This week the town of Millville reached a resolution with the Delaware Department of Transportation (DelDOT), regarding an agreement for the Town to donate Town-owned right-of-way interests necessary to the Route 26 improvements project.
“We’re very satisfied with the court’s decision,” said Town Manager Debbie Botchie.
In December of last year, the town filed a “Complaint of Declaratory Judgment,” which stated that, in November of 2008, DelDOT requested that former Mayor Donald Minyon sign a contract that would “donate” the Town’s land, tax parcels 1-34-12.00-156 and 1-34-12.00-158.02, appraised at a total rounded fair market value of $84,310, in fee simple, with compensation to be given only for improvements granted to the Town for an appraised $11,720 — which included loss of signage, grass and mulch.
The complaint was filed following the town receiving two letters from Rosemary Richardson, the South District Acquisition Manager for DelDOT, stating, “Since settlement regarding our purchase offer has not been reached, we must proceed with the condemnation process.”
According to the complaint, “at no time prior to presenting the agreement to the mayor did the department approach or present the town council with the agreement or make a request to be placed on a town council meeting agenda.”
Botchie and the council had tried for months to resolve the issue with DelDOT before they filed the complaint, sending letters to Rep. Gerald Hocker and state Sen. George Bunting, and even discussing the matter with DelDOT Deputy Secretary Cleon Cauley Sr.
Cauley, at that time, said that he would look at the agreement in question, speak with his legal team and those involved and determine how the agreement was executed. He said he would contact Thompson by Sept. 9.
In a November 2011 letter from Town Solicitor Seth Thompson to Cauley, Thompson stated, “Neither I nor the Town has received any communication of findings or conclusions issued from the Department on the matter since.”
In the complaint, the Town argued that the contract should be deemed null and void, as the Town Charter only allows the mayor to act on behalf of the town, without council approval, in the event of a “sudden emergency.” Any powers to “vacate” the town’s use of lands or rights-of-way must be approved by the town council as a whole.
Last December, Deputy Attorney General Fred Schranck, the primary attorney for DelDOT, said that it was not his client’s obligation to review the charters of each town they enter into an agreement with.
“There are 67 towns and municipalities throughout the state, so processes vary from town to town,” he said. “My clients take it at the word of the Town about how they get their authority to sign it under what conditions. So we don’t normally, as far as I know — my clients don’t go through a detailed process of confirmation with the people they are dealing with on those agreements to confirm who has what authority. When they get the thing back signed from the Town, then my clients sign it, and people go on.”
DelDOT did not file a response to the complaint, and instead agreed to resolve the matter, with three stipulations. The stipulations resolving the complaint, granted on July 24 by Judge T. Henley Graves, states that the November 2008 agreement be null and void; the Town will adopt an ordinance amending the Town Code to “expressly govern signatory authority;” and the matter to be dismissed with prejudice.
Thompson explained that the new ordinance, to be presented to council at its August meeting, will “clarify signatory authority,” as to assure something like this does not happen again.
“The purpose is to have an ordinance passed that clearly identify who has signatory authority,” he explained. “So it might not necessarily be that every council member has to sign on a contract, but perhaps they have to attach a resolution to that affect, so that it’s abundantly clear why the person has the authority to sign. And if it was indeed a council decision that there was indeed approval there.”
Although the resolution means the process needs to start back from square one, the town is confident that the appraisal will be close to the amount it was originally appraised for.
“Now the process will begin again and they will come out and appraise the property and the taxpayers of Millville will be getting the compensation they deserve,” said Botchie. “If the appraisal does not come in as high as it was before, the Town still has recourse to argue that as well.”
“If that were to occur, there is a process in place whereby a person can attest the value that is provided in that kind of scenario,” added Thompson. “That doesn’t just apply to the town that would apply to anybody when there’s that kind of taking.”
To date, the town has spent $5,619.68 on legal fees fighting the contract.
“It’s unfortunate that we had to pay good taxpayers monies on agreements signed by the former mayor,” said Botchie. “Especially with DelDOT’s knowledge of our charter — knowing that our charter states that any single council person cannot sign an agreement without full council approval.”
Botchie said that the town’s council is pleased with the outcome and believes it was a win for the residents of Millville.
“They’re just very happy that the Town of Millville stood fast against DelDOT. The municipality stood strong and went forward to have some legal action taken against DelDOT so they would do the right thing. People and municipalities shouldn’t always fear DelDOT because, ‘they always get what they want,’” she said. “This time we shined.”