The $11 million dollar drive that detours off Rt. 184 directly into Bay Creek is now open. Soon, the fairways of the Palmer and Nicklaus courses will be brimming with rich white golfers wearing ugly pants–remember, when you cringing at that Food Lion bill, it was your tax dollars that paid for these extravagant lifestyles. Also note, that on September 9, 2016, the Cape Charles Mirror contacted the Virginia Department of Transportation regarding the Bay Creek extended driveway, also known as the Route 642 connector 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, which confirmed that the developer Bay Creek South, LCC was entirely responsible for constructing its extended driveway, not you the taxpayer (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.
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.
Who will finally enforce Law No. 27, the Annexation Agreement between Cape Charles and Northampton?
Right now, the taxpayers are on the hook to pay close to $11 million for a roadway that, according to VDOT attorneys and a legislative act of the state of Virginia, the developer, Bay Creek South, LLC is responsible for (as well as a $20 million wastewater treatment plant that was also part of the agreement).
Note: The Annexation Agreement “runs with the land”. That is, when Sinclair Communications purchased Bay Creek South, they also assumed responsibility for the agreement between the Town and the County. Bay Creek South changed hands and control on March 8, 2008, into Sinclair. Sinclair even had an Earning Conference call along with their earning release announcing the great deal they had made in Cape Charles. At the time, Sinclair seemed pleased that for $50m they acquired a 50% controlling interest in a property appraised at over $200m. While the purchase may have at first appeared to be a good deal, it may turn out to be more a “pig in a poke”.
Of course, the developers and the town council members that reside in their pockets will tell the road was needed for the harbor, and all the important work going on there. Infrastructure is everything (see Eyre Baldwin’s email in the below mosaic). Well, Bayshore is history, so all that of the harbor is a proposed terminal, a boatyard, and a small restaurant. You really needed a detour for that?
Everyone, from town and county government, all way to state-level attorneys, to the former and current governor mansions are all aware of this. Basically, you have been thrown under the bus.
For your viewing enjoyment, here is a random mosaic of images that celebrates the lies, fraud and corruption that is the fabric of Cape Charles: