Millville P&Z has some tough questions for developer

Date Published: 
June 13, 2014

Millville By the Sea builders aimed to get back in the Millville Planning & Zoning’s good graces this week after failing to submit full site plans for approval.

To make up for very small-sized lots, builders of Sand Dollar Village Phase II planned to let neighbors share their lawns, each borrowing a chunk to create a livable yard. But despite Millville Seaside Properties II brainstorming this idea for a year and selling homes with that type of easement, the Town of Millville only learned about the easements by accident.

In a large development of many designs, the house was a traditional cottage on a small, low-maintenance lot. That kind of “product” fills most of the neighborhood, while the remainder is larger properties, plus a neighborhood park.

Houses were 24 feet wide, perfectly centered on 38-foot lots, meeting the Town’s 5-foot setback requirements on either side. But with only about 12 feet between houses, residents had two nearly useless strips of land on both sides.

To enhance the cottages’ side porches, the developer suggested giving residents access to all the land on one side, right up to the neighbor’s wall. That’s in lieu of a back yard on 23 lots. They would not own half that yard but could use all of it. And someone else would use half of their yard.

(The arrangement is similar to one used by developers of the Sea Villas community in Bethany Beach when it was established, wherein neighbors’ decks were constructed partly on the property of an adjacent lot. The unconventional easements caused the Bethany Beach Town Council more than five years ago to establish special zoning in the R1B residential district, to allow for the unique situation.)

The town council had approved the final site plan for Sand Dollar Village Phase II in February of 2013, but a MBS attorney only recorded a Deed of Use Easement with Sussex County in April of 2014.

Millville officials had never heard of plans for such an easement until May, when Sussex County’s mapping office asked Town Manager Debbie Botchie about the MBS maps lacking a Millville stamp of approval.

“Why weren’t they approved?” P&Z’s Holly Wingate asked.

“We didn’t know we had to come back in front of the Town in order to do that,” said Doug Smith of Miller & Smith, developer in Millville Town Center and Millville Seaside Properties II.

“In our mind, it’s a private easement,” said Craig Hovenner (of Christopher Companies and MSP II), adding that they had interpreted the code as only requiring notification for public easements. “It really was a misunderstanding.”

However, the Town saw the easements as a systematic process applied to each property, rather than being initiated by individual property owners.

Smith said the blanket process was done all at once, for simplicity and consistency.

“The final site plan had been approved without such easements,” Botchie later said. “Our code is very clear that all easements must be put on the site plan for review.”

Millville Town Center was the original sub-divider of the land. The large Millville by the Sea community is split into neighborhoods, which are being sold in phases. Sand Dollar Village was later bought by Millville Seaside Properties II (managed by Christopher Companies and Miller & Smith).

The town code doesn’t specifically require the purchaser (MSP II) to record such easement agreements, Town Solicitor Seth Thompson said.

Linett asked several times about the decision to use easements.

“When did you decide it would be a good idea to consider that?” Linett asked.

“This time last year,” Hovenner finally offered.

“It’s more, ‘I’m not using this area. You use this. We agree you can do that,’” Smith explained. “A use easement can occur at any point in time” as a contract between individual property owners, he said.

In this case, the easement is written into the property title, so “whenever someone buys or sells that house, the easement would be found, because it runs with the ground,” Smith said.

“They signed a bill of sale” before the easement was legally recorded, Botchie said. “You’re selling a product that doesn’t have a deed-of-use easement.”

Town code requires the development owner to present preliminary and final site plans, including “the location, width and purpose of all existing and proposed easements, setbacks, reservations and areas dedicated to public use within or adjoining the property,” plus “an outline of existing or proposed deed restrictions or covenants applying to the property.”

MBS attorneys and engineers, she said, “are very well aware of our code and easements. Did they not bring this to your attention that easements had to be approved?” Botchie asked.

“They did not,” Smith said. If there was a mistake, he said, “We’re trying to rectify it.”

They’re trying to “correct a procedural issue,” Thompson clarified.

The easements for unoccupied homes will be stricken from Sussex County’s records for now.

Although those easements will be nullified for the unoccupied homes, the Millville Town Council could still vote to allow such easements.

“It’s not your typical single-family home product. This isn’t going to work for everybody, but for some people it may be perfect,” said Kyle Gulbronson of URS, town engineer.

Frances Deering said she had bought one such cottage because of the easement.

“I like the idea of a side yard. It’s different,” she said. “It looks small on paper, but it’s wide enough for my use, low maintenance. As far as privacy … once you put up [window] blinds, it’s not an issue.”

Houses already sold and occupied were not part of the night’s discussion.

“We don’t want to burden those individuals who already have it in the deed,” Botchie said.

However, all 12 other lots are considered in violation of town code, at present.

What goes inside

Residents may not install permanent structures (buildings or sheds) or hazardous items (barbeque grills and fire pits) in the 6.5-foot easement. However, a paver patio is acceptable because it can be removed when the family moves out, said Millville Code & Building Administrator Eric Evans.

“The Easement Premises may be used as a general recreational, picnic, social and garden area, as though … owned by the Owner of the Benefitted Cottage Lot,” the deed says.

“You’re trying to give it as much beneficial use as possible but … limit property damage,” Linett remarked.

The Town of Millville probably couldn’t enforce these contractual rules about barbecues or statues even if it wanted to. The Town only enforces Town ordinances. The homeowners’ association is meant to write rules and handle neighborly squabbles.

“I think the HOA is the entity that would enforce that,” said Rosenstein.

“Not true!” a woman in the audience said.

Patricia Moulder has lived in MBS for five years but says the current property management association is not very effective.

“Our HOA — we have a booklet I was given five years ago. It’s got do’s and don’ts, but when you go to the Wilgus people, they blow you off. But they [Smith, Rosenstein and Hovenner] are saying ‘Go to your HOA.’”

People could also be assessed slightly higher taxes, Evans warned, as people don’t need a Town permit for a temporary paver patio, but they need one from the County. The County will reassess the property value for both lots because it doesn’t recognize the easement for tax purposes. Both homeowners could be partially taxed for one patio.

It’s not a significant amount, “but that homeowner should be aware of it,” Botchie said.

Plus, as more residents (renters or future homeowners) use the properties, Botchie was concerned the original intent and understanding would erode, causing problems.

In a townhouse, someone would expect the proximity of neighbors, but would people anticipate having their neighbors allowed right next to their houses, Thompson wondered.

“When we started marketing these homes, we did in actuality educate the buyers,” Rosenstein said. They showed prospective buyers the property or photos and explained how the easement would work, she said.

But Linett asked if the easement is made clear from the beginning, when information is picked up off a real estate rack.

Although no one would say that the information is in sales brochures, MBS representatives said the sellers discuss easement language before executing the contracts, and it’s in the final deed.

Neighbors could remove the easements by mutual agreement.

“We’ve used this side-use easement many times,” Smith said, although the system is new to Millville.

“It’s part of contract that is recorded. It’s part of the title that runs with the ground,” Smith added.

“We’ve done it before, and we haven’t had any issues. It doesn’t change the property line. You have use up to the neighbor’s house. You’re responsible for maintaining that,” Smith said. “Then those side yards become real focal points and add value and character to the community. That’s the logic behind that.”

Reluctant acceptance

Although he originally opposed the measure, Linett offered a motion that passed 3-0-1, recommending that Town Council approve the revised application for a deed use assessment easement for those lots, subject to the fact that MSP II provides upfront notifications and sales literation in regards to the easement do’s and don’ts.

“I feel we need to work together with them,” Holly said, despite the “major breakdown in communication.” She emphasized the importance of the HOA effectively monitoring the easements.

Susan Brewer agreed.

Paul DuCott, in his first P&Z meeting, recused himself, as a resident of MBS.

Linett also suggested that Millville modify its town ordinance to make the site plan process absolutely clear.

“I’m sort of disappointed that you guys thought of this a year ago,” Linett said, “and in all the discussion we had, there was no discussion until, just by happenstance, Debbie and Eric learned about it.”

With that, Botchie said she had denied the next permit the Christopher Companies requested, because they failed to file forms, which “instills lack of trust” and officially violates Millville’s Clean Hands Policy.

Millville and MBS developers have met regularly for years on the plan to build about 2,900 homes on 690 acres.

A public hearing will be held Tuesday, July 8, at 7 p.m. before the regular town council meeting.