County BOA denies controversial Oakwood Homes applications

Date Published: 
Nov. 24, 2017

The Sussex County Board of Adjustment voted unanimously on Nov. 20 to deny two special-use exception applications filed by Oakwood Homes. The company was seeking special-use exceptions to permit manufactured homes on two separate lots, each measuring less than .75 acres — one located on Hoot Owl Lane near Dagsboro and the other on Julie Court near Frankford.

Per county code, a manufactured home may not be placed on a lot measuring less than .75 acres; however, the company was granted the permits to place the homes by the County, in error, as both lots are less than .75 acres in size.

The applications were first discussed at the board’s Oct. 3 meeting, where more than a dozen residents of Hoot Owl Lane attended to voice their opposition to the application.

At that time, Gil Fleming of Oakwood Homes said his company had been informed that the homes had been placed on undersized lots after the County had provided his company with two separate permits to place the manufactured homes.

At the Nov. 20 meeting, Board Attorney Jamie Sharp said that, while both cases appeared to be similar, they were to be reviewed separately.

“There was some question about the standard that we need to deal with here and some of the factual things in the record. We have two cases that are factually very similar, but there are some distinctions between them,” he said.

“The biggest one was the contention raised by the opposition, was whether it met the first standard, which is that, ‘the lot is not within a major subdivision prior to the effective date of this section or is not specifically prohibited from restrictive covenant.’”

Sharp called attention to the restrictions in the covenant for the community at Hoot Owl Lane. Created in 1974 and presented to the Board by neighboring property owners during the application’s public hearing in October, the covenants reads, “No structure of a temporary character and no trailer, tent, barn, tree-house, or other similar outbuilding or structure shall be placed on any lot as shown of the aforesaid plot, at any time, either temporarily or provided…”

He also stated that it is “not entirely relevant” that the applicant was granted a permit in error, but rather, “does the use substantially affect adversely the uses of neighboring and adjacent properties.”

“In Delaware, there are few, if any, cases where a land owner will not be held responsible for knowing what the applicable land restrictions are,” he said, noting that every person is presumed to know the extent of powers and what is allowed on their properties.

“Even in exceptional cases, the court has refused to say, ‘You’ve really been burdened here,’” said Sharp, noting that the code is a document easily accessible to everyone.

Board Member John Mills said he did not believe the application met the criteria outlined by the subdivision’s restrictive covenants.

“Property values was a big concern,” he added. “We didn’t hear from the property owner, but we did hear from the opposition that noted it would have a negative effect on property values… That carried more weight with me.”

Board Member Ellen Magee said she believed the hardship was created by the applicant.

“Oakwood Homes has been in business a long time. There are limits where you can place mobile homes,” she said. “It will definitely affect the essential character of the neighborhood.”

Board Member Bruce Mears, who has been vocal about his lack of support for the application, said Oakwood Homes created a financial hardship for itself by continuing to develop the property after being informed there was an issue.

“The mobile home was still on wheels when Planning & Zoning was informed of the issue, and Oakwood Homes was informed of the issue and decided to keep on going, so they incurred more financial burden on their own. They could’ve stopped right there and solved this issue.”

He also said he found the testimony of those opposed to hold a great deal of weight.

“We had 15 people here in protest and five letters — that’s 20 people. There are 26 owners in that community. That’s 80 percent of the community that either turned up or supplied letters in opposition to this variance,” he said. “I think it’s very clear that the residents’ property value would be affected in a major way by granting this variance.”

The board voted 5-0 to deny the application for Hoot Owl Lane.

The similar special-use exception application filed by Oakwood Homes for a property on Julie Court was also denied by the board on Monday night.

“In this case, the restrictive covenant for Pine Manor Estates … says, ‘no structure of a temporary nature, and no trailer, tent, barn or similar outbuilding or structure shall be placed on any numbered lot … within the development at any time, either temporarily or permanently,” said Sharp. “That’s a little different reading than the past one, but I do think it bears some consideration from the board.”

Sharp said the restrictions for Pine Manor Estates were created in 1973.

“I’m sympathetic to the applicant because of the situation; however, in my opinion, to approve this would be wrongful,” said Mills.

“I’d like to add in, we had two ladies show up who pleaded with us not to approve it because they’re single, they bought a house, they want to maintain the value. I think the mobile home deflates their value, which gives them the hardship,” added Mears.

The board voted 5-0 to deny Oakwood Homes a special-use exception for the Julie Court property as well.