Lewes, BPW may work to resolve dispute

While the courts have yet to rule in the feud between the City of Lewes and Lewes Board of Public Works, there may be some progress toward resolution.

Following two public meetings Dec. 10 and 11, city and BPW officials said there may be common ground for a path forward.

BPW President Pres Lee said the entire debacle, which so far has cost city taxpayers and ratepayers more than $250,000, centers around the city’s desire to enforce a pre-annexation agreement requiring landowners to agree to annexation into Lewes before utility services are provided.

The BPW received a legal opinion that pre-annexation agreements are likely illegal and unenforceable, opening the door for challenge in the courts. As a result of that opinion, the BPW decided to not require pre-annexation agreements.

If the city is willing to enter into an indemnification agreement to cover all legal costs if the BPW is sued, Lee said, the BPW would enforce the pre-annexation agreement and drop the lawsuit.

On Dec. 13, Mayor Ted Becker said the city and BPW are discussing a way to work together, but travel schedules will likely put the issue off until early January.

At both meetings, the public urged officials to work out the dispute.

“As a person who’s lived in this town for 42 years, I want to see this resolved,” said Ed Zygmonski, a former member of city council, airing concerns about money being spent on legal fees. “Let’s work this out.”

Charter changes

Another option city officials are considering are charter changes that would make the BPW a department of the city, not a relatively independent organization. Under the proposal, the BPW’s elected board would be appointed members.

Tensions were high in council chambers Dec. 10, when city officials presented the proposed changes. BPW board members and staff sat in the audience as Becker went over the idea.

Becker said day-to-day operations would be business as usual, except the BPW general manager would report to the city manager. Becker said he wouldn’t anticipate any changes to staff. There also would be no change to utility rates, he said. 

When asked who would have final say on utility rates, Becker said, it would be a decision of mayor and city council by way of recommendation from the BPW. 

Requires state support

Charter changes would require that city officials convince state legislators to rescind the BPW’s charter and embed relevant provisions of the BPW’s charter into the city’s charter.

Sen. Ernie Lopez, R-Lewes, said now is not the time for charter changes.

“I do not wish for an over 100-year partnership, which has benefited Lewes taxpayers and ratepayers alike, to be severed … over reasonable disagreements that can be resolved through compromise and good faith,” he said.

If a charter change is requested, he said, he hopes it’s done with language agreed upon by both the city and BPW.

Becker said having the BPW as a city department would avoid future disputes and reaffirm the city’s role as the owner and operator of its utilities.

City officials presented the concept to the public Dec. 10, but the charter changes were not ready for review. Public comment will be accepted for the foreseeable future as council continues consideration of the issue. Comments should be sent to the city manager at atownshend@ci.lewes.de.us. Emails should contain “Charter changes” in the subject line. For more information, call city hall at 302-645-7777.

Ongoing conflict

This is the latest chapter in an ongoing feud between the city and BPW, stemming from the BPW’s intention to grant waivers or completely abandon pre-annexation agreements.

BPW member A. Thomas Owen said the legal opinion the BPW received says a pre-annexation agreement is unenforceable. And if someone refuses to sign one, the BPW is legally obligated by charter to serve utilities within two miles of city limits.

Michael Hoffman, BPW attorney, said there has been pushback from property owners seeking BPW services.

“The BPW has property owners who are not-so-subtly making it clear that if the board enforces this [pre-annexation] condition that it would violate their rights,” Hoffman said. 

The BPW filed a lawsuit in July seeking the court’s opinion on whether a pre-annexation agreement is enforceable and whether the city has ultimate authority over the BPW.

Over the last five months, each side has made its case in written briefs, with the city seeking dismissal of the case and the BPW seeking summary judgement. The next step, including making a decision on motions or hearing oral arguments, is up to Superior Court Judge E. Scott Bradley.

Lewes and New Castle City are the only Delaware municipalities with separately chartered utilities. Other municipally owned utilities in Delaware operate as departments within the municipal government, such as in Rehoboth Beach.