County opposes loss of revenue-generating offices

Delaware’s current legislative session – the final one of the 145th General Assembly – lasts only through the end of the month, and legislators are currently in the midst of the annual rush to complete work on bills before the June 30 deadline.

“It’s the peak of the season for the General Assembly,” Sussex County Deputy Administrator Hal Godwin reminded county council members at their June 15 meeting as he presented them with a weekly update on legislative happenings.

The end of this month is the final date of reckoning for bills introduced in the last two years but not yet passed. All bills not approved by midnight on July 1 will need to be reintroduced next year in order to move forward.

Though that deadline is fast approaching, new bills continued to be introduced this week and existing ones have been acted upon or reappeared out of inactive status.

On Tuesday, Godwin took particular note of a series of House bills and House joint resolutions that collectively would remove the Recorder of Deeds and Register of Wills offices from county control to state control and would replace the appointed heads of those offices with elected officials.

The legislation is also targeted to ensure the offices become and remain revenue-neutral, as opposed to garnering a significant amount of revenue for the counties, as they do now. That potential change has alarmed county officials and those who receive funding from county sources.

House Bill (HB) 465 would remove the Recorder of Deeds office to state control. House Joint Resolution (HJR) 12 makes the Recorder of Deeds an elected position. HB 468 likewise removes the Register of Wills office to state control, while HJR 13 makes the office an elected one, rather than an appointed position.

Godwin said on June 15 that he had been told the collective legislation had been separated into four individual bills to improve the chances that one set of changes would be approved, even if the other is not.

He said there was believed to be more resistance to changing the Recorder of Deeds office than the Register of Wills, and if supporters could get one of those changes done this season, it would set the stage for next year.

Godwin said he had talked to number of legislators about the bills, though not to their sponsors. He also noted that New Castle County’s position of opposition to the change had become “much softer” than it originally appeared.

“Sussex County Council will resist this with everything we can,” he said. “New Castle County is not sure they are going to resist this,” citing that officials there believed that language in the bills “guarantees” they are financially neutral.

However, Godwin said, he read the bills to guarantee only that in January 2011 a working group would be set up to recommend how and what legislation to put in place to keep the offices revenue neutral.

“They must have that work done by Jan. 30,” he said, adding, “That’s an enormous amount of work that I don’t think can be done in 30 days. I’m not assured that we’re being kept revenue neutral by this change,” he added.

With committee hearings on the legislation scheduled for June 16, Godwin requested that council members join him in Dover to offer their comments and opposition to the change. Kent County officials also oppose the change.

Enhanced state review power divides council

Godwin on June 15 also offered an update on Senate Bill (SB) 132, a land-use bill introduced last year that had caught the council’s attention before. SB 132, he said, would require that any zoning ordinance that the county council would consider would have to first be cleared though the state planning office.

“It hasn’t seen any activity since last season,” Godwin noted, but added that hearsay was that people were seeking to move the bill forward again. The council had opposed the bill last year.

However, Godwin said there was some lingering confusion over exactly how the bill would impact the county’s usual procedures – would it delay the process, merely offer the state agency a chance to review and comment, or offer what is essentially a veto of county zoning decisions?

“It’s just a review? They have no say over it?” Councilwoman Joan Deaver asked.

Godwin said a proposed amendment to the original bill gives the state planning office 20 days to complete their review or the authority to adopt the ordinance comes back to the council.

“You would have to send zoning ordinances changes you are considering to the state planning office. They would have to review or send them back in 20 days,” he explained.

“It is a review, but the state could probably cause some delay if their review came out unfavorably,” Godwin added. “It doesn’t say that exactly,” he allowed, but he noted that the bill referenced the agencies need to review ordinances “prior to approval” indicates that the agency might be able to stop approval if it didn’t approve of the ordinances in question.

“This is the camel’s nose under the tent,” commented Councilman Sam Wilson on the potential for state agencies to gain control over county planning decisions. “I oppose it.”

Deaver, though, said she didn’t see any harm in the review process.

“I don’t see where it would slow us down if they didn’t approve it,” she said, reading the language in the bill.

Godwin referenced the existing state Preliminary Land Use Service (PLUS) review process for some land-use decisions. “The PLUS process just gives comments. It doesn’t stop you,” he said.

“It’s voluntary,” added Councilman George Cole of PLUS.

