Ten Reasons the Grassdale Sale was Illegal

Introduction

In 2014, HB 310, sponsored by House Majority Leader Valerie Longhurst and then Senate Majority Leader Nicole Poore, created the Fort Dupont Redevelopment and Preservation Corporation (FDRPC).  Subsequent bills, sponsored by the same legislators, expanded the Board of Directors. The latest version of the enabling legislation is Title 7 Chapter 47 Subchapter II. The Fort Dupont Redevelopment and Preservation Act.  No other legislators have sponsored Fort Dupont legislation.

This statute placed FDRPC within DENREC and Secretary Shawn Garvin is the State official with primarily responsibility for this public private partnership. For more than three years, the FDRPC Board and staff have been working to sell the 128-acre Grassdale parcel of Fort Dupont State Park to the Blue Water Development Corporation to create an RV campground for 422 vehicles.  An agreement to sell this public land was executed in October 2021.

Activists in Delaware City, led by Erica Lindsey, have gathered 3,926 signatures to save Fort Dupont State Park. There have been 45,759 visits to this webpage. These advocates maintain that this public land is protected by multiple statutes and cannot be converted to private use without a specific act of the Delaware General Assembly. Delaware State Park Land has never been converted without a specific bill passed by the General Assembly.

Secretary Garvin and the FDRPC Board claim that the enabling Act cited above empowers them to sell public land citing one paragraph in the FDRPC enabling Act which states:

(2) Act generally in a planning and development capacity, and in connection therewith, to hold, own, preserve, develop, improve, construct, rent, lease, sell, or otherwise acquire or dispose of any real property, including without limitation any real property comprising the Fort DuPont Complex or any portion thereof transferred to the Corporation.

Title 7 Chapter 47 § 4735. Powers of the Corporation

These are sweeping powers. However, other language in the Act provides substantial limitations regarding the sale of public land. This webpage will review the language of the FDRPC enabling Act, the two contracts for State acquisition of Grassdale and for the transfer of this parcel to FDRCP, and two important statutes protecting public land.

Ten Reasons Why the Grassdale Sale was Illegal and Should be Voided

1.  The Fort Dupont Redevelopment and Preservation Act Required that Grassdale Remain Public

The enabling legislation includes the following language:

The Fort DuPont Complex will remain a public destination, with its historic, natural, and recreational resources maintained for public enjoyment.

Title 7 Chapter § 4731(3)a

Title 7 reinforces the definition of public land

(a) All lands to which this State directly or indirectly holds title, whether legal, equitable or both, shall be deemed public lands within the meaning of this chapter…

Title 7 Chapter 45 § 4518

Of course, Blue Water campgrounds are private. No one involved in this transaction claims that there would be “public enjoyment” of this RV Campgrounds.

2.  The Enabling Legislation Did Not Automatically Transfer Grassdale to FDRPC

The enabling Act states as one of the “Initial Duties of Corporation”:

Perform or have performed such tests, studies, examinations, and evaluations upon the lands of the Fort DuPont Complex as may be desirable or necessary to permit such property to be transferred to the Corporation…

Title 7 Chapter 47 §4737

This language clarifies that the legislation did not automatically transfer Fort Dupont to the FDRPC pending the required “tests, studies, examinations, and evaluations.” No documentation has been produced indicating that this “Duty” of FDRPC was ever undertaken or completed. 

3.  The 1994 Deed Stated that Grassdale Was Protected by Two Statutes

John Finnegan sold Grassdale to the state in 1994 for $860,000. The deed stated:

The said lands and premises are being acquired through the Delaware Land Protection Act, Title 7 Delaware Code Chapter 75, and any conversion of use is subject to this statute as well as to the regulations and manual of the Delaware Land and Water Conservation Trust Fund.

1994 Deed

4.   The 2016 Deed Maintained Protections

In March, 2016, the State sold Grassdale to FDRPC for only $10.00.  This Deed states that the sale is:

All Subject, however, to all enforceable covenants, conditions, easements, reservations, restrictions and limitations of record…

2016 Deed

The deed specifically states that the Grassdale parcel is:

ALSO UNDER AND SUBJECT to the condition that in all events the Premises shall only be used as contemplated by and authorized under Title 7 of the Delaware Code…

5.  Title 7 Requires Specific Approval of the General Assembly to Sell Public Land

Title 7 Chapter 45 § 4518 Sale of Public Lands states:

No public lands, except as hereinabove set forth and except lands or buildings for which title is held by a reorganized school district, shall be transferred or conveyed to or otherwise placed under the control of any person or persons, state, county, or municipality or any governmental agency, whether foreign or domestic, having the power to sell or lease such lands unless the General Assembly specifically approves the same and unless done in conformity with the requirements of this chapter.

