10 Del. C. § 6112.
Opinion on Possession
In the Opinion on Possession, this Court listed all of the pleadings and filings considered by the Court before making its decision on possession under Rule 71.1 and 10 Del. C. § 6110. The Court considered the following:
• the Complaint and its exhibits, including an Affidavit of Necessity executed by Thomas P. Gordon, the NCC Executive;
• Mr. Pellicone's Emergency Motion to Stay Proceedings;
• NCC's Motion for a Protective Order and its Response in Opposition to Defendant's Emergency Motion to Stay Proceedings;
• Mr. Pellicone's Answer to the Complaint;
• Mr. Pellicone's Response in Opposition to Request for Possession;
• Mr. Pellicone's Response in Opposition to Motion for Protective Order, Countermotion to Compel and Motion to Shorten Discovery Response Time;
• Mr. Pellicone's Motion to Continue Order of Possession Hearing;
• Mr. Pellicone's Motion to Dismiss;
• The deposition transcript of Anthony G. Schiavi, NCC Assistant County Engineer, dated April 9, 2013;
• Mr. Pellicone's Memorandum of Law in Support of His Motion to Dismiss;
• NCC's Response in Opposition to Defendant's Motion to Dismiss;
• Mr. Pellicone's Order of Possession Hearing Exhibits;
• Mr. Pellicone's Revised Order of Possession Hearing Exhibits;
• NCC's Affidavit of Anthony Schiavi in Support of New Castle County's Motion for Order of Possession;
• Letter, dated April 12, 2013, from Richard L. Abbott, Esquire, to the Honorable Eric M. Davis providing case law regarding 9 Del. C. § 1525;
• Mr. Pellicone's Emergency Motion to Strike Affidavit of Catherine DiCristofaro or to Continue Hearing;
• NCC's Answering Memorandum of Law in Response to Defendant's Memorandum of Law in Support of its Motion to Dismiss; and
• Letter, dated April 22, 2013, from Richard L. Abbott, Esquire, to the Honorable Eric M. Davis.
Before issuing the Opinion on Possession, this Court reviewed the pleadings and filings and considered the multitude of alternative legal and factual arguments made by the parties.
Contained in those pleadings and filings, Mr. Pellicone made various arguments that NCC's eminent domain power is limited by Chapter 12 of the New Castle County Code ("Chapter 12"). The Opinion on Possession does not contain specific references to Mr. Pellicone's Chapter 12 argument. This Court did, however, consider and reject those arguments. This Court instead held that 9 Del. C. § 1525 applied in this case. While not expressly stating this in the Opinion on Possession, the Court adopted NCC's argument that the general language of Chapter 12 did not prevail over the specific language contained in 9 Del. C. § 1525, or that state statutes prevail over municipal codes.Implicit in this determination was the Court's holding that nothing in Chapter 12 acted to limit NCC from utilizing 9 Del. C. § 1525. Accordingly, this Court did not, as it did with 9 Del. C. § 1525, go on to determine whether the procedural requirements of Chapter 12 had been adhered to.
In the Complaint, NCC relies upon 9 Del. C. § 1525 for its right to exercise its power of eminent domain for taking the Easements. As stated above, this Court found and held that 9 Del. C. §1525 applied to this action. In doing so, this Court made certain factual determinations that are relevant in addressing the questions raised in the Remand Order. This Court determined that the Flood Control Project will make improvements to Little Mill Creek – i.e., realign, deepen and widen portions of Little Mill Creek in order to reduce the risk of flooding. This Court also determined that the Flood Control Project is a joint effort between NCC, the Delaware Department of Natural Resources and Environmental Control ("DNREC") 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.
Upon remand, and in response to the questions set out in the Remand Order, this Court sees nothing in Chapter 12 that limits the authority of NCC to proceed under 9 Del. C. §1525. In fact, Chapter 12 seems to reinforce the ability of NCC to implement watercourse improvements with respect to flood in order to ensure the health, safety and welfare of NCC residents and their property like those contained in the Flood Control Project. Article 7, Chapter 12 provides a mechanism to allow NCC to fund and make improvements in certain circumstances involving flooding. The Flood Control Project is designed to make improvements to Little Mill Creek to address damaging flooding. Moreover, NCC took actions that substantially comply with the procedural requirements of Article 7, Chapter. So, if Chapter 12 applies instead of 9 Del. C. § 1525, NCC has an alternative basis for proceeding with the Flood Control Project.
Discussion Regarding Remand Questions
a) Does Chapter 12 of the County Code Require Specific Procedural Steps In Order To Authorize A County Flood Control Project?
