Lewes BPW defies city directive, grants waiver
The Lewes Board of Public Works will not require a New Road property owner to sign a pre-annexation agreement in order for the board to provide utilities, defying direct orders from mayor and city council.
This is the latest chapter in a feud between the city’s two governing bodies. The BPW filed a lawsuit July 17 in Superior Court seeking clarification on who has ultimate authority over BPW polices and whether a pre-annexation agreement is enforceable.
On June 24, mayor and city council adopted a resolution directing the BPW to require annexation or a signed pre-annexation agreement prior to agreeing to provide water, sewer or electric services to a property outside the city limits. A pre-annexation agreement gives the city the right to annex the property at any time, whether the property owner wants annexation or not.
The BPW board met two days later and unanimously opposed the city’s authority to require a pre-annexation agreement.
“The city lacks authority to direct or control the board’s actions,” court documents say. “The decision whether to abandon the pre-annexation agreement policy is entirely within the judgement of the board.”
At their Sept. 25 meeting, BPW officials continued to ignore the city’s instructions, voting unanimously to grant a waiver to the pre-annexation agreement for a property near the intersection of Captains Circle and New Road.
“It’s within our service territory, and therefore I think we have an obligation to provide service when we can, and we can,” said BPW member A. Thomas Owen.
The discussion appeared to catch Mayor Ted Becker, a nonvoting member of the panel, by surprise. Prior to the vote, he urged BPW officials to table the matter, calling on the BPW to wait for the court decision before taking action.
Councilman Dennis Reardon was also at the meeting. He immediately left following the vote, but later returned.
In recent years, the BPW has signaled its intention to completely abandon the pre-annexation agreement policy, which it considers unenforceable and unlawful, court documents show.
In response to the city’s objections, the BPW has instead considered issuing waivers from the agreement. It granted a waiver for a 3.2-acre parcel at the corner of Kings Highway and Gills Neck Road, where a medical office building is under construction. The lawsuit notes the city did not object to that waiver. Recently, however, the city and owner of the parcel executed a pre-annexation agreement, said City Manager Ann Marie Townshend.
Because the property is outside the BPW’s service area, the Delaware Public Service Commission must grant the BPW permission – a certificate of public convenience and necessity – to serve the property. The issue will be up for consideration at the commission’s Tuesday, Oct. 8 meeting.
The BPW is also seeking a CPCN to serve the entire 50-acre site of the Mitchell farm, which will soon be under consideration by Sussex County officials for both commercial and residential use. City officials are seeking to postpone PSC action until the lawsuit is resolved.
The city argues both the city and BPW charters give the city ultimate authority over the BPW. The charter says city council has the power “to furnish or refuse to furnish” water, sewer and electric from the city system to properties outside city limits.
Despite claims that the developers of Harbor Point off New Road signed but later backed out of a pre-annexation agreement, Townshend said, an agreement was signed, recorded and remains in place.
The legal question was last heard by Judge E. Scott Bradley Sept. 6. The city’s legal team sought a motion to dismiss the case, while BPW lawyers sought a motion for summary judgement. Bradley has allowed both motions to move forward. Each side has 30 days to officially file its motion. Once filed, the opposition has 30 days to answer. Following that action, the entity that filed the motion has 15 days to reply.
