South Bethany could purchase park property

After introducing a proposal at their July 9 meeting, South Bethany town council members could vote as soon as next month to purchase outright the property adjacent to town hall known as Richard Hall Memorial Park – for the sum of just $32,000.

Councilman John Fields dropped a pleasant surprise on much of the council and those in attendance at the meeting last Friday when – having set the stage for the grandest of future possibilities for the park property – he said the asking price of the Hall family heirs was only $32,000. That would purchase the reversion clause of the gift the family made in 1985, which requires that it be used for “park purposes only,” with a limit of 10 percent of the property to be covered by public buildings.

By purchasing the reversion clause, the town would free itself of those conditions, meaning that use other than that determined to be in line with the stated limited uses would then be permitted. The town could determine the desired state and use of the property just as it would for any other property it owned outright – including building a pavilion, playground equipment and exercise stations, as has been proposed, or leaving it just as is.

As it stands, the lack of specifics on the restriction “for park purposes only” leaves the town in limbo as to whether the proposed park plans, or anything else, would be permitted – or would end up with the property back in the hands of the Hall heirs, as happened back in 1997 with the other parcel the Halls gave to the town, with its own set of limitations.

That parcel likewise had a restriction on what it could be used for and how much could be covered by buildings. But the restriction had apparently been forgotten by 1997, when the town decided to build its new town hall and police station there. The move was determined to have violated the building restrictions, and the Hall family took back the property – buildings and all. It was then sold for $17,000, but that buyer gave it back to the town.

South Bethany subsequently purchased Parcel 1’s reversion clause for $42,500, giving it clear title to the property, regardless of its use. And that set the stage for the current consideration of the purchase of the reversion clause for Parcel 2 – the wooded park property adjacent to town hall – before any potential violations of the deed restrictions are even seriously considered.

Fields said the vague statement about “park purposes” left the town in a bind.

“’Park’ can mean almost everything. It can be natural piece of land, or a zoo or Ferris wheel. The only way to determine what was meant is to take it to court, have both sides argue, and have a judge determine what was meant in this instance,” he said. “That can be years away.

“The easy way,” he said, “is to purchase reversion clause. Then we can do whatever we want.”

Fields was quick to emphasize, and strongly, that the issue of purchasing the reversion clause for the property was not related directly to the park proposal.

“The council’s consideration of the reversion clause has nothing to do with development of that park area,” he stated emphatically. “It could stay as it is. We could build a B&B, if that’s what people wanted.”

Based on the 1979 valuation of the property, Parcel 2 is valued at $2 million to $3 million, if it were developed as residential lots – of which there would be 10 on the property, Fields said. And that kind of forward-looking valuation is what he encouraged council members to consider.

“We could have a repeat of Tract 1 if we do not do anything now. The town council could change and forget the restriction. We should purchase it not only for the town’s use at this time but for future use,” he said, speaking of current property owners’ descendents. “We don’t know what their desires for that land will be, what the value of that land will be.

“The reversion clause remains with the deed; and the reversion clause will remain a cloud over that property for the time to come. It could be that, 25 years from now, that property will be the perfect place for a capsule station. You could go to Mars for the weekend and come back,” he conjectured.

In exchange for $32,000, the Hall heirs would agree to convey to the town all rights and reversions, making the parcel free of encumbrances and clear for any use.

“We cannot afford to let this opportunity pass for the paltry sum of $32,000,” he said, mentioning the price the Hall family had asked the town to pay for the reversion clause.

“Is it in the best interest of our town and our future to have clear deed to that town?” asked Mayor Jay Headman. “Is it in our best interest to take that [offer]? No matter what we think, anything can be litigated,” he warned, noting that simple litigation on a simple deed, contested by heirs, could cost the town $10,000 to $15,000, just to get a quick dismissal of the litigation.

The argument – and the price tag – swayed many of those who had opposed spending money to purchase property the town might be able to use for its desired purposes without spending another penny on, including Councilman Robert Youngs.

“When this proposal was first presented, I made notes of rebuttal, because of I was of the opinion that there was no need to pursue this on any basis. There was no question in my mind that if a legal challenge were raised that we could be successful because of the lack of definition of ‘park’ in the deed. It’s difficult to prove we’re in violation of something that’s not defined,” Youngs said. “But when John got to $32,000 and talked about 50 years from now, all that flew out the window. It’s absurdly cheap to get that deed clear,” he added before likewise emphasizing that he wanted to “make it clear that this is not Step 1 to establishing the proposed park.”

Councilman George Junkin was also swayed.

“The deed says we can build a park. I believe we could win in court. But it would cost money. When he got to $32,000 and the fact that we might not do anything and 50 years from now we might want to do something else, it’s a no-brainer.”

