- Lawn / yard furniture (tables, chairs, umbrellas, etc.)
- Grills
- Decorative items
- Boat and utility trailers in the yard or the street
- Trash Receptacles
- Anything else that can be blown around in the high winds potentially causing damage to personal property
CLOSURE NOTICES for Cape Charles
CLOSURE NOTICE
The Cape Charles Town Hall will be closed Friday September 14, 2018. Town Hall will reopen on Monday September 17, 2018 at 8:00 am.
The Cape Charles Memorial Library will be closed Friday and Saturday, September 14 and 15. The Library will close today, Thursday, at 4:00 pm. All scheduled events are cancelled. The Library will reopen Monday September 17, 2018 at 10:00 am.
The Town Council and Planning Commission Public Hearing scheduled for Monday September 17, 2018 at 6:00 pm in the Civic Center is on schedule.
Latest Advisory from Town of Cape Charles – Hurricane Florence
The updated forecast for Hurricane Florence predicts landfall further south in the Carolinas and the area south of Cape Hatteras will bear the brunt of the storm. Although this shift puts Cape Charles in a more favorable position, we are still likely to experience periods of strong winds, street flooding from storm surge, and power outages.
The Public Works crew has moved the LOVE sign as a precaution.
Please stay off the beach and fishing pier during the storm. Avoid unnecessary risks and stay safe!
If residents would like to move their vehicles to higher ground, the Bay Creek Golf Course Parking lot is available for use. Residents should stop at the Bay Creek Gatehouse and obtain a Guest Pass to be placed on the rearview mirror.
Code Official Jeb Brady will be attending another meeting with the Northampton County EMS team this afternoon, followed by a town department head meeting. Another notification will be provided to all residents around 5PM via Nixle and the town’s website.
We want to remind everyone, including boaters, to secure your property.
Boat owners: If you must leave your boat in the water, please make sure that it is secure. For boats parked on the streets, please make sure to secure your boat to the trailer to ensure that it does not float off the trailer during high water.
If you are a neighbor of a part-time resident, please pay attention to your neighbors’ homes as well as your own. Below is a list of items for consideration to avoid damages from the winds that may come with the storm:
Secure all Outdoor Items in case of strong winds:
- Lawn / yard furniture (tables, chairs, umbrellas, etc.)
- Grills
- Decorative items
- Boat and utility trailers in the yard or the street
- Trash Receptacles
- Anything else that can be blown around in the high winds potentially causing damage to personal property
Please DO NOT put any yard debris, brush or other trash on the street curb. Any debris can pose a safety hazard in strong winds and will clog storm drains if any flooding occurs.
If there is any street flooding, DO NOT drive your vehicle through high water. If you cannot see the pavement, DO NOT go through it as this could cause irreparable damage to your vehicle.
Mayor Dize and the Town staff appreciate everyone’s assistance during this period. For emergencies, please call 911 or 678-0458.
The Northampton County Department of Emergency Management will continue to monitor the situation with the National Weather Service. Updates will be issued as necessary depending on the updated information. Updates are typically issued via the Northampton County Emergency Alert System. The Town will also be utilizing its Nixle Alert System.
If you haven’t already signed up for the Town’s Nixle Alert System, we urge you to do so. There are several ways for you to register:
- Text “23310” or “CAPECHARLES” to 888777 from your mobile phone. Once registered, you will receive a confirmation text to your mobile device.
- Go to www.capecharles.org and sign up via the Nixle Widget which is located on our home page.
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Shelter for Northampton County Residents:
Northampton County will be offering transportation via bus, to the Accomack Hurricane Shelter for our citizens. The Hurricane Shelter for Northampton County residents is located at Nandua Middle School in Onley, VA. Residents wishing to check in to the shelter have the option to drive there as ample parking is available. However, residents that need assistance with transportation or do not wish to drive there may utilize the bus service.
Bus service will be offered from 3 locations in the county:
- Kiptopeke Elementary School – 24023 Fairview Road, Cape Charles, VA
- Northampton High School – 16041 Courthouse Road, Eastville, VA
- Occohannock Elementary School – 4208 Seaside Road, Exmore, VA
Pick up time will be at 4:00 p.m. on Wednesday, September 12, 2018.
- Citizens must arrive at the pick up locations on time.
- Minors will not be permitted to ride the bus without an adult parent or guardian.
- Supplies at the shelter are not guaranteed so please pack to ensure your essentials are met.
- Please pack essentials to cover you and your family for several days, these should include items such as:
- Means of identification
- Clothing
- Hygiene items (including a towel)
- Medications – Prescription and Over the Counter
- Water and Non-Perishable Food Items
- Bedding such as Sleeping Bags, Blankets, and Pillows
- Electronic Chargers
- Entertainment Items – books and the like are recommended in case of power issues.
- Please pack in a tote or suitcase, while keeping in mind to minimize as much bulk as possible to minimize space.
- Vehicles may be left at the schools.You as the owner retain liability for them.
- Personal items will be the responsibility of the individual and we encourage that you label each item.
- Pets will not be allowed on the bus or in the shelter.Please make arrangements for your pets prior to boarding the bus.
Return service will be offered to return bus riders to the schools. It is important to remember that this storm is unpredictable and strong. There is not guarantee of the length of time. Buses will be available for return at a date/time to be announced, after it is deemed safe.
It you have any questions, please refer to the Northampton County EMS website www.northampton-ems.org or call 757-678-0442.
SPECIAL: 9/11 and never forgetting Falling Man
Taken by Richard Drew in the moments after the September 11, 2001, attacks, it documents one person’s individual escape from the collapsing towers. The image was published in the New York Times, and other newspapers around the U.S., but backlash from readers forced it into obscurity. I had almost forgotten about it until the Don DeLillo Novel, Falling Man was published in 2007.
They began jumping not long after the first plane hit the North Tower, and kept jumping until the tower fell. They jumped through windows already broken and then, later, through windows they broke themselves. They jumped from the offices of Marsh & McLennan, the insurance company; from the offices of Cantor Fitzgerald, the bond-trading company; from Windows on the World, the restaurant on the 106th and 107th floors—the top. For more than an hour and a half, they jumped.
At fifteen seconds after 9:41 a.m., on September 11, 2001, the Falling Man jumped too.
Falling Man’s identity is still unknown, but he is believed to have been an employee at the Windows on the World restaurant, which sat atop the north tower. Who was Falling Man? The only certainty we have is that at fifteen seconds after 9:41 a.m., on September 11, 2001, a photographer named Richard Drew took a picture of a man falling through the sky—falling through time as well as through space. The picture went all around the world, and then disappeared. Drew’s photograph, our photograph, became an unmarked grave, and the Falling Man became our generation’s Unknown Soldier. Richard Drew’s photograph is all we know of him, and yet his innocence reminds us of who we were then, and makes us reflect on who we are now. The picture is like the monuments dedicated to the memory of unknown soldiers everywhere, it asks that we look at it, and that we remember.
