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Pellicone v. New Castle County ex rel. County Exec.

Supreme Court of Delaware

March 19, 2014

DONALD L. PELLICONE, Defendant Below, Appellant,
v.
NEW CASTLE COUNTY, upon the relation of the County Executive, Plaintiff Below, Appellee

Submitted February 26, 2014

Case Closed April 4, 2014.

Superior Court of the State of Delaware, in and for New Castle County. C.A. No. N13C-03-073.

AFFIRMED.

Richard L. Abbott, Esquire, Abbott Law Firm, Hockessin, Delaware, for appellant.

Gregory B. Williams, Esquire, Austen C. Endersby, Esquire, Wali W. Rushdan, II, Esquire, Fox Rothschild LLP, Wilmington, Delaware, for appellee.

Before HOLLAND, BERGER and JACOBS, Justices.

OPINION

Page 671

HOLLAND, Justice:

The defendant-appellant, Donald Pellicone (" Pellicone" ), appeals from a Superior Court judgment confirming tat New Castle County (" NCC" ) had certain easements on Pellicone's property. NCC sought the easements' validation to carry out a flood control project targeting Little Mill Creek in New Castle County.

Facts

In 1990, to address recurrent flooding in Little Mill Creek in Elsmere and Wilmington, the Delaware General Assembly (enacting House Bill No. 777) established the Little Mill Creek Flood Abatement Committee " to develop and implement a plan to correct flooding in the Little Mill Creek area in New Castle County." The enactment required the NCC Executive to be a member of the Committee. That bill appropriated $500,000 for a Little Mill Creek flood abatement project and further directed the Secretary of the Delaware Department of Natural Resources and Environmental Control (" DNREC" ) to obtain non-State funding for the project.

In 1994, NCC passed an ordinance that allocated $500,000 for the " Little Mill Creek II" drainage project. In 1995, at DNREC's request, the U.S. Army Corps of Engineers (" Army Corps" ) completed a Flood Control Feasibility Study for Little Mill Creek. That study recommended a " channelization" ( i.e ., a deepening and widening)

Page 672

of Little Mill Creek to solve the flooding problem (the " Flood Control Project" ).

By 2005, the Army Corps had secured funding to begin the Little Mill Creek Flood Control Project.[1] Upon completion of the first phase of the Flood Control Project in 2011, the Army Corps began the second phase, which included Pellicone's property. As part of the second phase, NCC has been responsible for acquiring the necessary easements from the thirty-nine owners of properties impacted by the project.[2] Between 1995 and 2013, NCC contributed over $400,000 to the Flood Control Project.[3]

In December 2011, and again in July 2012, NCC informed Pellicone of its intent to obtain certain easements on his property for the Flood Control Project, pursuant to title 9, sections 1525 and 9501A of the Delaware Code.[4] On January 22, 2013, NCC adopted a resolution authorizing the County Executive to initiate ...


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