Councilwoman Sue Callaway agreed, noting her focus on the bigger picture and the potential benefits to the town to owning the property outright. “To own it free and clear removes a tremendous cloud from whatever the future holds,” she said.

Councilman Tim Saxton, too, said the benefits of being clear of the reversion clause was worth the price, and maybe more.

“I believe this town needs to control its own destiny. Regardless of the $32,000 – it could have been a higher number. I don’t know where the breaking point is. This has nothing to do with the park,” he emphasized. “This has to do with the town controlling its own destiny. I will not vote in any relation and none of my emotions about a park will be there,” he promised. “This will all be about what I think is best for this town, and the best thing for this town is to control its own destiny.”

The only resistance on the issue came from returning Councilman Bob Cestone, who said he was not convinced the town really needed to pay for the reversion clause to be able to use the parcel as proposed.

“Do we need to purchase it? Is the cost a good value? Do we have the money to pay for it? What else is harmed by using that money? I researched the definition of a park. … The dictionary defines it as ‘a tract of land used for recreation.’ If … everybody wants a park there, and the council decides it wants a park there, it meets the definition.”

Cestone argued that even a more developed park, akin to John West Park in Ocean View, would put less structure on the property than the 10 percent limit for public buildings in the reversion clause.

“We could put up twice what has been suggested and not even come close to violating that clause,” he said. “It would be nice if 50 years down the road we decided to do something else with it and it’s all ours, but I don’t know that that’s going to happen. The park is driving this issue. If not for the park, we wouldn’t be discussing this. It makes me wonder, do we really need to do this?”

Cestone also said he felt the fair value of the reversion clause was closer, by his estimate, to $23,000, especially since other calculations of its value were being made based on the cost of the reversion clause for Parcel 1 after the town had lost the property due to its violation.

“The town had violated the building restrictions on this property, and we paid dearly for it. We were under duress. Over there, we haven’t violated anything, so it may not be worth anything,” he said, offering up other projects he said those kinds of funds might be spent on in the town.

But the argument didn’t sway some fellow council members.

“We only own it for one reason,” said Saxton. “If we buy it, we can use it for any reason.”

Youngs had one more reason to offer as to why the town should take the Hall heirs’ offer of $32,000, which is good through the end of August.

“Today, we’re dealing with three people. When they’re gone, we’re not going to be dealing with people who understand why the land was donated to the town. It will be multiple numbers of people we will be talking to, and I promise you $32,000 won’t even be close. We have the opportunity here to exercise responsible stewardship for the town for the future,” he said.

Headman boiled down the choice for council members: “Is it in our best interests to get a clear deed? That is the question before us.”

Council members were concerned about the pressure being put on them to decide before the town’s property taxes start rolling in this October. Saxton estimated the risk of such a decision to be very small, but the issue of the asking price for the reversion clause was raised, with council members asking whether the Hall heirs might negotiate the price down.

“The council discussed this. Could we get it for less?” Headman acknowledged. “This is the price that he put in writing,” he said of the attorney who is among the Hall heirs making the offer. “We will not vote tonight. We’re interested in your feedback. Don’t hesitate to call or contact us in any way,” he told citizens.

The council is set to make a decision at its August meeting.

Also on July 9:

• The council unanimously voted to adopt on a third reading a amended ordinance relating to structures allowed in the setbacks. It was the fourth time the ordinance was presented, including at a public hearing in June. The ordinance now permits swing sets and clotheslines in the setbacks, as well as trash and recycling containers, which were all previously prohibited from those areas, though commonly found there. Saxton said it was the intent of the town, despite the lack of language to that effect, that clotheslines not be placed in the front. “We’re trusting people’s good judgment,” he said.

• The council voted unanimously to adopt its All Hazards Mitigation Plan, as required by Sussex County and other emergency agencies to be eligible for emergency aid and as contributes toward the town’s flood insurance discount for property owners.

• The council adopted resolutions of recognition for former council members Diane Matera and Marge Gassinger and former mayor Gary Jayne. Mayor Jay Headman said, “We’re very fortunate in our town to have people step up again and again and again – not just on council but on committees.” Matera, a one-year council member, moved outside of South Bethany and could not run for re-election. Gassinger completed a sixth year on the council after having served numerous years on the council in previous decades, as well as serving as the town’s mayor during the 1980s. Jayne, likewise, had served on the town council before serving as the town’s mayor for multiple terms and is required to take off at least one year before running for mayor again.

• Callaway noted a series of initiatives from the town’s beautification committee, including nine areas of focus for beautification; consideration of the affects the water quality on canals; and an adopt-a-canal-or-street-end program that would establish 54 areas for volunteer beautification.

