TITLE 22

Municipalities

CHAPTER 8. HOME RULE

Subchapter I. General Provisions

§ 801. Definitions.

As used in this chapter:

(1) "Charter amendment" means language which will amend, adopt or repeal a municipal charter.

(2) "Chief executive officer" means the mayor if such there be or, if there be none, then it means the president of the legislative body of a municipal corporation or, if there be none, then it means the presiding officer of the legislative body of a municipal corporation.

(3) "Municipal corporation" includes all cities, towns and villages created before or after December 28, 1961, 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.

(4) "Qualified voter" means those persons who, under the terms of a municipal charter, shall be authorized to vote in elections within that municipal corporation. (22 Del. C. 1953, § 801; 53 Del. Laws, c. 260.)

§ 802. Applicability of chapter; grant of power.

Every municipal corporation in this State containing a population of at least 1,000 persons as shown by the last official federal decennial census may proceed as set forth in this chapter to amend its municipal charter and may, subject to the conditions and limitations imposed by this chapter, 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. (22 Del. C. 1953, § 802; 53 Del. Laws, c. 260.)

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Subchapter II. Method of Exercising Power

§ 811. Amendment of charter.

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 7 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 10% 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 may 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 10 signers of a petition filed under this section to exercise such authority.

In addition to the procedure hereinbefore set forth, a charter may be amended by act of the General Assembly, passed with the concurrence of two thirds of all the members elected to each House thereof. (22 Del. C. 1953, § 811; 53 Del. Laws, c. 260; 60 Del. Laws, c. 166, § 1.)

§ 812. Publication of proposed charter, charter amendment or repeal proposition and resolution.

At least 30 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 the clerk or other chief recording officer to any qualified voter or taxpayer of the municipal corporation upon request. (22 Del. C. 1953, § 812; 53 Del. Laws, c. 260; 70 Del. Laws, c. 186, § 1.)

§ 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. 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 this subchapter. 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 results. -- 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 10 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 Tem 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 30 calendar days after such filing. During said 30-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 § 820 of this title. (22 Del. C. 1953, § 813; 53 Del. Laws, c. 260.)

§ 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. (22 Del. C. 1953, § 814; 53 Del. Laws, c. 260.)

§ 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. (22 Del. C. 1953, § 815; 53 Del. Laws, c. 260.)

Subchapter III. Judicial Review

§ 820. Judicial review of election.

(a) Not later than 20 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.

(b) 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 Tem 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.

(c) 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 under this section shall be accorded the same precedence as civil actions arising under § 3323(a) of Title 19.

(d) 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 § 813(c) of this title nor while an action for review of the referendum is pending.

(e) 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 not 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 subsection (e) of this section shall not be appealable to the Supreme Court. (22 Del. C. 1953, § 820; 53 Del. Laws, c. 260; 55 Del. Laws, c. 135.)

Subchapter IV. Provision for Transition in Event of Charter Repeal

§ 825. Termination of home rule charter status.

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 1 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 nonhome rule charter status. (22 Del. C. 1953, § 825; 53 Del. Laws, c. 260.)

Subchapter V. Legislation Increasing Municipal Financial Burdens

§ 830. Amendments relating to bonded indebtedness and taxing powers.

(a) 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 this chapter may adopt a charter amendment, pursuant to this chapter, which provides that:

(1) Capital improvement bonds may be authorized payable in not more than 30 years from date of issue;

(2) The bonds may be issued from time to time, as long as the total bonded indebtedness of the municipal corporation does not exceed 15% of the total assessed value of all the real estate subject to taxation located within the municipal corporation;

(3) Any other provision relating to the issuance and payment of the bonds which is not inconsistent with paragraphs (1) and (2) of this subsection.

(b) 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 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% of the total assessed value of all the real estate subject to taxation located within the municipal corporation. (22 Del. C. 1953, § 830; 53 Del. Laws, c. 260.)

Subchapter VI. Limitations and Exceptions

§ 835. Amendments prohibited.

(a) This chapter shall not permit the amending of a municipal charter so as to:

(1) Permit the changing of any term of any elected official until the incumbent has completed the term to which the incumbent was elected;

(2) Permit any charter amendment in contravention of any general statute of this State;

(3) Change the qualifications of those entitled to vote at municipal elections;

(4) Change the date for holding of municipal elections;

(5) Enlarge or otherwise alter the power or procedure whereby a municipal corporation may enlarge its boundaries;

(6) Prohibit, restrict or license ownership, transfer, possession or transportation of firearms or components of firearms or ammunition, except that the discharge of a firearm may be regulated; provided that any regulation or ordinance incorporates the justification defenses as found in Title 11. Nothing contained herein shall be construed to invalidate existing municipal ordinances.

(b) 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 nonresident persons to vote or hold office, nor shall the percentage of nonresident officials allowed or required be changed.

