Pellicone v. New Castle Cnty., 329

• Decision Date: 19 March 2014
• Docket Number: No. 329,2013.,329
• Citation: 88 A.3d 670
• Parties: Donald L. PELLICONE, Defendant Below, Appellant, v. NEW CASTLE COUNTY, upon the relation of the County Executive, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

88 A.3d 670

Donald L. PELLICONE, Defendant Below, Appellant,

v.NEW CASTLE COUNTY, upon the relation of the County Executive, Plaintiff Below, Appellee.

No. 329, 2013.

Supreme Court of Delaware.

Submitted: Feb. 26, 2014.

Decided: March 19, 2014.

Court Below—Superior Court of the State of Delaware, in and for New Castle County C.A. No. N13C–03–073.

Upon appeal from the Superior Court. AFFIRMED.

Richard L. Abbott, Esquire, Abbott Law Firm, Hockessin, Delaware, for appellant.

Gregory B. Williams, Esquire, Austen C. Endersby, Esquire, Wali W. Rushdan, II, Esquire, Fox Rothschild LLP, Wilmington, Delaware, for appellee.

Before HOLLAND, BERGER and JACOBS, Justices.

HOLLAND, Justice:

The defendant-appellant, Donald Pellicone (“Pellicone”), appeals from a Superior Court judgment confirming that New Castle County (“NCC”) had certain easements on Pellicone's property. NCC sought the easements' validation to carry out a flood control project targeting Little Mill Creek in New Castle County.

Facts

In 1990, to address recurrent flooding in Little Mill Creek in Elsmere and Wilmington, the Delaware General Assembly (enacting House Bill No. 777) established the Little Mill Creek Flood Abatement Committee “to develop and implement a plan to correct flooding in the Little Mill Creek area in New Castle County.” The enactment required the NCC Executive to be a member of the Committee. That bill appropriated $500,000 for a Little Mill Creek flood abatement project and further directed the Secretary of the Delaware Department of Natural Resources and Environmental Control (“DNREC”) to obtain non-State funding for the project.

In 1994, NCC passed an ordinance that allocated $500,000 for the “Little Mill Creek II” drainage project. In 1995, at DNREC's request, the U.S. Army Corps of Engineers (“Army Corps”) completed a Flood Control Feasibility Study for Little Mill Creek. That study recommended a “channelization” ( i.e., a deepening and widening)of Little Mill Creek to solve the flooding problem (the “Flood Control Project”).

By 2005, the Army Corps had secured funding to begin the Little Mill Creek Flood Control Project.¹ Upon completion of the first phase of the Flood Control Project in 2011, the Army Corps began the second phase, which included Pellicone's property. As part of the second phase, NCC has been responsible for acquiring the necessary easements from the thirty-nine owners of properties impacted by the project.² Between 1995 and 2013, NCC contributed over $400,000 to the Flood Control Project.³

In December 2011, and again in July 2012, NCC informed Pellicone of its intent to obtain certain easements on his property for the Flood Control Project, pursuant to title 9, sections 1525 and 9501A of the Delaware Code. ⁴ On January 22, 2013, NCC adopted a resolution authorizing the County Executive to initiate condemnation proceedings against Pellicone's property to obtain the necessary easements.

Superior Court Condemnation Decision

On March 6, 2013, NCC filed a condemnation action against Pellicone in the Superior Court. On March 12, 2013, NCC filed a notice of intent to take possession of the condemned portion of Pellicone's property. By Memorandum Opinion and Order dated May 22, 2013, the Superior Court, after accepting submissions from the parties and conducting a hearing, granted NCC possession of the affected portion. The court held that NCC had satisfied its obligations under Delaware law to condemn Pellicone's property; more specifically, the court ruled that title 9, section 1525 gave NCC the authority to condemn Pellicone's property and that NCC's exercise of its eminent domain power was for a “public use” required by title 29, section 9501A of the Delaware Code.

On June 3, 2013, the Superior Court entered a Final Award of Just Compensation. On June 21, 2013, after conducting a hearing, the court denied Pellicone's motion to stay and entered an Amended Final Award of Just Compensation.

Pellicone timely appealed to this Court. Thereafter, Pellicone moved for a stay pending appeal, which this Court denied on July 24, 2013.

This Court's Remand

Following oral argument, on November 14, 2013, we remanded the case (but retained jurisdiction) for the Superior Court to address three questions:

Does Chapter 12 of the County Code require specific procedural steps in order to authorize a County flood control project?

a) If so, were those procedural requirements adhered to?

b) Can the Federal Flood Control Project legally constitute a County project?

