Opinion
C.A. No. 01A-03-002.
December 17, 2003.
John A. Sergovic, Jr., Esquire Sergovic, Ellis Shirey, P.A. Georgetown, DE.
Jeremy W. Homer, Esquire Parkowski Guerke, Dover, DE.
Dear Counsel:
Before the Court is a motion by Tunnell Companies, L.P. ("Tunnell") seeking to revisit a decision of this Court pursuant to Superior Court Civil Rule 60(b)(5) and (6). Tunnell operates a mobile home community known as Baywood Greens, which includes 726 mobile home lots and an 18 hole golf course. Tunnell sought to be the provider of water to the individual mobile home lots. After a long, long journey, the case was ultimately decided adversely to Tunnell, Public Water Supply, Inc. v. DiPasquale et al, Del. Super. 802 A.2d 929 (2002) and affirmed on appeal. Tunnell Companies, L.P. v. Public Water Supply Company, 801 A.2d 11 (Del. 2002).
Nevertheless, Tunnell seeks relief from this Court's ruling based upon changes by the legislature as to the laws governing mobile home communities.
Tunnell argues it is not equitable or fair for Tunnell to be prevented from providing water to the Baywood community from Tunnell's private well.
I'm not persuaded that any of the changes made by the legislature in its sweeping review of the relationship between mobile home park owners and mobile home tenants were directed atexcepting mobile home park owners/landlords from acting as a public utility. If that was the legislature's intention, then in light of the history of this issue, I believe the legislature would have addressed it directly and not so subtly as Tunnell argues.
The bottom line is that this court has found that for Tunnell to be the water supplier to Baywood, it would be a public utility and would necessarily have to acquire a Certificate of Public Convenience and Necessity. (CPCN). Since it can't do that, it can't provide the water.
As noted in this Court's last decision, 7 Del. C. § 6075(b) speaks loudly as to the legislature's intent.
". . . following the issuance of a Certificate of Public Convenience and Necessity to a water utility, the Department shall not withhold a potable water well permit from any person seeking to construct or extend a well on a farm, farm land or the lands of any existing mobile home community, for an addition, modification or extension of that mobile home community, which as of April 11, 2000, self supplied potable water under existing permits in an area served by a water utility, nor shall it require that the person utilized the services of the utility. However, this subsection shall not authorize or require the issuance of a potable well permit that would enable a person or entity to act as a water utility without a duly issued Certificate of Public Convenience and Necessity. 7 Del. C. § 6075(b). (emphasis added).
The last sentence of § 6075(b), which is emphasized, was added in July, 2001. If the legislature intended to except all mobile home communities, then the legislature would have removed or otherwise addressed this language. I am of the opinion that the legislature recognizes that there may be circumstances that the mobile home community may provide its own water and there may be circumstances where it doesn't Changes in the mobile home statute clarify changes as to fees for services and utilities when provided. The language doesn't do anything more.
I remain of the opinion that Tunnell remains subject to the public utility test and the motion to revisit this issue is denied.