Can a Delaware county discuss agricultural-easement purchases in executive session under the 'site acquisition' exemption?

Official title

19-IB47 9/4/2019 FOIA Opinion Letter to Mr. Dan Kramer re: FOIA Complaint Concerning Sussex County

Plain-English summary

Daniel Kramer of Greenwood petitioned over Sussex County Council's June 4 and June 11, 2019 meetings, both of which featured an executive-session item titled "Land Acquisition pursuant to 29 Del. C. § 10004(b)." On June 4, Austin Short, the Deputy Secretary of Agriculture, briefed Council on the state Agricultural Lands Preservation Program (ALPP) and Council discussed candidate properties. On June 11, Council revisited the program with the state-funded property list and discussed county funding for purchases. Kramer's theory was that the ALPP was not a "land acquisition," so § 10004(b) did not authorize executive session.

The AG rejected the theory and affirmed Council. As the opinion put it, "'Property' is more than just the physical thing- the land, the bricks, the mortar- it is also the sum of all the rights and powers incident to ownership of the physical thing." An essential property right is the landowner's right to use the property, and a landowner can sell that right. Under the ALPP, the Delaware Agricultural Lands Preservation Foundation, with County funding, purchases development rights from landowners, creating preservation easements that permanently restrict development. The opinion concluded there is "no difference between the purchase of an entire parcel of land and the purchase of an essential property right incident to the land," so the discussion fit § 10004(b)(2), which authorizes executive session for "[p]reliminary discussions on site acquisitions for any publicly funded capital improvements, or sales or leases of real property." The opinion added that it is "well-settled that the State legislature designed 29 Del. C. §10004(b) to 'protect the government when it enters the marketplace to purchase real property as an ordinary commercial buyer or seller.'"

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the Agricultural Lands Preservation Program?

The opinion describes the Delaware Agricultural Lands Preservation Act as enacted to preserve agricultural lands in Delaware. It establishes the Delaware Agricultural Lands Preservation Foundation, which purchases future development rights from landowners to create "preservation easements" that permanently restrict development. The State identifies eligible parcels each year, and counties such as Sussex may contribute funding to participate.

Is buying an easement really "buying real property"?

Under the opinion, yes. It reasons that property is "more than just the physical thing" and includes "all the rights and powers incident to ownership," that a landowner can sell the right to use the property, and that there is "no difference between the purchase of an entire parcel of land and the purchase of an essential property right incident to the land."

Why does the public body need an executive session for these purchases?

The opinion states it is "well-settled that the State legislature designed 29 Del. C. §10004(b) to 'protect the government when it enters the marketplace to purchase real property as an ordinary commercial buyer or seller.'" The Council represented that closed deliberation was necessary to protect its negotiating position and confidential pricing before a final decision.

Background and statutory framework

The opinion describes the Delaware Agricultural Lands Preservation Act as enacted to preserve agricultural lands in Delaware by creating a state-level mechanism for buying preservation easements. The Delaware Agricultural Lands Preservation Foundation manages the program; counties may participate by contributing funding. Once a parcel is selected, the Foundation pays the landowner for the development rights, and the land thereafter remains permanently agricultural.

Section 10004(b) authorizes a public body to close a meeting for one of nine specific purposes, including "[p]reliminary discussions on site acquisitions for any publicly funded capital improvements, or sales or leases of real property." The opinion reads that language, together with the legislature's design to protect the government acting "as an ordinary commercial buyer or seller," to cover the Council's consideration of which parcels to purchase development rights in.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware Freedom of Information Act)
• 29 Del. C. § 10004(b), (b)(2) (executive sessions; preliminary site acquisitions)
• 29 Del. C. § 10005(e) (petition determinations)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/09/04/19-ib47-9-4-2019-foia-opinion-letter-to-mr-dan-kramer-re-foia-complaint-concerning-sussex-county/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/10/Attorney-General-Opinion-No.-19-IB47.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 19-IB47

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB47

September 4, 2019

VIA EMAIL

Daniel J. Kramer

8041 Scotts Store Rd

Greenwood, DE 19950

[email protected]

RE: August 16, 2019 FOIA Petition Regarding Sussex County Council

Dear Mr. Kramer:

We write in response to your August 16, 2019 correspondence alleging that Sussex County Council (the "Council") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") during its June 4, 2019 and June 11, 2019 meetings. We treat your correspondence as a petition for determination pursuant to 29 Del. C. § 10005(e) regarding whether the Council violated FOIA ("Petition"). We invited the Council to submit a written response to the Petition. We received the Council's response ("Response Letter") on August 21, 2018 and your Reply on August 23, 2019. For the reasons set forth below, we conclude that the Council did not violate FOIA as alleged.

