Lawncare business fate could hinge on covenants

Family-run business seeking conditional use to keep operation going
March 5, 2019

The fate of a family-run lawn care business could come down to how Sussex County Council rules on subdivision restrictive covenants, or deed restrictions.

After conflicting testimony at council's Feb. 19 public hearing, it's unclear whether the applicants were aware of the covenants or not. Among the covenants is one prohibiting businesses in the 4-lot subdivision.

Neighbors have testified the lawncare business owners were aware of the covenants in force in their community. The owners' attorney says the owners were not made aware of the covenants when they purchased the parcel.

Country Lawn Care & Maintenance LLC, c/o Gerald and Stephania Dougherty, has filed a conditional-use application for a landscape business on 4 acres of AR-1, agricultural-residential, zoned land at 30435 Hollymount Road, about one-half mile from the Beaver Dam intersection near the Spring Breeze subdivision.

Since the parcel is not zoned commercial, operating a business on the parcel would require a conditional use granted by Sussex County Council.

Shannon Carmean Burton, the applicants' attorney, said the couple operated their business for nine years before moving to Hollymount Road, where they have lived and operated the business for nearly three years.

She said the previous owner of the parcel operated a lawncare business for 11 years.

When questioned about the covenants, Carmean Burton said, “They relied on professionals to advise them. They would never have purchased the property if they knew they could not operate their business there.”

Now the couple has received a violation notice from the Sussex County planning and zoning office, which triggered the filing of the conditional-use application.

Carmean Burton noted the covenants are not enforced and not followed by other residents. In addition, she said, there is no mechanism set up to amend the covenants.

She said the couple was not advised of the covenants by their realtor, their deed contained no reference to specific deed restrictions and they were not given a copy of the restrictions.

Business on property for 14 years

In the past, county officials have not allowed conditional-use permits in subdivisions and have not enforced deed restrictions. Even so, convenants become entangled in debates over some applications.

Councilman I.G. Burton asked how council could vote to waive this restrictive covenant and not waive others in the future.

“This is a very unique subdivision with four lots. For 14 years, it's had a commercial use without any complaints or violations from Sussex County,” Carmean Burton responded. “No one has sought to enforce the restrictive covenants.”

“Fourteen years of continuous use without a challenge,” said Councilman John Rieley. “It sounds like a complaint for another jurisdiction.”

“This is not the proper venue to debate restrictive covenants,” said Carmean Burton, adding it's a matter for Court of Chancery.

“My main focus is to be a good neighbor and always have been,” Dougherty said. “There has never been a problem.”

He said he is willing to purchase the lot adjacent to his property to create a permanent buffer, but his offer was rejected.

Country Lawn Care & Maintenance has 10 employees who report to the Hollymount Road location and take equipment to off-site locations. Typical hours are 7 a.m. to 7 p.m. Monday-Friday. The business is not open to the public and has no retail sales. All equipment repairs are done off site, Carmean Burton said.

She said a natural forested buffer surrounds the property and the couple has constructed a privacy fence on two sides of their property to shield the business from residents' views.

Concerns about property

The public record contains letters for and against the application in about equal numbers.

Most of the opposition testimony was offered by Lynn Stanley, who lives with her husband, Albert, two lots from the business.

She read a long list of concerns including tanks on the property, piles of lawncare debris used to build a berm, dumping of material and inoperable junk stored on the property. She presented several photographs showing piles of debris and storage of materials on the property – including tires and junk equipment – to council as part of the public record.

“Our hearts go out to them. They are good neighbors on a personal level, but that's not what we are discussing,” she said, adding she gave the couple a copy of the covenants.

“We were looking for peace and found it when we moved here, especially when we saw the covenants. We don't want to look at this. We own our own business, and we have followed all the rules,” she said.

James Miller, who lives in the Spring Breeze community, said he's not as concerned about the business use as he is about the tanks stored with diesel and chemicals on the property. “You need to consider the safety issues; it's a matter that needs to be addressed,” he said.

P&Z recommends denial

At its Feb. 28 meeting, with a 2-2 vote, Sussex County Planning and Zoning Commission recommended denial of the application.

Only four of the five current commissioners were present at the public hearing and were eligible to vote. It takes three votes to approve an application; a tie vote is treated as a denial.

“In case you are wondering, this is why we have five commissioners,” said Commission Chairman Bob Wheatley. “We leave it in the county council's very capable hands.”

In the motion, Commissioner Holly Wingate said there are no other businesses or commercial uses in the subdivision or the area of Hollymount Road.

“Owners of neighboring properties within the subdivision said the use would be inconsistent with the residential nature of the subdivision,” she said.

In addition, Wingate said, restrictive covenants in the chain of title to the property and the adjacent lots prohibit any commercial uses. She said the covenants are recorded in the Recorder of Deeds Office in book 2709 on page 113. “Sussex County should not ignore restrictive covenants that prohibit a use,” she said.

Wingate and Wheatley voted for denial.

Wheatley said it's not the commission's task to decide whether restrictive covenants have been broken or not broken, ignored or not enforced.

Commissioners Kim Hoey Stevenson and Keller Hopkins voted for approval. Hopkins said he was concerned about the impact a negative decision would have on the family and business.

Hoey Stevenson said there had previously been a lawncare business on the property. “It seems like the covenants have already been abandoned,” she said.

Sussex County Council will put the application back on an agenda after a five-day period for written public comment on the commission's recommendation.

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