Council discusses restricting eminent domain in charter

Terry RogersGovernment, Headlines, Milford Headline Story

The City of Milford discussed changing the eminent domain policy in their charter

At a recent meeting, Milford City Council discussed restricting the use of eminent domain in its charter. The discussion was prompted by a statement made by Senator Dave Wilson prior to the meeting regarding legislation he plans to present at the state level.

“This legislation was inspired by the recent event that transpired with the Annette Billings case and the use of eminent domain. The legislation would provide a layer of protection for landowners in the future to prevent similar situations from happening,” Senator Wilson said. “This legislation would prohibit the city of Milford from condemning property outside the town limits. The city could still condemn poverty within the town limits of Milford. The city may still acquire property inside and outside the city limits by purchase or by request of the property owners to annex the owners property.”

Senator Wilson continued, asking the city to take the necessary steps to adopt the changes on its own.

“If not, I am in a position now as a senator of the 18th district that we’re going to introduce legislation at the state level. I’m not here to strong arm anyone. I’m here to give you the opportunity. I want to be up front. I was born and raised here. I’m not here to strong arm,” Senator Wilson said. “But I think it’s time that we take a different approach of how we do things in the city of Milford and the outcry that we had over the Billings case, I’m not criticizing anyone. I think it was something that got out of hand. But I’m not saying that would have been a different outcome, but I think looking back on it, I knew nothing about it until I got contacted by one of my constituents. “

Senator Wilson felt that, in the future, the city had the opportunity to change the charter so that it would provide more protection for those who owned land that bordered city limits

“It is something the city can do, but if the city doesn’t want to do it, then I’m afraid that you’re gonna see legislation and it’ll be done by the state governments. I feel it is best kept closest to the people, the people that are here this evening, our citizens and residents of Milford,” Senator Wilson said. “You’re all council people, representing your respective districts. I’m not here to say that if it doesn’t get done my way, you’re gonna have a problem. That’s not gonna happen. You have the opportunity. I want you to take and exercise your rights first. And if we can’t get it done that way, then I’ll have to move on to the next step.”

Later in the meeting, council discussed the proposed legislation, a copy of which was provided to council. The bill would impact the City of Milford only, allowing the city to condemn land inside city limits, but allow purchase of land both inside and outside the city. No other city or town was included in the proposed legislation.

“So, a little background on this, as is Senator Wilson discussed earlier, some language was developed by Senator Wilson and also supported by representatives that we should make an adjustment to our charter which disallows eminent domain on property outside of the city,” Mayor Todd Culotta said. “Right now, the way it works is we do have the power to take people’s property that border ours but are outside of our city, and there’s no process with the county to have that approved or not. So, the county doesn’t know that they annexed land until tax records change. So arguably anybody that borders Milford is at risk and has no control or recourse other than legal action.”

Mayor Culotta added that he would like some language related to limiting the use of eminent domain to things like utilities, including water, sewer and electric. He also reminded council that eminent domain is an absolute last resort. He pointed out that the former Mayor Archie Campbell stated there would be no more eminent domain, but as long as the option was in the charter, there was still the option for this council as well as future councils to use it as they saw fit.

“I tend to agree with Mayor Culotta. I suggest that the city’s position is that land condemnation or eminent domain is very, very tightly restricted. And I would agree that it only be for those things that are of public need. infrastructure, roads, utilities. And then and only then after every other avenue has been exhausted,” Councilman Jason James said. “But I want to be careful that if there’s a need to extend a road, the city needs a new road and it needs to connect to another road and the road is outside of the city limits, what happens then. I just want council to consider that will this prevent the city from building the road even after every other avenue has been exhausted. But I would like to see the city charter change to be highly restrictive, highly restrictive. And I would rather for it to come from Council, because as you know, prior to the current mayor and in the current mayor’s organizational meeting with council on May 6, I believe there is a charter review committee established. We’re actually in the process of reviewing it to make changes to our charter and I think this should be one of those changes.”

Councilwoman Madula Kalesis pointed out that when she compared the proposed legislation provided by Senator Wilson with the city charter, there did not seem to be any significant changes.

