July 12, 2020 at 8:35 pm #4676
I understand that tomorrow, July 13, the Board will be voting on whether the draft revisions to the restrictive covenants and bylaws should be put to a homeowner vote. I appreciate that a volunteer committee of homeowners has spent a lot of time and energy making these revisions, and that intentions undoubtedly were good. Based on previous forum postings, however, there seems to be nearly universal resistance to the numerous, technical, and difficult to understand changes being proposed. Many of us seem to be struggling to understand why many of the changes were made, why much of the old language can’t be left alone, and whether any of the changes will negatively affect us in a way that the old language did not. In view of this, I urge the Board to vote “no” on moving ahead with presenting these changes to the community.
Below are just a few questions and concerns that I have regarding the restrictive covenants, originally posted on another forum thread with limited distribution:
1. Paragraph 2: In the section about removing sand from dunes, new language is added requiring not just DNREC permission, but also TSBA board permission. Of course permission must be sought and granted from state agencies, but why is permission from the Board needed? What specific problems have arisen where state and local laws protecting the dunes aren’t enough? Also, the way this is written, DNREC could allow the moving of sand, but the Board could refuse it for any reason. That may not have been the intent, but it could be the consequence.
2. Paragraph 3: Why was it necessary to re-designate all of the lots into R-1/R-2? Why couldn’t a simple, minimal edit be made updating the currently numbered lots as either commercial or residential? Throughout the document, there are now multiple references to the new R1/R2 designations, and in some cases properties are treated differently depending on the designation for technical reasons. This seems unnecessarily overcomplicated especially in the setback context.
3. Paragraph 5: Why the need to add all of the specific “including but not limited to” examples? The explanation “this still allows all structures, just not set-backs” is a sentence I do not understand.
4. Paragraph 5A: Changing the building setback line from 15 feet from the “road” to 15 feet from the “lot survey boundary” might have potential implications that I can’t evaluate because I’m not a real estate attorney. To a layperson, a “road” is different than a “lot survey boundary” Why is this needed? What problems have arisen from the current language? The explanation provided that the new language is “more accurate” isn’t helpful to a layperson.
5. Paragraph 5B, setting out different setback requirements for the new R1 vs. R2 lots: Again, I don’t understand why the old language is in any way problematic. Old language treated all lots similarly. New language draws technical distinctions between R-1 and R-2 lots. Per above, I don’t understand why new R-1/R-2 designations were made. Why can’t the language be left alone? What actual problem is this complicated language change solving?
6. The language about “grandfathering in” for the newly designated “R1/R2” lots that don’t conform is concerning. These are complicated, technical changes that I don’t fully understand. If substantive changes are being made from the current rules that require some kind of “grandfathering in” of violators, I’d like clarification on what those changes are. What is OK now that would not be OK under these new rules? If no substantive changes are anticipated, why is grandfathering language needed? If this is intended to cover situations where a property not compliant with the current (not new) rules must be rebuilt, why not simply say what you mean: that if a structure is lost and must be rebuilt, the footprint at the time of loss will be permitted regardless of its compliance with the rules in effect at the time of loss?
7. Why is renting parking spaces to anyone but owners prohibited? What problem has arisen that requires a formal change in the legal documents? Sometimes owners rent parking spots to directly to renters of other owners with overflow cars, if they have the extra space. This change would forbid that—you could rent to another owner but not directly to a renter. Why?
8. Adding a requirement that the Board approve all new construction, and having owners pay for this review, raises red flags for me. Construction should be compliant with all state and local laws/rules/restrictions, of course. I thought that’s what permits were for. How exactly is the Board going to determine whether every construction project is lawful, even if review is limited to compliance with our restrictive covenants? How does a volunteer Board have the expertise to do this? What kind of additional charge is this going to involve for owners?
9. The new language about minimum two parking spots—there is not currently any minimum parking space requirement for individual homes (the current rule addresses multiple dwelling units like the old hotel.) Although I think you would be crazy to have a house in our community with one parking spot, I chafe at the addition of another unnecessary legal restriction imposed on owners. Is there a problem right now with people building big houses with only one parking spot and having cars parked illegally as a result? We seem to have done just fine so far without the need to regulate this. Again, this seems like yet another “fix” where there is not a problem.
10. The clause about no grilling on the beach except for Tower Shores functions. The explanation given is to align our rules with the law. Do state and local law only allow grilling on the beach for community functions? If not, why are we prohibiting grilling on the beach for some functions but not others? Lots of people seem to grill on the beach, so this seems like an impactful change. Is it wanted and needed? Will this be problematic for rentals?
