Lewes BPW sues City of Lewes

Lewes’ two elected boards have taken a power struggle to court.

The Board of Public Works filed a lawsuit July 17 in Superior Court saying the City of Lewes does not have the authority to force a landowner seeking BPW services to sign an agreement giving the city the right to annex the property at any time regardless of the property owner’s wishes.

In a resolution, the city countered saying it has ultimate authority over BPW decisions and policies.

The conflict stems from an application currently before the board. J.F. Peter, owner of a property near the intersection of New Road and Captains Circle, is seeking a waiver from the pre-annexation agreement and the requirement to purchase all utilities from the BPW. Peter plans to tap into the BPW’s electric system, but use an on-site well and septic system. 

The BPW’s service area is defined as all of the city and lands within two miles of the corporate limits.

Recently, the BPW has signaled its intention to abandon the pre-annexation agreement policy as it believes it is unenforceable and unlawful, court documents show. However, in response to the city’s objections, the BPW has instead considered issuing waivers from the agreement, granting a waiver for 3.2 acres of the Mitchell farm on Kings Highway in June 2018. As a result, services will be provided to the lot at the corner of Kings Highway and Gills Neck Road with no annexation agreement in place. The lawsuit notes the city did not object at the time.

On June 24, 2019, mayor and city council adopted a resolution directing the BPW to require annexation or a signed pre-annexation agreement prior to agreeing to provide services.

The BPW board met two days later and unanimously voted to reject the city’s authority to adopt the resolution and a related ordinance.

“The city lacks authority to direct or control the board’s actions,” the filing says. “The decision whether to abandon the pre-annexation agreement policy is entirely within the judgement of the board.”

In its June 24 resolution, council cites a section of the city’s charter that recognizes mayor and city council’s authority to repeal, modify or alter resolutions enacted by the BPW. They also state the Delaware General Assembly recognized in the 2009 charter of the BPW that the mayor and city council are the operators of the city’s public utilities through the BPW, and the bylaws also acknowledge that role.

The BPW argues the General Assembly vested in the board the authority to adopt rules and regulations that are necessary to provide utility services within its service area.

“The decision whether to abandon the pre-annexation agreement policy is entirely within the judgement of the board,” the lawsuit says. “The city’s efforts to direct or control the board’s activities violates the board’s grant of authority by the General Assembly.”

BPW President Pres Lee said he is unable to comment on pending litigation.

“We look forward to resolving the question,” he said.

Mayor Ted Becker also declined to comment due to the matter being pending litigation.

Lewes City Solicitor Glenn Mandalas will not be working the case, as his previous role as the BPW’s attorney creates a conflict.

The pending waiver request has been tabled by the BPW until the court decides on the issue. However, the item is on the BPW’s Wednesday, July 31 agenda. To view the agenda, go to www.lewesbpw.delaware.gov.