BACKGROUND

On June 4, 2019 and June 11, 2019, the Council held open public meetings. For each meeting, the Council's posted Agenda contained the item, "Executive Session – Land Acquisition pursuant to 29 Del. C. § 10004(b)." On June 4, 2019, the Council entered into an Executive Session. Austin Short, Deputy Secretary of the Delaware Department of Agriculture presented the Council with a "general overview and history of the Agricultural Lands Preservation Program, including the State's funding for the program;" and the Council discussed participation in the program as well as specific properties in Sussex County that could be purchased for participation. On June 11, 2019, the Council revisited its discussion of the Agricultural Lands Preservation Program ("ALPP"); received a report of the properties selected for funding by the State, and discussed those properties, additional properties, and county funding of any purchased properties.

POSITIONS OF THE PARTIES

In your Petition, you allege that the Council violated FOIA by discussing the ALPP in executive session because it is not a "land acquisition" and the ALPP is not a discussion topic exempt from FOIA. The Council responds that it did not violate FOIA because the ALPP requires the Council to purchase rights to some parcels of privately-held land for the purpose of creating permanent agricultural easements which are interests in land and, therefore, are an allowable purpose for calling an executive session under 29 Del. C. § 10004(2). The Council explained that deliberations in executive session were necessary to protect the Council's negotiating position on those parcels that will be approached for purchase, and to safeguard confidential pricing information before a final decision was made.

DISCUSSION

Delaware's FOIA provides that "[e]very meeting of all public bodies shall be open to the public except those closed pursuant to subsections (b), (c), (d) and (h) of [section 10004]." Pursuant to 29 Del. C. § 10004(b), a public body may call for an executive session closed to the public for one of nine specific purposes including for "[p]reliminary discussions on site acquisitions for any publicly funded capital improvements, or sales or leases of real property."

The Delaware Agricultural Lands Preservation Act was enacted to preserve agricultural lands in Delaware. To fulfill its purpose, the Act establishes the Delaware Agricultural Lands Preservation Foundation (the "Foundation"). The Foundation purchases future development rights to agricultural land from landowners creating "preservation easements," permanently restricting agricultural landowners from developing their properties. Every year, the State identifies agricultural parcels of land that have submitted applications to the Foundation to be considered for purchase. If Sussex County determines that it would like to participate in the ALPP, the Council is told of the properties identified by the State, and the private landowners discounted price at which they are willing to sell. The Council then must determine which parcels would be most beneficial to the County as a whole to purchase for participation in the ALPP.

"'Property' is more than just the physical thing- the land, the bricks, the mortar- it is also the sum of all the rights and powers incident to ownership of the physical thing." An essential property right is the landowner's right to use their property the way the owner sees fit. A landowner can sell this right. The Foundation, with funding from the Council, seeks to purchase essential property rights for certain parcels in Sussex County in order to create preservation easements. When a parcel-candidate under the ALPP is being considered by the Council for preservation, the Council is in effect considering the purchase of property rights on that parcel. It is well-settled that the State legislature designed 29 Del. C. §10004(b) to "protect the government when it enters the marketplace to purchase real property as an ordinary commercial buyer or seller." Here, the Council is contemplating entering the market as a buyer. There is no difference between the purchase of an entire parcel of land and the purchase of an essential property right incident to the land. The Council was not required to discuss the specific properties under consideration for purchase in open session.

CONCLUSION

For the reasons discussed above, it is our determination that the Council did not violate FOIA as alleged.

Very truly yours,

/s/ Carla A.K. Jarosz

Carla A.K. Jarosz

Deputy Attorney General

APPROVED BY:

/s/ Aaron Goldstein, State Solicitor

Aaron Goldstein

State Solicitor

cc:

J. Everett Moore, Esquire (via email)