11. The clause about making owners liable if the Association institutes legal action. This raises red flags in my mind especially the way it is worded, with owners paying for any “enforcement action.” What if the Association loses the “enforcement action”? Does the owner still have to pay the Association’s legal fees?
This is complicated legal stuff. I understand that there may be a history of owners not complying with legal restrictions, and the unfairness of the rest of the community being stuck with the legal bills, but again, I’m not a real estate attorney, and I don’t know if this clause is normal, or could cause problems down the road.
There are other areas that I’m concerned about in addition to these. I think it would have been far better to focus on a few truly essential changes, rather than trying to completely review and polish the full document (and the bylaws too, which I haven’t even addressed here) and making so many changes that it is impossible for community members to review and understand them, which in my case has left me so frustrated that I just want to give a blanket “no” to any changes at all.
I’d be glad for any feedback from the board and committee on my concerns, and especially, feedback from the community about whether they are shared.
#2 North Beach Condos
July 12, 2020 at 10:12 pm #4677Dan CohenKeymaster
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July 13, 2020 at 12:33 am #4679Matthew KrafftParticipant
Thank you for your careful reading of the proposed covenant changes and your thoughtful comments. It was never clear to me what the impetus was for revisions to the covenants other than that the board was frustrated with their lack of an enforcement mechanism over construction occurring during the summer months and, other than Matt’s Fish Camp, the neighborhood was developed as residential properties and not residential and commercial, as originally provided in the 1950’s era covenants. The fundamental difference in the two areas (residential and commercial) is that in the “commercial district”, no set-back is required to adjoining units, except where a commercial district unit adjoins a residential area unit. (There are a number of separate homes behind the Atlantic Watergate tennis courts where there is no setback between the houses. The parking for these houses is provided on a side street. This construction (houses 1′ apart) would not have been permitted in the “residential” district.) Also, with regard to “Roads”, Ocean Road, as defined in the Covenants, runs from the south end of the development to Cove Road. North of Cove Road, the paved area is only a right of way, not a “Road” as defined in the covenants. This is why the pavement is narrower on this segment and the Atlantic Watergate buildings on Ocean Road are not set back 15′ from the pavement (the required setbacks for “Roads”).
The “Commercial District” consists of the first two lots along the highway and all the lots north of Cove Road. It should be of no importance to the community that the name “commercial district” exists. Anything to be built in the community must pass County requirements. There’s very little risk of anything “commercial” being built. And, to the extent it could be, somebody owns that right. There’s no need for the community to impose more restrictions, especially since doing so would impact existing property rights, which has a very doubtful legal basis (i.e., taking property rights without compensation).
I got involved with the covenants committee after receiving a draft proposal before the last membership meeting (May 2019) when I read the then proposed covenant revisions which would have reduced the building rights of ocean front owners from 10′ landward of their easternmost property line to 10′ west of the dune line (except the current footprint would be permitted). This struck me as a totally improper taking of property rights, so I got involved.
The other significant proposed change to the covenants is the shifting of “common area rules” (currently a function of the by-laws) to the covenants and the enabling of the board to impose fines. Both of these proposed changes strike me as bad ideas. Covenants should address what can be done with one’s property, common area rules (e.g. no fishing, glass containers or dogs on the beach) are better kept separate as a function of the by-laws.
Also, the issue of the board imposing fines is fraught with issues. In one case I’m aware of, a few years ago the board filed lawsuit against a resident to collect a disputed dues late fee of $50. (Yes, the board filed a lawsuit to collect $50 in dispute.) The resident, an attorney, promptly counter-sued, his case was dismissed, but as a result, the Association’s insurance was cancelled and we were forced to find a new (presumably more expensive) carrier. (Of course, the Association then dropped their case.) In other cases, the board has gotten us into, or nearly into, lawsuits over construction which extended into the summer months.
In the board’s defense, it is frustrating when people don’t follow rules adopted by the community. In my opinion, other than delaying the start of the summer building moratorium period from Memorial Day to mid-June I see no good reason for revisions to the covenants. The proposals were arrived at by a committee. The names at the bottom are only a listing of the committee members names and should not be interpreted as endorsement by all the members of the committee members of all the proposals. Thank you again for your thoughtful and detailed reply.
July 13, 2020 at 2:52 pm #4682Diane RosenbergParticipant
Let me start off by saying it’s a small world – your cousin Beth Bonita is a very good friend of mine. She’ll be down visiting me at TSBA this upcoming weekend. Unfortunately she did not think you would be to meet up in person.
