Opinion
C.A. No.: 98a-09-017-FSS.
Submitted: January 14, 2000.
Decided: February 3, 2000.
Upon Appellee's Motion for Reargument — GRANTED
Rosamaria Tassone, Assistant City Solicitor, Louis L. Redding City/County Building, 800 French Street, 9th Floor, Wilmington, Delaware, 19801. Attorney for Appellant.
James J. Hanley, Deputy Attorney General, Carvel State Office Building, 820 N. French Street, 6th Floor, Wilmington, Delaware, 19801. Deputy Attorney General for Appellee.
OPINION and ORDER ORIGINAL ORDER RE-ENTERED
On November 24, 1999, the Court issued an Opinion and Order in favor of the City. The Commission filed a timely request for reargument, which the City opposed on January 4, 2000. On January 10, 2000, the Court granted leave for the Commission to file a substantive pleading in support of reargument.
In allowing the Commission to submit another filing, the Court directed the Commission's attention to points not addressed in the original briefing. On January 14, 2000, the Commission filed a memorandum in support of its Motion for Reargument. The Commission's memorandum was filed promptly. It is to the point and helpful. The Commission presents a principled, substantive argument supporting its August 18, 1998 decision. Nevertheless, for the reasons discussed below, the Court will re-enter its November 24, 1999 Opinion and Order as modified by this opinion.
I.
In its original Opinion and Order the Court analyzed both the Commission's statutory authority and the annexation's legal consequences. The Court concluded as a matter of law that:
The annexation was consequential. . . . Among other things, the annexation implicitly changed who provides municipal services to the annexed area. And that includes fire service.
The Court found no statutory authority for the Commission to ignore the annexation's legal effects.
In short, the bedrock on which the Court's decision rests is its conclusion that by operation of law, a municipal annexation transfers responsibility for municipal services, including firefighting, to the municipality. That transfer, in large measure, is what an annexation is about. In Delaware, annexation now involves an actual plebiscite. The people who might be affected by an annexation vote on whether its potential benefits outweigh any potential disadvantages. For better or worse, an annexation reflects the affected citizens' collective desire to be a part of the municipality and to receive the services that the municipality provides to its residents.
22 Del. C. § 101A. See also 15 Del. C. § 7540-7546.
The facts surrounding the annexation here are not dispositive because the decision turns on a legal conclusion. For background, however, the Court observes that the City has a fire station, staffed "24/7," which is closer to the annexed area. Even so, everyone agrees that since 1921, the volunteer fire company has provided good fire service to the annexed area. One large corporate citizen in the annexed area, the Wilmington Blue Rocks baseball team, is particularly satisfied with the volunteer fire company. Everyone also recognizes that the annexed area has changed dramatically in the past few years. A major convention center, a Class A baseball stadium and a large retail outlet mall have opened in the area. The convention center and the mall are expanding. New hotels and restaurants are anticipated in the near future. Presumably, the City is not satisfied with having these projects serviced by a volunteer fire company that does not operate under the City's name and control. In any event, as discussed below, the Court is not second-guessing the Commission about who will provide the best fire service. The annexed area is part of the City and accordingly, it falls within the City's control.
The Commission largely assumes that the annexation has no significance as far as fire service is concerned. The Commission's view apparently is that the volunteer fire company will operate its apparatus on the City's streets and serve the City's residents so long as the volunteers provide satisfactory service. In its administrative decision, the Commission ignores or glosses over the annexation. On appeal, the Commission's entire argument about the annexation's importance is:
[T]he City of Wilmington is a "home rule" municipality, 22 Del. C. § 802, that is permitted by statute to expand its legal boundaries by annexation, 22 Del. C. § 101A. The Commission's argument notes that the General Assembly can limit a "home rule" municipality's grant of authority through a general statute, 22 Del. C. § 802, City of Wilmington v. Lord, Del. Super., 340 A.2d 182 (1975), and although annexation alters a City's boundaries, it does not alter all preexisting rights. Delmarva Power Light Co. v. City of Seaford, Del. Supr., 575 A.2d 1089 (1990).
