Ocean Farms road improvement vote raises questions

At least one homeowner in the Ocean Farms development near Bethany Beach is opposing a scheduled Feb. 17 vote on proposed road improvements in that community – and not just the project but the vote itself.

Homeowner Lou Scrivani maintains that the process through which the Ocean Farms Property Owner’s Association has taken to hold the vote is flawed, and that Sussex County officials have been misled.

“There have been no homeowner meetings scheduled to discuss the payout terms, or in fact to hear discussion on the project,” he wrote in an e-mail to Sussex County Assistant Director of Public Works Patricia L. Deptula on Jan. 27.

“Several misleading and false statements were made at the meeting on the 13th of November that need to be clarified and explained before any vote should be taken,” he wrote. “The reality is that a few people in the community want this project to happen and they are using the County to help achieve that goal by circumventing the homeowner’s association rules. That is not fair to the County nor the homeowners in the community.”

Scrivani asserts that the project cannot legally move forward without a community vote that entails a quorum of property owners voting – and a majority of that quorum approving – such a project, and he says no such vote has been held.

At their Jan. 11 meeting, Sussex County Council members voted to approve a date of Feb. 17, from 3 to 7 p.m. at the South Coastal Library, for property owners within the Ocean Farms community to vote to determine if the majority of the property owners are in favor of proceeding with the Ocean Farm Proposed Chapter 96 Community Involvement Project for roadway improvements. The county requires only that a majority of property owners approve the project.

The subdivision, located off Double Bridges road near Bethany (County Road 363) has 114 buildable tax parcels and 113 improvements, and the streets are still privately owned, by the Ocean Farms Property Owner Association (POA).

Deptula explained in January that the community, through its POA, had made a formal request in February of 2010 to begin a petition process for the roadway improvements program now offered by the county.

In March 2010, a meeting was held with the Sussex County Engineering Department, and in May a preliminary estimate was completed and approved. In September, there were 60 signed petitions favoring it, which makes up 53 percent of the buildable properties. (At least 50 percent of property owners must be represented on petition forms, according to county code.)

Deptula explained that the department had also held a public meeting in conjunction with the POA’s annual meeting on Nov. 13, 2010, and those present had voted to proceed with the process, using a 10-year time period for financial estimates, at an annual cost of $568.82 per year for the 10 years for each eligible property.

It is that vote with which Scrivani said he takes issue.

“First, at the Nov, 13 meeting, there was not a quorum of homeowners present that can be verified by the attendance. Hence, without a quorum, no binding vote could be taken on anything impacting our community, based on the by-laws of our association,” he said.

“The president of the homeowner’s association was made aware of that at the meeting but decided not to mention that to the county. Secondly, 53 percent of my neighbors did not ask for the project to move forward,” he wrote in a subsequent e-mail to county staff, differentiating between what he said was a vote to further consider the project and one to actually move forward with it.

“The vote taken was whether the payout period should be 10 years or 15 years; 10 years got a majority of the vote. Most at the meeting were under the impression that, based on our association rules, further meetings would be scheduled to discuss the issue, with the understanding the process could be stopped at any time if we decided not to proceed.”

Scrivani said this week that there is “no good thing that going to happen” if a vote is held on Feb. 17.

“I think the county is acting in good faith, as much as it can, but it has taken on its own life,” he said. He also suggested that the board of the homeowner’s association has merely found a way around their own rules by involving the county, which has different voting rules.

“They found a way out,” he said, adding that, instead of having an actual majority of property owners in favor of a project that the county rules only have to have a majority of those voting approve it. He also alleged that having the voting held in February was done on purpose.

“Half of our residents are senior citizens that go to Florida in the wintertime, and some hadn’t even received their absentee ballots yet,” he said this week.

Scrivani also said that, if the vote is held and the improvements are approved, suing the property owner’s association – while possible – doesn’t do much for them as a community. Either way, Scrivani said, is not a good outcome, as he sees it.

“We’d be suing ourselves, or killing ourselves with debt. It’s just a bad set of circumstances, and there’s no good thing that going to happen if the vote is held,” he said. He added that he contacted the Delaware Attorney General’s Office about the situation but had yet to hear back from them.

Ocean Farms Property Owner Association President James Harding said this week that they only need a quorum when voting on HOA information or on HOA funds. A quorum would be one-third of the property owners, but because the road improvement project is being done with assistance from the county, he said, Chapter 96 of the county code “supersedes any HOA rules.”

“It is county-sponsored. The county is running the project,” he said.

“There are always a few people that aren’t satisfied, but 60 homeowners signed a petition this summer,” he noted, out of the 114 property owners. “Quite a few people want the roads improved, and the purpose of the [Feb. 17] vote is so people can either vote to have the county improve the roads, or not. That’s what America’s about: freedom of choice.”

Chip Guy, public information officer for Sussex County, said county staff have asked its legal department to review the Ocean Farms community improvement project, to ensure the process was initiated according to and followed county code.

“We believe the County has acted appropriately and followed the procedures set forth in Chapter 96 of the Code,” he said.

The Sussex County Community Improvement program, implemented through the County’s Engineering Department, “provides a means for a residential subdivision with privately owned roads, and an established homeowner’s association, to request technical and financial assistance from the County for the construction of roadway pavement and other related improvements.”

Guy explained that it is correct to state that Sussex County is managing this project, but “only after receiving a petition with more than 53 percent of the property owners within the community making a request to the County.

“It has to be initiated by the community,” he emphasized. “Based on that request, the County has put forth an improvement plan, which the community’s property owners must approve in an election Feb. 17.”

The election is slated for Thursday, Feb. 17, from 3 p.m. to 7 p.m. at the South Coastal Library in Bethany Beach. If the project is approved by the property owners on Feb. 17, construction would be slated for September 2011, sometime after Labor Day, Deptula said in January.