Regarding your question at hand as to why we took on the task of editing the By-Laws and Restrictive Covenants. These documents are the ruling documents as to everything the Board as well as the members have to abide by along with Delaware and Sussex County law. I was on the board for appx. 6 years (not during the lawsuit that Matt mentioned) and in almost every instant, the community (Board and members) were not following the documents as they were sorely out of date. Our hands were tied at every juncture. Examples:
* We wanted to conduct annual meetings on different days, but were unable.
* A horrible storm destroyed our beach in April and we struggled how to repair the beach and crossovers prior to Memorial Weekend (ie: could not step off crossovers to reach the beach) but we didn’t have the ability to alter the budget or vote on contracts outside of scheduled monthly meetings.
* One homeowner (developer/flipper) violated the noise moratorium and a majority of that block attended a monthly meeting and begged the board to put a stop to the noise violations in July but the only option under our current documents was to sue them.
* The commercial lots built within one foot of residential properties without permission in violation of our documents and we had to hire a lawyer,potentially suing them to remove the structure.
* There are phases throughout the document that are not defined within the document, leaving the board to guess and interpret what was meant.
There are a million other areas to identify where our documents are not in compliance as to how we can run the community nor are they fully in compliance with Delaware or Sussex law. Any organization that is diligent must review their founding documents every 10 years to confirm they are in compliance rather than ignore them and operate on a wing and a prayer. That said, the committee was well aware that this community is not in favor of fines and therefore, the only fine we instituted, if that board chooses to enforce, is a noise moratorium fine that includes prior notice and an opportunity to be heard.
We worked on editing these documents last year and had a Delaware attorney review our entire document. We only made two changes last year – changed our resident agent (who had not been our R.A. for years) and allowed our annual meeting to occur anytime over Memorial Weekend. We then reconviened and removed many of the issues the community was concerned with. When we brought those changes back to the board this winter and posted them, Matt, along with a few other members, joined our committee and we again re-edited and removed other matters that affected land use issues. We again brought them back, re-posted them and other community members had good points on limited issues. We reconviened, re-edited those issues and now have a final draft for the board to do a final vote to bring voting to the community at the annual meeting.
Our committee, the board and members of the community have all assisted and we have created fair, reasonable, up to date and law compliant documents that the community should be able to abide by for the next 5-10 years when the next board or committee re-visit the documents to conform to then current standards. I am available today to speak with anyone with questions on the current version by cell or email – email@example.com or 301-943-6878. I welcome an open dialog that we can discuss and agree to disagree or identify flaws to be addressed prior to tonight’s vote.
July 13, 2020 at 4:08 pm #4684
Thanks, Diane, for your response. Again, I appreciate that your committee has spent a long time on this project, and that it must be frustrating to get 11th hour criticism from community members who have not been involved until the last minute.
That being said: The committee has proposed complicated changes to technical legal documents that affect valuable property interests. It seems to me that community members have three options:
1. To pore over these documents and try to figure out whether any of the many changes impact our property rights in a negative way. I’ve spent hours looking over the changes, and frankly, I simply don’t feel equipped to determine if any of the technical changes relating to setbacks, zoning categories, etc. will negatively impact me or not. My sense is that there are other community members who feel equally at a loss.
2. To simply trust that the proposed changes don’t affect my property interests or rights. I don’t feel comfortable with this option, particularly in view of recent feedback that earlier proposed changes, however well intended, DID affect property interests, and were removed after complaint.
3. To hire a property law attorney to review the proposed changes to make sure that my property interests are not affected by the changes. I really don’t want to have to pay for that kind of review.
I think that if the changes had been limited to issues that are fairly easy for laypeople to understand, like changing meeting dates, or even giving the Board some additional enforcement powers over existing rules, there wouldn’t be much controversy. I could be wrong, but I think the changes that have created the most angst for some of us are the technical ones involving setbacks, new zoning categories, etc. because without a background in property law, it’s pretty much impossible to figure out if they affect us adversely or not.
Trust me that I say that in our current world, with all the problems swirling around us, the last thing I want to do is get entrenched in these issues, and wish I didn’t have to.
You mention that you retained a Delaware attorney to review the entire document. Was this after removal of all changes that would affect what you call “land use issues”–that is, changes that would involve a taking of property rights of some or all owners? Would the attorney be able to attest in a letter to the community that they were retained to assist with changes to restrictive covenants and bylaws, and that none of the changes proposed in the current draft would lead to any added restrictions or limitations on any owner’s property rights? That would go a ways towards reassuring me, at least.