Title 7 Chapter 45 § 4518

6.  The Delaware Land and Water Conservation Trust Fund Requires Conservation in Perpetuity and Also Requires an Act by the General Assembly to Sell Public Land

The Grassdale land is also protected by Title 30 § 5423(c)(2), Delaware Land and Water Conservation Trust Fund which states:

It is intended that property acquired with funds from the Endowment Account shall remain in public outdoor recreation and conservation use in perpetuity. Said property may not be converted to other uses without a subsequent act of the General Assembly.

Title 30 § 5423(c)(2)

7.  Public Land Must be Sold at Public Auction

Title 7 Chapter 45 § 4506. Sale of public lands and products states.

Any public land sold shall be sold only at public auction after at least 10 days prior public notice. Such public notice shall be given in all 3 counties of this State. Notice in each county shall be given in the same manner required for county tax sales in each respective county, including publication and posting of handbills. Any land so sold shall be sold only to the highest bidder at the sale for the amount of that highest bid.

Title 7 Chapter 45 § 4506

8.  Grassdale Was Inappropriately Transferred to Delaware City and Rezoned

The FDRPC enabling Act stated:

“Fort DuPont and Delaware City will grow together as “one city” with strong physical and visual connections and complementary land uses.”

Title 7 Chapter 47 Subchapter II §4731 (d)

There is no additional language in the Act explaining what land would be transferred to Delaware City or how this transfer would take place. Title 7 Chapter 45 § 4518 Sale of Public Lands cited in # 5 above specifically prohibits the transfer of public land to “municipalities”.

Nevertheless, portions of the “Fort Dupont Complex” were transferred to Delaware City and rezoned to facilitate the Grassdale sale. This rezoning was also unlawful as documented in the three statutes quoted below:

Notwithstanding any provision of this chapter to the contrary, no open space or other area acquired primarily for recreational use shall be rezoned, neither shall there be a change in the use of any such lands requiring a variance or subdivision approval, except upon 45 days prior notice to all elected members of the General Assembly in whose district such lands, or any part thereof, lie.

Title 7 Chapter 75 § 7510

Notwithstanding any provision of this chapter to the contrary, no state park, or any part thereof, open space as defined in § 7504 of this title, or other area acquired primarily for recreational use, shall be rezoned, neither shall there be a change in the use of any such lands requiring a variance or subdivision approval, except upon 45 days prior notice to all elected members of the General Assembly in whose district such lands, or any part thereof, lie.

Title 7 Chapter 45 § 4521

Notwithstanding any provision of this chapter to the contrary, no state park, or any part thereof, or other area acquired primarily for recreational use, shall be rezoned, neither shall there be a change in the use of any such lands requiring a variance or subdivision approval, except upon 45 days prior notice to all elected members of the General Assembly in whose district such lands, or any part thereof, lie.

Title 7 Chapter 47 § 4706

9.  State Law Requires that Proceeds from Sale of Protected Public Land Must be Deposited into the Endowment Account which was Used to Purchase the Land

Title 30 Chapter 54 § 5423(c)(2) cited in #6 above states:

If the General Assembly approved the sale or lease of any project or a portion thereof, the pro rata share of net sale and or lease income shall be deposited into the Endowment Account.

Title 30 Chapter 54 § 5423(c)(2)

Of Course, the General Assembly did not approve this sale which will hopefully be voided. FDRPC Board minutes indicate that these officials had no intention of returning funds to the Endowment Account. For them, the purpose of this sale was additional revenue for FDRPC.

10.  Failure to Comply with Restrictions for a Period of Five Years Results in Forfeiture to the State

Title 7 Chapter 45 § 4508 “Forfeiture of public lands to Staterequires.

Whoever purchases any of the public lands under any restriction or condition imposed by the Department of Natural Resources and Environmental Control, and fails for a period of 5 years to comply with the restrictions or conditions mentioned in the deed of grant from the Department, forfeits such lands to the State, and the title to such lands shall thereafter rest in the State.

Title 7 Chapter 45 § 4508

FDRPC purchased Grassdale from the State in March 2016, and then unlawfully transferred the parcel to Delaware City. FDRPC then sold Grassdale to Blue Water in the fall of 2021.  FDRPC acquired Grassdale more than 5 years ago. The transfer to Delaware City and sale to Blue Water were clearly failures to comply with the restrictions in the deed which states that the sale is:

All Subject, however, to all enforceable covenants, conditions, easements, reservations, restrictions and limitations of record…

2016 Deed

The deed specifically states that the Grassdale parcel is:

ALSO UNDER AND SUBJECT to the condition that in all events the Premises shall only be used as contemplated by and authorized under Title 7 of the Delaware Code…

2016 Deed

This provision, requiring FDRPC to forfeit the land based on failures to comply with deed restrictions, provides a remedy to return Grassdale to the State when the Blue Water Sale is voided.