Meeting Notice — October 8, 2020

Posted on: Oct 05, 2020

WEB Summary

October 8, 2020

 

A regular meeting of the Board was held on Thursday, October 8, 2020. Attending the meeting by videoconference, in compliance with the Delaware State of Emergency, were: President Bruce Wilson, Secretary Debbie Director, Treasurer Helen Hoart, Vice President Louisa Hollman and Assistant Secretary Evan Thalenberg.  Also joining the meeting was counsel representing North Shores and the Board, Robert Valihura.  William and Andrew Nussbaum, representing 37 and 39 Holly Road, also joined the meeting.

The first item of business was the sub-division proposal involving the adjacent properties owned by the Nussbaum family at 37 and 39 Holly Road.  President Wilson reviewed with the Board the request by the Nussbaum family to sub-divide the two properties, which were originally (and still) treated as two lots by North Shores (and involving separate assessments since the original neighborhood subdivision).  The subdivision consent from the Board is necessary to permit a second home to be built at 39 Holly Road, because the two original lots are currently recognized by Sussex County as a single property, notwithstanding the consistent treatment by North Shores of the two lots as separate parcels.  This combination of the lots by the County resulted from a structure encroachment caused by an addition made to the original home at 37 Holly over the original property line that separated the two lots.

In a privileged session, Attorney Bob Valihura, advised the Board on the potential legal issues associated with the requested consent. The Board and counsel then discussed the request, together with consideration of potential issues that may arise in the future, and agreed to a set of conditions and restrictions that would require agreement from the Nussbaum family before the Board would be prepared to consider the request. Mr. Valihura and President Wilson will draft and submit an agreement document for the Nussbaum family and report back to the Board for further action on the sub-division request.

 

Proposed conditions granting the North Shores consent to the subdivision request are as follows:[1]

EXHIBIT A

 

RESOLUTION

 

WHEREAS, the owner of Lots 71 and 72 in North Shores (the “Owner”) seeks the approval of the Board of Directors of North Shores Board of Governors, Inc., a Delaware corporation (the “NSBG”) to the moving of the lot line between the two lots (the “Lot Line Re-Alignment Request”) to accommodate a home, a portion of which now straddles the line between the two lots;

 

WHEREAS, the moving of such lot lines, the actual re-subdivision of a lot within the North Shores community, is disfavored by NSBG and should only be considered under very limited circumstances and only be granted upon narrowly tailored conditions which ensure that such line moving is not an attempt to circumvent, in a material way, the protections afforded to all owners by the North Shore Covenants;

 

WHEREAS, for the last year, the Board has studied the issue, and sought legal assistance in determining the appropriate conditions under which the Board should consider granting approval of the re-alignment of a lot line between two adjacent lots in the North Shores community;

 

WHEREAS, after much study and consideration, the Board has developed certain conditions under which it would consider approving the moving of a lot line, including the Lot Line Re-Alignment Request (the “Conditions”);

 

WHEREAS, the Board has thoroughly considered the matter, and is willing to approve the Lot Line Re-Alignment Request only upon the approval and acceptance of the Conditions by the Owner;

NOW THEREFORE, BE IT RESOLVED THAT the Board of Directors of NSBG hereby approves the Conditions attached hereto as Attachment A as the sole basis on which the Board will consider any request to move lot lines between any two or more lots in North Shores and grants the Owner the approval of the Lot Line Re-Alignment Request only upon the fulfilment of the Conditions set forth in Attachment A.

The President of NSBG is hereby empowered to determine if the Conditions are fulfilled, and, thereafter, to prepare and execute all documents necessary and required by the Owner to confirm that the Conditions are fulfilled and ensure that the Conditions can be enforced against the Owner, and its successors and assigns in the future.

 

ATTACHMENT A

Conditions under which the Board of Directors of North Shores Board of Governors, Inc (the “NSBG”) will consider granting a request for moving the property line for two adjacent lots  within North Shores:

  1. There must be two original North Shores lots (the “Individual Lots”) that have been combined by the automatic operation of law into a single lot (the “Combined Lot”), and under applicable Sussex County rules, the County must have treated the Individual Lots as having been merged into a single parcel as the result of a North Shores Board approved single family home that (i) was constructed in accordance with the Board approval and (ii) caused an encroachment on the shared lot line;

 

  1. North Shores must have continuously treated the Combined Lot as Individual Lots and all assessments must have been imposed and paid in full without interruption for the Individual Lots;

 

  1. The combination of the Individual Lots must have occurred as the result of the approved construction of a detached single-family home, and the lot owner cannot have affirmatively sought such combination of the Individual Lots in an earlier zoning application;

 

  1. The need for the re-subdivision must be generated by an existing structure that predates the 2005/2006 covenant amendments (the “Architectural Requirements”), and that structure must render compliance with the current setback rules infeasible without structural changes to the existing home. There must at the time of application for re-subdivision be only one structure on the Combined Lot;

 