(c) 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. (22 Del. C. 1953, § 835; 53 Del. Laws, c. 260; 65 Del. Laws, c. 133, § 1; 70 Del. Laws, c. 186, § 1.)

§ 836. Filing of existing charter.

In order for any municipal corporation to proceed under 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 this State that the attorney has made a careful search of the local acts of the General Assembly 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 the chief executive officer 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 20 days of becoming law. (22 Del. C. 1953, § 836; 53 Del. Laws, c. 260; 70 Del. Laws, c. 186, § 1.)

Subchapter VII. Residency Requirements

§ 841. Residency requirements.

Notwithstanding any charter provision, ordinance or other provision to the contrary, no municipal corporation with a population exceeding 50,000 shall require that, as a condition of continued employment, an employee with at least 5 years of service for the municipality be, become or remain a resident of the municipality during their employment. (68 Del. Laws, c. 271, § 1; 71 Del. Laws, c. 224, § 1; 75 Del. Laws, c. 22, §§ 1, 2.)

§ 842. School capacity application for municipal corporations in New Castle County.

(a) This section shall apply only to residential development. Prior to recording a residential subdivision plan for over 5 units in size for any lands annexed into any municipality located in New Castle County on or after July 1, 1992, and notwithstanding any home rule or charter provision to the contrary, the applicant shall provide certification from the Secretary of the Department of Education, after consultation with the superintendent of the appropriate individual school district, that the school district has adequate capacity for the proposed development. The Secretary shall respond to any request for certification or Voluntary School Assessments within 60 days of receipt of a completed request for such certification. That certification shall include the following information:

(1) Existing classrooms and service levels based upon the Delaware Department of Education, Delaware School Construction Manual, September 19, 1996, as may be amended or supplemented from time to time, or based upon other standards accepted as accurate by the Secretary of the Department of Education; and

(2) Capacity calculations, which shall include the current student population, increased demand resulting from prior certifications from the Department of Education, and the increased demand that will result from the proposed development. The municipality shall, within 20 days, provide the Department of Education with all necessary information regarding the number and type of dwelling units proposed and other information which the Secretary may request.

This subsection shall apply to all new residential subdivision plans over 5 units in size for lands annexed into a municipality on or after July 1, 1992, and first submitted for review after July 1, 1999.

(b) Notwithstanding the foregoing provisions of this section, no certificate of adequate school capacity shall be required where either: (1) the residential development is restricted by recorded covenants to provide housing or shelter predominantly for individuals 55 years of age or older pursuant to the provisions of the Federal Fair Housing Act [42 U.S.C. § 3601, et. seq.|; (2) the residential development is for low income housing, which, for purposes of this section; shall be defined to mean any housing financed by a loan or mortgage that is insured or held by the Secretary of HUD or the Delaware State Housing Authority or which is developed by a nonprofit corporation certified under § 501(c)(3) of the United States Internal Revenue Code ›26 U.S.C. § 501(c)(3)]; or (3) the applicant has pledged, in a writing recorded and running with the subject property, to pay a Voluntary School Assessment in an amount determined pursuant to § 103(c) of Title 14 for each lot for which the applicant would otherwise be required to obtain a certificate.

(c) Voluntary School Assessments will be calculated on a per unit basis as of the issuance of the first building permit, and the fee shall remain constant throughout the development of the subdivision (and shall not be increased for any reason, including but not limited to any resubdivision); provided, however, that after 5 years the Voluntary School Assessment amount may be recalculated. Any Voluntary School Assessments paid under this subsection shall be paid to the Department of Education at the time that a certificate of occupancy is obtained for each unit, and shall be deposited by the Department into an interest-bearing account as set forth below. With the approval of the Secretary, after consultation with the superintendent of the affected school district, an applicant may receive a credit against voluntary assessments to be paid in an amount equal to the fair market value of any lands or properties set aside by the applicant and deeded to the school district for school uses. Any such lands shall not be used for nonschool purposes, other than as parkland or open space. All voluntary assessments paid shall be held in an interest-bearing account by the State for the school district in which the applicant's project is located until such time as the school district engages in construction activities which increase school capacity, at which time such assessments shall be released to the school district by the State in the amount of Voluntary School Assessments paid into an interest-bearing account for such district. It is the intent of this section that lands or properties required to be conveyed by the applicant to a municipality as a condition either to annexation or subdivision approval shall not be eligible to be used for purposes of obtaining a credit against the voluntary school assessment, notwithstanding the fact that such lands or properties may subsequently be conveyed by the municipality to a school district.

(d) To the extent any municipality located in New Castle County has adopted (or in the future attempts to adopt) any regulations or ordinances linking or tying residential development to school capacity or otherwise restricting residential development in the absence of school capacity for lands covered by this section, such regulations and ordinances are hereby preempted and of no force and effect. (72 Del. Laws, c. 237, § 2; 73 Del. Laws, c. 350, § 109; 74 Del. Laws, c. 308, § 151(c), (d).)