Millville rejects side-yard use easements in Millville By the Sea

Date Published: 
July 11, 2014

The Millville Town Council has sent Millville By the Sea builders back to the drawing board after rejecting across-the-board easements for one neighborhood — a process that had already begun.

The council this week officially voted down a revised final site plan for Sand Dollar Village Phase II. Originally, to make up for small-sized lots, neighbors in Sand Dollar Village Phase II would share their lawns, each borrowing a chunk from another to create a livable yard.

“We’re not changing the property line. Homeowner A gives Homeowner B the right to use that 6-foot easement” for private enjoyment, said Doug Smith of Miller & Smith. “Both parties are fully aware of this before they go into any agreement.”

The houses are 24 feet wide, centered on 38-foot lots, meeting the Town’s 5-foot setbacks on either side. But with only about 12 feet between houses, each set of residents had two nearly useless strips of land on both sides.

But despite Millville Seaside Properties II having already sold homes with such easements in place, the Town of Millville only learned about the easements’ existence by accident, when Sussex County offices called to discuss a recently recorded Deed of Use Easement in April. The town council had approved the final site plan for Sand Dollar Village Phase II in February of 2013 without ever hearing about the proposed easements.

In June, the Millville Planning & Zoning Commission reluctantly recommended the matter be brought before the town council.

The easements for the community’s unoccupied homes have been stricken from Sussex County records for now.

“I’m sorry I have to come up before you this evening for this matter,” Smith said. In hindsight, he added, he felt they could have done the process differently. “When we’ve done these private use easements before, it wasn’t necessary to go before the board.”

“The final site plan had been approved without such easements,” Town Manager Debbie Botchie had explained after the June P&Z meeting. “Our code is very clear that all easements must be put on the site plan for review.”

The builders had interpreted Millville town code as only requiring notification for public easements. However, it was 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 town code doesn’t specifically require the purchaser (MSP II) to record such easement agreements, said Town Solicitor Seth Thompson

“It’s unfortunate how we ended up here tonight,” Thompson said. “Frankly, I think the applicant is trying to make things right” by what would really be responsibility of the sub-divider.

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 bought by Millville Seaside Properties II (managed by Christopher Companies and Miller & Smith).

Potential buyers are educated about the easements, said Debbie Rosenstein. When buyers ask about a cottage, they get an informational packet. If they’re still interested, a salesperson physically tours a lot with them.

“We demonstrate how the entire side lot will be available for their use. We walk to the side porch, then to the alley,” so they understand how their property relates to the neighbor’s, Rosenstein said.

When a final contract is eventually signed, the buyer gets the official deed-of-use easement, which is attached to the property until the day two neighbors choose to cancel the contract, if ever.

“They wouldn’t sign the contract if they weren’t comfortable with the deed-of-use easement,” Rosenstein said.

Residents may not install permanent structures (buildings or sheds) or potentially hazardous items (barbecue grills and fire pits) in the 6.5-foot easement. However, gardens and paver patios are acceptable because they can be removed when the family moves out.

The council was concerned that disgruntled neighbors would bypass the HOA to complain about easement issues at Town Hall. But the Town would have no enforcement authority over the contract, which is what William Scott, the applicants’ attorney, recommended Town staff tell any complainers, just as police might not get involved in a civil dispute between neighbors.

“I would think it would reduce the amount of [conflict],” said Scott, since people wouldn’t be squeezing lawn chairs next to each other, and they could mow lawns on different days.

People could live better on 12 feet of lawn than two 6-foot strips, he said, explaining the rationale behind the creation of the easements. That could also increase property value.

Plenty of people rent beach homes on tight properties, “and everybody seems to coexist. They respect each other’s rights,” said Craig Hovenner of Christopher Companies and MSP II.

The homes are built to code and follow the Town’s setback requirements.

However, residents must get a building permit from Sussex County for a temporary patio. Although Millville doesn’t require a permit for that work, the Town charges tax rates based on County assessments. If the County charges the property owner and the easement benefactor, someone could pay slightly higher taxes because of her neighbor’s patio.

Hovenner said he notified the County of the easement situation in an attempt to avoid such taxation.

“That was the only proactive thing I could do,” he said.

Although the applicants weren’t aware of many, if any, such easements in Sussex County, Smith said California, Texas, Maryland and Virginia have plenty, including 300 to 400 built by Miller and Smith. A similar situation involving decks built partially on neighbors’ property does exist in the Sea Villas community in Bethany Beach, which led to the creation of a specialized zoning district there five years ago.

“Who’s insuring that 6.5 feet?” asked Mayor Gerald “Gerry” Hocker Jr.

“The owner that’s benefitting insures that 6.5 lot … provided it’s a recorded easement,” Scott said. “The home insurance you take out for your home covers that easement.” He did not mention if there is a reduction in insurance premium for the easement taken out of a property owner’s land.

Houses already sold and occupied were not part of the night’s discussion. Because the deeds had already been recorded, and the houses occupied, the Town has decided to let them be.

However, all of the remaining 12 lots are considered to be in violation.

The people speak

Frances Deering owns one such cottage.

“It was my choice. If I didn’t like the idea of the concept, I never would have bought it,” Deering said. “Everybody likes something different.”

She said her neighbors enjoy the simple concept of caring for the front, one side and back of the house.

“I like the concept of it. It’s very private, versus the single-family home,” she said. “If [renters] do something that I find offensive … I have a dialog with my neighbor. If I don’t, I go to the HOA. … It’s the owner’s responsibility.”

It might not appeal to all, but it does appeal to some, Smith said, and the builders, he said, took “every possibly precaution” to make it work.

Councilman Steve Maneri spoke on the issue as a resident, having stepped down from his council seat. He was concerned that the “injustice” at Sand Dollar Village would set a precedent for other builders to build on such tiny lots.

He also said people’s property taxes shouldn’t be raised one penny because of a neighbor’s improvement.

Five others spoke against the matter. Several were concerned about the HOA, which oversees no other easements and would possibly need a homeowner vote to manage it effectively.

P&Z Chairman Bob Linett repeated his disappointment about the problem, in light of Miller & Smith’s otherwise good dialog with the Town.

“Certainly the process we went though was not transparent. … At the end of the day, I hope you will agree there was a misunderstanding. We thought the language applied to public easements,” Hovenner said. “This was not intended to be sneaky… I can honestly say it was [planned] this way.”

Vote of rejection

The motion to accept a revised site plan with the easements was reluctantly seconded, for purpose of discussion. But the council unanimously rejected the idea, though they voted with a minimum quorum of three members, as one council seat remains empty and Maneri recused himself.

“I feel this is going to be a problem going forward. I hear them say the HOA’s going to be involved. I don’t see that happening,” Councilman Harry Kent said, having asked perhaps the most questions that night. “In the meantime, the Town of Millville’s going to be dragged into this.”

Councilman Bob Gordon agreed.

“Who’s going to maintain it? Who’s going to sit there and police it? I think it’s got more issues regarding the future than it does solutions for right now.”

“The product looks good. I’m sure it fits good within the community,” Hocker said. “But it’s so new, I just think the Town needs better data for the future. … Prove to the Town that this can work,” he said. “Once the Town were to approve it, Millville sets the tone for the future.”

In other news from the Town of Millville, the Millville Farmers Market continues every Thursday morning, while workshops July 17 and Aug. 14 will offer free blood pressure, glucose and cholesterol screenings with Beebe Healthcare. An Aug. 21 workshop will focus on composting, water conservations and low-maintenance landscaping with Department of Natural Resources and Environmental Control representatives.

The Millville Town Council will meet next for a July 22 workshop, at 7 p.m.