CHAPTER 135
FORMERLY
SENATE BILL NO. 86
AN ACT TO AMEND TITLES 15 AND 22 OF THE DELAWARE CODE RELATING TO ANNEXATIONS AND SPECIAL ELECTIONS CONCERNING ANNEXATIONS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two—thirds of all members elected to each House thereof concurring therein):
Section 1. Amend Chapter 1, Title 22 of the Delaware Code by creating a new Section 101A to read as follows:
§101A. Extension of_boundaries of lam municipalities: special elections for annexation.
Any municipality in the State having a population in excess of 50,000, as enumerated in the most recent federal census, may extend the boundary limits of the municipality so as to include any portion of adjoining or adjacent territory, under the following terms and conditions:
(a) The annexation process under this section shall only be initiated by a written petition to annex adjacent or adjoining territory submitted by the muncipality's chief executive officer, or by member(s) of the municipality's legislative body, or by at least 25% of the qualified voters in the territory. The petition to annex, containing a general description of the territory, must be filed with the clerk of the municipality or equivalent municipal officer who is the keeper of official municipal legislative records, and with the equivalent clerk or officer of the county in which the territory is situated.
(b) Upon the filing of a petition under subsection (a) of this section, the annexation must be approved in the following order:
(1) The legislative body of the municipality must enact an ordinance approving the proposed annexation. The ordinance must provide a legal
description of the territory, adopt the corresponding changes to the boundaries of the municipality, and contain such other provisions as may be required by law.
(2) The chief executive officer of the municipality must approve the proposed annexation, as evidenced by his or her actual signature approving the ordinance enacted by the municipality's legislative body pursuant to subsection (b)(1) of this section.
(1) The legislative body of the county in which the territory is
situated must enact an ordinance approving the proposed annexation. The
ordinance may incorporate by reference all or a portion of the ordinance enacted by the municipality's legislative body pursuant to subsection (b)(1) of this section.
(2) The chief executive officer of the county in which the territory is situated must approve the proposed annexation, as evidenced by his or her actual signature approving the ordinance enacted by the county's legislative body pursuant to subsection (b)(3) of this section.
(1) A majority of the qualified voters in each parcel of the
territory, voting in a special election held by the proper election official, must approve of the annexation. Such special election shall be
held not less than 30 days nor later than 60 days following the date of approval of the county ordinance by the chief executive officer of the county pursuant to subsection (b)(4) of this section.
(2) If the proper election official certifies that the results of the special election indicate that a majority of the qualified voters in each parcel of the territory who voter in such election approved of the proposed annexation, the annexation shall become effective on the first day of the month immediately following such certification.
(c) If either legislative body shall fail to enact the respective
ordinances required under subsections (b)(1) and (3) of this section, or if either chief executive officer shall fail to approve such respective ordinances as required by subsections (b)(2) and (4) of this section, or if the certification of the votes cast in the special election shall indicate that a majority of the qualified voters in each parcel of the territory who voted in such election was against the annexation of the territory, the proposed annexation of the territory shall be declared to have failed. Nothing in this section shall prohibit any interested party from resubmitting a petition for annexation of the territory, or any portion thereof, under the authority of and in accordance with this section.
(d) The following definitions shall apply to this section:
(1) 'Adjacent' means to lie upon or touch the boundary of the
municipality.
(2) 'Adjoining', in addition to its general meaning, shall also mean
to lie upon or touch a highway, railroad right of way, or watercourse which lies upon the boundary line of the municipality and separates the municipality and the territory by only the width of such highway, railroad right of way, or watercourse. If more than one (1) highway and/or railroad right of way and/or watercourse, or any combination of the same, separates the municipality and the territory, and such highways and/or railroad rights of way and/or watercourses lie upon or touch each other, then the municipality and the territory shall be deemed adjoining.
(3) 'Election official' shall mean the person designated as the judge of the election under any special election law concerning annexations which applies to the particular municipality under Title 15 or otherwise.
(4) 'Parcel' shall mean the property in the territory to which is
assigned a separate tax parcel number on the books and records of the county Board of Assessment.