On January 10, 2013, the Superior Court filed a Remand Opinion, answering all three questions affirmatively. The Court concluded that Chapter 12, Article 7, which applies to drainage improvements made by NCC, applied to the Flood Control Project. The court further found that the entities carrying out that project had complied with the requisite procedures prescribed by Article 7. Finally, the court determined that under Chapter 12, Article 7, the Flood Control Project legally constituted an NCC project.

The parties later filed supplemental memoranda addressing the Superior Court's Remand Opinion.

Standard of Review

We review a trial court's interpretation of statutory provisions de novo.⁵ The plain meaning of statutory language controls if the statute is found to be clear and unambiguous.⁶ If a statutory provision is ambiguous, however, we consider the statute as a whole, rather than in parts, to produce a harmonious interpretation of a given provision. ⁷ We will not overturn a trial court's factual findings unless they are clearly erroneous and the record does not support them.⁸

Issues on Appeal

This appeal presents four issues. First, does the Flood Control Project legally constitute an NCC project? Second, does NCC's condemnation of Pellicone's property fall within NCC's statutory eminent domain authority under title 9, section 1525? Third, is NCC's taking of Pellicone's property for a public use as defined in title 29, section 9501A? Fourth, and finally, were the procedures set forth in Chapter 12, Article 7 adhered to?

The Flood Control Project Legally Constitutes a NCC project

The Superior Court correctly determined that the Flood Control Project legally constitutes an NCC project. Article 7 of Chapter 12 of the New Castle County Code (the “County Code”) addresses drainage improvements made by NCC. Section 12.07.001A of the County Code provides that “[i]mprovements to public and communal watercourses, drainage systems and stormwater management basins by New Castle County shall only be made:

1. To protect persons and property (specifically buildings) from serious harm and significant damage from flooding caused by storms of up to one hundred (100) year frequency....” ⁹

Section 12.07.001C further specifies that any “[i] Improvements made with bond revenues must have a useful life of at least ten (10) years.” ¹⁰

As the Superior Court found, Little Mill Creek (and in particular the area that includes Pellicone's property), has been affectedby damaging floods caused by 50–year and 100–year storms.¹¹ In authorizing the bond issuance to fund the Flood Control Project in 1994, NCC made an express finding that the “normal life of said improvements is not less than ten (10) years.” Moreover, nothing in Chapter 12, Article 7 prohibits NCC from collaborating with other entities when undertaking improvements to watercourses, drainage systems or stormwater management basins.¹²

Pellicone contends that Chapter 12, Article 6 of the County Code, which addresses the maintenance of watercourses, precludes NCC from carrying out any improvements of watercourses under the jurisdiction of the Army Corps, and that Little Mill Creek is under the jurisdiction of the Army Corps.¹³ Section 12.06.001C provides that “[i]t is the responsibility of the County to keep all nontidal streams in New Castle County, which are not under the jurisdiction of the U.S. Army Corps of Engineers, State of Delaware, DelDOT, a tax ditch organization, municipality, or any maintenance organization, open and free flowing.” ¹⁴

But, even if Article 6 were read to prohibit NCC from maintaining Little Mill Creek,¹⁵ no reason is shown to extend that prohibition to an improvement project that falls under Article 7. Article 7's plain language contains no limitation on the watercourses, drainage systems or stormwater management basins to which NCC may make improvements. Nor do Sections 12.06.001C and D indicate that those subsections' limitations on NCC's maintenance authority, if they are limitations, extend to other articles of Chapter 12. Accordingly, there is no basis to read into Article 7 an implied limitation on NCC's authority to undertake necessary improvements to watercourses, drainage systems and stormwater management basins.¹⁶

The Flood Control Project Falls Within NCC's Eminent Domain Power

Turning to the second issue, we conclude that the plain language of title 9, section 1525(a) authorizes NCC to condemn Pellicone's property for purposes of implementing the Flood Control Project. Title 9, section 1525 provides that NCC may condemn property when it “deems it advisable to widen, straighten or alter the course of any part of any small run or creek in the County, such as ... Little Mill Creek....” ¹⁷ The Flood Control Project involves “widening” and “deepening” Little Mill Creek. It is undisputed that NCC may condemn Pellicone's land to “widen” Little Mill Creek. Therefore, the question is whether NCC may do so in order to “deepen” Little Mill Creek. Stated differently, does “deepening” constitute “alter[ing] the course of any part” of Little Mill Creek?

Webster's Dictionary generally defines “course” as “the path over which something moves.” ¹⁸ The dictionary also defines “course” as “a channel in which water flows.” ¹⁹ To “alter” means “to change.” ²⁰Title 9, section 1525 of the Delaware Code, plainly read, covers “deepening,” because by deepening Little Mill Creek, NCC is “changing” the creek's path or channel....