Curb & Gutter Waiver Request For 419 and 423 Luray Avenue, again

At the regular Town Council meeting on October 9th (at 7pm, at the Government Center) Town Council is requested to reconsider their decision pertaining to the waiver of Curb and Gutter at 419/423 Luray Avenue from owner of the two properties, Susan Wines.

The two Wines’ lots in question. Photo by Roger Bianchini.

On August 27, 2018, Council approved the waiver of curb and gutter at 419 & 423 Luray Avenue as requested for a period of five (5) years following the completion of construction with respect to each one of the homes on each lot, or upon the offer of sale of each home to another party, other than the current owners; and, that the current owners execute a written contract and recordable form suitable to the Town Attorney suitable to the terms hereof to the Town with respect to each lot and home as a condition of this waiver, otherwise this waiver could be null and void.

Council amended the motion to include the filing of a lien at the courthouse (rather than a “recordable contract”) on both lots for the installation of the curb & gutter. Mrs. Wines is currently requesting that the recorded contract/lien be placed on her current resident at 16 E. 17th Street so she can sell 419/423 Luray Avenue. The Town Attorney has concurred that by mutual agreement of all the owners of 16 E. 17th Street, Council can substitute 16 E 17th Street as security for the cost of the curb and gutter work at 419/423 Luray Avenue and not use the Luray Avenue as the security for the work.

The Town Attorney has opined on how this could be accomplished in this email:

Long story short—my opinion is that by mutual agreement of all of the owners of the property on 17th Street (if that includes more than just Mrs. Wines) and Town Council, we can substitute the 17th Street Property as security for the cost of the curb and gutter work at 419/423 Luray Avenue, and not use the Luray Avenue property as the security for the work.

Just so you know the legal back ground of the enabling state legislation, it states “[s]uch improvements may be ordered by the governing body and the cost thereof apportioned in pursuance of an agreement between the governing body and the abutting landowners, and, in the absence of such an agreement, the cost of improvements which is to be defrayed in whole or in part by such local tax or assessment”, which I read to mean (1) the local government and the landowner agree how to pay for and secure payment of the curb and gutter work, or (2) in the absence of an agreement, the work should be paid for and payment secured by a tax lien. This indicates that the General Assembly contemplated with approval situations where there should be flexibility in arrangements between the local government and property owners to get these improvements done. I see nothing in the enabling statutes, and can think of no policy reason, that would not allow the parties to substitute security of equal value and soundness where it would benefit the landowner, and still protect the local government’s investment just as equally.

Mechanically, the way I would accomplish this would be to have the owners of the 17th Street property enter into a promissory note to pay a sum certain for the cost of the curb and gutter work, secured by a deed of trust (mortgage) lien on the 17th Street property, all of which is due
and payable in five years (it could be paid in monthly or annual installments if the Wines and the Town preferred). There could also be another written agreement to spell out the terms, if there is anything additional that needs to be spelled out, although most, if not all, the terms can be set out in the promissory note and deed of trust. If there is already a bank loan on the 17th Street property, the Wines might want to check with the bank to make sure the bank has no problem with a second deed of trust to the Town, as sometimes a bank will have problems with that.

Let me know if you have questions with this, and I will be happy to try to answer or get you
additional information.

Douglas W. Napier
Town Attorney
Town of Front Royal, VA

Note: The Town Staff has given an estimate of approximately $8,600 to complete the curb/gutter work in-house at 419/423 Luray Avenue. Mrs. Wines has been notified of this information.

This video is from the previous Town Council work session where they discussed the above curb and gutter waivers.

Video by Mike McCool, Royal Examiner. Content of story from Town Council agenda for October 9, 2018.