(5) 'Qualified voter':
(i) with respect to any petition filed by voters in the territory pursuant to subsection (a), the term 'qualified voter' shall mean each voter qualified to vote under any special election law concerning annexations which applies to the particular municipality under Title 15 or otherwise, as of the date of filing of the petition; and
(ii) with respect to any such special election, the term 'qualified voter' shall have the meaning set forth under any special election law concerning annexations which applies to the particular municipality under Title 15 or otherwise.
(6) 'Territory' shall mean the property or properties proposed to be annexed to the municipality."
Section 2. Amend Chapter 75, Title 15 of the Delaware Code by creating a new Subchapter III to read as follows:
"Subchapter III. Special elections for Annexations for
City of Wilmington.
§7540. Speciarelection to approve annexation for City of Wilmington under 22 Del.C. §101A: fixing time for holding„
(a) Upon the enactment of a county ordinance pursuant to 22 Del.C. 101A(b)(3), for a proposed annexation of territory by the City of Wilmington, and its approval by the county executive pursuant to 22 Del. C. §101A(b)(4), the county council, by resolution, shall fix a date for the special election required by 22 Del. C, §101A(b)(5), at which all voters qualified under §7543 of this title may vote, on the question whether the proposed annexation should be approved.
(a) The special election shall be held not less than 30 days nor more than 60 days after the date of approval of the county ordinance enacted pursuant to 22 Del.C. §101A (b)(3).
§7541. Contents of notice of special election.
The special election shall be held on the date fixed by county council pursuant to §7540 of this title and shall be previously advertised by publishing a notice in a newspaper published within the county and having a general circulation therein, once in each of 2 weeks preceding the week in which the special election is held, and by posting a notice in a prominent place in the building at which county council meets for the conduct of legislative business. The notices shall state the time and place of the special election, and further state that the purpose of the special election is to determine whether a majority of the qualified voters in each parcel of the territory are in favor of the annexation by the City of Wilmington. The posted notice shall also provide a detailed description of the territory, including but not limited to a map showing the territory in relation to the City of Wilmington and the area surrounding the territory.
§7542. Place,_time and manner of voting_duties of Clerk of the Peace.
(a) The special election shall be held in the building in which is situated the
offices of the Clerk of the Peace. The polls shall be open from 9:00 a.m. to 6:00 p.m. on the day of the special election and voting shall be by printed ballot, which shall give the qualified voters an opportunity clearly to indicate their consent or objection to the annexation of the territory by the City of Wilmington.
(a) The Clerk of the Peace shall:
(1) act as judge of the special election;
(1) prepare, publish, and post the notices required under §7541 of this
title;
(2) prepare the ballots required for the special election; and
(3) perform such other duties as provided in this subchapter for the Clerk of the Peace.
§7543. Qualified voters: voting list
(a) The following shall be considered qualified voters for a special election held with respect to an annexation initiated pursuant to 22 Del.C. §101A for the City of Wilmington, and shall be entitled to vote in such election as provided herein:
(1) Every person eighteen (18) years of age or older who at least 30 days prior to the date of the special election is a duly registered voter in the election district or districts of the county in which the territory is located, and who resides in said territory, shall be entitled to one vote each.
(2) Unless already qualified to vote under subsection (a)(1) and subject to subsection (b) of this section each owner of a parcel of real estate located in the territory, as evidenced by the assessment records of the county, shall be entitled to one vote each. Corporations, limited partnerships, or other
entities which own real estate in the territory shall be entitled to one vote each under this subsection, which right to vote shall be permitted by the judge of the election at the special election upon receipt of a sealed, certified copy of a corporate resolution passed by the governing body of the corporation, or the equivalent of such resolution of the entity involved, authorizing an officer, agent, or other person to vote on behalf of the entity at the special election.
(1) Unless already qualified to vote under subsections (a)(1) or (a)(2).
each holder of a then-current leasehold interest in a parcel in the territory, as evidenced by a certified copy of the lease reflecting that interest submitted to the judge of the election at the time of the special election, shall be entitled to one vote each, which shall be permitted in the same fashion as if carried out under the provisions of subsections (1) or (2), as the case may be.