The Remand Order recites Mr. Pellicone's argument that Article 7, Chapter 12 of the New Castle County Code (New Castle County Code § 12.07.001) limits NCC's ability to address flood control or prevention projects. The Remand Order then goes on and asks this Court to address the question of whether Chapter 12 of the County Code requires specific procedural steps in order to authorize a county flood control project.
Chapter 12 of the New Castle County Code is titled "Drainage." Section 12.01.001 provides as follows.
A. Scope. This Chapter is to protect the public health, safety, and welfare on all existing premises by establishing minimum requirements and standards for adequate stormwater drainage and providing for administration, enforcement, and penalties.
B. Intent. This Chapter shall be liberally construed to secure its expressed intent, which is to ensure the health, safety, and welfare of the public and to ensure the preservation of the land, air, and water resources of the County.
Section 12.01.003 addresses defined terms and defines "flooding problems" as "substantiated complaints on record with New Castle County or with the New Castle Conservation District, at a specific location giving evidence of hazard or property damage due to overbank flows in a watercourse." Furthermore, 12.01.003 defines "watercourse" as "a definite channel with banks and a bed within which concentrated surface water flows continuously or intermittently."
Article 7 of Chapter 12 of the New Castle County Code relates to "drainage improvements by New Castle County." Section 12.07.001 sets forth when NCC may make improvements to public and communal watercourses, drainage systems and stormwater management basins to avoid flooding. Section 12.07.001 provides that NCC shall make improvements to public and communal watercourses, drainage systems and stormwater management basins only when it is necessary to "protect persons and property (specifically buildings) from serious harm and significant damage from flooding caused by storms of up to one hundred (100) year frequency…."
Section 12.07.002 sets out certain procedural steps to be taken by NCC when NCC has determined that it is necessary to undertake improvements to public and communal watercourses, drainage systems and stormwater management basins in order to protect persons from harm and property from significant damage due to flooding. This Court sets out these procedures and addresses whether NCC complied with them below.
Article 6 of Chapter 12 also addresses flooding. Section 12.06.002 relates to "maintenance objectives, " and states that maintenance of streams, watercourses, and drainage facilities consists of keeping these open and free flowing to prevent flooding that will cause serious personal harm or significant property and/or structural damage.Unlike Article 7, Article 6 relates to the maintenance of drainage and not to improvements in drainage in NCC. Article 6 does not contain an approval process for NCC to follow in the event NCC decides to undertake maintenance projects.
Article 7 of Chapter 12 is very straightforward. Article 7 does not subject NCC's ability to make necessary improvements to any other provisions or sections or limitations contained in Chapter 12. Moreover, Article 7 does not differentiate between the various public and communal watercourses, drainage systems and stormwater management basins. In other words, the express language of Article 7 does not exclude any particular public and communal watercourses, drainage systems and stormwater management basins from being subject to necessary improvements if the conditions of 12.07.001 and 12.07.002 are satisfied.
While not directly responsive to the question posed in the Remand Order, this Court finds that Article 7 of Chapter 12 does provide for an approval procedure when NCC determines to make improvements to address flooding caused by storms of up to one hundred (100) year frequency. The answer is not direct because Chapter 12 makes no specific reference to "flood control projects." Instead, Article 7 of Chapter 12 characterizes the process as improvements to protect persons and property from flooding.
Could section 12.07.001 be applicable to the Flood Control Project? The answer to this question is yes. Section 12.07.001 provides that NCC should not undertake improvements UNLESS such improvements are necessary to "protect persons and property (specifically buildings) from serious harm and significant damage from flooding caused by storms of up to one hundred (100) year frequency."
Here, the factual record supports the conclusion that NCC is undertaking improvements (in connection with the Flood Control Project) that are necessary to protect persons and property from serious harm and significant damage. The factual record demonstrates that the Lower Reach portion of Little Mill Creek has been subject to numerous damaging floods – e.g., September 16, 1999 Hurricane Floyd (50-year flood); September 7, 2003 Tropical Storm Henri (500) and September 28, 2004 Hurricane Jeanne (100-year flood). Additionally, this Court determined that the Flood Control Project will make improvements to Little Mill Creek by realigning, deepening and widening portions of the watercourse in order to reduce the risk of flooding.
Therefore, the Court believes that even if section 12.07.001 were applicable, the factual record would support NCC's actions under that section with respect to the three easements and the Flood Control Project.
b) If So, Were Those Procedural Requirements Adhered To?
Having determined that the initial criteria of section 12.07.001 have been met (i.e., that NCC determined that improvements were necessary to the Lower Reach of Little Mill Creek (a public and communal watercourse, drainage system or stormwater management basin) to "protect persons and property (specifically buildings) from serious harm and significant damage from flooding caused by storms of up to one hundred (100) year frequency…."), the next question becomes did NCC adhere to the procedural requirements of section 12.07.002? The Court believes the factual record demonstrates that NCC did satisfy the section 12.07.002 procedural requirements.
