CHAPTER 260
AN ACT TO AMEND TITLE 22, DELAWARE CODE, RELATING TO MUNICIPALITIES.
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. Title 22, Delaware Code, is amended by adding thereto a new Chapter to read:
CHAPTER 8. HOME RULE
SUBCHAPTER I. GENERAL PROVISIONS
§ 801. Definitions
(a) "Municipal Corporation". As used in this Chapter, the term "municipal corporation" shall include all cities, towns and villages, now or hereafter created under any general or special law of this State for general governmental purposes which possess legislative, administrative and police powers for the general exercise of municipal functions, and which carry on such functions through a set of elected and other officials.
(b) "Qualified Voter". As used in this Chapter, "qualified voter" shall mean those persons who, under the terms of a municipal charter, shall be authorized to vote in elections within that municipal corporation.
(c) "Chief Executive Officer". As used in this Chapter, the term "Chief Executive Officer" shall mean the Mayor if such there be, or if there be none, then it shall mean the President of the legislative body of a municipal corporation, or if there be none, then it shall mean the presiding officer of the legislative body of a municipal corporation.
(d) "Charter Amendment". As used in this Chapter, the term "charter amendment" means language which will amend, adopt, or repeal a municipal charter.
§ 802. Applicability of chapter, grant of power
Every municipal corporation in this State containing a population of at least 1000 persons as shown by the last official federal decennial census may proceed as set forth in this Chapter to amend its municipal charter, and is hereby granted, subject to the conditions and limitations imposed by this Chapter, the authority to amend its charter so as to have and assume all powers which, under the Constitution of this State, it would be competent for the General Assembly to grant by specific enumeration and which are not denied by statute. This grant of power does not include the power to enact private or civil law governing civil relationships except as an incident to an exercise of an independent municipal power, nor does it include power to define and provide for the punishment of a felony.
SUBCHAPTER II. METHOD OF EXERCISING POWER
§ 811. How amendments may be initiated
The amendment of a charter shall be proposed either by a resolution of the legislative body of a municipal corporation, three-quarters of all members elected thereto concurring, or by a charter commission of seven members, elected by the qualified voters of the municipal corporation from their membership at large, pursuant to petition for such an election bearing the signatures of at least ten per centum of the qualified voters of the municipal corporation and filed with the clerk or other chief recording officer of the legislative body of the municipal' corporation. The charter commission candidates who receive the most votes shall constitute the commission. On the death, resignation or inability of any member of a charter commission to serve, the remaining members shall elect a successor. The commission shall have authority to propose the amendment of the charter as specified in the petition, to hold public hearings thereon, and to arrange for putting the proposed amendment on the ballot or voting machine to be used at the next referendum election.
The legislative body of the municipal corporation in which the amendment of a charter is proposed by a charter commission is hereby given the authority to provide by ordinance or resolution for that procedure which it deems necessary to conduct the election of a charter commission, and for enabling the charter commission to exercise the functions specified above. The legislative body of the municipal corporation may, if it defaults in the exercise of this authority, be compelled, by judicial mandate and at the instance of at least ten signers of a petition filed under this Section, to exercise such authority.
§ 812. Publication of proposed charter, charter amendment or repeal proposition and resolution
At least thirty days before an election thereon, notice shall be given by publication in a newspaper of general circulation within the municipal corporation that copies of a proposed charter, charter amendment or repeal proposition and resolution are on file in the office of the clerk or other chief recording officer of the legislative body of the municipal corporation, and that a copy will be furnished by him to any qualified voter or taxpayer of the municipal corporation upon request.
§ 813. Referendum
(a) Conduct of Election; Ballots; Expenses. On the day and during the hours specified for any referendum, the proposed charter amendment or amendments shall be submitted to the qualified voters of the municipal corporation. The official or officials thereof whose duty it is to arrange for and conduct the regular municipal elections shall perform the same duties so far as relevant to the referendum election on the proposed charter amendment or amendments. It is the intent of this Section that the referendum election shall be conducted generally according to the procedures and practices observed for regular municipal elections, except as specifically or necessarily modified by the provisions of this subheading. The wording specified in the proposal for a charter amendment or amendments shall be placed on the ballots or voting machines used at the referendum election. The expenses of the referendum election and all necessary or proper expenses of a charter commission shall be defrayed by the municipal corporation.