(1) Unless already qualified to vote under subsections (a)(1), (a)(2), or
(a)(3), each person, corporation, limited partnership, or other entity, who in the determination of the judge of the election is qualified to vote under the provisions of subsection (b) of this section, shall be entitled to one vote each, which shall be permitted in the same fashion as if carried out under the provisions of subsections (a)(1) or (a)(2), as the case may be.
(5) In no event shall any person, corporation, limited partnership, or
other entity, or any holder of a leasehold interest, who or which is qualified to vote under this section, be entitled to more than one vote in such special election.
(b) Not less than 14 days prior to the special election, the Clerk of the Peace shall prepare from the books and records of the county Board of Assessment a list of the real estate owners of each parcel of the territory for which the special election is to be held. In addition, not less than 21 days prior to the special election the Department of Elections for the county shall provide the Clerk of the Peace with a current list of registered voters in the election district or districts in which the territory is located, who reside in the territory. From the two lists prepared pursuant to this subsection the Clerk of the Peace shall compile the voting list of the qualified voters for the special election. The voting list shall be evidence of the right of qualified voters to vote in the special election, except as hereinafter provided:
(1) Real estate owners who sold their property or properties in the
territory prior to the date of the special election shall not be permitted to vote but the then owners of the property or properties shall be entitled to vote in their place and stead upon furnishing the judge of the election with the original or a certified copy of the deed to the property or properties, which deed shall clearly evidence that it was duly recorded; provided, however, that if the new owner is a corporation, limited partnership, or other entity, the new owner must also comply with the provisions of subsection (a)(2) of this section;
(1) Any person claiming the right to vote at the election as an heir of any real estate owner in the territory who has died since the preparation of the voting list, or as trustee or guardian under the terms of the last will and testament of such real estate owner (who has died since the preparation of the voting list) shall furnish the judge of election with the original or a certified copy of the will or other document evidencing his ownership of, or interest in, the property of such real estate owner, and shall thereupon be permitted to vote as if qualified under subsection (a)(2) of this section; or
(2) Each person, corporation, limited partnership, or other entity
qualified to vote in the special election pursuant to subsection (a)(3) of this section shall be permitted to vote despite their absence from the voting list prepared by the Clerk of the Peace.
§7544. Certification of result of special election: retention of ballots.
No later than 3 days after the holding of the special election, the judge of the election shall tabulate the ballots and certify the result to the county council and to the Wilmington City Council under his or her hand and seal. The ballots shall be retained in the safekeeping of the county government for 1 year before being destroyed.
§7545. Alternative approval procedure when only one auallfled voter exists
If only one qualified voter in the territory exists for the purpose of determining whether an annexation initiated pursuant to 22 Del.C. §101A for the City of Wilmington shall be approved, notwithstanding any other provisions in this subchapter or in Title 22 the annexation shall be deemed approved if, within 7 days of the county executive's approval of the county ordinance pursuant to 22 Del. C, §101A(b)(4), the qualified voter files with the Clerk of the Peace a sworn affidavit approving of the annexation. If the qualified voter is a corporation, limited partnership, or other entity, such affidavit must be accompanied by a suitable sealed, certified copy of a corporate resolution or its equivalent authorizing an officer, agent, or other person to execute the affidavit approving the annexation on behalf of the entity. On receipt of said affidavit, together with the authorization, if any, the Clerk of the Peace shall certify the approval to the county council and to the Wilmington City Council under his or her hand and seal. Said certification shall, for all intents and purposes, be construed as the required certificate under §7544 of this title and 22 Del, C. §101A(b)(6).
§7546. Definitions.
For the purposes of this subchapter, the following terms shall have the meanings described herein:
(1) 'Clerk of the Peace' shall mean the Clerk of the Peace for New Castle County.
(1) 'County' shall mean New Castle County.
(1) 'County council' shall mean the New Castle County Council.
(1) 'County executive' shall mean the New Castle County Executive.
(2) 'Parcel' shall have the meaning set forth in 22 Del. C. §101A(d)(4).
(1) 'Territory' shall have the meaning set forth in 22 Del. C. §101A(d)(6)."
Section 3. If any provision of this Act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the Act which shall be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.
Section 4. This Act shall become effective 30 days after it is enacted.
Approved July 9, 1987.