MAYOR DIZE: Town of Cape Charles Hurricane Florence Notification
Town of Cape Charles Hurricane Florence Notification
September 11, 2018
Hurricane Florence presents a major threat to public safety. While the storm’s exact course and landfall is uncertain at this time, the storm will likely bring a long period of sustained winds and heavy rain to the Cape Charles area. As you may know, there is a mandatory evacuation of Zone A. Zone A comprises much of the old town area. Residents are encouraged to seek shelter outside of the Zone A area. The evacuation center for Cape Charles residents is the Nandua school in Accomack County. There is no evacuation center in the town limits, or in Northampton County. Please see the links below for reliable, current news and information.
Town staff is working to prepare public streets and facilities for the impending storm. Residents can help be removing objects from porches, decks, and yards that can be moved and blown around by strong storm winds. These blowing objects pose a danger to people and property. Please take care to remove trash cans from the street and curb after today’s trash collection. Secure the can behind a fence or gate if you are able.
The Town staff will be posting updates on www.capecharles.org as well as by Nixel and e-Notification alerts. The Town is partnering with the Cape Charles Mirror and Cape Charles Happenings to reach as wide a readership as possible. We will know more about the storm in the next few hours and days. As events require the Town will be posting additional information. Please do not hesitate to contact the Town offices at 757-331-3259 if you have questions or concerns.
Thank you,
Mayor William “Smitty” Dize
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In 2017, Virginia launched new tiered evacuation zones based on engineering data for the region. The zones are designated A through D. Properties within the town of Cape Charles are included in zones A, B and C. When a serious storm is expected to impact Virginia, state and local emergency managers will work with local news media outlets to broadcast evacuation directives to the public based on the appropriate zone. The Virginia Department of Emergency Management is urging everyone to “ Know Your Zone.” Just input your street address in the search bar to find out which zone you are in.
There are a number of great resources regarding hurricane preparedness available online. Here are a few links:
Virginia Department of Emergency Management Hurricanes Page: http://www.vaemergency.gov/hurricanes/
Virginia Hurricane Preparedness Guide: http://www.vaemergency.gov/wp-content/uploads/2018/06/Hurricane-Preparedness-Evacuation-Guide-Electronic-Use-OnlyWebsite-Embed-2.pdf
Get Ready America! Hurricane Safety Page: http://hurricanesafety.org/prepare/hurricane-safety-checklists/
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There are many homes in Cape Charles that have part time residents. With the impending storm and the possibility of strong winds and heavy rains, it would be prudent for each of us to pay attention to your neighbors’ homes as well as your own. Below is a list of items for consideration to avoid damages from the winds that may come with the storm:
Secure all Outdoor Items in case of strong winds:
- Lawn / yard furniture (tables, chairs, umbrellas, etc.)
- Grills
- Decorative items
- Boat and utility trailers in the yard or the street
- Trash Receptacles
- Anything else that can be blown around in the high winds potentially causing damage to personal property
Please DO NOT put any yard debris, brush or other trash on the street curb. Any debris can pose a safety hazard in strong winds and will clog storm drains if any flooding occurs.
If there is any street flooding, DO NOT drive your vehicle through high water. If you cannot see the pavement, DO NOT go through it as this could cause irreparable damage to your vehicle.
Mayor Dize and the Town staff appreciate everyone’s assistance during this period. For emergencies, please call 911 or 678-0458.
The Northampton County Department of Emergency Management will continue to monitor the situation with the National Weather Service. Updates will be issued as necessary depending on the updated information. Updates are typically issued via the Northampton County Emergency Alert System. The Town will also be utilizing its Nixle Alert System.
If you haven’t already signed up for the Town’s Nixle Alert System, we urge you to do so. There are several ways for you to register:
- Text “23310” or “CAPECHARLES” to 888777 from your mobile phone. Once registered, you will receive a confirmation text to your mobile device.
- Go to www.capecharles.org and sign up via the Nixle Widget which is located on our home page.
Message From Cape Charles Police
We are facing down hurricane Florence. The top priority for this police department is to keep all our citizens safe. I am asking for your help and cooperation during this event. If you want to leave and do not have the capability please call 678-0458 and ask for one of us to come help you. Once the storm hits it will be to late to leave. To the business owners it would be extremely helpful if you would close Thursday until the storm passes. We will be extremely busy due to flooding and possible down trees and loss of power. My officers safety is paramount and coming to aid people at a business or coming to work is avoidable. Please do not drive out and into any flooded streets again this is avoidable so don’t put yourself in that situation because I can not guarantee a fast response time.
Florence may track near Bermuda, US East Coast
Florence is forecast to restrengthen into a hurricane and push close to Bermuda and the United States East Coast next week. Florence is expected to have an indirect impact and may evolve into a serious direct threat.
Florence is a relatively small tropical system, and small tropical systems are very vulnerable to both ideal and poor environmental conditions.
After forming near the Cabo Verde Islands last weekend, Florence became the first Category 4 hurricane of the 2018 Atlantic season as it entered a zone of low wind shear and sufficiently warm waters earlier this week.
Wind shear is the increase in wind speed and change in wind direction with either increasing altitude or over a horizontal distance. High wind shear can prevent a tropical storm from forming and cause a well-developed hurricane to weaken.
A zone of strong wind shear has caused Florence to weaken to a tropical storm. Additional fluctuations in strength are anticipated.
This weekend, wind shear is forecast to diminish, while at the same time Florence moves over much warmer water. As a result, AccuWeather meteorologists expect Florence to gain strength.
The movement of Florence is likely to remain steady in the short term, but a deviation in the path may develop next week.
“An area of high pressure over the central Atlantic will bridge westward and join with an existing high pressure near the U.S. East coast over the next several days,” according to AccuWeather Hurricane Expert Dan Kottlowski.
“This setup will guide Florence on a west to northwesterly course into next week,” Kottlowski said.
If the high pressure area weakens next week, then Florence may be able to curve northward then northeastward out to sea with impacts in the U.S. limited to an indirect nature with rough surf and heavy seas.
However, if the high pressure area remains strong, then Florence may complete a 3,500-mile-long journey over the Atlantic and be guided right into the U.S. East Coast somewhere from the Carolinas to southern New England sometime during Wednesday or Thursday of next week.
Northampton Football: Northampton Dismantles Surrey 31-13
The relentless ground and pound running attack of the Northampton Yellow Jackets proved to be too much for an overmatched Surrey squad. Cory Smith piled up over 100 yards and a brilliant touchdown to lead the Northampton attack.
From the outset, Surrey had trouble sealing the edge, as Smith, with solid downfield blocking from his wide receivers chewed up big gains. Big back Carlton Smith kept the Surrey defense on its heels as he pounded the ball inside the tackles. Northampton, despite struggling with extra points, led 18-0 at the half.
An early second-half score gave Surry some hope, but the Jacket defense tightened, holding Surrey to under 70 yards the rest of the game.
Handing the ball to #1 Carlton Smith proved to be a steady diet the rest of the game. Sometimes carrying three of four defenders, Smith eventually balled his way into the end zone, sealing the win. Trip Wescoat added a 36-yard field goal to complete the victory.
The win leaves the Jackets with a record of 2-0. They are scheduled to finish the game against Northumberland at home on September 15th at 5:00. Those times will finish the second half of that game, which was postponed due to lightning. Northumberland leads 14-0 in that contest.