The procedural requirements of Chapter 12 as to section 12.07.001 are contained in section 12.07.002. Section 12.07.002 provides:
A. The following approval procedure will be followed for stream and watercourse improvements; however, every effort should be made with a minimal expenditure, to determine if County Council will approve the project, before any further study or expenditure.
1. A study will be made to establish and map the floodplain and delineate the wetlands along the watercourse.
2. A typical cross section of the improvements will be developed showing approximate widths, depths and type of construction.
3. Order of magnitude costs for proposed improvements will be developed.
4. A public hearing will be held with those property owners adjacent to the watercourse to obtain their comments regarding the drainage study and the proposed improvement(s).
5. An informal meeting will be held with County Council to reach a consensus concerning proceeding with project development and a determination will be made to proceed or abandon the proposed improvement(s).
Adequate Studies Were Made and Order of Magnitude Costs Were Developed (Section 12.07.001.A1-3). The record below shows that the Army Corps of Engineers and NCC developed studies with respect to the Flood Control Project. These studies establish and map the floodplain along Little Mill Creek. The 135th General Assembly created the Little Mill Creek Flood Abatement Committee. NCC is a voting member of that Committee. The Army Corps of Engineers, the Little Mill Creek Abatement Committee and NCC met on a number of occasions and developed plans for addressing flooding on Little Mill Creek. Moreover, the projects clearly develop and set forth the order of magnitude cost for the proposed improvements and who will contribute those costs.
Public Hearings Were Held With Property Owners Adjacent To Little Mill Creek To Obtain Their Comments Regarding the Studies (Section 12.07.001.A4).The record is clear that public hearings were held with respect to the Flood Control Project. All property owners adjacent to Little Mill Creek, except Mr. Pellicone, participated and sold necessary property without the need of condemnation actions.NCC informed Mr. Pellicone that NCC needed to acquire the Easements by written correspondence and meetings. Moreover, NCC held two public hearings to specifically address the acquisition of these easements on August 21, 2012 and January 15, 2013.NCC also gave notice of the public hearing by publication in a newspaper of general circulation in the County. 
NCC Council Held Meetings To Determine Whether To Proceed With The Flood Control Project (Section 12.07.001.A5). Moreover, NCC Council met, both formally and informally, concerning the improvements proposed in connection with the Flood Control Project. NCC Council specifically authorized the Flood Control Project. NCC Council met and approved the expenditure of funds in connection with the Flood Control Project. NCC Council also specifically authorized NCC to proceed with a condemnation action to acquire the Easements.
This Court determines that, to the extent Chapter 12 applies, the factual record demonstrates that NCC has met and adhered to the procedural requirements of section 12.07.002.
c) Can The Federal Flood Control Project Legally Constitute A County Project?
The Remand Order provides that Mr. Pellicone continues to contend that NCC could not authorize the Flood Control Project because jurisdiction of Little Mill Creek is vested in DNREC and the Army Corps of Engineers. Therefore, Mr. Pellicone argues that sections 12.06.001C and 12.06.001D bar NCC from pursuing the Flood Control Project. The question on remand for this Court is whether the Flood Control Project legally constitutes a NCC project.
This Court holds that the provisions of Chapter 12 do not bar the Flood Control Project from being a NCC project. Mr. Pellicone's argument relies upon Article 6 of Chapter 12. Article 6, however, applies to stormwater management facilities and watercourse management while Article 7 deals with drainage improvements by NCC. These are two different articles addressing two different issues – one is watercourse maintenance (Article 6) and the other drainage improvements (Article 7). Furthermore, Article 7 does not prevent NCC from taking action respect to drainage improvements as to flooding in situations where DNREC or the Army Corp or Engineers has jurisdiction nor teaming with those entities in order to make improvements. In other words, Article 7 does not say "subject to limitations set forth in Article 6 or elsewhere in Chapter 12, NCC can undertake improvements necessary to protect persons and property from flooding." For Mr. Pellicone's argument to succeed, this Court would have to hold that there are implied limitations on NCC's power to effect necessary improvements to remedy dangerous flooding. There is no basis for such an implication.
Article 6, Chapter 12 relates to stormwater management facilities and watercourse maintenance by property owners and particular entities. Specifically, Article 6 discusses general maintenance requirements, inspections and maintenance logs. Article 6 does provide when NCC is responsible for stormwater management facilities and watercourse management. Moreover, section 12.06.002 does provide that one of the objectives of watercourse management is to keep streams, watercourses and drainage facilities open and free flowing so as to prevent flooding that could cause serious personal harm or structural damage.
