Lewes council, BPW feud escalates

The feud between the City of Lewes and the Lewes Board of Public Works is escalating, now costing taxpayers and ratepayers more than $310,000 in legal and related fees.

After a lawsuit filed by the BPW against the city was dismissed in January, the BPW hired a lobbyist to fight against the city’s plans to take over its day-to-day operation. They’ve paid the lobbyist Allen Strategies LLC $6,000 to date, BPW General Manager Darrin Gordon said.

A letter to the editor signed by all five directors of the BPW appeared in the May 1 edition of the Cape Gazette, prompting mayor and city council to aggressively respond by posting a letter on its website explaining the situation from its perspective. The letter may also be mailed to all residents, Mayor Ted Becker said.

BPW President D. Preston Lee said during the board’s May 27 meeting that the BPW will soon release its own letter to residents and ratepayers.

“I’ve written a version of the same history pointing out things that we don’t quite agree with in the information the city provided,” he said. “I thought it was only fair to be able to clear the record of things we feel were either misstated, wrong or [omitted].”

City officials also released on the city website a response to an email Lee sent to residents seeking support for the BPW’s position and a Powerpoint presentation outlining how the city would take over the BPW operation.

A charter change is required for the city to take over the BPW. It must be sponsored by a legislator of the district, who introduces a bill that must be passed by both the Senate and House.

Shortly after the city discussed charter changes to take over the BPW in December, Sen. Ernie Lopez, R-Lewes, said he would not support it, urging both the BPW board and city council to work it out together.

Although charter changes will be allowed during this year’s unorthodox legislative session, Lopez said, his position has not changed.

“Let me be clear: no legislative action will take place prior to the end of the 2020 session of the Delaware General Assembly on June 30,” Lopez wrote in a letter to BPW and city officials May 27.

He also wrote that in light of the two bodies’ inability to compromise and the growing taxpayer and ratepayer cost, he and Speaker of the House Pete Schwartzkopf, D-Rehoboth Beach, and Rep. Steve Smyk, R-Milton, have offered to convene both sides to begin meaningful dialogue toward reconciliation.

“At no time have the three of us, individually or collectively, wished to see severed what has been a beautifully beneficial and historic 100-year relationship for the citizens of Lewes,” Lopez wrote.

Lee said he would be open to working with state legislators to set up a meeting with the city. He wants the meeting to be open and include public input.

Becker said May 28 city officials will not seek a charter change this year and will work with legislators to set up a meeting with the BPW. He said it is uncertain whether the initial meeting will be public, but future meetings will involve residents and ratepayers so they are informed on the situation before actions are taken.

If the city is eventually successful with a charter change, its plan is to make the BPW a department of the city by incorporating portions of the BPW’s charter into the city’s. The BPW board would no longer be elected; embers would be appointed by mayor and city council. BPW would continue to manage the city’s utilities, but its policies would have oversight from mayor and city council. Utility rates and operations would not change, the city says, and capital funds would be protected and only used for utility services.

City seeks injunction

Caught in the middle of the conflict is New Road property owner Jerry F. Peter Jr., who was granted a waiver from a pre-annexation agreement by the BPW in September 2019. The city filed a lawsuit against Peter May 21 in Court of Chancery seeking an injunction to stop Peter from obtaining sewer service and requiring Peter to sign a pre-annexation agreement.

Peter’s 1.87-acre property is surrounded on three sides by Lewes boundaries, but remains in Sussex County jurisdiction. It cannot be accessed without traveling through a portion of Lewes.

The city is attempting to exercise its authority over the BPW, as the recently dismissed lawsuit determined the BPW does not have the ability to sue or be sued, proving, it says, that it has ultimate authority over BPW’s policies.

According to the charters of both the BPW and city, utilities are owned by the city and operated by the BPW. City code requires the BPW to obtain a pre-annexation agreement prior to agreeing to service a property outside Lewes limits.

In recent years, the BPW has signaled its intention to completely abandon the pre-annexation agreement policy, which it considers unenforceable and unlawful.

In response to the city’s objections, the BPW instead considered issuing waivers from the agreement.

Legal fees

Lewes BPW - $135,404

City of Lewes - $227,000 ($50,000 reimbursed by insurance)

Timeline

June 24, 2019 - City adopts ordinance requiring owners of property outside the city to sign a pre-annexation agreement prior to receiving utility services from the BPW

July 17, 2019 - BPW sues City of Lewes, seeking declaration that it is independent of the city

Sept. 25, 2019 - BPW defies city’s order and grants a waiver to allow Jerry F. Peter Jr. to obtain BPW services without annexation into Lewes

Dec. 10, 2019 - Mayor and city council make presentation laying out desire to take over BPW

Jan. 27, 2020 - Superior Court Judge E. Scott Bradley dismisses BPW’s lawsuit against the city, saying the BPW does not have the authority to sue or be sued

May 21, 2020 - Lewes Mayor and City Council file lawsuit seeking injunction to stop New Road property owner Jerry F. Peter Jr. from obtaining BPW sewer service until he signs a pre-annexation agreement, which was waived by BPW