Welcome to the Cottage Line Civic League Newsletter that is published to keep you updated on Cottage Line and City of Norfolk issues and events. We invite our local businesses to advertise with us so that we can continue to represent the interests of Cottage Line Residents and Businesses. Advertising sizes and rates are found on the last page.
Happy New Year everyone…our next meeting is Thursday night, February 1st starting at 7pm.
In This Issue:
- In This Issue:
- From John Stevenson, Director of Transportation to Councilwoman Andria McClellan:
- NRHA Developed Properties – Potential Use Deed Restrictions From Cottage Line Civic League to Councilwoman Andria McClellan:
- From Margaret Kelly, City Attorney’s office to Councilwoman Andria McClellan:
- Flood wall update – especially the planning and logistics for Pretty Lake From Kyle Spencer, CRO to Councilwoman Andria McClellan
- New Year’s Eve – Vandalism and Tire Slashing:
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From John Stevenson, Director of Transportation to Councilwoman Andria McClellan:
Regarding the Ocean View bike lane extension, we had previously set aside some CIP funding to extend the bike lanes west of Capeview Ave prior to our thought of going after the Smart Scale grant funds. We intend to use these set aside funds to extend the bike lanes hopefully to at least Chesapeake Blvd. We plan to begin the in-house design work by the end of the year with the goal of contracting the installation work late spring of 2024. We are also finalizing the design work for the pedestrian crossing improvements on Ocean View that were not included in the Smart Scale Pedestrian Improvement Grant. Please let me know if you have any other questions.
NRHA Developed Properties – Potential Use Deed Restrictions From Cottage Line Civic League to Councilwoman Andria McClellan:
NRHA has 40 year deed restrictions on many, if not all, NRHA developed properties that affect the ability of the property owner to use the property as an STR. While these restrictions were on the original Deed Transfer from NRHA to the Developer, somehow the deed restrictions stopped being shown on the Deed Transfers from the developer to the Home Owner and subsequent buyers. We are hoping that the NRHA is seriously looking into reducing the 40 year restriction window to say 20 years or taking other measures to address this issue. This impacts not only OV, Willoughby but potentially all of Norfolk where ever NRHA developed properties exist.
From Margaret Kelly, City Attorney’s office to Councilwoman Andria McClellan:
This is a similar situation to Pinewell-by-the-Bay’s restrictive covenants questions. Unless a restrictive covenant specifically states that the City may enforce it, any questions about restrictive covenants are a private legal matter among the original Grantor, the current property owner, and any beneficiaries of the covenants. Therefore modification of NRHA’s restrictive covenant on the property use related to short-term rentals or the term of the restrictions are private questions between NRHA and the property owner(s).
In Virginia, the explicit language of the restrictive is very important. I have not seen every restrictive covenant that NRHA has placed on its subdivisions, but the ones I have seen (and I would assume NRHA crafted to be similar across the board, given the similarities between NRHA’s 2016 restrictive covenants for Cottage Line and its 1994 restrictive covenants for its West Ocean View Neighborhood Conservation Project) give every appearance that they do run with the land, whether or not subsequent deeds record the restrictions. A Grantee cannot dispose of such run-with-the-land covenants by choosing not to record them on subsequent purchases of the property. (And whether subsequent purchasers are aware of those restrictions is a separate, private, non-City question for purchasers to take up with their title examiners).
The May 13, 2016 restrictive covenants that NRHA placed on its Cottage Line Conservation Project for the subdivision of Captains Landing and Ocean View Cottage Company do give NRHA the ability to “waive compliance by the Grantee with any of [the] covenants” when NRHA “deems, in its sole discretion, that such non-compliance or default does not materially interfere with the objectives of the [Cottage Line Conservation Project].” (emphasis added). NRHA can waive this compliance “without the necessity of obtaining the consent of the owners of the other property in the [Cottage Line Conservation Project].” But even then it is NRHA’s sole discretion whether or not allowing short-term rentals at a specific property materially interferes with the Conservation Project/Plan, and is not a question for the City or the City’s governing body.
