Opinion
C.A. No. 05A-10-004 (JTV).
Submitted: March 1, 2006.
Decided: June 21, 2006. Opinion issued: July 17, 2006.
Upon Consideration of Appeal From Decision of the Delaware Fire Prevention Commission,
REVERSED REMANDED.Nicholas H. Rodriguez, Esq., and William W. Pepper, Sr., Schmittinger Rodriguez, Dover, Delaware. Attorneys for Petitioners.
Benjamin A. Schwartz, Esq., Schwartz Schwartz, Dover, Delaware. Attorney for Cheswold Fire Company.
James J. Hanley, Esq., Department of Justice, Wilmington, Delaware. Attorney for State of Delaware Fire Prevention Commission.
OPINION
The City of Dover ("the City" and Robbins Hose Company No. 1, Inc. ("Robbins Hose Company" have filed a petition for a writ of certiorari in which they seek review of a decision of the Delaware Fire Prevention Commission ("the Commission". Robbins Hose Company is the City's designated fire company. The City annexed a 134-acre tract, known as the Bush farm, on its north border. Prior to the annexation, the tract was part of the unincorporated area of Kent County and was within the Cheswold Fire Company's fire district. After the annexation, the City and Robbins Hose Company petitioned the Commission to change the fire district boundaries of the two fire companies to move the annexed tract into Robbins Hose Company's district. The Commission denied the request, leaving the tract in the Cheswold Fire Company's district. The issue is whether the Commission's decision to leave the tract in the Cheswold Fire Company's district, even though it is now in the municipal limits of Dover, constitutes legal error. I conclude that it does, and that on the facts of this case, the Commission is required, as a matter of law, to redraw the boundaries of the two fire companies to put the annexed tract in the area serviced by Robbins Hose Company.
FACTS
In June 2004 the owners of a 134-acre tract of land lying on the north side of Denney's Road, along the east and west side of McKee Road, applied for annexation into the City of Dover. Appropriate procedures were followed and on August 23, 2004 the city council adopted an annexation resolution. The council zoned the area RM-1 (medium density residence.) It is undisputed that the tract is now within the City's municipal limits.
Section 20 of the City's Charter provides:
The Council shall have the power to adopt all measures requisite or appropriate for the protection against fire. To this end the city council may adopt ordinances prohibiting the use of building materials that the council deem would create a fire hazard, and may zone or district the city and make particular provisions for particular zones or districts with regard to buildings and building materials. This power shall be deemed to embrace new buildings or additions to or alterations of existing structures of every kind. The council shall have the power to condemn any building or structure or portion thereof that it deems to be a health hazard or constitutes a fire menace or to require or cause the same to be torn down, removed, or so altered as to eliminate the health hazard or menace of fire.
In furtherance of this power, the City has adopted as part of its Code of Ordinances, an ordinance, designated Section 46-41, which provides:
There is hereby created a City Fire Department, which shall protect and prevent against the hazzard of fire. Robbins Hose Company No. 1, Inc., is hereby recognized and designated as the fire company of the City of Dover in accordance with the City Charter and this Code.
Pursuant to this section of the City's code, the city council exercises general control over the fire department and enacts rules and regulations governing its conduct. The city manager of the city inspects the fire department on a semiannual basis. He makes inquiries as to the standing and efficiency of the fire department. He investigates the capabilities of the department's officers and the operators of the fire department's apparatus. The city manager makes a written report to the city council of his findings. The city manager has the right to use the fire apparatus during any fire-related emergency.
The city council hears appeals of suspensions of members or officers of the fire department and can itself suspend a member. The city council appoints the fire chief, the deputy fire chief, the assistant fire chiefs and the fire captains from duly elected nominees. The city clerk's office conducts the elections of the fire department.
