Millville aims to have DelDOT right- of-way deal nullified

Last week, the Town of Millville filed a “Complaint of Declaratory Judgment” against 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.

“The Millville Town Council feels compelled to pursue a court order confirming that the Town of Millville, on behalf of its citizens, should receive full, just compensation for the portion of the Town Hall property being taken to widen Route 26,” said Town Solicitor Seth Thompson in a written statement.

The complaint states 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 $68,870, 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.

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.”

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.

There are no records of the agreement being discussed in a council meeting, and in a July 20 memorandum to state Rep. Gerald Hocker and state Sen. George Bunting, Town Manager Debbie Botchie stated that she had not had any knowledge of the agreement prior to receiving a package from DelDOT in March to officially acquire the town’s property.

“I had not seen this document prior, and I knew the document had not been reviewed by our legal counsel, nor was it formally approved by whole town council,” she stated. “I was in total surprise as I read the cover letter citing an excerpt from the town agreement signed by the previous mayor…”

Minyon stated that he had always had a good relationship with DelDOT and believed the Town would be justly compensated for the property.

“The former Secretary, [Carolann] Wicks – I had met with her a number of times on that issue, and they assured me that the Town would be taken care of, and I guess I took them at their word.”

Minyon stated that he had reviewed two notices with Botchie and that she had been “absolutely” aware of the agreement.

“To the best of my recollection, we had received a first notice on the State wanting to purchase some land, and it looked too generic. I refused to sign that… And then we received a second notice that they wanted to purchase the land, and the town manager and myself sat down, and I still didn’t want to sign it, but I was advised to do so. We did put in a stipulation that it had to be at fair market value for any land that that DelDOT took from the town.

“We went ahead and signed it in good faith, under the assumption that DelDOT would pay us the fair market value for that,” he added.

Botchie adamantly stated that she had not seen the document prior to finding them in the former mayor’s documents and that she always has all documents, legal or otherwise, reviewed by Thompson.

Minyon also said that he could not “recall” whether or not the contract had been reviewed by Thompson.

Although Thompson could not comment as to whether he had reviewed the contract prior to Minyon signing it, within the complaint it states that “neither the town council nor the town’s solicitor received a draft of the contract.”

Minyon said he also didn’t remember whether the contract came up in a council meeting, but that he believed all council members at the time were aware of the right-of-way acquisition.

“I believe, generally speaking, council knew that DelDOT was acquiring right-of-way along Route 26, and they knew they were going to acquire property from us, and they were aware that appraisers had come down and looked at the property,” he said. “I guess we just all thought that DelDOT was going to pay the fair market value of the property.”

Following Botchie’s discovery of the contract, she said, she contacted Thompson and the town council, all of whom, she said, have been trying to resolve the matter amicably with DelDOT ever since.

In an August meeting with the Town and DelDOT officials, Thompson stated to DelDOT Deputy Secretary Cleon Cauley Sr. that the Town did not dispute the valuation amount of the property but does contest the donation of approximately $57,000 worth of town property.

According to the meeting’s minutes, Town officials stated they would like the contract to be “set aside without enmity and resolved amicably.”

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 letter from 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.”

“There are 67 towns and municipalities throughout the state, so processes vary from town to town,” said Deputy Attorney General Fred Schranck, the primary attorney for DelDOT.

“My clients take it at the word of the Town about how they get their authority to sign it under what conditions,” Schrank continued. “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.”

On Nov. 28, the Town received 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.”

In its complaint, the Town requests that the agreement between the Town and DelDOT be deemed null and void.

“The council’s efforts to have this matter resolved prior to litigation have not been reciprocated, leaving no viable alternative but to file suit in order to protect an asset of the Town,” said Thompson in a written statement. “While Town officials and employees cannot comment extemporaneously on pending litigation, the Town will provide appropriate updates as the matter develops.”

“We will be in discussions with the Town’s attorneys to ascertain whether what they’re claiming is correct – namely that the mayor did not have, in their opinion, the authority to enter into that agreement,” said DelDOT Public Relations Director Geoff Sundstrom. “It’s a legal matter… We’ll make whatever adjustments need to be made if, in fact, some sort of an error was made.”