SB 140 — AN ACT TO AMEND TITLE 9 OF THE DELAWARE CODE RELATING TO WIRELESS COMMUNICATION LEASES FOR NEW CASTLE COUNTY PARK AREAS AND OPEN SPACE.

Hansen &DELAWARE Rep.STATE SENATE 150th GENERAL ASSEMBLY SENATE AMENDMENT NO.

Mitchell1 Sen.TO SENATE BILL NO.

Ennis;140 AMEND Senate Bill No.

Reps.140 on line 20 by inserting, after the period and before the word “The”, the following:

Brady,“The BriggsCounty Kingmay DELAWAREnot STATEenter SENATEinto 150than GENERALexclusive ASSEMBLYarrangement SENATEwith BILLany NO.person for the purpose of erecting, maintaining and operating wireless communications facilities on park land or land held in public trust.” SYNOPSIS This amendment prohibits the County from entering into an exclusive agreement relating to wireless communication leases for New Castle County park areas and open space.

140 AN ACT TO AMEND TITLE 9 OF THE DELAWARE CODE RELATING TO WIRELESS COMMUNICATION LEASES FOR NEW CASTLE COUNTY PARK AREAS AND OPEN SPACE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1.

Amend § 1341, Title 9 of the Delaware Code by making deletions as shown by strikethrough and insertions as shown by underline as follows:

§ 1341.

Functions.

The Department of Special Services, managed by the general manager of the Department, who shall be qualified for the position by education, experience and training, may perform the following functions:

(1) In cooperation with the Department of Land Use, manage and develop plans for public facilities and infrastructure including sanitary sewers and treatment facilities, drainage systems, buildings, parks, open spaces, natural areas and greenways for the County in accordance with, and in support of, the Comprehensive Plan.

(2) Prepare designs and specifications for all types of public facilities and infrastructure including sanitary sewers and treatment facilities, drainage systems, buildings, parks, open spaces, natural areas and greenways, and supervise the construction and inspection thereof.

(3) Assist the Office of Administrative Services in the tabulation of bids and in the determination of the lowest and best bidder with respect to all public facilities and infrastructure including sanitary sewers and treatment facilities, drainage systems, buildings, parks, open spaces, natural areas and greenways, and, upon request of the Office of Administrative Services, with respect to materials, supplies and equipment.

(4) Manage, maintain and operate public facilities and infrastructure sanitary sewers and treatment facilities, drainage systems, parks, open spaces, natural areas and greenways, and perform all county functions related thereto, provided that such functions may be performed directly, by contract, or by licenses as the County Council by ordinance may from time to time determine.

This shall include the ability to execute a lease for the purpose of erecting, maintaining and operating wireless communications facilities, for any part of park land or land held in public trust.

The County may not enter into an agreement for the purpose of erecting, maintaining and operating wireless communications facilities on park land or land held in public trust without a bona fide commitment from a wireless service provider to occupy a facility.

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06/07/2019 12:12 PM leases for wireless communications facilities on park land or land held in public trust must be approved by County Council by resolution.

All such leases must contain a provision that, upon the termination or expiration of the lease, the County may require removal of such wireless communication facilities and the property returned to its previous state, consistent with park and recreational purposes.

(5) Manage, maintain and operate any county public water supply system.

(6) Manage, maintain and operate all public buildings, except those which by agreement with other governmental jurisdictions are to be otherwise operated and maintained and any building which shall be designated by the County Executive to be excluded from the responsibility of the Department for maintenance or operation, provided that such functions may be performed directly, by contract, or by licenses as the County Council by ordinance may from time to time determine.

(7) Manage and maintain the County Fleet and operate central garages for the storage and maintenance of equipment, and maintain all automotive equipment, except those that may be specified in writing by the County Executive for maintenance by some other office, department or board, provided that such functions may be performed directly, by contract or by licenses as the County Council by ordinance may from time to time determine.

SYNOPSIS This Act will expand New Castle County’s limited authority to lease park land or land held in public trust to include leases for erecting, maintaining and operating wireless communications facilities.

State law currently limits public land leases to those for recreational purposes and related activities.

At common law, the State legislature must approve transfers or changes in the use of park land;

however, this function may be delegated to municipalities through legislative action.

This Act is intended to abrogate the restrictions on permitted uses for public parks, held in a public trust as provided in the common law, including the restrictions set forth in Anderson v.

Mayor and Council of Wilmington, 137 A.2d 521 (Del.

Ch.

1958) and Lord v.

City of Wilmington, 332 A.2d 414 (Del.

Ch.

1975), aff'd, 378 A.3d 635 (Del.

1977), and to amend state law to permit specifically a wireless communications lease on such land as minimally intrusive and with the approval of County Council.

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