Depending on the outcome of Hurricane Florence, Northampton will take on Windsor at Windsor next Friday night at 7:00.
The Long and Sordid History of Accawmacke Plantation – Bay Creek at Cape Charles
In 1974, Thora Scott Ronalds McElroy and Donald A. McElroy, her husband (‘the McElroy’s”) conveyed by deed over 2,000+ acres to Brown & Root, Inc. The McElroy Deed contained 195± acres in the Town of Cape Charles – the North Tract which included Kings Creek Farm; Kings Creek Marina; Northampton County Club – a leased 9-hole par 3 golf course; undeveloped acreage designated as available for agriculture; numerous vacant lots in and or adjoining the Town of Cape Charles, significant Chesapeake Bay frontage and mud flats of the Bay. “The golf course is a private nine-hole course on the northeastern corner of the town. The Northampton Country Club was organized in 1928 and has been in continuous existence since then. The property is now owned by Brown and Root and is in the process of being replanned.)[1] “ONE OWNER OWNS ABOUT HALF OF THE VACANT LOTS THAT ARE AT LEAST STANDARD LOT SIZE (40′ BY 140′), IN ADDITION TO A MAJORITY OF THE OTHER VACANT ACREAGE, AND, THEREFORE, CONTROLS A LOT OF THE FUTURE DEVELOPMENT OF THE TOWN. (MAP 8).” [2]
A portion of the North Tract west of the dilapidated Kings Creek marina and silted-in harbor was used years ago as a town dump. A majority of this North Tract area along with the majority of the Town was within the floodplain and portions remain in designated wetlands.
“The town has approximately two and a half miles of low shoreline, which includes the Cape Charles beach. There are approximately 30 acres of wetland areas in Cape Charles. Most are in the northern part of the town limits around King’s Creek as well as a few places along the Cape Charles beach, the harbor, and along the edge of the golf course, including over three acres of Type I marshes which are the highest level of wetlands as determined by the Northampton County Tidal Marsh Inventory, 1977.” [3]
The McElroy Deed contained 1,762± acres in the County, the South Tract, known as the Hollywood Farms. The McElroy Deed contained specific language: “to Brown & Root, Inc., its successors and assigns forever”.
Brown & Root, Inc. purchased these combined significant properties in both the Municipality of Cape Charles and within Northampton County. Local news publications reported, and other sources stated that Brown & Root’s intent was to use the majority of the undeveloped property in the South Tract, within the County, for commercial and industrial use following an OPEC imposed oil and petrochemical embargo against the U.S. in October 1973. The Nixon administration commenced Project Independence in November 1973 to boost U.S. energy production and independence from foreign oil and energy interests.
Brown & Root’s planning attempts in later years, when the ‘oil crisis’ turned into an ‘oil glut’ beginning in March 1974, led Brown & Root to change this 1974 land acquisition into a proposed and significant residential, commercial and recreational development – a Planned Unit Development (PUD), named ACCAWMACKE PLANTATION sometime around the end of the 1980’s but before 1989, as Brown & Root had at first changed the land designation from undeveloped acreage to an industrial classification and then proceed to modify its intended use. “If the proposed resort/retirement development takes place as envisioned, approximately 2000 additional dwelling units may be built in and around the town with an undetermined number of other dwelling units required outside of the property to accommodate any public needs caused by development.” [4]
An Annexation Petition was filed by the Town on March 26, 1990, together with the appropriate notice to adjoining counties and political entities. In order for municipal services to be extended to the proposed development of houses, new professionally designed golf courses, commercial activities and other designated land uses, the property purchased by Brown & Root from the McElroy’s that was located in the County comprising a significant portion of the proposed PUD development
The Town approved the use of Brown & Root’s counsel to be counsel to the Town for the legal proceedings regarding the annexation petition, subsequent defense of an agreement negotiated between the Town and Brown & Root prior to the Petition submission as well as subsequent negotiations and proceedings. This combined effort resulted in a successful annexation of the Brown & Root properties identified as South Tract parcels in the County into the Town’s jurisdiction effective January 1, 1992.
On March 13, 1990, Brown & Root and the Town of Cape Charles entered into an AGREEMENT.[5] This initial agreement has been described as the “Prior (Town) Agreement” as it was amended in 1991 at the request of the Special Annexation Court empaneled by the Virginia Supreme Court, as part of the Annexation proceedings negotiations between the Town and the County with the expressed recommendations found in the Report of the Commission on Local Government Report on the Town of Cape Charles – County of Northampton Annexation Action February 1991.
The original March 13, 1990 AGREEMENT specified certain future criteria, prior to the planned expansion of the Town’s jurisdiction.
The Town agreed:
- To petition to have the property shown in an exhibit to the AGREEMENT, annexed as a part of the Town of Cape Charles pursuant to the applicable provisions of the Code of Virginia.[6] The “Property” as shown on the exhibit included both the then current Town corporate limits and the Proposed Annexation Area. The proposed annexation area was identified as the South Tract, known as Hollywood Farms, the current location of Bay Creek at Cape Charles’ private amenities, open to the general public such as the Palmer and Nicklas Signature golf courses, its Pro Shop, the Coach House Tavern, Bay Creek Beach Club, Bay Creek Community Pool, Bay Creek Community Beach, and only several of the planned scores of neighborhoods – villages or subdivisions located south of the historic Town.
- that the Town would not discriminate against any portion of the Property in the application and enforcement of any law, ordinance or regulations following annexation.
- the Town agreed that it would tax the Property according to Va. Code Section 15.1–1047.1, following annexation and it would provide to the Property all Town services furnished to other properties within the Town limits unless such services ‘are reduced or waived in writing by Brown & Root’.
- the Town further agreed that at such time as the Town assumed assessment responsibilities of Brown & Root’s property, it would ‘continue the then existing policy of maintaining (tax) assessed values of the property until the issuance of occupancy permits for the parcel of property for which the permits are sought.’ [7]
- the Town agreed to fully comply with local ordinances and state statutes in the review and approval of Brown & Root’s site plans, subdivision plats, zoning applications, building and other permits associated with the use of Brown & Root’s property.
- the Town agreed, contingent on available natural resources, to extend water and sewer treatment capabilities to Brown & Root’s properties and to reserve for Brown & Root water and sewer treatment capabilities in sufficient capacities to service the completed development on the Brown & Root property as depicted in Exhibit B [8] in accordance with state regulations.
- the Town agreed that the provisions in ¶10 ‘shall run with the land’ and be binding upon the Town or any entity that assumes the responsibility for sewer and/or sewer treatment systems.