“It’s required but voluntary,” Godwin clarified with a chuckle. “You’re required to go through the process.”

Cole said he agreed with Deaver on the lack of problem a review process was likely to pose.

“If it’s 20 days and we’re not tied up, that’s no problem,” Cole said. “We rely on the state planning office. Being reviewed in 20 days is not a burden. I would not be unfavorable to that bill.”

Wilson took issue with the apparent change of direction on the bill.

“A year ago, we had the whole council here and were opposed,” he noted.

Cole and Deaver said neither of them would oppose the bill now.

“You’re saying, ‘We don’t want any responsibility. Give it all to the state,’” Wilson chided Cole over his nod to the state planning office.

“I didn’t say that,” Cole replied.

Council President Vance Phillips said the conversation was a familiar one.

“It reminds me of the conversation when council first talked about PLUS. People said it was the beginning of a process that would continue to evolve to put more and more of the authority in the state,” he said. “The camel’s nose may already be under the tent, Mr. Wilson.”

Wilson appeared ready to push any metaphorical camel back out of the tent.

“I’m not Chicken Little, but I believe in home rule,” he asserted.

County attorney Everett Moore said he found the language in the bill confusing, with references to ordinances that had been adopted and also reviewing ordinances prior to approval or adoption.

“I still have no problem with it as written,” Cole said. “Reviewing is part of their responsibility. I have no problem with them reviewing and giving us recommendations. I can handle it – whether they’re giving us positive or negative recommendations.”

Phillips expressed caution about the potential implications of the bill.

“It’s possible that once this body has approved an application, the State Office of Planning could get involved,” he said.

“That is what concerns me,” Moore replied. “They indicated they wanted to make comment prior to the plan being filed.”

“It’s almost a veto authority,” Phillips suggested.

“It doesn’t appear to give a veto,” Moore clarified. “But it’s very confusing to me the way it’s drafted.”

With a 2-2 split (Councilman Michael Vincent absent) on whether to oppose SB 132, the council members eventually came to consensus to remain silent on the council’s opinion on the bill but that Godwin should let legislators know if the bill were to come up that the council considered it confusing and not well written.

FOIA amendment raises concerns

Council members were of one mind about a proposed amendment to the state’s Freedom of Information Act (FOIA) law. House Bill (HB) 300 requires that if government entities receive a request for information under FOIA, that request must be answered within 10 days, even if the answer is that the governmental body needs more time to provide the actual information.

Godwin said the amendment would provide for up to two 10-day extension of the time allowed to respond with the information if legitimate reasons for delay (such as the records being archived) exist, requiring that the information be provided within 30 days of the request.

“Many other local governments will be opposing this because it squeezes down the length of time we have to respond,” Godwin noted.

“Ten days is not enough time,” Wilson commented on behalf of the four council members.

On the subject of changes to FOIA, Cole asked if there was any move to protect governmental officials from having to turn over their personal e-mail under requests for information.

Moore said, though, that such requests generally come up during litigation, under discovery proceedings, with interrogatories and depositions, rather than being direct part of a FOIA request.

“It is an area of concern,” he acknowledged.

Cole asked that legislators, while in the midst of potentially amending FOIA, be lobbied to provide such protections for officials’ personal e-mail.

“It’s too much of a burden on individuals on our level of government,” he said.

Currently, Ocean View Mayor Gordon Wood’s personal e-mail and home computer are the subject of a FOIA request from a resident of the town.

Also on Godwin’s list of legislation updates:

• HB 333 has passed both chambers of the legislature. It is a bill requested by Sussex County that would allow it recourse to the state’s Justice of the Peace Court, in addition to the Court of Chancery, to enforce requirements to connect to county sewer. The move is designed to be a time- and money-saving change for the county. The bill is among those Godwin said he would be calling on Gov. Jack Markell to sign after the legislative session ends.

• SB 240 adds cats to the list of animals that can cause a dog to be added to the state’s list of dangerous dogs and potentially destroyed. The current list includes dogs, poultry and livestock. Godwin said legislation is also proposed that would give the county responsibility for adjudicating all incidents under the dangerous dog code.

He said his concern was that while the state was still in the process of transferring dog control responsibilities to the county, “It appears they’re adding on to the workload by adding on new things that we would be responsible for that they were never responsible for.” He said the bill’s sponsors were aware that the county was objecting to adding cats to the list at this time.