(b) Officials to Tally and Certify Result. The official or officials charged with the duty to arrange for and conduct the referendum, promptly following the closing of the polls, shall tally the results thereof, and shall forthwith certify the results of the referendum to the chief executive officer of the municipal corporation.
(c) Proclamation of Result; Effective Date of Amendment. The chief executive of the municipal corporation shall proclaim the result of the referendum within ten days after receiving certification from the official or officials who tally the vote. If a majority of those who vote on any question submitted to the voters of the municipal corporation shall cast their votes in favor of the proposed charter amendment or amendments, it shall be adopted, provided, however, that no charter amendment so adopted will be effective until the Chief Executive Officer files copies thereof with the Governor, President Pro Tern of the Senate, Speaker of the House, Secretary of State, and the Director of the Legislative Reference Bureau, and until the General Assembly shall have been in session thirty calendar days after such filing. During said thirty-day period, failure of the General Assembly by statute to negate such charter amendment by a two-thirds majority of all members elected to each House thereof shall be deemed to be an assent by the General Assembly thereto and the charter amendment shall be as effective as if enacted into law by a statute of this State. Neither shall a charter amendment be effective until final adjudication of an action brought for judicial review of charter referendum pursuant to Section 820 of this Chapter.
§ 814. Each proposed amendment may be submitted for separate vote
Alternative restatements of amendments may be submitted and the one receiving the larger vote shall prevail if the amendment otherwise qualifies for adoption.
§ 815. Codification of amendments
The exact text of any amendment or amendments to the Charter of any municipal corporation, adopted as in this chapter specified, shall thereafter be included in any subsequent edition or codification of the charter of the municipal corporation, until altered, modified or repealed by a subsequent amendment or amendments to the charter.
SUBCHAPTER III — JUDICIAL REVIEW
§ 820. Judicial review of election
(a) Not later than twenty days after the result of a referendum has been proclaimed by the Chief Executive Officer of a municipal corporation, any person resident therein may seek judicial review of the election by filing a verified complaint in the Superior Court of the County in which at least part of the municipal corporation is located. The complaint shall allege that the referendum was conducted unlawfully, and shall set forth with particularity the unlawful acts which are the basis of the complaint.
() Notice of the pendency of an action for judicial review of an election shall be given to the Chief Executive Officer of the municipal corporation, the Governor, President Pro Tern of the Senate, Speaker of the House, Secretary of State, and Director of the Legislative Reference Bureau by sending to each a copy of the verified complaint by registered or certified mail on the same date that the action is filed in the Superior Court. Notice mailed to the Chief Executive Officer of the municipal corporation shall not, however, supplant or be a substitute for service of process.
(a) When the verified complaint is filed, the case shall proceed, insofar as possible, as other civil cases in the Superior Court. However, the Superior Court may adopt special rules to govern review under this Section. Cases brought hereunder shall be accorded the same precedence as civil actions arising under the provisions of 19 Del. C. 3323 (a).
(b) The Court's jurisdiction shall be confined solely to the lawfulness of the election. No person shall have standing in law or equity to attack the legality of substantive provisions of a municipal charter amended by referendum until the General Assembly has failed to negate the charter amendment in accordance with the provisions of Section 813 (c) nor while an action for review of the referendum is pending.
() If, after hearing the evidence, the Court concludes that the referendum was conducted lawfully, the result of the election as proclaimed by the Chief Executive Officer of the municipal corporation shall be affirmed. Otherwise, the election shall be declared a nullity, unless the Court is persuaded the irregularity did materially affect the result of the election. Court costs shall be imposed or apportioned among the litigants as the Court deems just.
(f) The Court's order under foregoing paragraph (e) shall not be appealable to the Supreme Court.