- the Town expressly waived any defense available to it by statute such as sovereign immunity with respect to obligations made by the town in the [9]
- the Town represented that it intended to fulfill its obligations in the AGREEMENT and would continue to use its best efforts to comply with all its obligations contained therein.[10]
Brown & Root agreed:
- To pay the costs of physical expansion of water and sewer collection, distribution and treatment to accommodate demands of Brown and Root beyond permitted capabilities. [11]
- To construct the necessary physical improvements within its property to accommodate sewer and water services in a coordinated fashion with the Town’s proposed improvements to its existing sewer and water treatment facilities. [12]
- To dedicate the treatment system improvements i.e. collection, distribution and treatment, and the sewer and water lines within the Brown and Root property to the Town. [13]
- That all vehicular access roads within its development, that are dedicated to the Town and/or State, would be constructed to state standards, except as modified to not require curb, gutter and/or sidewalks. [14]
- That any sewer and water system improvements i.e. collection, distribution, treatment and lines that it is required to construct per this Agreement would-be built-in accordance with state standards.[15]
- That the provisions in all of paragraph 10 ‘shall run with the land’ and be binding upon the Town or any entity that assumes the responsibility for sewer and/or water treatment services for the Brown & Root property.[16]
- That in the AGREEMENT, to an additional paragraph which clearly states: “Brown & Root covenants and agrees that the obligations set forth herein shall run with the land and be binding upon the owners of its property, their successors and assigns.” [17]
Thirteen (13) days after this AGREEMENT was signed, on March 26, 1990, The Town filed its Notice of Annexation Proceedings to the Commission on Local Government. A year later, February 1991 The Commission on Local Government – Commonwealth of Virginia issued its: Report on the Town of Cape Charles County of Northampton Annexation Action. As found throughout this Report there are many references and footnotes as to the interactions, correspondence, testimony and public hearings among the various interested parties.
“Brown & Root has predicated its development plans on the incorporation of all its property into the Town of Cape Charles and on the expansion and utilization of the Town’s utility systems.” [18]
“To this end, Brown & Root has entered into an agreement with the Town by which it has committed itself to supporting the proposed annexation and to investing its resources into an expansion and enhancement of municipal facilities.” [19]
“Representatives of Brown & Root have indicated that the Northern Tract will only be developed in concert with the Southern Tract and that company officials now view the entire Accawmacke Plantation proposal to be contingent upon annexation of the Southern Tract by the Town of Cape Charles.” [20]
On April 30, 1991, The Town filed its Petition for Annexation Ordinance NO. 361 in the Circuit Court of Northampton County.
On May 9, 1991, an Option and Purchase Agreement between Vernon and Betty Jean Martin and Brown & Root was entered for the sole purpose of purchasing land for a proposed ‘connector road’ for the PUD development South Tract as an anticipated and resulting in a provision found in the AGREEMENT that Brown & Root would construct a new access corridor from Route 184 across the Martin property.
On November 1, 1991, the Town filed a Brief in Opposition to the County’s Motion to Dismiss the Annexation Suit. The Town was successful in those proceedings in defense of the March 13, 1990 AGREEMENT as enforceable and valid. Contained in the Town’s Brief in Opposition to the County’s Motion, the Town re-emphasized on page 16, the power and authority to provide a unique tax provision to Brown & Root as to maintaining assessed values of property owned by Brown & Root in the Town. Specifically, the Town stated: “Likewise, nothing precludes the Town from determining when or how often it assesses property, so long as it does so at least every 4 to 6 years.” The Town continued in the same paragraph to include: “Similarly, localities around the state may differ on when they determine property to be “improved” or “unimproved”.
On November 25, 1991, The Town and Brown & Root entered into an AMENDMENT TO AGREEMENT OF MARCH 13, 1990. This Amended Agreement was a condition of the Special Annexation Court for Northampton County. This Amended Agreement was to address specific concerns, recommendations, and TERMS AND CONDITIONS OF ANNEXATION as found in the Commission’s report. [21] Paragraph 10 of the ‘Prior Agreement’, was amended to add details as to the Town and Brown & Root’s obligation and covenant to: ‘abide by the “Proposal for Water and Waste Water Treatment Plant Improvements” submitted to the Commission and referred to by the Commission in its report on the proposed annexation by the Town of Cape Charles, dated February 1990’. The date should have read, February 1991.
Brown & Root and the Town agreed that any reservation of treatment capacity in or from the Town’s water or wastewater systems, as provided in the Prior Agreement, for the use of Accawmacke Plantation “shall be derived from the capacity created by investments in the Town’s water and/or wastewater systems, made by Brown & Root”. [22]
Most important is the addition of ratifying language that was included in this Amended Agreement: “Except as modified herein all of the terms and conditions of the Agreement of March 13, 1990, are ratified and incorporated herein by reference.” [23]
Also, on November 25, 1991, the Town and the County entered into an ANNEXATION AGREEMENT. These government parties acknowledged receipt of the “Report on the Town of Cape Charles-County of Northampton Annexation Action”. These parties agreed to settle the pending Annexation Suit, whereby the County withdrew its objections to the pending Annexation Suit. As a result, ¶ 5 of the AGREEMENT was no longer challenged as to the provision of the unique tax provision provided to Brown & Root, its successors or assigns. The parties urged the Commission to recommend and/or the Special Annexation Court to approve the ANNEXATION AGREEMENT.
Subsequently and also on November 25, 1991, The Town, the County, and Brown & Root entered into an AGREEMENT, known as the Settlement Agreement. This AGREEMENT identified the Brown & Root property in the Town and in the Area Proposed for Annexation as Accawmacke Plantation except for certain subdivided and platted lots existing in the Town at the time of this AGREEMENT. [24] This defined area became the PUD Development as identified in the 1993 Cape Charles Municipal Ordinance. The PUD identified and defined in the PUD Document both the North Tract and South Tracts. This AGREEMENT contains precise language covering the Annexation Petition, the subsequent various agreements, covenants, terms and conditions negotiated among the parties. This AGREEMENT restated clearly that those negotiated agreements, covenants, terms and conditions including the acceptance of the Commission’s Report, were “Subject to the approval of this Settlement Agreement by the Court, the representations and obligations contained herein shall be binding upon the respective parties, their successors and assigns. Brown & Root’s obligations contained herein shall apply only to the property designated as Accawmacke Plantation.” [25] “Furthermore, the subsequent purchasers of individual lots or other incidents of individual ownership shall not incur the obligations of Brown & Root contained herein. It is the intent of the parties not to impose the obligations of Brown & Root contained herein upon the consumers who purchase lots, condominiums, and/or memberships with Accawmacke Plantation.” [26] “The obligations of Brown & Root contained herein, except as provided above, shall run with the land and be binding upon the subsequent owners of Accawmacke Plantation, which owners shall assume all of those obligations and relieve the prior owner thereof.”
As a result of all of the negotiations and annexation proceedings, on November 26, 1991, both the Special Annexation Court for Northampton County and the Circuit Court of the County of Northampton issued The Annexation Order Law No. 27. Therefore, by a provision of the Virginia General Assembly, Public Law No. 27 was enacted as a ‘legislative act’ not subject to judicial proceedings, nor subject to any Statute of Limitations, unless specifically expressed in the Orders or by Agreement, such as the Bayshore Agreement’s ten-year tax relief.
