A Statutory Remedy
Title 7 Conservation Chapter 45 Public Land provides a statutory remedy to void the Grassdale sale as quoted below:
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.§ 4508. Forfeiture of public lands to State.
FDRPC purchased Grassdale from the State in March 2016, so the Corporation has been the “steward” of this public land for more than 5 years. FDRPC staff and Board could claim ignorance of the Title 7 protections prior to Max Walton’s July 22, 2020 memorandum. This incredible lapse covers more than four years of FDRPC’s Grassdale possession.
Ignorance of Grassdale’s protected status may explain some of FDRPC’s failures, but it does not excuse them or reduce the Corporation’s legal liability. Below is a list of 5 failures “to comply with the restrictions or conditions mentioned in the deed of grant from the Department” during FDRPC’s more than 5 years of “stewardship”.
1. Annexation by Delaware City– May, 2016
Following vigorous efforts by FDRPC staff, Grassdale was annexed by Delaware City only a couple of months following transfer of the land to FDRPC. The March 2016 Deed cited the DLPA protections which were apparently unnoticed by FDRPC Counsel who prepared this Deed. Title 7 Chapter 45 § 4518 Sale of Public Lands explicitly prohibits transfer to a “municipality” which would include Delaware City.
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
2. Rezoning by Delaware City—March 2017
Grassdale was rezoned by Delaware City in March 2017. This was also illegal based on the statute 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
3. Sold without a specific Act of the General Assembly–October, 2021
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)
4. Public Land Not sold at Public Auction—October, 2021
Grassdale was sold without issuing an RFP or considering any competing bids.
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
5. Proceeds not deposited in Endowment Account
Based on the Purchase Agreement, FDRPC should have received $1.5 million through wire transfer following the closing on October 28, 2021. No funds have been deposited in the Endowment Account.
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)
This shameful record of statutory violations started almost immediately following FDRPC’s acquisition of Grassdale and is punctuated with the closing near the end of 2021. This history richly merits the imposition of TITLE 7 CHAPTER 45 § 4508 restoring Grassdale to state control.
A Straightforward Low-Cost Antidote
The Sasaki Master Plan for the Fort Dupont Complex never included Grassdale. The original Master Plan emerged from a series of community meetings and focused on improving Fort Dupont State Park vs. selling and privatizing a major parcel of the park. On page 7, the Master Plan area is outlined in orange. The entire area is east of Route 9. Grassdale is the triangular area outlined in green west of Route 9.
Selling Grassdale was never contemplated when the FDRP Act was passed in 2014. The possibility of an RV Campground was never mentioned in community meetings or Master Plan documents and came as a surprise to both Delaware City residents and buyers of FDRPC properties. Reversal of the Grassdale sale would have little impact on the mission of FDRPC.
Grassdale has been an unfortunate diversion driven by staff who may have conflicted agendas. The FDRP Enabling Act required that all Fort DuPont property remain in the public domain. The Grassdale sale conflicts with the true missions of both DNREC and FDRPC.
Some work has begun to develop the infrastructure for the RV Campground, and there will be some costs associated with terminating this project. However, the closing was very recent, and this is an early stage in developing the Campgrounds. Delay will increase these costs.
It’s hard to imagine an upscale tourist operation like Massey’s Landing succeeding in the marshes of Grassdale. However, it’s not that hard to imagine failure. If the breakeven number of customers fails to materialize, FDRPC’s newly minted partner, Michigan limited liability company, Sun Fort DuPont RV LLC, would probably abandon the venture.
What could be more desolate than more than 400 empty supersized parking spaces blighting our former State Park? The fragile wetlands environment, which currently reduces risks of flooding and provides critical habitat for wildlife, would be ruined for no benefit.
The Future of Fort DuPont
The Grassdale sale can be voided without too much disruption if action is taken without delay. However, this incident illuminates the need for change at FDRPC. As a public entity, the Corporation should stop operating in secrecy and adopt a new posture of openness and consultation.
