VDOT is a party to the Annexation Agreement

In 2016, the Mirror questioned why didn’t VDOT know about the Annexation Agreement between the Town of Cape Charles and then developer Brown and Root before they began work on the Bay Creek Connector Road. VDOT responded:
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.

From the above correspondence, VDOT agrees that Bay Creek South, LLC is obligated to construct the project “at its sole expense”. When pressed on why they were unaware of the existence of the Annexation agreement, they say that they “rely on the responses from localities where any such proffers might be present.”

Why would the county withhold the existence of the annexation agreement from VDOT? In a December 9th, 2013 email to former County Administrator Katie Nunez, then county Economic Director Charles McSwain clearly notes the existence of Law No. 27, the annexation agreement between the Town of Cape Charles and Northampton County:

On November 22, 2016, The Mirror responded (in 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 a party to the agreement, their hands are tied in terms of enforcing it. According to 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. VDOT refused to answer due to attorney – client privilege.

Not true.

When the comment came back from the VDOT that they, VDOT was not a party to the Annexation Agreement between the Town & Brown and Root they may not have been given a copy of the ANNEXATION AGREEMENT (a/k/a “The Settlement Agreement”, which included all three parties plus the VDOT’s approval requirements). As such, that Agreement includes  VDOT as a party to the Annexation Agreements filed by the Special Annexation Court and the Northampton Circuit Court by Order LAW No. 27 and filed in the Land Records of NHC.

Did VDOT ever see this Agreement with the Attachment?

The Annexation Agreement between the town and Brown&Root indicates VDOT is a party to the agreement.

The Cape Charles Mirror has contacted current Mayor George Proto, Town Council, as well as former County Administrator Katie Nunez and County Attorney Bruce Jones regarding this matter. While responses ranged from the vague to the “that was a long time ago’s”, a cursory review should have revealed that the original agreement signed by Brown&Root and the County was still valid and required enforcement (the Annexation Agreement resides in the Northampton County Courthouse). Former Mayor Dora Sullivan, as well as Vice Mayor Chris Bannon, Councilwoman Joan Natalie, and Assistant Town Manager Bob Panek, have been aware of their obligations to protect the citizens of Cape Charles and enforce the agreement since the early 2000s.

A Priority
In conversations with VDOT, it was noted that the 642 connector road was a priority project for both the County and the Town. Hints as to why can be gleaned from comments by Councilman Andy Buchholz who has stated on numerous occasions that the road was being funded and constructed for better access to the harbor.

There are two main reasons why better access to the harbor is required: the Cape Charles Yacht Center and the new Marine Terminal at the harbor parcel 83A3 – 11 – 2. Both of these enterprises will need the expanded roadway to accomplish what they want to achieve.

It should be noted that the Cape Charles Yacht Center opened in May 2014, not long after the “Harbor Access Road” project was approved by VDOT in 2013. With the construction of 642 in full swing, Cherrystone moved to have the zoning map amended for parcel 83A3-11-2 from Harbor District to Industrial M-2, paving the way for the new Marine Terminal. Town Council quickly green-lighted this project in August 2016.

Open questions

Why did local officials allow VDOT to move forward without alerting them to the fact that the cost of the project was to fall on the developer, not the taxpayer?

Shouldn’t VDOT attorneys be more curious about why information regarding Law No. 27 was withheld from the agency?

How much did the Cape Charles’ town attorney Mike Sterling of Vandeventer Black, LLP understand of the agreement which clearly states that Bay Creek South, LLC is responsible for funding the entirety of the project?

Northampton County Attorney Bruce Jones represented Northampton during annexation negotiations. He is also the person that signed the agreement–shouldn’t he have had some recollection that VDOT should not be funding the project?

Relative to the rule of law, who then at the state level is going to defend the interests of the Virginia taxpayer?

VDOT, as a party to the agreement, can no longer claim that they don’t have a dog in this fight.