This Law No. 27 was further confirmed at the request of the Town in the General Assembly’s 2002 Session on March 11, 2002. The Motion and Petition of the Town of Cape Charles was granted upon certain terms and conditions. [27] The ANNEXATION AGREEMENT was incorporated by reference. The AGREEMENT of March 13, 1990, was incorporated by reference and that March 13, 1990 AGREEMENT was required to be amended “to accommodate all other recommendations specified in the Utilities portion of the proposed “Terms and Conditions of Annexation” in the Commission on Local Government’s report, which section of the report is specifically incorporated herein by reference.” [28] The Order included an additional condition: “The Town shall extend public services to the annexed area in an orderly fashion, as specified in the Annexation Agreement, the Bayshore Agreement, the Ordinance, the Town’s Notice to the Commission filed March 26, 1990, the provisions of which are incorporated herein by reference, and according to the needs of the property owners within the annexed areas.” [29] The AMENDMENT TO AGREEMENT OF MARCH 13, 1990, dated November 25, 1991, also included: “Brown & Root agrees that if it expands the Town’s Waste Water Treatment Plant as provide[sic] in the Prior Agreement, that such expansion may include having to pay for the cost of its share of capacity for increasing the Town’s treatment standards to tertiary treatment;” [30]
On February 9, 1993, the Town enacted the PUD Development Document as a Municipal Ordinance, known as “ACCAWMACKE PLANTATION A PLANNED UNIT DEVELOPMENT (PUD). The PUD – Municipal Ordinance has been amended from time to time (1997, 2002, 2003, and 2006). Brown & Root, Inc., prepared the original PUD Document in concert with the Town. This municipal ordinance contains the specific reference to the properties purchased by Brown & Root from the McElroy’s in 1974. This municipal ordinance, amended from time to time, contains the details of land use classification, site plan ordinances and subdivision ordinances, all relative to the PUD development which directly impacts both the North Tract and South Tract Town approved platted parcels – Lots/Units and their required development or failures to develop thereof. This municipal ordinance addresses and provides for the Virginia Code statutes regarding planned unit developments (e.g. requirements as to streets, roads, utilities, surety bonds, etc.). The Annexation Agreements requires the Town to enforce all local ordinances and state regulations as they related to the PUD Development – Accawmacke Plantation. The PUD Document provides for the assessment of penalties against developers who do not meet the requirements of the municipal ordinances. The PUD Document sets procedures and deadlines for development activity within the PUD. The PUD Document is a direct extension of the annexation proceedings resulting in the Annexation Order of 1991 and remains as the Town’s compliance methodology and statutory mechanism for enforcement of the issues and concerns raised by the Commission on Local Government, the County, and as also found in the Town of Cape Charles Virginia Comprehensive Plan 1989
On December 15, 1997, Brown and Root, Inc., entered into an installment Sale and Purchase Agreement, a Contract with Baymark Construction Corporation. The Contract, as amended from time to time included the specific reference as to the Assumed Obligations and Rights of Brown & Root to the Town, the County, its successors and assigns. Baymark agreed by Contract to assume the obligations and rights as identified in the Contract’s Exhibit J. Counsel for Baymark and former co-counsel to both Brown & Root and the Town of Cape Charles, R. J. Nutter, confirmed these obligations and rights by letter to the Town’s counsel on October 25, 1999, and cited: “that for the purposes of negotiating with the Town you (James J, Szablewicz, Town Counsel) should assume that Baymark is responsible for the terms of the annexation agreement.”
In 2000 Baymark assigned its obligations and rights under the Contract to its wholly owned corporate entity, Bay Creek, L.L.C. By ASSIGNMENT OF SALE AND PURCHASE AGREEMENT, dated February 23, 2000, recorded by deed. This assignment included reference to the obligations and rights under the Contract as they pertain to the Annexation Agreements. Bay Creek joined therein to evidence its agreement to be bound by the terms and conditions of the Contract.
In 2001, By Assignment of Contract Rights by which Bay Creek executed, the Agreement to Assign and Convey the right to purchase the property described as the “North Tract” (178 acres more or less), the West Parcel, the East Parcel, the Marina Parcel and Parcel KK, delivered to its controlled subsidiary – Bay Creek Marina & Resort, LLC – BCMR, the rights to purchase North Tract parcels directly from Brown & Root. Under the terms of the Brown & Root Contract, and as evidenced by the details contained in the Sale and Purchase Agreement: ¶4. Purchase Price (c) Marina. The consideration for the conveyance of the Marina shall be Purchaser’s performance of the dredging work specified in Permit No. 93-0149 issued by the Virginia Marine Resources Commission -VMRC, at Purchaser’ sole costs and expense. BCMR assumed the rights to the VMRC permit. In 2001, BCMR acquired from Brown & Root parcel A in the North Tract. BCMR is a successor and an assign under the Brown & Root Contract. A DEED OF BARGAIN AND SALE between Kellogg Brown & Root, Inc., formerly Brown and Root I, Inc. and BCMR states: “IT BEING part of the property conveyed to Grantor from Thora Scott Ronalds McElroy and Donald A. McElroy, her husband, by deed dated January 10, 1974, and duly recorded January 16, 1974 in the Clerk’s Office in Deed Book 177, at page 431 Tax Parcel No.: 083A1 – ((OA))-00-00A (portion)”
Baymark Construction commenced site improvement work and North Beach Restoration and Kings Creek Marina restoration projects, prior to the purchase of the parcels from Brown & Root. Baymark, and its controlled real estate company Progressive Realty marketed and advertised the North Tract parcels – The Colony and collected cash deposits for identified lots in this first North Tract subdivision. Baymark, as Developer and Declarant to the Property Owner’s Association’s Declaration, failed to post a surety bond for construction and land improvements in the North Tract.
- Beginning in 2002 “BAYCREEK THE COLONY” entered into Purchase Agreements for Improved Lot(s), in the North Tract. In 2004, BCMR as Baymark and Bay Creek L.L.C.’s subdivider applied for Town of Cape Charles Plat approval of 118 residential lots in the proposed Marina Village East, MVE – subdivision. Baymark and Bay Creek LLC as Developers and Declarants of Bay Creek at Cape Charles both failed to post a surety bond to complete MVE.
- Bay Creek as Successor Declarant and Developer to Baymark, filed and recorded on March 25, 2002 the first set of SUPPLEMENTS TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR BAY CREEK AT CAPE CHARLES (Supplement) declaring that “The Colony Units are deemed to be Units as defined in the Declaration and that the Declaration shall be fully and completely applicable thereto in all respects.”
Beginning in 2005, BCMR, as an assign of Brown & Root, through Baymark and Bay Creek is identified as Seller of lots in Marina Village East, The Colony and Kings Bay.
In November 2006 Baymark, and Bay Creek through its controlled subdivider BCMR, discontinued completion of the MVE subdivision and repurposed its bank line of credit for other BCMR corporate or related corporate entity purposes. Such repurposed funds were reportedly used for other purposes but were not used to complete the Marina Village East subdivision. South Tract developments were consuming projected and Town stated, ‘limited utility capacity’. In 2006 Baymark, Bay Creek and BCMR conveyed by deed, the common areas and unfinished streets and Town approved platted infrastructure obligations to the Property Owner’s Association. Baymark, Bay Creek and BCMR were not assessed property taxes due to the County and to the Town at the time of these conveyances as required under Va. Code § 55-509.1., for planned communities.
