Petition Received by the Town, October 3, 2017
The Town of Washington Grove received a petition from the homeowners of 409 5th Avenue on October 3, 2017. The petition asks the Town Mayor and Council to sell Town property located under private residential main buildings constructed prior to September 27, 2017, under certain circumstances.
To address this petition, the Town Council is holding a Special Town Council Meeting on November 27 at McCathran Hall beginning at 7:00 p.m. with a Closed Meeting as allowed by law. The meeting will open to the public at 8:00 p.m.
Lot and Survey
The parcel on which 409 5th Ave. is located is described by Plat No. 20 based on a survey prepared for the Washington Grove Camp Meeting Association by C. J. Maddox, Jr., County Surveyor. The plat was filed with Montgomery County in 1898. The deed to each property in the Town is described based on the lot and block shown in Plat 20.
A block survey done for the Town in 2007 was based on the same 1898 plat. It simply showed what that plat describes by measuring it out on the ground. It changed nothing about the plat itself.
Background for Easement offered by the Town to homeowner
From the 2007 block survey, the Town realized that approximately 8 historic homes had a portion located within a public Town walkway, which is known as an encroachment. On January 20, 2014, a fire that destroyed one of the eight residences highlighted the issue of whether the encroaching portion of the structure could be rebuilt on Town land. Normally, an owner can only build on their own land. The Town engaged in a process to determine how to handle that situation, so those homeowners would be able to insure and sell their properties and give legal use of the encroaching part of the home to future owners, even though the encroachment is on land dedicated to public use and owned by the Town. The only reason to pursue this was so that Town government could accommodate owners of historic properties.
There were three types of actions the Town could take to accommodate the encroachment. The Town could grant a license, an easement, or transfer the encroaching portion of the property to the adjacent owner. A review process was undertaken as to what measures to take. That process included input from the Planning Commission (PC), Historic Preservation Commission (HPC), Town Council (TC), and the Town’s attorney, all with discussions at open public meetings. An easement was seen as the best choice, as it was more permanent than a license, thereby reassuring owners, but retained better control of the requirement that the encroachment be maintained in a way that was respectful of the historic integrity of the Town.
An ordinance was drafted by the Town attorney and introduced. The Town followed all procedures, including introduction, public hearing and meeting requirements, to adopt Ordinance No. 2014-03, which enacted the current law allowing for a permanent easement. An extensive public discussion of the pros and cons of the ordinance took place before its adoption.
The intent of the ordinance was to allow reasonable certainty for owners of the eight properties that they could retain the easement improvements and transfer this right to future owners. For example: If the homeowner of 203 2nd Avenue desired to reconstruct a cottage based on the historic one that was destroyed in a fire, the Town could offer an easement allowing reconstruction of the porch, including the same size encroachment on the public walkway, as existed before the fire. If the homeowner had not desired to reconstruct in the historic style, then the new building would simply not have been permitted to encroach on the public walkway, no easement would have been offered and the house could have just met Town setbacks, etc., which apply to any building in Town. The easement is permanent, so any future homeowner also has private use of the porch as long as it is maintained in the current condition.
In June of 2015, the homeowners at 409 5th Avenue applied for a permanent easement for their porch encroachment, which they later withdrew.
In August of 2016, a lawyer from Fidelity National Law Group (the law division of a title insurance company) submitted an application for a permanent easement on behalf of the homeowners at 409 5th Avenue, pursuant to the Ordinance, in order to remedy the issue of the porch encroachment onto 5th Avenue.
The Town offered the permanent easement to the homeowner. This easement was drafted in the same form that had been approved by the Town Council for other easements.
Summary of the Easement offered by the Town for 409 5th Avenue:
— describes the “easement improvements,” which are the portion of the front porch, and its roof and overhang, located within an area with a total of 69.1 square feet, that is constructed on Town property.
–explains that the encroaching improvements within that 69.1 square feet, are part of a residence that is a contributing historic resource of the Town
— after describing the historic aspects of the easement improvements and their relationship to the main structure in Exhibit C prepared by the HPC, the HPC and PC recommended issuing a permanent easement for the easement improvements, as long as the encroachment remains respectful of the historic integrity of the Town and compatible with the neighborhood, as required by the Town Code.
–the homeowners would agree to maintain the encroaching improvements — in the 69.1 square feet area of the porch –in good repair consistent with the existing historic features of the encroaching porch described in Exhibit C.*
–if the homeowners fail to maintain the encroaching part of the porch in that condition, or if that part is no longer needed to accommodate the main building, then the Town has the option to terminate the easement and in that case the homeowners must remove the encroachment and restore the walkway area (grass, shrubbery or paving).
*Exhibit C includes: List of historic integrity features of the porch (where the encroaching part of the porch is located); photos of the front of the home showing the historic features of the porch and how it relates to the front of the home, from the front and sides of the porch, and showing details of the porch construction (note, there are no photos of the back of the home or sides of the home beyond where the porch is located); photos of the neighborhood showing compatibility of the historic features of the porch in the easement area with the neighborhood; written description of the location and historic gable structure of the house, historic photos of the home and written description of those– evidencing the existence of the porch over time; detailed written description of the porch features and the importance of porches to the Town’s heritage; all archival materials found relating to the home.
—– In summary, there is nothing in this easement which requires any owner of 409 5th Avenue to maintain any other part of the property in any specific way. It adds nothing to obligations of the homeowners about how they maintain the rest of their property. Should the homeowners desire to modify other parts of the home, they would have to go through the same procedures required of any other homeowner in Town, not because of the easement, but because of building permit requirements that apply to all properties. The only catch would be that they could not continue to encroach on the public walkway unless they maintain the porch in the easement area as described.
If you would like to read the minutes of the meetings held in Town during which the concept of providing an easement to assist the approximately eight homes with an encroaching portion on Town land, and other materials related to the Town’s adoption of the easement solution, contact Town Clerk Kathy Lehman. The materials can be e-mailed to you for review or given via hard copy. The Town can also e-mail to you a full copy of the petition submitted to the Town submitted by the homeowners of 409 5th Avenue upon request.