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. Real property is more than land and bricks; it includes the bundle of rights incident to ownership, including the right to use the land. Under the ALPP, the Foundation established by 3 Del. C. § 903, with County funding contributions, purchases agricultural development rights from landowners, creating preservation easements that permanently restrict development. That is a purchase of an interest in real property. Section 10004(b)(2) authorizes executive session for "preliminary discussions on site acquisitions for any publicly funded capital improvements, or sales or leases of real property." The legislative purpose, repeatedly identified in this Office's opinions (08-IB02, 02-IB27), is to protect the public body's competitive position when acting as a marketplace buyer or seller.
The AG cited Dickman v. C.I.R. (U.S. 1984) for the general proposition that "property" includes the rights and powers incident to ownership, and Cove on Herring Creek (Del. Ch. 2003) for the right to use one's property. The opinion also cited 18-IB38 for the rule that non-members of public bodies (here, the state Deputy Secretary of Agriculture) may attend executive sessions to relay subject-matter information.
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 ALPP, codified at 3 Del. C. ch. 9, established the Delaware Agricultural Lands Preservation Foundation in 1991 to buy permanent preservation easements from agricultural landowners. The easements stay with the land and prevent development. Counties may contribute funding.
Is buying an easement really "buying real property"?
Under Delaware law, yes. An easement is an interest in real property. The opinion drew the principle from Dickman v. C.I.R., a U.S. Supreme Court tax case characterizing property as a bundle of rights, and from Delaware Chancery's framing of land use rights in Cove on Herring Creek.
Why does the public body need an executive session for these purchases?
The same reason any commercial buyer needs to keep its negotiation strategy and pricing private. AG opinions 02-IB27 and 08-IB02 frame § 10004(b)(2) as protecting the government when it enters the marketplace as a buyer or seller. If Council had to discuss specific properties and proposed prices in open session, landowners and competing offers could distort pricing.
Does an outsider, like the Deputy Agriculture Secretary, taint the executive session?
Not under Delaware practice. AG Opinion 18-IB38 confirmed that non-members of the public body may attend an executive session to relay information on the subject for which the executive session is authorized. The state Deputy Secretary's briefing on ALPP fit that category.
What if a public body uses the "land acquisition" label as cover for unrelated discussion?
That would be a different opinion. The AG's affirmance here rested on the actual subject matter (ALPP-eligible properties and their values). A pretextual or expanding use of the exemption would draw a violation finding under prior AG opinions.
Background and statutory framework
The Delaware Agricultural Lands Preservation Act, 3 Del. C. ch. 9, was enacted to "preserve agricultural lands in Delaware" by creating a state-level mechanism for buying preservation easements. The Foundation under § 903 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)(2) authorizes executive session for "preliminary discussions on site acquisitions for any publicly funded capital improvements, or sales or leases of real property." The combined effect of this language and the AG's longstanding gloss is that government acting as a buyer or seller in real-estate markets gets a privacy zone for negotiation strategy, comparable to what a private actor would have.
The "non-members may attend" rule in 18-IB38 has limits. The non-member's presence must serve the legitimate purpose of the executive session (relaying subject-matter information). A non-member sitting in to influence policy, vote, or otherwise participate beyond the relayer role would raise different questions.
Citations
- 29 Del. C. § 10004(a), (b), (b)(2) (open meetings, executive sessions)
- 29 Del. C. § 10005(e) (petition determinations)
- 3 Del. C. § 901 (Agricultural Lands Preservation Act)
- 3 Del. C. § 903 (Foundation)
- 3 Del. C. ch. 9 (Agricultural Lands Preservation)
- Dickman v. C.I.R., 465 U.S. 330, 336 (1984)
- Cove on Herring Creek Homeowners' Ass'n, Inc. v. Riggs, 2003 WL 1903472 (Del. Ch. Apr. 9, 2003)
- Att'y Gen. Op. 08-IB02 (Jan. 30, 2008)
- Att'y Gen. Op. 02-IB27 (Nov. 4, 2002)
- Del. Op. Att'y Gen. 18-IB38 (Aug. 17, 2018)
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
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)