In June 2007, Baymark, Bay Creek and BCMR conveyed Parcel T to a third-party developer. Baymark and Bay Creek stated in the documents at closing of this sale, that Parcel T in the North Tract, located on Chesapeake Bay frontage, was not required to abide by the PUD Municipal Ordinance or the restrictions contained in the Property Owner’s Association’s Declaration and Supplements, all in apparent contravention of the Town’s PUD Municipal Ordinances and the Association’s Declaration, as filed in the Clerk’s Office on February 3, 2000 as Instrument #000000213. The Parcel T conveyance established the lowest sale price per acre value in the North Tract.
On February 1, 2008; by published assignment from Bay Creek, the BCMR rights, duties, obligations and benefits are transferred from Bay Creek back to Baymark.
On March 8, 2008, Baymark and Bay Creek sold a controlling interest in Bay Creek South, LLC a controlled entity of Baymark, to Keyser-Sinclair. Keyser-Sinclair is a controlled subsidiary of the public company Sinclair Broadcast Group Inc. No assets formerly owned by or subdivided by BCMR were a party to the sale of assets of Bay Creek South to Keyser-Sinclair. Sinclair announced in March 2008 to its public shareholders that it controls Bay Creek South, and by recorded instrument in the Clerk’s Office of Northampton County, controlled the Property Owners’ Association as Developer and Second Successor Declarant of and for the Association, which includes the PUD development North Tract subdivisions of The Colony, Kings Bay and Marina Village East, the Bay Creek Marina and related businesses located in the northern sector of the North Tract described as Marina Villages.
In 2012, Bay Creek Marina, controlled by Baymark as of February 2008, and its associated businesses located in the commercial district known as Marina Villages – together with significant vacant parcels and lots, failed to repay its 2005 Marina Village East completion loan, the 2005 North Tract Breakwaters loan and defaulted on the 2006 re-purposed BCMR loan from Gateway Bank & Trust Co. The Bank foreclosed on BCMR’s pledged assets at a public auction in December 2012 to a third-party developer.
This former private marina amenity to the Bay Creek development as advertised and promoted by Baymark as the Bay Creek Golf and Marina Resort along with the marina and restaurant business and rental villas are now known as the Kings Creek Marina and Oyster Farm restaurant and its associated businesses, remain part and parcel to the PUD Document restrictions, zoning requirements, land classifications, obligations and covenants established by the Annexation Agreements and therefor the Annexation Order.
But Kings Creek Marina and its associated businesses, parcels. villas and lots were never subject to the Association’s Declarations and Supplements or defined as “Units” within the Declaration. The purchaser at auction however must rely on the obligations of the Town to provide adequate utility connections, zoning and other municipal ordinances, water and wastewater treatment capacity as these properties were subject to the Annexation Agreements and proceedings as part of “ACCAWMACKE PLANTATION, defined as all of Brown and Root’s property within the Town, along with all of Brown and Root’s property in the Area Proposed for Annexation
A direct line can be drawn from the McElroy deed to Brown and Root, Inc., to Baymark Construction, to Bay Creek, L.L.C., to Bay Creek Marina and Resort, LLC, conveyed back to Baymark, and Bay Creek South, LLC and as third-party beneficiaries, directly to and thereby subsequent purchasers of parcels and lots by title and deeds of conveyance of Town approved platted parcels and lots in and throughout the PUD development “Bay Creek at Cape Charles”, formerly known as Accawmacke Plantation.
- Sufficient detail and recorded documents demonstrate the assignment of rights from Brown & Root to Baymark, to Bay Creek, to BCMR, BCMR back to Baymark, and to Bay Creek South, controlled by Keyser-Sinclair, establishing the acceptance of the rights and obligations of the parties and to the Annexation Agreements and Annexation Orders.
- BCMR, subdivider of North Tract subdivisions was never a Declarant or Developer as defined in the Declaration and the Virginia Property Owners’ Association Act. Baymark was the original Declarant as of February 1, 2000, followed immediately by Bay Creek, March 22, 2000, and subsequently Bay Creek South/Keyser- Sinclair as Second Successor Declarant, February 28, 2008.
Considerations should be given to the reasonable expectations that the failure by the Town: to enforce is own Municipal Ordinances found in the PUD Development Document; failure by the County through the lack of established and County sought oversight of the conditions it required of the Town as part of the Settlement Agreement to enact the Annexation Orders; and the subsequent failure of both governmental agencies to oversee the Town’s utility and connector road improvements, present clear evidence that neither governmental functions protected the real property taxpayers in and throughout Bay Creek or the residents of Cape Charles and by extension, the taxpayers of Northampton County.
Without listing here, each and every published letter, e-mail communication or correspondence, there is more than adequate historical correspondence that flowed between the developers and declarants of Bay Creek and Town officials beginning in 1990 and proceeding into well after the year 2014, as they both addressed the well-known and publicized issue that the State of Virginia Department of Environmental Quality was concerned and issued violation fines as a result of the Town’s inadequate, sub-quality wastewater treatment utility plant. This major concern and utility issue were promptly identified and addressed during the Annexation proceedings, public hearings and resulted in Annexation Agreements and Annexation Orders which failed to be enforced. Subsequent letters in March 2009 from Mayor Sullivan giving notice to builders, developers and individual lot owners of an impending utility capacity constraint was seeking cash deposits of $10,047.00 or in excess of 570% for the original $1,750 water and wastewater connection charge – even for lots with no building permits. Town Manager Heather Arcos in April 2009 notified by e-mail in answer to a posed question as to the Town’s position on the constrained utility capacity issue and recent letters from Mayor Sullivan to a property owner in Marina Village East: “As of right now, I don’t see the town approving anymore subdivisions without an approved plan to expand plant capacity.”
Bay Creek was all the while, promoting its subdivision expansion efforts with Bay Creek’s Real Estate marketing and sales efforts coupled with its filed and Town approved platted new subdivisions. The Town, addressing the well-known need to upgrade its aging and quality deficient wastewater treatment plant combined with the requirement to expand utilities to meet the forecast demands of Bay Creek acknowledged and addressed the reserve capacity requirements and obligations it had agreed to provide to both the North and South Tracts of the Bay Creek at Cape Charles development. Plant capacity and plant replacement became a public dispute. Bay Creek appears to have timely reduced its forecasted capacity demands and needs by apparent abandonments of the Marina Village East subdivision and by curtailing the number of condominium units in the foreclosed The Fairways Condominium, perhaps therefore artificially reducing the time pressure on the expansion of the wastewater treatment plant in 2006 as it sought a new financial partner, Keyser-Sinclair. Keyser-Sinclair in an undated correspondence from its executive Oral Lambert, to owner of lots and homes in Bay Creek publicly acknowledged Keyser-Sinclair only had a financial interest in the South Tract and therefore its interests lie only in Keyser-Sinclair’s capacity needs and demands, perhaps at the expense of the North Tract subdivision, The Colony and Marina Village East and the Kings Creek Marina district.
