The removal of a basketball pole from John McCafferty's cul-de-sac property has caused a stir in the state of Delaware.  The incident was capture on tape and showed questionable actions on the part of the Delaware state troopers involved.

To see the video of the incident, click here.

The Delaware Department of Transportation (DelDOT) removed the pole due to alleged traffic violations. 

McCafferty disagrees with those allegations.  Delaware State Representative Bryon Short -- who has been working with McCafferty to fight the basketball pole's removal - backs him.

Below is a letter, dated October 4, 2010, that Short sent to DelDOT, explaining why DelDOT should not have been allowed to remove the pole:

The Honorable Carolann Wicks

Secretary

Delaware Department of Transportation

PO Box 778

Dover, DE 19903

Re: Clear Zones with Rights-of-Way and Basketball Hoops

Dear Secretary Wicks:

In furtherance of our recent discussion relating to the basketball hoops in the Radnor Green neighborhood, I write to you to set forth the bases upon which I believe that the Delaware Department of Transportation (DelDOT) can amicably resolve this matter.

I believe it is best to start with the statute that is arguably applicable to the facts: Section 525 of Title 17 of the Delaware Code, titled Maintenance of clear zones within rights-of-way (Section 525). This statute was enacted during the 139th Session of the Delaware General Assembly, spanning from 1997 - 1998.

Section 525 provides DelDOT with jurisdiction and, thus, authority to act if the facts in question satisfy the requirements of the statute. However, I am not certain this is the case. The reason for this is that the type of road in question is not entirely clear to me. Consequently, it is equally unclear whether Section 525 applies. Specifically, Section 525(b) describes how the statute is to be applied if the statute applies to the given situation. I would appreciate if you could provide insight on this issue and legal support for your position that Section 525 applies to the basketball hoops.

Assuming for the moment that Section 525 does apply, I believe, nonetheless, that there are several bases that support the conclusion that DelDOT has discretion to act. In particular, the language of Section 525(a) is discretionary in nature - the statute supplies DelDOT with authority to act, but does not mandate that DelDOT take action. The statute does not mandate that DelDOT shall act. Accordingly, DelDOT has the discretion to decide whether or not to enforce Section 525.

As part of the above analysis, it is important and highly relevant to discuss the likely intent of this legislation - to remedy and remove artificial obstructions to the safe ingress and egress of vehicles in the neighborhoods. I.e., allow DelDOT to tear down any structure, artificial or natural, that itself was interfering with the flow of traffic (for example, a pole that sticks out into the street that a truck could run into).

However, a review of these basketball hoops makes clear that the basketball hoops do not violate Section 525 (again, assuming Section 525 applies) and present no disturbance. It has not been alleged by anyone that it is the basketball hoops that interferes with traffic flow. Indeed, the allegations are that the children playing in the street - not in the clear zones - are the source of the disturbance to traffic flow. Given these facts, the basketball hoops in question fall outside the purview of Section 525 (but perhaps within the scope of the jurisdiction of the State Police under another Delaware Code). Regardless, this matter is outside the scope of DelDOT's jurisdiction.

Finally, as I noted, Section 525 was enacted in the 139th General Assembly (i.e., in the years 1997 - 98). However, many, if not all, of the basketball hoops complained of were installed years before Section 525 was enacted. The General Assembly could have made the effect of this law retroactive. To do so, the General Assembly must have intended the law to be retroactive and included language that makes plain the General Assembly's intent for the law to have retroactive effect. However, there is nothing that I have seen that would support the proposition that Section 525 was intended by the General Assembly to have retroactive effect. As such, I believe that these basketball hoops were grandfathered under Section 525.

Finally, given the circumstances and the fact that these basketball hoops have been in place, in some cases, for close to 20 years, it seems to me that the complainant, to the extent he had a right to complain, sat on his rights for years, literally. Given this, the legal tenet of laches would apply to these facts.

Accordingly, in light of the above consideration, I respectfully submit that DelDOT does not have jurisdiction to act and should refrain from doing so.

Respectfully,

State Representative Bryon Short

 

(To read DelDOT's general response to this whole incident, click here.)