  1. The Individual Lots must have been owned by the same owner (the “Common Owner”) which shall include ownership by familial descent, without interruption for a period grandfathered under the Architectural Requirements — so that the encroaching home (and the combination of the lots) must have predated the 2005 Board recommendation of the Architectural Requirements and cannot be said to have “come to the setback” issue;

 

  1. The Common Owner, and all other co-owners, trustees, POAs, named heirs (if a will exists) and all immediate family members of the Common Owner (or entity owner/beneficiary) must request the North Shores consent and be prepared to accept the conditions of approval. All “likely interested parties” must be involved in the request and agree to be bound by the Conditions;

 

  1. Any new construction on either re-subdivided lot must fully comply with the Architectural Requirements setback limitations in effect after re-subdivision, and both re-subdivided lots must irrevocably waive grandfathering rights for new construction in respect of the Architectural Requirements (e.g., full application of setback limitations; FFA and GFA limitations, etc.).

 

  1. There must be a material limitation of the FFA and GFA of a proposed new home on a re-subdivided lot that has decreased in total area (the “Burdened Lot”), defined as a reduction of not further below 20% of the maximum allowable FFA and GFA, respectively.

 

  1. The limitation on future home size will be required to be deeded and run with all future changes of ownership for a period of not less than twenty years from the date of the issuance of a Certificate of Occupancy for the new home on the burdened lot.

 

  1. There must be a limitation of the lot square footage adjustment on the burdened lot, so that the area granted to the re-subdivided lot that has increased in total area (the “Benefitting Lot” will: (i) amount to no more than 7.0% of the original square footage of the Combined Lot; and (ii) the difference in area of the individual re-subdivided lots must be less than the difference in area of the Individual Lots. Under no circumstances may the resulting square footage of either of the re-subdivided lots be less than 10,000 square feet.

 

  1. The maximum number of re-subdivided lots that may be derived from the Combined Lots or any future re-subdivision of the Combined Lots shall never exceed the original number of lots as was recorded on the Plat Plan for North Shore’s, Inc. in the Office of the Recorder of Deeds for Sussex County Delaware on June 7, 1956 in Book P2, Page 90 (the “Plot Plan”).

 

  1. The lot corner locations of the re-subdivided lots shall not differ from the original lot corner locations of the Individual Lots as was established in the Plot Plan.

 

  1. A shared driveway, one which is used to access the re-subdivided lots, shall be prohibited.

 

  1. Only one single family home may exist or be built on each re-subdivided lot. All proposed new structures or improvements, including a new home or additions, on the subdivided lots shall be subject to normal and customary Board review and approval in accordance with the powers and duties granted to the NSBG under the Covenants.

 

  1. A site plan for the proposed new home on the burdened lot must be submitted to the Board for review. The final new home construction plans (i) must materially confirm to the site plan submitted to the Board, and (ii) will be subject to the customary and complete North Shores construction review under the Architectural Restrictions, including customary landscaping and drainage review before approval. Agreement to this lot change is not a substitute for normal North Shores Covenant review of proposed new structures on either lot.

 

  1. Affirmative written consent of all surrounding neighbors is required.

 

  1. Common Owner is required to pay a North Shores consent fee that covers the legal expenses incurred by North Shores in evaluating and documenting the request for approval.

 

 

Mr. Valihura left the meeting.

Mr. Andrew Nussbaum and Mr. William Nussbaum joined the meeting.

Bill Nussbaum presented the history of the property ownership and the background to the project.  He further explained that the family wanted to preserve the current family house that was constructed as an original North Shores atrium home.  As the family investigated building a new home on the extra lot, obtaining a building permit from Sussex County became more complicated.  President Wilson questioned the Nussbaums about removing the encroaching addition that was not part of the original home for compliance with the county requirements, to avoid the sub-division request.  Andrew Nussbaum explained to the Board that Sussex County had advised removal of the encroaching builds would not satisfy the requirements for issuing a building permit. The family intends to build a year-round home on the land that was originally the adjacent lot at 39 Holly that would allow them to retain the original multigenerational home at 37 Holly. The Nussbaum family submitted a preliminary site plan to NSBG, Inc., showing the footprint of the proposed new home and reconfigured lot line in accordance with Sussex County and NSBG set-back requirements.  The site plan indicated the proposed reconfigured property line, maintaining the current corners of the two original lots, and angled with a “dog leg” to accommodate the encroaching structure on Lot 71 (37 Holly) and conforming set-back requirements on Lot 72 (39 Holly) for the proposed new 4000 sq. ft. home. The Nussbaums, in response to questions by the Board, do not plan to demolish the original family home, and are prepared to work with the Board’s attorney to agree on the list of restrictions that will be applicable to Lots 71 and 72 if the Board is prepared to not to object to the County-required subdivision.

The meeting was adjourned.

 

 

[1] Secretary’s Note:  Subsequent to the meeting, the Board approved the proposed conditions on February 10, 2021