Rep. Lyndon Yearick

Currently, a municipality other than the City of Wilmington must be granted the authority to impose a lodging tax by an amendment to the municipality’s charter through a special act of incorporation passed by the General Assembly. This Act authorizes all municipalities to impose a lodging tax, if a municipality chooses to do so. Because some municipalities currently have this authority, this Act makes clear that a provision in a special act of incorporation that authorizes a municipality to impose a lodging tax controls over the authority granted by this Act, whether the special act of incorporation is enacted before or after the effective date of this Act.

This Act establishes the Quality Improvement Advisory Council (“Advisory Council”) to promote collaboration and problem-solving with stakeholders in the system of care administered by the Division of Developmental Disabilities Services (“the Division”). The Division, in consultation with the Advisory Council, must submit an annual report to the General Assembly and the Department of Health and Social Services on specific performance measures affecting services to adults with intellectual and developmental disabilities. Under this Act, the Joint Legislative Oversight and Sunset Committee will review the Advisory Council in 2022 to determine whether it has been an effective tool for collaboration between the Division of Developmental Disabilities Services and the provider community.

This Resolution directs the Department of Transportation to make improvements to the administrative process of the collection of toll violations.

This bill creates a Delaware personal income tax credit, not to exceed $500 per year per individual for interest paid on student loans.

This Act revises the circumstances under which an applicant can be denied a license by the Real Estate Commission because of a criminal conviction. Similar to the recent changes made other professional license requirements, this Act does all of the following: 1. Defines when a crime is substantially related to the professions regulated by the Real Estate Commission. 2. Reduces the time since conviction to be eligible for a waiver of a felony conviction for a crime against a person from 5 years to 3 years. 3. Reduces the time since conviction to be eligible for a waiver of all other felony conviction for a crime from 5 years to 2 years. 4. Clarifies what is meant by being on parole. This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.

This bill will allow marinas in Sussex County to sell gasoline that does not contain ethanol. Sussex County comfortably meets the National Ambient Air Quality Standard for ground level ozone, and removing ethanol from marine fuel will have no significant impact on ambient ozone levels. The State of Maryland now allows the sale of non-ethanol gasoline in certain counties that are adjacent to Sussex County and Delaware businesses are losing sales to their Maryland counterparts.

The purpose of the Bill is to protect farmers and ranchers from nuisance lawsuits filed by individuals who inhabit areas where agricultural operations lawfully exist, and who exercise nuisance actions to attempt to stop operation and production. This Bill protects farms and agricultural operations that use commonly accepted agricultural practices from being considered a nuisance in areas zoned for agricultural uses and operations that have existed for a period of 1 year or longer. This will enable the State to protect the production of food, fuel and fiber within the state. AR Districts provide for a full range of agricultural activities and protect agricultural lands, as one of the State’s most valuable natural resources, from the depreciating effect of uses deemed objectionable, hazardous or unsightly (Kent County Zoning Code Chapter 205-60 Article VI and Sussex County Zoning Code Chapter 115-19 Article IV). Moreover, AR Districts serve as a transitional buffer zone between agricultural and residential uses and are also intended to protect watersheds, water resources, and forest areas. Kent and Sussex county ordinances permit specified land uses within AR Districts to provide for a wide range of agricultural uses and farm related services while also providing for low-density residential development in areas that are rural in character and where farming may not be the optimum land use activity. New Castle County Unified Development Code (UDC) permits agricultural uses in eight Urban and Suburban-Transition Districts and seven Suburban and Special Character Districts (UDC Chapter 40). Permitted uses within these districts include crop production and animal production, and any other agricultural uses as recognized by Delaware law. Additional uses, permitted for Limited Review, include Farm Market and Clearing activities (UDC Land Use tables 40.03.110 A and 40.03.110 B). It is the express intention of this act to establish as the policy of this State the protection of agricultural operations from nuisance actions, where recognized methods and techniques of agricultural production are applied, while, at the same time, acknowledging the need to provide a proper balance among the varied and sometimes conflicting interests of all lawful activities in Delaware.

This Act narrows the meaning of “firearm” for purposes of the Delaware Criminal Code by aligning the definition of “firearm” with the definition in federal criminal background check law. “Firearm” was defined in the Criminal Code for the first time in 1983 by Senate Bill No. 13, as amended, 132nd General Assembly, 64 Del. Laws, c. 17 (“Senate Bill No. 13”). Senate Bill No. 13 defined “firearm” to include “any weapon from which a shot, projectile or other object may be discharged by force of combustion, explosive, gas and/or mechanical means, whether operable or inoperable. It does not include a BB gun.” This definition is substantially the same as the definition for “firearm” in the Delaware Criminal Code today. During the Senate floor debate on Senate Bill No. 13, Senator Berndt noted the expansive nature of the definition due to the inclusion of “by . . . mechanical means,” which he noted meant that the definition would include cross bows and slingshots. Because of Senate Bill No. 13’s placement of “firearm” in the general definition section for the Delaware Criminal Code, the definition applied throughout the Delaware Code. When the Delaware Criminal Code was adopted in 1972 there were 9 mentions of “firearm” in the Delaware Criminal Code. Today, there are 194 mentions of “firearm” in the Delaware Criminal Code (Part I of Title 11). As the number of mentions of “firearm” has increased, it has done so with the definition of “firearm” as a backdrop, meaning that these new mentions have intentionally or unintentionally adopted the definition of “firearm.” Research reveals no other state with a similar definition of “firearm” in its laws. While at least 2 states had previously had a similar definition, those definitions were removed by their legislatures in 2015. In 1 of those states, Michigan, legislative history indicates the definition was changed as part of the state’s efforts to align its definitions of firearms with the definition found in federal law governing the National Instant Criminal Background Check System (NICS), the system through which criminal history checks are performed. For purposes of NICS, firearm is defined to mean as follows: “(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.” See 18 U.S.C. 921(a)(3).