- BCMR and Bay Creek filed and received approval for the Plats in Marina Village East in 2004. These approved plats were subject to specific provisions of the PUD Municipal Ordinance and in particular “Town of Cape Charles Zoning Ordinance – Appendix B: Site Plan Ordinances” (See § 5, 6, 9, 10, 11 & 12)
- The PUD Site Plan Ordinances enacted by the Town and following state statutes, required the streets to be paved to a standard set by the VDOT. Therefore, no legal or valid certifications of occupancy should have been issued by the Town. The streets in Marina Village East did not meet this requirement until the year 2015. The PUD Site Plan Ordinances required approved plat infrastructure development and construction to certain timetable limitation and subsequent penalties. Failure to meet those time constraints – within 5 years or the year 2009, would restrict or limit any valid or legal issuance of certificates of occupancy until such time as the Town granted new construction approval after review and or appeal and the waiver of appropriate penalties provided for in the Ordinances. Baymark would be a party to this action as a result of the February 2008 re-assignment of membership interests formerly held by BCMR, the subdivider, back to Baymark from Bay Creek to its sole member, Baymark. However, Bay Creek South (Keyser-Sinclair) accepted in March 2008 by recorded instrument, the acknowledgment as the Second Successor Declarant – and therefore as Developer, under Virginia’s POA Act for Bay Creek at Cape Charles Community Association, which includes all of the North Tract subdivisions.
- Bay Creek filed Supplements to the Declaration to include the Units in Marina Village East Phase I on January 20, 2005; May 3, 2005 the Units in Marina Village East Phase III; and May 20, 2005 the Units in Marina Village East Phase II comprising a combined total of 117 Units in Marina Village East – representing over 17% of the then total Bay Creek at Cape Charles development. As of May 20, 2005, Supplement filing, there were a total of 686 Units within Bay Creek at Cape Charles, subject to the Declaration.
- By December 29, 2005, Bay Creek and Baymark had filed a Supplement to the Declaration to include an additional 78 Units of condominium Units (FAIRWAYS II CONDOMINIUM) ‘to be developed in the South Tract, followed by a March 21, 2006 filing for 72 Units in FAIRWAYS III CONDOMINIUM.
- Subsequent parcels, Phases and additions to the number of Units subject to the Declarations followed in 2006 and 2007. Overall, 873 Town of Cape Charles approved and platted Units, subject to the Declaration and subject by Title and Deed to the PUD Document had been listed on the Bay Creek Master Plan submitted by Bay Creek and maintained in the office of the Town Planner up and until 2012.
- How will Keyser-Sinclair increase its shareholder values if it cannot grow and expand the South Tract previously planned subdivisions without an expanded utility plant? Especially after paying Brown & Root on May 14, 2014, the remaining amount of $8,147,545.62 from the original installment sale Contract for the remaining tax assessed parcels in the South Tract containing planned but unused residential 1,983 Units?
[1] Town of Cape Charles Virginia Comprehensive Plan 1989, p. 59
[2] Ibid, p. 53
[3] Ibid, p. 38
[4] Town of Cape Charles Virginia Comprehensive Plan 1989, p. 14
[5] AGREEMENT dated March 13, 1990, between the Town of Cape Charles Virginia and Brown & Root I, Inc., amended November 25, 1991 AMENDMENT TO AGREEMENT OF MARCH 13, 1990.
[6] Va. Code Chapter 25 of Title 15.1 § 15.1 – 1041
[7] AGREEMENT, ¶ 5, p 3
[8] Exhibit B Accawmacke Plantation Plan of Development: Accawmacke Plantation consists of approximately 2000 acres owned by Brown & Root. The property will be developed as a resort-recreational, second home and retirement community consisting of a total of 3000 units. The units will consist of a variety of housing types to accommodate the diverse needs of the residents, etc.
[9] Ibid: ¶16, p 8
[10] Ibid: ¶16, pps 8 & 9
[11] Agreement, ¶ 10, p 5
[12] Ibid: ¶10, p 5
[13] Ibid: ¶10, pps 5 & 6
[14] Ibid: ¶11, p 6
[15] Ibid: ¶10, p 5
[16] Ibid: ¶10, p 6
[17] Ibid: ¶10, p 8
[18] Report on the Town of Cape Charles – County of Northampton Annexation Action; p 11
[19] Ibid: p 11, footnote 29
[20] Ibid: p 17, footnote 47
[21] Ibid: Pages 62 – 70
[22] AMENDMENT TO AGREEMENT OF MARCH 13, 1990, ¶1(d), p 2
[23] Ibid: ¶ 5, p 5
[24] AGREEMENT, dated 11/25/1991, ¶1, p2
[25] Ibid: ¶ 8, p 6
[26] Ibid: ¶ 8, p 6
[27] ANNEXATION ORDER, p 3
[28] ANNEXATION ORDER, ¶5, 6, & 7, p 4
[29] Ibid: ¶ 7, p 5
[30] AMENDMENT TO AGREEMENT OF MARCH 13, 1990, ¶ 1 (b), p. 2
The Fix is In: Town holds work session on Annexation Agreement
“Work sessions, meetings whatever, er, if this helps you feel better and sleep at night so be it. Bay Creek will never pay the town a dime and in your heart of hearts you know it too. Cape Chuck sold it soul long ago to Brown & Root, Dickie Foster and now will end it all with the Baldwins. Karma, Karma, Karma.
Note by Cape Charles Mirror: You are probably right.” — a comment posted to a story published in the Mirror back in August.
The Cape Charles Town Council attended a work session on Thursday regarding the 1991 Annexation agreement between Brown and Root and the town. The agreement led to the creation of the PUD and resort we know as Bay Creek. The PowerPoint presentation was led the town attorney Mike Sterling of Vandventer and Black.
The presentation lasted only about 45 minutes and left out as much as it put it put in. The ‘overview’ glazed over the historical context and seemed more geared to letting the council know that they really do not have to do anything regarding the terms, conditions, and obligations laid out by the agreement, which is a legislative act of the State of Virginia known as Law No. 27. As a note, that fact that the agreement is law was never mentioned by Mr. Sterling.
- Here are some major points missing from the presentation:
Under the Virginia Property Owners’ Act (POA), the Declarant is also described as the ‘developer’. Bay Creek South, L.L.C., and Sinclair agreed in March 2008 to become responsible, by deed recorded with the Clerk of the Northampton Circuit Court – ‘Declarant’ for all of the obligations and assurances made by Brown & Root in 1990 and 1991, as part of Brown & Root’s efforts to have the Town of Cape Charles annex a significant portion of Northampton County into the Town. Brown and Root had a proposed industrial site in the County (begun in 1970’s in reaction to the then Oil Crises). Brown and Root also owned over 50% of the vacant and undeveloped land in the adjoining Town of Cape Charles. Brown & Root sought and successfully achieved its goal of combining the two significant parcels into one PUD then known as Accawmacke Plantation, now known as Bay Creek at Cape Charles. Brown & Root’s lawyer also acted during the annexation proceedings as counsel to the Town, before, during and after the Annexation Order was issued November 25, 1991. In Virginia, Annexation Orders of the Virginia Special Annexation Courts (appointed by the Virginia Supreme Court) become Legislative Acts – and the Annexation Order was and remains Law No. 27, filed in both the Virginia Legislature and the Northampton County Circuit Court. This premise and the recorded obligations and promises are extremely important to the residents of the Town, the County as well as the U.S. and Virginia taxpayers. - Why? Because Sinclair in its own agreement with Baymark Construction Corporation (the original purchaser and obligator in 1998 to the Brown & Root agreements) purchased from Baymark all of the interests in Bay Creek South and filed to become the Second Successor Declarant – obligating Sinclair to the Annexation Order Agreements. Now after many years of attempts by the Town and by factual misrepresentations made by the County to the Virginia Department of Transportation, Sinclair is and has not followed the stipulations in the Annexation Agreement, nor the findings published by the Commission on Local Government – February 1991 (CLG) incorporating those such agreements.