The fire chief is a department head in Dover's city government. He sits on the dais at council meetings along with the police chief, finance director, the public works director, and other Dover department heads. The fire chief attends meetings of department heads and participates in the Developmental Advisory Committee meetings on land use issues. The fire chief supervises sixteen employees of the City of Dover. Over one-half of the fire department's budget is funded through appropriations from the City's budget. All purchases are handled through the City's finance department in the same manner as such other city departments as public works or inspections. The City paid for the construction of Station 2, the station that will serve the annexed tract, and pays all its operating costs. The City will now provide Dover police department protection to the annexed area. The Dover fire marshal will investigate fires within the annexed area instead of the State fire marshal. The future residents of the annexed tract will benefit from municipal trash collection, municipal street lighting, and other municipal services.
The City has a fire station approximately 12,000 feet from the annexed tract. The Cheswold Fire Company station is approximately 13,000 feet from the annexed tract. Cheswold provides EMS services in Dover and in 2004 provided four hundred plus runs. The City of Dover provides ambulance service, but Robbins Hose Company does not.
On April 18, 2005, the City and Robbins Hose Company requested that the Commission alter the boundary between Robbins Hose Company and the Cheswold fire Company to place the annexed area in the fire district of Robbins Hose Company. After a hearing, the Commission issued a decision denying the request. In its decision, it made the following nine findings of fact.
1. In 2004, the City of Dover annexed a parcel of land known as the "Bush farm" ("the farm");
2. Prior to the annexation, Cheswold Fire Company provided fire protection to the farm;
3. The Cheswold Fire Company and Robbins Hose are both approximately two to two and a half miles from the farm;
4. There are no claims that one fire company or the other could provide better fire service;
5. Robbins Hose is recognized and designated as the fire company for the City of Dover (Dover Code Sec. 46-14);
6. Section 20 of the Charter of the City of Dover concerns the Powers of Council to provide for fire protection measures, but there is no language concerning specifying or providing for a city fire department;
7. Robbins Hose Fire Company is a non-profit corporation with its own constitution and bylaws and holds in its own name, its firehouses and equipment;
8. The Chief of the Robbins Hose Fire company is well integrated in the City of Dover, and the chief functions as a Department Head; and
9. The existence of the railroad tracks between Cheswold and the farm poses no public safety concerns.
I accept all of the factual findings of the Commission. The legal conclusions which flow from these findings are discussed below.
STANDARD OF REVIEW
Upon a proceeding for a writ of certiorari, the Court's review is limited to "considering the record to determine whether the lower tribunal[:]" (a) exceeded its jurisdiction, (b) committed errors of law, or (c) proceeded irregularly.
Christiana Town Center, LLC v. New Castle County, 2004 Del. LEXIS 576, at *5, citing Reise v. Board of Bldg. Appeals of City of Newark, 746 A.2d 271, 274 (Del. 2000), citing Woolley, Delaware Practice, Volume I, § 896.
DISCUSSION
The Commission's authority in disputes such as this arises from two statutory provisions, which read as follows:
(3) The Commission shall have the authority, acting on behalf of the State, to enter into agreements to confirm the established geographical boundaries of areas served by all existing fire companies in the State and to resolve boundary disputes between or among such fire companies.
(4) The Commission shall have authority to enter binding orders resolving disputes or grievances within or between fire companies.
This Court has previously held that the Commission's authority does not include the authority to disregard a municipality's valid exercise of power to designate a fire company to provide fire protection services within its municipal limits. In City of Wilmington Fire Department v. State of Delaware Fire Prevention Commission (" City of Wilmington"), the City of Wilmington annexed a new area into the city limits. Prior to the annexation, the area was served by Five Points Fire Company, No. 1, a volunteer fire company. The State Fire Prevention Commission refused a request from the City of Wilmington Fire Department that the boundary between it and Five Points Fire Company be changed to correspond with the new city boundary. The City of Wilmington then petitioned this Court for a writ of certiorari for review of that decision. A City of Wilmington ordinance, it appears, provided that: "The [City fire] department shall extinguish fires within any place within the limits of the City." The Court reversed the decision of the Commission. It stated, in part:
1999 Del. Super. LEXIS 481, reargument granted 2000 Del. Super. LEXIS 27.
2000 Del. Super. LEXIS 27, at *7; 1 Wilm. C. § 5-300.
The Court concludes that the Commission, as a matter of law, has no authority to authorize anyone except the City's fire department to fight fires within the City. Unless the General Assembly or the City provides otherwise, only the City's fire department shall provide routine fire services in Wilmington.