“It doesn’t say limited to recreation. So, I read it I read it multiple times. I had to go over it. I had to go to the charter and look at the charter to see what it says, and it looks the same. It has not changed minus where it says, “shall have” it now says “has” all powers,” Councilwoman Kalesis said. “To speak about what Jason said, I don’t agree with eminent domain when it comes to a park or a bike path. But cities have been known to take land for schools, for roads for things that we need. So, to change it’s out or to make it more restrictive as far as like what we do, I’m all for it. But I don’t think we can abolish eminent domain as a city.”

Mayor Culotta pointed out that the language in the proposed legislation would not necessarily be used in the city charter and that the city could make the changes as they saw fit in their own code. He also stated that there was no intention of eliminating eminent domain from the charter completely, just restricting it’s use outside of city limits.

“Can I just maybe give a little legal overview. There’s three ways to change charter under the Delaware code,” City Solicitor David Rutt said. “One is by council doing it by resolution, and then it gets sent to the General Assembly and introduced by one of the members of the General Assembly. The second way is if the city had a commission, an elected commission which the city doesn’t, but those are generally very, very rare. And then the third is by introduction of a bill through the General Assembly by one of the legislators and it has to pass both houses, if it’s by a legislator, by a two-thirds vote. So those are the three ways.”

Solicitor Rutt continued, explaining the process for the use of eminent domain.

“As far as eminent domain and the legal process. The first step in that is to have an appraisal. Then reach out to the person make an offer based on the appraisal. Try to negotiate a price. And if that can’t happen, then the eminent domain litigation can begin in Superior Court,” Solicitor Rutt said. “As far as notice, the notice when it’s filed, copies are given to the county. I mean, they see it but then there’s a loop process of going back and forth trying to reach resolution.  It’s a two-step process. But yeah, there is that weight of the party to be represented to make the argument as to value, as to necessity and so on and so forth. So, there is a process in place, and eminent domain is actually embedded in the Delaware Constitution. It says governments can acquire property through eminent domain by paying just compensation if it’s for public need.”

Councilwoman Lori Connor questioned whether the restrictions would apply to what can be done with land taken by eminent domain inside and out of the city boundaries. Mayor Culotta stated that the discussion to that point had been about outside limits only, but inside could also be restricted. Councilwoman Connor then questioned how this would provide reassurance to people that eminent domain would not be used in the manner it was in the Billings case.

“My question is similar. Does this bill represent inside of city limits and outside of city limits? That was my question,” Councilwoman Katrina Wilson said. “I think eminent domain has a place within cities or if it’s needed, and so I do believe that it has its own place within a city. I just want to know if this supports inside city limits and outside city limits. I feel it has a place inside and outside.”

Mayor Culotta suggested that the city allow the charter review committee to look over the code to see where changes could be made.

“This should be included in that discussion and included in when we vote to what we’re going to send to the General Assembly. I think there’s nothing to vote on tonight. So we’re having this discussion now. Now that we’ve had it in front of our council, everybody’s aware of it,” Mayor Culotta said. “Think about how you’d like it phrased or what input you would want and that includes all of the charter. For the new folks, we’re going through a charter review, so familiarize yourself with it, and then ask questions or give feedback and then we will submit it to the committee. The committee will come back with the recommendations to the council. We confirm that then it goes to the General Assembly. So, I agree all this is good discussion and if you have any anything further to discuss, we always can.”

Councilman James reiterated that his comments were guided towards both inside and outside city limits. He felt the use of eminent domain should be highly restrictive and used only for “needs” and not “wants.”

“Anything related to recreation or a want, I believe should be done at arm’s length and negotiation with property owner and let the market forces take place between those entities, the city and the individual,” Councilman James said. “I don’t believe that that should be a taking because it’s a want and not a need. Roads and water and electric are needs. Parks are a want. I want parks but I think there should be a negotiation between buyer and seller not through eminent domain.”

Councilwoman Nadia Zychal felt that there was wisdom in allowing the General Assembly to craft legislation.

“I want to make sure when this is crafted and refined, that there are no gray areas and ambiguities between what Milford wants to refine in this in terms of what the parameters are of what would be allowable for defining eminent domain,” Councilwoman Zychal said. “I agree needs versus wants are an important consideration. And that there isn’t that gray area because when there is a gray area that is where litigation can happen. We need to make darn sure that there are no conflicts between what the county allows and what the city of Milford allows”

Mayor Culotta agreed, stating that as long as the current code was in place, it was still permitted no matter how much the current council was committed to not using it. No vote was taken, but the consensus among council was to allow the charter review committee to work on the language regarding eminent domain.

 

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