In January 2021, Valerie Longhurst and Nicole Poore introduced HB 85 which offers some reforms. Here’s a key excerpt from the Synopsis:
This Act prohibits the executive director or any employee of the Corporation any gift from the Corporation, the Board or any member of the Board valued in excess of $200.00 or from renting or leasing any property on the Fort DuPont Complex except for fair market value and only with a rental or lease agreement. This Act requires the Executive Director to provide an annual written report of the activities of the Corporation to the Chair of the Board and the Chair of the Fort DuPont Oversight Committee. This Act also provides that no administrative costs of the Corporation may be requested or paid by an appropriation of the General Assembly beginning January 1, 2022. This Act imposes continuing duties upon the Corporation to prepare and provide an annual report and audit for the Governor and the Capital Improvement Committee of the General Assembly. Finally, this Act establishes the Fort DuPont Oversight Committee that assists and provides oversight to the Board in carrying out its purposes under the statute.
HB 85 would be a bitter pill for FDRPC Executive Director Jeffrey Randol. For example, it would require him to pay a fair market rental for his home which the FDRPC renovated and landscaped at a cost of almost $700,000. Compensation for FDRPC staff, including Mr. Randol, could no longer be paid with state appropriations. The bill would also limit gifts, provide an Oversight Committee, and add requirements for annual reports and audits.
HB 85 has an unusual history. It languished on the House Ready list for the last five months of the 2021 General Assembly. No one doubts that Majority Leader Longhurst has the power to pass this bill in the House whenever she chooses. For whatever reason, she chose not to pass it in 2021, and there’s no momentum for 2022. Valerie Longhurst apparently prefers to leave HB 85 hanging, like the Sword of Damocles, over the head of Executive Director Jeff Randol.
Need for Accountability
FDRPC has been operating for more than seven years. Based on the problems which have emerged, this is an appropriate time to review the status of this project.
Audit of State Funds
More than $16 million has been appropriated for FDRPC between FY 2013 and FY 2022. The epilogue language in the Bond bill requires that these funds be used “for the redevelopment of the following strategic site: The Fort DuPont complex adjacent to Delaware City. Up to $300,000 of the appropriation may be utilized for the operations and administration of the redevelopment corporation.”
FDRPC contracted with an accounting firm and five annual audits are presented on their website for FY 2016-FY 2020 (click Financial at bottom of page). These reports list the state appropriation for each year but provide no specific information regarding the expenditure of these state funds.
Based on the epilogue language, the state funds are for “redevelopment” with “up to $300,000” to support operations and administration. In addition to “redevelopment” of historic buildings, FDRPC also builds new homes for sale or rental. State funds should not be used for new construction of private homes.
An audit of the state funds should be undertaken to verify that FDRPC is complying with the epilogue language. Each year approximately $2.5 million is appropriated for FDRPC. There is no information about the process for calculating the amount of this appropriation.
What is the total projected cost of redeveloping the buildings at Fort DuPont? Is there plan and timetable for completing this task which could reduce or eliminate this expense in the future? These are the questions which should be addressed by an audit.
A Preliminary Land Use Service (PLUS) report was done in 2019 by the Office of State Planning Coordination. Below is an excerpt:
An environmental review should be undertaken to determine the current status of these issues and the level of FDRPC compliance. A photo from the 2013 Sasaki Master Plan report shows beautiful tree lined walk-ways. Many of these trees have been removed. Is Fort DuPont undergoing deforestation?
The PLUS report emphasizes vulnerability to flooding at the Fort site. An environmental review could determine options and costs for flood mitigation. The condition of the wetlands and wildlife habitat should also be reviewed.
The PLUS report includes issues of soil contamination. FDRPC has also done extensive test borings. The environmental review should combine this information to provide an overview and strategy for managing soil contamination at the Fort DuPont site.