• Residents and council members alike noted problems with recycling and trash pick-up in the week following the Fourth of July holiday. Reports included missed recycling pickups, missed trash pickups, late recycling and trash pickups, recycling collected in trash trucks and trash pickup beginning before 7 a.m. Town Manager Mel Cusick noted that the trash haulers are allowed to pick up before 8 a.m. for years, as summer traffic makes full collection difficult to do in a single day. He said Allied Waste had been inundated with trash over the holiday weekend, and that even five trucks – including trash trucks pressed into duty to collect recyclables – didn’t finish the job. He said the company had apologized for the problems.

• Headman reported that the town expects to get $40,000 in Municipal Street Aid monies this year, after $4 million in MSA funding was included in the 2011 state budget. In 2010, the state completely cut out MSA funding for its municipalities.

• Police Chief Joe Deloach reported the hiring of a new police officer to replace an officer who joined the state police. Patrick Wiley is a former DSU security officer and worked for the U.S. Air Force in security, serving as a superintendent of investigations.

• Cusick reported that DNREC had completed sand fence replacement on one side of the dune and walkways and that he was hoping they would come back to do more work on the walkways, as the sand is starting to push down on the east side of the dune, causing a drop-off.

• Beach Patrol Capt. Ben Chandlee reported a busy season thus far, and an especially busy day, with 24 major rescues from potentially life-threatening situations so far in the summer season and nine on July 9 alone. He said the 4- to 6-foot swells and rip-currents had kept lifeguards busy that Friday. Also reported so far in 2010: 11 medical responses with oxygen, two with ambulances; two spinal injuries on the Middlesex and state beaches; 10 lost children; and four vandalism reports (including two beach chairs dragged out to sea and later recovered).

• Deloach reported a busy June for police officers, including a series of fights, vandalism and property damage in apparent rivalry between the Landon and Bullis schools. “There was a lot going on for Junebugs – an awful lot,” he said, adding that the town is now talking about forming a committee to work on the issue of the post-school high-school visitors during the off-season.

“We take pride in our family environment,” Headman added. “We can’t afford to have this. … We’re going to let people know what we will be doing and what we will expect. We’ve had good years, but [Deloach] felt it was worse this year and there were more children than ever before.” He asked for citizens to e-mail or write to him with suggestions for how to deal with the problem. “We have a good reputation, and that will continue.”

• Councilman Robert Youngs reported a slow-down in the long-running Assawoman Canal dredging project, with 1,300 feet left to go as of July 9. “It’s moving much slower than expected,” Youngs said, noting that U.S. Army Corps of Engineers crews had been running into a lot of wood debris and having to stop pumping to clear blockages. The Corps has applied to continue the work into August, to ensure they can complete the project. “Right now, they don’t think they will get there by July 31,” he said of the latest extended deadline.

Youngs also asked boat owners to consider taking their trips through the project area only after the work is completed. “Boat traffic slows them down quite a bit during the day. They’ve had to shut down and move the dredge because of boat traffic. So, if you know anybody who has a boat and wants to go through there, tell them to wait.” Youngs noted that the Corps had made a commitment when got they got the extension into July that they wouldn’t limit boat traffic, leaving it up to individual boat owners to decide whether to accommodate the dredging.

• The council unanimously approved the purchase of a new lawn mower, for $8,950; of which $7,000 will come from the town’s new depreciation reserves and $1,950 will come from MSA funding. The mower will replace a 13-year-old mower that has become more costly to keep up than its value and will augment the town’s tractor in mowing smaller areas the tractor cannot reach.

• Junkin reported discouraging results in the monitoring of canal water quality, showing dissolved oxygen of less than 2 or 3 mg/l for 20 hours of the day in some of the town’s canals and only barely above that the other four hours of the day. At less than 4 mg/l, fish begin to leave the area or risk death. The Canal Water Quality Committee is working on a brochure to educate property owners about proper lawn care, as well as an effort to get those whose downspouts and outdoor showers feed into the canals to voluntarily disconnect them. The committee is looking for volunteers.

• The town’s Planning Commission is also looking for new members, as many of the existing members’ terms will end in August. The commission will be rectifying that issue by staggering the commissioners’ two-year terms again with the reappointments in August. The commission is set to meet on July 20 at 9 a.m., and is working on a survey of property owners to determine the direction the town should be taking.

• The council unanimously approved the appointment of Kent Steffen, a budget analyst, and Steve Farrow, a former naval officer with experience in planning and budgeting, and president and CEO of Piedmont Airlines, now a subsidiary of U.S. Airways with its base in Salisbury, Md., to the Budget & Finance Committee.