SUBCHAPTER IV. PROVISION FOR TRANSITION IN
EVENT OF CHARTER REPEAL
§ 825. Termination of home rule; charter statute
A municipal legislative body or charter commission which proposes the termination of home rule charter status by repeal of a home rule charter shall incorporate in the proposition to be submitted to the qualified voters a specification of the form of government under which the municipal corporation would thereafter operate in the event of repeal, whether it be a form prescribed by general law for municipalities of its population class or one of such optional forms as may have been authorized by general law for municipalities of its population class. A municipal legislative body or charter commission proposing charter repeal shall also, by resolution of that body, determine when the transition to the new form of government would take place in the event of repeal and make such other provision, as may be appropriate, to effect an orderly transition from home rule charter to non-home rule charter status.
SUBCHAPTER V. LEGISLATION INCREASING
MUNICIPAL FINANCIAL BURDENS
§ 830. Amendments relating to bonded indebtedness and taxing powers
(1) No municipal corporation, the charter of which imposes a limitation on the indebtedness of the municipal corporation shall amend its charter, pursuant to this Chapter, so as to permit it to raise the limitation on its total indebtedness, except that any municipal corporation which may amend its charter pursuant to the provisions of this Chapter may adopt a charter amendment, pursuant to the provisions of this Chapter, which provides that: (a) capital improvement bonds may be authorized payable in not more than thirty years from date of issue, (b) the bonds may be issued from time to time, as long as the total bonded indebtedness of the municipal corporation does not exceed 15 per centum of the total assessed value of all the real estate subject to taxation located within the municipal corporation, (c) any other provision relating to the issuance and payment of the bonds which is not inconsistent with (a) and (b) of this subsection.
(2) No municipal corporation, the charter of which imposes a limitation on the taxing power of the municipal corporation shall amend its charter, pursuant to this Chapter, so as to permit the municipal corporation to increase the amount of money that may be raised by taxes or to permit the levying of any new taxes, except that any such municipal corporation which may amend its charter pursuant to this Chapter may adopt a charter amendment pursuant to the provisions of this Chapter which provides that the municipal corporation may raise, in addition to the taxes necessary to service the bonded indebtedness of the municipal corporation, by taxes upon real estate, a sum of money not in excess of 2 per centum of the total assessed value of all the real estate subject to taxation located within the municipal corporation.
SUBCHAPTER VI. LIMITATIONS AND EXCEPTIONS
§ 835. Amendments prohibited
(1) This Chapter shall not permit the amending of a municipal charter so as to:
(a) permit the changing of any term of any elected official until the incumbent has completed the term to which he was elected;
(b) permit any charter amendment in controvention of any general statute of the State of Delaware;
(c) change the qualifications of those entitled to vote at municipal elections;
(d) change the date for holding of municipal elections;
(e) enlarge or otherwise alter the power or procedure whereby a municipal corporation may enlarge its boundaries.
(2) No municipal corporation charter which permits nonresident persons to vote in any municipal election or to hold any municipal office shall be amended, pursuant to this Chapter, so as to eliminate or limit the right of non-resident persons to vote or hold office; nor shall the percentage of non-resident officials allowed or required be changed.
(3) No municipal corporation charter which provides a method of appeal to the Superior Court for any matter shall be amended, pursuant to this Chapter, so as to eliminate or restrict any such appeal.
§ 836. Filing of existing Charter
In order for any municipal corporation to proceed under the provisions of this Chapter, it shall file before June 1, 1963, with the Secretary of State and with the Director of the Legislative Reference Bureau, a complete copy of its then existing charter. The copy shall show by appropriate citations the source of each section of the charter. The citations shall show the original source of each section of the charter and the source of all amendments thereto. The copy of the charter shall include a certificate from an attorney-at-law licensed to practice law in Delaware that he has made a careful search of the local acts of the Legislature relating to the municipal corporation and is of the opinion that the copy of the charter and the citations are true and correct. There shall also be a certificate of the Chief Executive Officer attested with the seal of the municipal corporation that he verily believes the copy of the charter is true and correct. All subsequent amendments to the charter adopted by action of the General Assembly shall be filed within twenty days of becoming law.
Approved December 28, 1961.