From a historical standpoint, City Council did adopt the Conservation Plan for the Cottage Line Neighborhood Conservation Project in 1988. But under current Virginia law, NRHA is now the entity that is “specifically empowered to carry out any work or undertaking in the conservation area.” Va. Code Ann. § 36-49.1. The 1988 version of Virginia Code § 36-49.1 “Adoption of Conservation Plans” required the governing body of a locality to approve the local housing authority’s conservation plan. (“Upon approval of such plan by the governing body of the city, county or town, the authority is specifically empowered to do the following in order to carry out the work or undertaking as called for in such plan (hereinafter called a ‘conservation project’)….The governing body shall conduct a public hearing prior to approval of a conservation plan.”). After the 2006 amendment to Virginia Code § 36-49.1, however, the General Assembly removed the requirement that Council approve the conservation project and gave the housing authority the power to adopt a conservation plan. Given the 2006 changes to Virginia Code § 36-49.1 and the specific language of the restrictive covenant that NRHA placed on the properties giving NRHA “sole discretion” over waiving compliance, any question about short-term rentals and their potential inference with the conservation plan should be left to NRHA’s discretion. If current property owners under NRHA’s restrictive covenants are seeking for NRHA to waive compliance and allow them to operate lawful short-term rentals, then the only role the City or its Council should play in that process is enforcing the City’s Zoning Ordinance requirements for short-term rentals at a specific property. Property owners with questions about NRHA’s decision whether to waive or enforce compliance can find contact information for their private, non-City matter at https://nrha.us/about/contact/.
Interestingly, it appears NRHA may not have retained the ability to modify the restrictive covenants in its sole discretion. “Waive compliance” and “modify” have different meanings and a court could likely find that NRHA cannot on its own modify its restrictive covenants for a property—it can merely choose not to enforce a covenant in its sole discretion. In that case, NRHA could also conceivably be allowed to start re-enforcing a covenant in its sole discretion. In contrast, modification of the covenant changes the property owner’s actual property rights.
If either NRHA or property owners are seeking to modify the 40 year deed restrictions to become 20 year restrictions, they will need to consult their own legal counsels. Under Virginia law, the default rule is that restrictive covenants cannot be modified “except by agreement of all the parties entitled or terminated except by agreement of all the parties entitled to enforce the covenant.” Harris v. Keswick Homes, L.L.C., 268 Va. 67, 71 (2004). The question NRHA and/or each property owner will need to take up with their own legal counsel is who are “all the parties entitled to enforce the covenant.” Restrictive covenants are not as simple as ordinary contracts with each party clearly identified. Virginia courts have allowed suits to enforce restrictive covenants to be brought against a property owner by other property owners in the subdivision. And the restrictions NRHA placed on its Cottage Line Conservation Project properties state that “[t]he foregoing covenants are intended for the benefit of the subject property, and property within the said Project upon which similar or corresponding covenants are imposed by the Grantor….” To modify the restrictive covenants instead of simply waiving them, therefore, will require thorough analysis of who “all” the parties are. Again, this is not something the City can do or should influence as it is a private matter among the parties.
The City’s Zoning Ordinance does control over any restrictive covenants. Even if NRHA were to decide not to enforce the restrictions against commercial uses such as short-term rentals, each individual property that is sought to be a short-term rental must comply with Norfolk’s Zoning Ordinances. As the requirements for becoming a lawful short-term rental vary based on each property’s specific characteristics, any property owner interested in using their property as a short-term rental should contact the City’s Department of Planning directly to find out what rules apply to that property. While unfortunately I cannot provide a one-size-fits-all answer for Cottage Line, the City’s website for short-term rentals is a great starting resource https://www.norfolk.gov/4295/Short-Term-Rentals.
I’m sorry the City is unable to provide explicit advice for the Civic League, other than confirming for them that this is a private matter between the property owners and NRHA and that they should be contacting NRHA themselves to speak to their Civic League about the matter. The City is unable to speak on NRHA’s behalf for NRHA’s restrictive covenants.
Flood wall update – especially the planning and logistics for Pretty Lake
From Kyle Spencer, CRO to Councilwoman Andria McClellan
We plan to begin some preliminary engineering work in the coming months for all future phases of the project, including the Pretty Lake Surge Barrier. Our goal is to be conducting topographic, underground utility, and geotechnical surveys by January (if not sooner) in the area where the surge barrier is planned around Shore Drive. This data will help us take the design to a 20-30 percent level for us to better develop the alignment, and things like renderings we can begin sharing publicly instead of just a big line on the map. The full design will be completed in mid-2026, with construction beginning later that year or as soon as the real estate needs for the project have been met.
New Year’s Eve – Vandalism and Tire Slashing:
Unfortunately the New Year did not start out on a good note. A punk or punks (I am holding back on using less appropriate words to describe the perps) slashed tires on over a half dozen vehicles in the vicinity across from the Bold Mariner. Amy Chudzinski sent me some pictures of the damaged tires. Please, everyone in the area of the Bold Mariner, check your doorbell and security cameras to see if you picked up any suspicious activity. Police reports have been filed and our CRO Officer Sarmiento notified. I do hope they catch the “perp(s)”.
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