July 13, 2020 at 5:42 pm #4685Diane RosenbergParticipant
if you go to Homeowner’s Tab, under Documents, you will see proposed changes and rational of ByLaws and Restrictive Covenants dated June 2020. This shows the section in question, what is changing and the rational in layman’s terms so everyone can understand is this section just moving, why are we adding a word, what is the purpose for the change. I believe Miles and Karen have the final changes to go over this evening, which are nominal but were discussed at the last meeting (use the lot not the street for setbacks, put in suggested fine for violation of the noise moratorium but leave it to board’s discretion to fine at all, reduce fine or increase fine down the road so document does not need to be approved again). It will not take hours and I think most of your questions will be answered if you review them now. And if you still have a question or concern, you can call or email me (as can anyone on this string).
If the board approves these going to the community for a vote at the meeting, I would suggest it immediately go back to the Delaware real estate attorney to review. With that said, we did not add any new areas from what he reviewed last year. We only removed any restrictions on building or rebuilding, so I am confident that the documents are ready to go and comply with the law and how our board operates.
Being an attorney, as you are as well, I don’t think we will find any attorney who will sign an affidavit (attestation) of what you are requesting. What we are doing is being open and clear with plenty of notice and welcoming all suggestions as we have for the past 6 months – 2 years.
The issue isn’t that you’ve come in at the 11th hour with questions. We welcome your questions and input. But we are looking for constructive comments with specific issues to discuss and move to the community as this has been a 2 year project with notification at every turn to resolve inquiries.
July 13, 2020 at 7:07 pm #4686
Thanks Diane. I started this process in early July by spending many hours reviewing the proposed redlined changes and the rationales provided for the changes, which resulted in the list of pretty specific questions I asked in my original post, above. Even as an attorney (albeit in the area of poverty law, not real estate) I came away with many questions and much confusion. Maybe I’m just not a very good attorney. I have no further feedback. Thanks again for your responses.
July 13, 2020 at 7:41 pm #4687George (Pierce) And Lynne BatesParticipant
I have several questions from Bill Gearhart who is having problems logging into the Tower Shores website:
(1) As these are covenants that run with the land, has the TSBA board run the changes by a competent Delaware attorney who practices in this area to get an opinion on whether on whether these changes are advisable or would withstand a challenge by a homeowner? As a practicable matter, can the membership can change the rights of an individual owner even if that owner objects to or opposes the change? Would the changes apply only to new owners who purchase their property with notice of the changes? In other words, through the covenants, can my neighbor through this process, and without my agreement, take away rights I currently have?
(2) With regard to the change in certain lots from a commercial to a residential classification, what exactly does this do? We are already covered by a County land use plan and zoning, both of which show all of Tower Shores, except for the restaurant area, to be residential in land use and zoning. Is anything gained through this change? Could the change have some unforeseen effects, such as our ability to rebuild at the same density in the event of a major fire or flood, as the density of much of Tower Shores may already inconsistent with current our zoning? Do we know whether it is? Under some zoning codes a property owner can lose existing non-conforming rights in the case of a major disaster. By changing our covenants, might we be putting certain TS property owners in the position of having deeds that are inconsistent with both the TS covenants and the County land use plan and zoning?
(3) Regarding parking limits and use, does County zoning already address these issues, in terms of minimum number of spaces and sale/rental of spaces?
(4) With regard to the summer construction moratorium, do we really want to change anything? As I recall discussion at the time the moratorium was adopted, the consensus at the time was to end major construction on Memorial Day, allow some continuation of ongoing construction delayed by unforeseen circumstances, but otherwise prohibit construction that did not meet the covenant. Depending on what would be allowed after Memorial Day, the change could result in not only more noise, but more trucks (with small children now around), exterior painting (which might impact nearby tenant/owner cars), etc.
July 13, 2020 at 9:00 pm #4688Jim CrokerParticipant
While there are other issues worthy of comment, I want to raise only two points at this time:
1. I would have thought that we’d asked to vote to permit the virtual annual meeting (whether or not we want to permit virtual annual meetings and member votes going forward) and to ratify the actions of the Board members whose terms should have expired Memorial Day weekend. I appreciate the reasonable actions the Board has taken to deal with these unusual times, but it seems to me that anyone that ever wants to challenge any new covenants and bylaws, or other actions of the current Board or the new Board, will start by arguing that the annual meeting was improper and that the Board was not properly constituted.
2. It seems to me to be presumptuous of the Board to vote on changes to important documents that affect us all, then have a meeting to explain the changes to us and receive our questions and comments, as if our questions and comments do not matter. Lots of the proposed changes are clear, innocuous and improve the documents, but others have not been and the over-reaching in prior proposals makes many justly skeptical. I encourage the Board to determine, like it did last year, determine whether particular proposed changes are urgent, explain why and put them to a member vote, and with respect to other changes, use the proposals as the starting point for genuine community input. I don’t see any reason not to take whatever time it takes to give the community enough time to understand and evaluate the non-urgent proposals (and improve them).
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