Neither of the two cases relied on by the Commission, City of Wilmington v. Lord and Delmarva Power Light Co. v. Seaford, is on point. The Commission's reliance on Delmarva is misplaced in two important ways. First, while Delmarva indirectly involves an annexation, it does not explore an annexation's limits. Second, and more importantly, the Commission fails to appreciate that the case here does not involve "preexisting rights."
Delmarva decided that, by various means, over the years a power utility acquired a non-exclusive franchise to provide electric service in the Seaford area. And when the franchise was combined with a government-issued certificate of need, the combination "constitutes a property right as to [income and profits derived from] customers served [by the franchisee], which cannot be taken without compensation."
Delmarva Power Light Co. v. City of Seaford, Del. Supr., 575 A.2d 1089, 1098 (1990).
Thus, Delmarva is an inverse condemnation case. It concerns a public utility's entitlement to money. It does not concern the utility's right to provide service to particular customers. As mentioned, Delmarva says almost nothing about an annexation's impact on who is responsible for providing municipal services in annexed areas. If Delmarva had anything to do with this case, which it does not, it would support the Court's holding in favor of the City. In Delmarva, despite its vested property rights, the electric company lost its former customers and the municipal utility acquired them. The distinctive statutory framework for utility regulation, however, makes Delmarva inapplicable to State Fire Prevention Commission matters.
As also mentioned, the second reason why the Commission's reliance on Delmarva is misplaced flows from the Commission's inaptly analogizing the volunteer fire company to a privately-owned utility and suggesting from the comparison that the volunteer fire company has a vested right to provide service in the City. The volunteer fire company has no more "right" to provide service in the City than the New Castle County and the State Police have the right to provide routine police service in the City after the annexation.
As the record demonstrates, the annexation changed many things in the annexed area. While the State retains "authority to deny Wilmington powers through general statutes," otherwise under "home rule" the City "is a sovereign power as far as local self-government is concerned." The City's law provides: "The [City fire] department shall extinguish fires within any place within the limits of the City." Unless a higher law supercedes it, the City's law is controlling.
City of Wilmington v. Lord, Del. Supr., 340 A.2d 182, 183 (1975).
Id.
1 Wilm. C. § 5-300.
The only reason why routine fire service in the City remains controversial is because of 16 Del. C. § 6619. But for that state law, the City's police simply would prevent the volunteers from interfering with the City's fire department. A fundamental purpose for the statute, however, is eliminating the dangerous spectacle of firefighters arguing at fire scenes. Section 6619, nonetheless, does not give property rights to fire companies. To the extent that the Commission mischaracterizes the volunteer fire company's interest as amounting to a right, the Commission incorrectly shifts its concern to the volunteers and away from proper deference to the annexation s importance.
II.
In terms of § 6619's true significance, in its original decision the Court focused on §§ 6619(a)(3) and (4)s' grants of authority to the Commission to resolve boundary disputes and other disputes or grievances between fire companies. The Court saw no reason to read into the statute any authorization for the Commission to ignore the City's sovereignty. The Commission now argues that the Court overlooked the Commission's further authority under § 6619(a)(3) to "confirm the established geographical boundaries of areas served by all existing fire companies in the State." The Commission emphasizes the statutory reference to "all."
The Commission's argument in favor of its authority to confirm all established boundaries ignores the other language in § 6619(a)(3) that is unhelpful to the Commission's position. In its entirety, the statutory language relied on by the Commission is:
The Commission shall have authority . . . to enter into agreements to confirm the established boundaries of areas served by all existing fire companies. . . . (emphasis added)
Here, there is no agreement by the City that anyone but the City's firefighters may operate in the City. To the contrary, the City's ordinances make the City's fire department responsible for fire service throughout the City.
Id.