“Let them bring it back next year if they think it’s a big deal,” Deaver said, supporting the opinion that now is the wrong time to add to the county’s new dog control responsibilities.

• Godwin said he had stepped away from SB 265, as the Farm Bureau, farmers and legislators appeared to be working “harmoniously” on the issues behind the so-called “farmers nuisance bill,” designed to protect farmers from complaints about normal agricultural practices.

• SB 292 has been introduced in the Senate by Sen. Robert Venables. The legislation would reschedule the county’s tax assessment date to close its tax books later and allow the mailing of tax bills in closer proximity to that date, to reduce rebilling due to property transfers.

• HB 449 was passed in the House, approved without discussion on a consent agenda at the call of Rep. Pete Schwartzkopf. The bill makes a housekeeping change to refer to Planning & Zoning appointments in the county being by council district, rather than representative district, which is the practice.

• HB 402-407 have passed the House. The ag bills include a number of housekeeping issues, including removing emus from the fruit-growers code to the animal ag code sections.

• HB 442, Godwin said, was a piece of legislation that New Castle County officials had called on Sussex County to oppose with them. It would make changes to state code regarding sewer, changing a reference to “a service territory” to “an existing service territory,” which Godwin said New Castle County officials were reading to cost that county its authority to regulate sewer service territories unless they already have pipe in the ground in that location.

County Administrator David Baker said he was going to follow up on the legislation to see what the intent of the change was. Godwin said he would take no stance on the bill but would tell New Castle County officials the Sussex council didn’t know where it stood on the issue yet.

• Godwin on Tuesday also made council members aware of a draft bill that had not yet been introduced – one that aims to provide relief from stormwater fees imposed on property owners who do not currently discharge into stormwater systems of the local government.

He said he was concerned about the draft bill because “there is no such animal in this county,” meaning there are no such systems or fees for using them. “There is talk of a state utility for stormwater management,” he noted. “And this would relieve certain people of fees that aren’t even established yet.

• HB 466, which was only introduced on June 10, offers specifications for the humane handling, care and treatment of dogs, including prohibiting extensive periods of tethering between 11 p.m. and 6 a.m. and in inclement weather. Shelters would be instructed to conduct a public awareness campaign on the dangers of tethering dogs in such conditions. Godwin said he felt it offered additional responsibilities for the county.

“I think it’s ridiculous,” Cole commented.

“I’m not in favor of it,” Deaver added. “Who’s going to enforce it?”

Godwin said he would oppose the legislation on the council’s behalf.

• HB 419, which DNREC asks the county to support, was on the June 15 agenda in the House. It would mandate that the county enforce dog control procedures in a fashion determined by state officials. Godwin said he had told legislators, per prior council instructions, that the county didn’t like the bill as an “unfunded mandate,” though it didn’t oppose its content.

Phillips, however, said he objected to being forced to pay for the program but follow state rules.

“If we pay for the program, we should have control,” he said. “Saying we’re not opposed almost infers we would support it. No position is no position,” he said, suggesting that that be the county’s position. “Do you have any concerns about the state mandating regulations for dog control which they have no financial stake in?” he asked fellow council members.

“If they don’t want to finance it, … tell them to shut up,” Wilson commented.

Deaver, however, said she felt the intention of the statewide regulations was good. “If we had uniform laws, wouldn’t that make more sense than Kent and Sussux County adopting different laws for dog control?”

“I’m concerned about the depth of regulation that the state is about to pass,” Phillips replied, while Cole suggested the council “get off this dog issue,” which he said was bogging them down. The council voted 4-0 to oppose the bill, with Cole offering the message, “We support local control of dog control.”

• SB 268, which would impact regulation of plumbing inspections, was to go to committee hearing on June 16. Godwin said he had questions about its intent and how it would impact the county. He said the county’s director of building inspections was not comfortable with the wording, which states that “every political subdivision shall enforce the International Mechanical Code and International Fuel Gas Code,” as adopted or modified by the state board.

“It sounds like we’re supposed to handle the whole thing,” Godwin said. “But the state office has told our inspector that the state is going to continue to do inspections.”

Moore said his reading of the bill implies for the county “duties we have not exercised in the past and would have no control over.”

Legislators are expected to continue work on the introduction, discussion and approval of bills right up until midnight on July 1. Bills that are approved by both houses also require the governor’s signature to become law.