Section 12.06.001C provides that it is NCC's responsibility to "keep all nontidal streams in New Castle County, which are not under the jurisdiction of the U.S. Army Corps of Engineers, State of Delaware, DelDOT, a tax ditch organization, municipality, or any maintenance organization, open and free flowing." Moreover, 12.06.001D provides:
The County will assume the responsibility for maintaining an open and free flowing condition in all nontidal streams, communal watercourses, and drainage systems which are necessary for proper drainage in the discretion of the County, and subject to funding availability and which are not already maintained by another public agency, tax ditch association, or maintenance organization if adequate right-of-way exists or can be acquired. The County will undertake this responsibility provided that such watercourses, and drainage systems, newly constructed or approved, meet County design criteria and are affirmatively accepted by the County.
While section 12.07.001D does not expressly reference DNREC or the Army Corps of Engineers, this section does exclude out properties already maintained by another public agency, tax ditch association or maintenance organization. This could be read to include public agencies like DNREC and the Army Corps of Engineers.
Mr. Pellicone argues that sections 12.06.001C and D bar NCC from acting when the Army Corps of Engineers or DNREC have jurisdiction over a stream. The express language of these sections does not support Mr. Pellicone's argument. Section 12.06.001C and D do not prohibit NCC from acting in situations, under section 12.01.007, where NCC has determined that, in order to protect persons and property, improvements are necessary to public and communal watercourses, drainage systems and stormwater management basins. Sections 12.06.001C and D do not even reference Article 7 or 12.07.001. Moreover, section 12.06.002 addresses flooding when watercourse maintenance is at issue. At best, NCC is barred from maintaining nontidal streams which are under the jurisdiction of DNREC or the Army Corps of Engineers. As discussed above, however, the Flood Control Project is an improvement project to address flooding on Little Mill Creek and not a project to open and maintain the free flow of Little Mill Creek.
In addition, sections 12.06.001C and D do not expressly limit NCC's rights under 9 Del. C. § 1525 as to Little Mill Creek. Instead, these sections designate those circumstances where NCC will assume responsibility to maintain open and free flow with respect to nontidal streams, communal watercourses and drainage systems not otherwise the responsibility of others (i.e., property owners, DelDOT, Army Corps of Engineers, etc.). This Court does not understand how the express language of 12.06.001C or 12.06.001D can be read to "bar" NCC from exercising its duty to make improvements under 12.07.001, or act pursuant to 9 Del. C. § 1525..
Unlike section 12.06.001, section 12.07.001 does not delegate responsibility to NCC for nontidal streams and alike not otherwise the responsibility or "within the jurisdiction" of others. Instead, section 12.07.001 provides that NCC should not undertake improvements under Chapter 12 to public and communal watercourses, drainage systems and stormwater management basins unless the improvement is to protect persons and property in NCC. Importantly, section 12.07.001 contains no language limiting NCC actions to certain communal watercourses, drainage systems and stormwater management basins, or prohibiting NCC from acting where a property owner or any other entity (including the Army Corps of Engineers) otherwise has assumed responsibility for the communal watercourses, drainage systems and stormwater management basins. In addition, Article 7 does not reference back or otherwise rely upon Article 6. Lastly, Article 7, Chapter 12 does not provide that NCC cannot team up with other entities when making necessary improvements to prevent damaging floods.
Based upon this analysis and the decision set forth in the Opinion on Possession, this Court concludes that the Flood Control Project legally constitutes a NCC project, jointly undertaken by NCC with the Army Corps of Engineers and DNREC.
The Court does not see how applying Chapter 12 here would limit NCC's ability to exercise eminent domain and take the Easements. If 9 Del. C. § 1525 does not apply, NCC's actions with respect to the Flood Control Plan arguably fall within the parameters of Article 7, Chapter 12. Section 12.07.001 provides that NCC should not undertake improvements UNLESS such improvements are necessary to "protect persons and property (specifically buildings) from serious harm and significant damage from flooding caused by storms of up to one hundred (100) year frequency." Here, the factual record supports the conclusion that NCC is undertaking improvements (in connection with the Flood Control Project) that are necessary to protect persons and property from serious harm and significant damage. Moreover, the factual record demonstrates that NCC adhered to the procedural requirements of section 12.07.002. Therefore, the Court believes that even if section 12.07.001 were applicable, the factual record would support NCC's actions under that section with respect to the Easements and the Flood Control Project.
IT IS ORDERED that this Opinion be filed with the Supreme Court prior to the end of the day on January 13, 2014.