Rogue Staff Unable to Provide Valid Title: A Long Slog Before Closing

This is the 6th post in the “The Privatization of Public Land” series by Jack Guerin, concerning the saga of  the Fort DuPont Redevelopment and Preservation Corporation (FDRPC). Jack Guerin is an anti-corruption advocate with FightDECorruption.com. This series currently consists of 10 posts, and may grow to more. A post will be published every day Monday through Friday over the next two weeks (April 22, 2024 to May 3, 2024). Click Here for access to all published posts.

Campground Remains Protected Open Space Land
The above image is a Google Map image where we are highlighting the protected open space land and designated camp ground site known as Grassdale, which is highlighted in yellow.

The third post of this series documented how a Markell administration attorney, Andrew Lippstone, supercharged the FDRPC enabling legislation with the “without limitation” language. However, the enabling legislation also included this requirement as a duty of the corporation:

The FDRPC enabling legislation included this requirement as a duty of the corporation:

_{§ 4737. Initial duties of Corporation. On or before June 30, 2015, the Corporation shall, at a minimum: (1) Select and hire a qualified executive director; (2) 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…}

Jeff Randol began his tenure as Executive Director on July 1, 2015—one day following the deadline for this critical “duty” which he ignored and which was never undertaken.

The first meeting of the FDRPC Board was October 16, 2014. Max Walton was present as FDRPC Counsel. Mr. Lippstone was there representing the Governor’s office, and two DNREC staff also attended.

The FDRPC Board minutes document how, starting with the very first board meeting, Mr. Walton began preparing for the annexation of this land into Delaware City with rezoning for multiple uses including the campground. These meeting minutes include no reference to the protections the campground site still retains as protected Open Space Land.

Campground Remains Protected Open Space Land

John Finnegan bought Grassdale in 1986 planning to use the land as a horse farm with a training track and exercise pool for horses. However, Mr. Finnegan was ultimately faced with environmental violations for disrupting wetlands, and he sold the 140-acre Grassdale parcel to the state in 1994 when it became part of Fort DuPont State Park. The 1994 deed stated that Grassdale was protected by two statutes:

_{“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.” These regulations state:}

_{“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.”}

The deed which transferred the land to FDRPC in March 2016 maintained these protections. This link to the DNREC website documents that the campground remains part of the Open Space Program Land Inventory.

The properties are listed by acquisition date which for Grassdale was 09/15/1994. John Finnegan sold Grassdale to the state on that date for $860,000. The deed stated that Grassdale was protected by two statutes:

_{“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.”}

In addition, the 2019 Planning Land Use Services  (PLUS) report acknowledged that the land was protected stating that the parcel was located in an “Out of Play” area.

An Extraordinary Lapse of Awareness

It was almost two years following execution of the Real Estate Purchase Agreement before the campground deal closed on October 28, 2021. In July 2020, FDRPC Counsel, Max Walton, concluded, based on a pending News Journal story, that FDRPC could no longer ignore the protections under the Delaware Land Protection Act. In a July 22, 2020 memorandum Max Walton informed the FRDPC Board about information received from the News Journal reporter:

_{“In the course of writing that story, the reporter forwarded to Jeff (Jeffery Randol, Executive Director) some previously unknown information yesterday indicating that the Grassdale (the campground parcel) property was purchased with funds under the Delaware Land Preservation Act, Title 7, Chapter 75, and questioned how this parcel can be developed. Upon receipt of this information, we performed some preliminary investigation yesterday afternoon—and the reporter appears to be correct in her assertion that the property was purchased with Land Preservation Act funds.  There is a reference to the Land Preservation Act purchase which was not carried forward into the current deed when the property was transferred to the Corporation.”}

Mr. Walton’s memorandum refers to “the Land Preservation Act purchase which was not carried forward into the current deed…” Below is a screenshot from the current 2016 deed referred to in Mr. Walton’s memorandum. 

This deed was prepared by Max Walton’s law firm, Connolly Gallagher, and, presumably, by Max Walton himself as  FDRPC Counsel. Contradicting Mr. Walton’s memorandum, the provisions of the 2016 Deed document that the Title 7 protections  were carried forward in the Deed drafted by Mr. Walton.

Max Walton is one of the most prominent land use attorneys in Delaware. He heads the government practice at Connolly Gallagher. He helped draft the FDRPC Enabling Act and engaged with this project for many years as both Solicitor for Delaware City and FDRPC Counsel. It strains credibility that in July 2020 he was unaware that the campground site was protected land. The March 2016 deed documents that he was aware of the statutory protections.

FDRPC Enabling Powers Never Asserted

Max Walton’s secret memo to the board continues with an extended discussion of whether the Corporation’s Delaware Land Preservation Act was “superseded by the Corporation’s enabling legislation.”

_{“A strong argument can be made that the Land Preservation Act’s limitation on the Grassdale property was superseded by the Corporation’s enabling legislation.” (He quotes the provisions added by Andrew Lippstone as described in the first post of this series.) “Because the enabling legislation provides a very broad exemption from other laws, and allows the Corporation to “sell, or otherwise acquire or dispose of any real property” including “any real property comprising the Fort DuPont Complex or any portion thereof transferred to the corporation,” there is an argument to be made that the Corporation’s grant of authority supersedes the Land Preservation Act.}

_{Jeff (Jeffrey Randol, Executive Director) has spoken to Ray Bivens (Parks) who has indicated that in other circumstances, properties purchased with Land Preservation Act funds have been removed from protection by act of the General Assembly and (consistent with the analysis above) he believes that is the case with the Grassdale parcel.”}

Following this memo, the board’s deliberations about the campground were held in Executive Session. FDRPC decided not to make the argument “that the Corporation’s grant of authority supersedes the Land Preservation Act.” Instead, they accepted Ray Bivens guidance that the campground could only be legally sold following action by the General Assembly.

On March 25, 2021, FDRPC executed the Indemnification Agreement. Below are two screenshots including the critical portions of the Indemnification Agreement:

With this agreement FDRPC is confessing to a TITLE DEFECT and admitting “that the SELLER is not able to correct such TITLE DEFECT.” The solution agreed on by these parties was to create a $100,000 legal defense fund for the purchasers which would be funded by FDRPC, presumably with Delaware state funds.

The Indemnification Agreement documents that the purchasing parties do not have valid title to the land. The next post is this series describes additional manipulations by FDRPC staff which make the Real Estate Purchase Agreement invalid.

Jack Guerin is an anti-corruption advocate with FightDECorruption.com. He is plaintiff in a lawsuit to stop the development of the campground. Click to send an email to legislative leaders asking them to pass the Joint Resolution and return this protected land to the State Parks Department.