Lewes officials continue to battle BPW in court
A feud between the City of Lewes and Board of Public Works continues to drag on in the courts.
The latest round transpired in recent weeks, when the city attempted to stop the BPW from providing water and sewer service to the home of a New Road resident who’s at the center of the disagreement. The city’s last-minute bid was denied by the Court of Chancery, but lawyers are continuing to make their case to the court on broader issues.
Lewes officials filed a lawsuit May 21, 2020, against Jerry Peter Jr., seeking an injunction to stop him from obtaining sewer service from the BPW unless he signs a pre-annexation agreement. Since the lawsuit was filed, Peter also agreed to hook into the BPW’s water system.
Peter’s 1.87-acre property fronting New Road is surrounded on three sides by Lewes boundaries, but it remains in Sussex County jurisdiction. It cannot be accessed without traveling through a portion of Lewes, but Peter does not want his property annexed.
In February, with the lawsuit still unresolved and connection to Peter’s property imminent, Lewes City Solicitor Glenn Mandalas filed a motion for a temporary restraining order to stop Peter from hooking up. The motion was denied March 3 by Vice Chancellor Sam Glasscock, and Peter connected to the system a few days later.
“The court determined that the connection was a property right and denying it would have damaged Mr. Peter far more than the city,” said Peter’s attorney Tim Willard of Fuqua, Willard, Stevens & Schab.
The city’s case against Peter continues, though, as Glasscock has yet to rule on a motion to dismiss the case, filed by Willard, or the city’s motion for summary judgment, filed by the city’s attorneys.
In a March 8 proceeding, both sides agreed to proceed with oral arguments. According to Willard, all parties agreed to deal with Willard’s motion to dismiss first, then, if denied, they would move ahead with the motion for summary judgment.
If the city prevails, Mandalas said the city intends to force Peter to annex or cut off BPW services.
“The vice chancellor indicated that to the extent the city ultimately prevails on its declaratory judgment count, the Peter property would need to either discontinue receiving service from the Board of Public Works or be annexed into the city,” Mandalas said. “Consequently, if the city prevails, it is the city’s expectation that the Peter property will be annexed into the city if it is to continue receiving the city sewer utility.”
Willard’s interpretation of the city’s path forward differs. He says the city no longer has the ability to force annexation. He says the city offered to limit its case to the validity or enforceability of a pre-annexation agreement as a whole.
“It appears the city has abandoned their other injunctive relief claims against Mr. Peter personally – that is, to forbid the sewer connection unless a pre-annexation agreement is filed,” Willard said.
He said that was reinforced when Glasscock appointed a third-party attorney to represent the public, which Willard said shows the issue is much broader than just his client.
“I have maintained that my client, Mr. Peter, has been unfairly dragged into court for what is a public policy issue at significant expense to him,” Willard said. “Although this expensive and protracted litigation continues, I am pleased at least that the court seems to recognize the true public nature of this dispute.”
The city’s pre-annexation agreement battle with the BPW dates back several years. In July 2019, the BPW sued the city in Superior Court because the two sides fundamentally disagreed on the level of BPW’s authority. It was ultimately related to the BPW’s ability to waive pre-annexation agreement requirements. The lawsuit was dismissed in 2020, when the court determined the BPW does not have the ability to sue or be sued, proving, the city says, that the city has ultimate authority over BPW’s policies.
When the BPW attempted to be added as a party to the Peter lawsuit, Glasscock denied the request based on the Superior Court decision.
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. BPW argues they are required by law to provide service to properties within their service area whether they are annexed or not. By filing suit against Peter, the city is attempting to exercise its authority over BPW and its policies.
To date, legal fees related to the Peter case have cost the city more than $44,000. The city also paid more than $225,000 in legal fees – $50,000 was reimbursed by insurance – in the first case against the BPW. The BPW paid more than $130,000 in legal fees for that same case.
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 at a public meeting 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 in Chancery Court 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
March 3, 2021 - Chancellor Sam Glasscock denies city’s request for temporary restraining order to stop Peter from hooking into BPW services; Glasscock denies BPW’s request to become a party in the case based on prior Superior Court ruling
March 8, 2021 - All parties agree to move forward with oral arguments related to a motion to dismiss, then motion for summary judgement.