This bill creates the Grants-In-Aid Committee. The Committee is a joint committee of the Senate and House of Representatives. The purpose of the Committee is to view requests for grants-in-aid and to develop the grants-in-aid appropriations bill.

Section 1 of the Act addresses statutes under Chapter 33 of Title 12 and (i) clarifies the definition of governing instrument in section 3301(e) to include cross-references to new section 3343; (ii) adds a definition of “published fee schedule” to section 3301(h) as a cross-reference to the schedule or formula required by section 3561 to be filed periodically with the Court of Chancery; (iii) clarifies that section 3303(a) permits a trustor within a governing instrument to vary laws concerning the terms of powers of appointment over trust property; (iv) revises section 3322 regarding the appointment of agents by fiduciaries and the delegation of trust powers to provide that the standard of care applicable to a fiduciary when performing duties delegated to an agent shall apply to the fiduciary when selecting and monitoring the agent (and not to the agent), and to permit trust beneficiaries to release the fiduciary from liability for future conduct in monitoring agents—all to correct inconsistencies and conform the law to prevailing practice; (v) clarifies that under subsection 28 of section 3325 (which already permits a division of a trust for any reason), division along family lines is permitted; (vi) clarifies that under section 3338, the requirement for “holders of powers” to join in nonjudicial settlement agreements includes both those who hold powers of appointment and those who hold powers to remove or appoint fiduciaries or nonfiduciaries; (vii) clarifies that section 3341’s provisions regarding the consequences of a merger also apply in the case of trust decantings under section 3328 where a new trust is not created; (viii) clarifies section 3342 (merely by setting off an existing phrase with dashes) that modification with the trustor’s consent is permitted so long as the provisions as modified could have been included in the trust’s governing instrument if the trust were created on the date of the modification; (ix) adds a new section 3343 providing that where a governing instrument authorizes appointment of a successor trustee, multiple trustees may be appointed and fiduciary duties may be allocated among them; and (x) adds a new section 3344 providing that with respect to grantor trusts under the Internal Revenue Code, certain trustees are deemed to have discretion to reimburse a trustor (i.e., the grantor) of such a trust for that trustor’s income tax liabilities attributable to that trust—but without making the trustor a beneficiary of the trust, and not if the provisions of this section would reduce a charitable deduction available to any person for federal or state income or transfer tax purposes. Section 2 of the Act addresses statutes under Chapter 35 of Title 12 and (i) clarifies in section 3528 that after a decanting, the terms of the predecessor trust’s governing instrument are deemed to include the decanting power, in accordance with federal law requirements regarding certain charitable deductions; (ii) clarifies in section 3528 that the standard under section 3315, governing a trustee’s exercise of discretion, also applies to a trustee’s decanting authority in section 3528; (iii) clarifies subsections (c) and (c)(2) of section 3536 (subsection (c)(2) being moved within subsection (c) and expanded) that a trustor eligible for reimbursement from a trust of that trustor’s income tax liabilities attributable to the trust under section 3344 is not a beneficiary of the trust; (iv) clarifies the wording of subsections (c)(4) and (e) of section 3536 (subsection (c)(4) being created from existing wording in former subsection (c)(1) and expanded) regarding a trustor’s right to release a beneficial interest contingent on surviving the trustor’s spouse so as to accelerate the next succeeding beneficial interests; (v) clarifies section 3544 that a trustee has no duty to inquire into or confirm the validity of previous nonjudicial modifications, decantings, mergers, and the like; (vi) amends section 3545 to allow a trust instrument to be executed at a trustor’s direction (intended for situations where a trustor cannot physically sign the governing instrument, thus paralleling a similar provision that has existed for decades in Delaware’s wills statutes), and clarifies section 3545 that (as is the predominating practice) counterpart execution of trust instruments is permitted (subject to existing requirements regarding witnesses); (vii) modifies section 3547 to provide that takers in default under certain nongeneral powers of appointment cannot be virtually represented by the holders of such powers if there is a material conflict of interest—but also clarifies that those who must consent to the exercise of a power must also consent to any such virtual representation by the holder of the power; (viii) adds a cross-reference within section 3547(e) (regarding virtual representation) to section 3322 (regarding delegation); (ix) modifies section 3570 of Delaware’s Qualified Dispositions in Trust Act to allow a trustor to retain within a trust the ability to appoint and serve as a designated representative for a beneficiary under section 3339; (x) clarifies subsection (a)(2) of section 3585 to provide that the report procedure described in that subsection may be used while the trustee is in the process of resigning (and not just after completion of the act of resignation or the effective date of a resignation); and (xi) clarifies that section 3586 applies to governing instruments (which term is defined in section 3301(e)) and not just to trust instruments. Section 3 of the Act addresses statutes under Chapter 5 of Title 25 and (i) makes technical corrections to sections 501 and 504 regarding the method authorized in 2016 by which the donee of a power of appointment over trust property may avoid the application of the general default rule of section 501(a) of title 25 (which provides that interests in property created by the exercise of such a power of appointment are deemed to have been created at the time of the exercise of the power); and (ii) modifies section 505 to conform it with the Uniform Powers of Appointment Act, by allowing powerholders who have a nongeneral power of appointment the option of exercising the power in trust and creating a further nongeneral power of appointment (and not just a further general power of appointment as the existing language provides). Section 4 of the Act provides effective dates.