In any event, this case does not involve the Commission's confirming any agreement and so, the statutory language now ruled on by the Commission does not help. Having authorization to confirm an agreement does not give the Commission power to impose its will on the City. If the Commission has the power to limit the annexation, it comes from the other language in §§ 6619 (a)(3) and (4), which the Court addressed in its original decision and which it now will readdress here.
III.
While the Commission's initial argument based on the Commission's power of confirmation under § 6619(a)(3) is beside the point, the Commission is correct that it had jurisdiction over this matter. In a way, the Court's original decision is imprecise and misleading. It must be clarified:
The Commission relies on the Attorney General's informal opinion that:
[T]he responsibility for fire protection in a certified area does not change as a result of annexation, but changes only as a result of action by the Commission.
Fire Company Boundaries and Annexation, Op. Att'y Gen., 93-1017 (July 14, 1993).
The Court agrees that even after an annexation, the Commission must act to establish responsibility for fire service in the annexed area.
As discussed above, if the volunteer fire company and the municipality agree on who will serve the annexed area, the Commission could confirm the agreement. Otherwise, the Commission shall resolve the matter and enter an order. The Commission's raison d'etre under § 6619 is eliminating confusion over who is responsible for fire service in any part of Delaware. Accordingly, the Commission had jurisdiction. And the City recognized as much when it brought the matter to the Commission in the first place. To the extent that the Court's original decision implies that the Commission lacked subject matter jurisdiction, that implication is incorrect.
The Court's point remains, nevertheless, that when a "home rule" municipality appears before the Commission in a case like this one, the Commission is not free to disregard the municipality's borders and treat the matter as if it concerns a mere boundary dispute or a simple disagreement between volunteer fire companies. As the Court discussed in its original decision, there is no true border dispute here and the dispute is not a grievance between fire companies.
Under the circumstances present here, where a "home rule" municipality intends to use its own fire department to provide all fire service within its borders, the Commission has no discretion to pick and choose between the municipal fire department and the volunteer fire company, much less to let its decision turn, as it did here, on the Commission's institutional preference for maintaining the status quo.
On reargument, the Commission agrees with the Court's original holding that "there are significant legal, important practical and appropriate political reasons why the City's boundaries and its fire service should be co-extensive." Yet in the Commission's view, the annexation made no difference. After it determined as a matter of fact that the volunteer fire company was providing adequate service to the annexed area, the Commission simply ignored the admitted legal, practical and political reasons why the Commission was required to hold that the annexation necessitated a change in who will provide fire service in the City. In effect, the Commission incorrectly treated this case as a matter falling under its administrative discretion.
The annexation's significance, in the first instance, actually presents a question of law. The Commission never addressed the annexation's legal significance, other than to reject it summarily. Meanwhile, as the Commission correctly observes:
The Court gives to the act of annexation not only the effect of altering the City's borders but also defining the geographical boundaries of its fire service area.
The Court holds as a matter of law that § 6619 does not override the lawful ordinances enacted by the City under the "home rule" statute. Under the City's ordinances, the City fire department's service area is the same as the City's area. without exception. While the General Assembly has authority to limit a "home rule" municipality's sovereignty, § 6619 does not authorize the Commission or any administrative agency, including the Commission, to carve out a fire service exception for part of the City.
The Court's legal conclusion takes into account and defers to "home rule" and an annexation's genesis, purpose and aftermath. An annexation is all about changing the status quo in law and fact. Once the annexation was final, the annexed area became part of the City for all purposes. It ceased to be "the annexed area" in any on-going sense. After the Commission found that the annexation had occurred and that the City intended to continue providing fire service to the entire City, the Commission was obliged to enter an order to that effect, §§ 6619(a)(3) and (4) notwithstanding.
IV.
As discussed above, the annexation changed the status quo concerning municipal services in the annexed area, without exception for fire service. The issue present here was not addressed to the Commission's discretion. On remand, the Commission shall enter an order reflecting the City's primary responsibility for fire service within the City's legal boundaries, without exception.
IT IS SO ORDERED.