1999 Del. Super. LEXIS 481, at *9.
In its decision in this case, the Commission discussed City of Wilmington. It noted that the City of Wilmington is a home rule municipality. It distinguished the case on the grounds that Robbins Hose Company is a volunteer fire company rather than a municipal fire company. Having thus distinguished the case, the Commission then concluded that it could consider the dispute in this case as simply a boundary dispute or disagreement between volunteer fire companies. It then concluded, in relevant part, as follows:
The Commission decides a boundary dispute between volunteer fire companies based on the public safety of the citizens of Delaware. In this case, public safety is better served by one or the other fire companies. Prior to the request for a hearing, the Commission had determined that the Bush farm [the annexed tract] was within Cheswold's fire district. While the Commission has no reason to believe that Robbins Hose Company could not adequately offer fire protection to the area, the Commission sees no reason to change the boundary line.
In support of the Commission's decision, Respondent Cheswold Fire Company argues that the City of Wilmington's law expressly provided that the city fire department would extinguish any fires within any place within the limits of the City, whereas the City of Dover's Charter or ordinances, by contrast, do not grant such exclusive authority to Robbins Hose Company. The City of Dover's Charter Section 20, it further argues, makes no mention of a fire company and does not give the City the authority to decide who will provide exclusive fire services in its limits. The code provision which designates Robbins Hose Company as the City's fire department, it further argues, does not exclude other fire companies from providing fire service within the City's limits. For these reasons, the respondent argues, the Commission's decision should be affirmed.
I conclude that the Commission and the Cheswold Fire Company read both City of Wilmington and the City of Dover's Charter too narrowly. The power to adopt all measures requisite or appropriate for protection against fire granted in Section 20 of the City of Dover's Charter is a broad grant of power (emphasis added). I find that the power to adopt all measures requisite or appropriate for protection against fire includes the power to designate a local volunteer fire company to provide fire protection services within the City's limits. The express grants of authority contained in the second, third and fourth sentences of Charter Section 20 are not a limitation on the broad grant of authority contained in the first sentence.
The efforts of the Commission and the respondent to distinguish City of Wilmington are unpersuasive. While it is true that the City of Wilmington's Charter and/or Ordinance expressly provide that the City of Wilmington's fire department shall extinguish fires within any place within the limits of Wilmington, I construe the City of Dover's Charter as giving it analogous power to designate Robbins Hose Company to do the same in Dover. In addition, while it is true that the Court discussed home rule in City of Wilmington, my decision that the City of Dover has the power to act as it has is not dependent upon its status as home rule or non-home rule. I also conclude that Robbins Hose Company's status as a volunteer fire company rather than a full municipal fire department is not material.
In addition to being a dispute between fire companies, the dispute here is one between the State Fire Prevention Commission and the City of Dover as to their respective grants of state authority, the Commission's derived from Title 16 and the City's derived from its Charter, both acts of the General Assembly. I believe that the Commission failed to give due regard to the City's power to adopt all measures requisite or appropriate for protection against fire, as compared to the Commission's authority to establish geographical boundaries of fire companies and resolve disputes between fire companies.
I therefore conclude that the Commission must approve the City's request to have the two fire companies' boundaries redrawn to put the annexed area in Robbins Hose Company's fire district.
For the foregoing reasons, the decision of the Commission is reversed and the matter is remanded to the Commission for entry of an order consistent with this decision.