- The precise language in the CLG report is on pages 62 & 63 TERMS AND CONDITIONS FOR ANNEXATION.
- In March 2008, Sinclair during its quarterly public filings acknowledged it had purchased the controlling interest in Baymark (Bay Creek South, L.L.C.) and was in ‘control’. Baymark and its controlled subsidiary Bay Creek, LLC lost control due to its own inadequate financial schemes. Neither Baymark, Bay Creek nor Sinclair followed the federal guidelines for sale of land to purchasers as required under Federal Law, The Interstate Land Sales and Full Disclosure Act. That evidence was made clear in the Virginia Beach Circuit Court in 2012 – it remains unknown if Sinclair ever corrected this under the ILSFDA.
- Sinclair has refused to pay the Town for its share of water and wastewater demands of the Bay Creek development for the required Virginia upgrades and expansion of the old and dysfunctional Town of Cape Charles’ wastewater treatment plant, as clearly found in the Commission on Local Government’s Report (attached) and Annexation proceedings. The U.S. taxpayer, through an Obama stimulus bill and the residents of Cape Charles, through borrowings from the EPA, Virginia State loans, and significant increases in the Town’s water, sewer and connection fees, has paid for the required upgrades of the old plant which was and remains a contributor to an unhealthy Chesapeake Bay. The replacement plant is undersized for the required new 1,900+ homes planned to be built in Bay Creek, which under the PUD allows for 3,000 homes. Only 973 have been approved for platting, yet subdivisions are not yet built nor completed.
- Sinclair did not pay for the highway extension across its and its POA’s property (The Martin Parcel), the Virginia state taxpayer has paid the bill.
During the discussion, Sterling noted that the agreement “runs with the land”, that is, the agreement is binding on all purchasers. However, when he talked about the connector road, the extension through the Martin Property, Sterling stated that since VDOT had already paved the road, that part of the agreement was not mute. The Mirror disagreed:
On September 9, 2016, the Cape Charles Mirror contacted the Virginia Department of Transportation regarding the Route 642 connecter road project in Cape Charles, sometimes referred to as the “Harbor Access Road”. The Mirror submitted a series of questions, and on November 21, 2016, VDOT sent the following responses (VDOT responses are in italics):
I.Have VDOT attorneys reviewed the Annexation Agreement between the Town of Cape Charles and then developer Brown and Root?
VDOT attorneys neither reviewed the Annexation Agreement nor were they aware of any obligations thereto, prior to or at the time of the project. As a result of this inquiry, our attorney obtained and reviewed the Annexation Agreement.
II.Does Bay Creek South, LLC, as successor in interest to Brown & Root, Inc., Brown & Root I, Inc. and Kellogg, Brown & Root, Inc. as developer and primary owner of Bay Creek, have an obligation to construct VDOT Project No. 0642-065-577 (UPC103391) at its sole expense?
VDOT believes that Bay Creek South, LLC has a legal obligation to construct VDOT Project No. 0642-065-577 (the “Project”) at its sole expense.
The Annexation Order entered by the Circuit Court of Northampton County on November 26, 1991 and recorded among the land records of Northampton County on December 9, 1991 in Deed Book 252 at page 649, obligates Brown & Root I, Inc. to “construct or have constructed a new two-lane access road into its development to accommodate traffic from [Bay Creek, formerly known as Accawmacke Plantation], provided the necessary land and easements are acquired and providing all necessary permits are obtained.”
The Report of the Commission on Local Government on the Town of Cape Charles – County of Northampton Annexation Action dated February, 1991 (the “Report”), which was incorporated into the Annexation Order by reference, contains strong language providing the justification for placing the burden to construct and pay for the Project on the developer of Bay Creek. There is also a referenced Agreement between Brown & Root I, Inc. and the Town of Cape Charles (the “Town”) dated March 13, 1990 (the “Developer’s Agreement”), an Amendment to the Developer’s Agreement dated November 25, 1991 (the “Amendment”) and an Agreement between the Town, Northampton County (the “County”) and Brown & Root I, Inc. dated November 25, 1991 (the “Town-County-Developer Agreement”), all of which are incorporated by reference into the Annexation Order or Amendment.
III.Why didn’t VDOT know about the Annexation Agreement between the Town of Cape Charles and then developer Brown and Root?
There are 3 project parcels at issue, Parcels 004, 006 and 010.
Parcels 004 and 006 were handled by Northampton County. Acquisitions activity on these parcels, including Title research, was not performed by VDOT and the title report reviewed by VDOT did not reference the existence of any proffers.
Although VDOT did handle Parcel 010, in searching for the existence of proffers, VDOT must rely on the responses from localities where any such proffers might be present. We ask for written responses from Planning Departments as part of our diligence. VDOT asked the County to provide any information regarding zoning restrictions, special use permits, unrecorded proffers and open zoning cases concerning parcel 010 and we were told that none of those were applicable to Parcel 010. As a result, any related Annexation Agreements were not known to us.
On November 22, 2016, The Mirror responded (italics):
Thank you so much for the response, it is much appreciated. Given VDOT attorneys feel the developer has a legal obligation to construct VDOT Project No. 0642-065-577, what are the next steps? Will there be a stop work order while this is hashed out? One question the attorneys should ask is why VDOT was not made aware of the annexation agreement by the Mayor and Town Council of Cape Charles, as well as Northampton County, and was allowed to fund this project using taxpayer funds when they were fully aware of the agreement between the town and then developer Brown and Root. I can provide correspondence going to back to 2004 which can verify this. Also, the current County Attorney should have been aware since he was the person that signed the annexation agreement in 1991.
VDOT contacted the Mirror on January 12, 2017 at 9:00 AM per Paula Miller, Communications Manager for VDOT Hampton Roads. While VDOT attorneys agree that the developer Bay Creek South should be funding this project in whole, since they were not party to the agreement, their hands are tied in terms of enforcing it. According VDOT, only the Town or the County can enforce it. The Mirror asked how VDOT came to its determination, as well as whether it was their decision not to attempt to find out why they were not made aware of the Annexation Agreement during planning phases. This information was not available at the time.
In the audience was developer Eyre Baldwin. During questioning, Mr. Baldwin got Sterling to admit that, in his view, since the agreement happened so far in the past, it was not germane to events now taking place in the Town of Cape Charles. There may be some truth to this.
Last winter, Mr. Baldwin asked the Mirror just what the point of all this coverage of the Annexation agreement was all about, what did we really want out of it. We told him, “It’s kind of like buried treasure, like Poe’s story The Gold Bug…we just want to know the truth…we want someone to tell us we are wrong, someone in authority, not our lawyers, but the State’s lawyers. Once that is settled, we will shut up for good.”
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