On September 9, 2016, the Cape Charles Mirror contacted the Virginia Department of Transportation attorneys 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 to VDOT, such as why didn’t VDOT know about the Annexation Agreement between the Town of Cape Charles and then developer Brown and Root?
In correspondence, VDOT agreed that after reading the annexation agreement between Cape Charles and Northampton County, the developer was responsible for paying the $11 million to construct a road.
VDOT also responded that while it did handle Parcel 010, in searching for the existence of proffers, they contend that they “must rely on the responses from localities where any such proffers might be present.” VDOT asks for written responses from Planning Departments as part of their “diligence”.
According to VDOT they asked Northampton County to provide any information regarding zoning restrictions, special use permits, unrecorded proffers and open zoning cases concerning parcel 010 and were told that none of those were applicable to Parcel 010. The county withheld the existence of the Annexation Agreements, leaving VDOT to source and fund the project using taxpayer funds. 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.”
| From VDOT Attorneys – 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. |
In March of 2016, The Cape Charles Mirror contacted then County Administrator Katie Nunez about the project:
Ms. Nunez,
I understand three parcels were donated for the 642 reconstruction project, but as far as construction costs, was the Town, County or VDOT aware of the Annexation Agreement between Cape Charles and the developer? When it was signed, it was apparent the development (Brown&Root,Bay Creek) would outgrow 642, so the developer agreed to bear the cost of expansion (page 65 of Terms and Conditions, Report on Town of Cape Charles). As far as I can tell, that agreement, which runs with the land, is still in force, so the developer (now Sinclair Communications) should be helping with at least part of the cost of expansion. Have they provided funding, or donations that you are aware of? I may be completely wrong in these assertions, but I understand the County has been working with this project, and was hoping to get more clarification from you all.
Note: I have also contacted Bruce Jones about some of the historical aspects of the agreement.
The Mirror did not receive a response to this inquiry.
On April 9th 2017, the Mirror sent a Freedom of Information Request to VDOT asking for:
All email correspondence between VDOT attorneys that took place during the determination that Law No. 27 had been violated by the Route 642 connector road project in Cape Charles, Virginia.
All written correspondence between VDOT attorneys that took place during the determination that Law No. 27 had been violated by the Route 642 connector road project in Cape Charles, Virginia as pertains to Section 2.2-3701 of the Code of Virginia which defines public records for purposes of FOIA to include “all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magnetooptical form, mechanical or electronic recording or other form of data compilation, however stored, regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.”
On April 21st, VDOT told the Mirror that they would they would not release the communications due to attorney-client privilege:
The Virginia Department of Transportation (VDOT) is in receipt of your request for records made in accordance with the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). You have requested records relating to email and written correspondence between VDOT attorneys that took place during the determination that Law No. 27 had been violated by the Route 642 connector road project in Cape Charles, Virginia. We have interpreted your use of the term “VDOT attorneys” to mean the Office of the Attorney General. VDOT has approximately 33 electronic communications responsive to your request. Please be advised, however, that these records are attorney-client communications and are exempt from disclosure under § 2.2-3705.1 (2) and therefore will not be released.
The Mirror responded by email, “Thank you very much for the prompt response to my FOIA request. However, while I certainly understand that exercising provision 2, Attorney-Client privilege is allowable, I still don’t understand why this legal advice should be withheld from the public, especially since the issue has to do with the impropriety of over $11 million tax dollars. The exclusion of this information is not mandatory, and can certainly be released at the discretion of the custodian.”
To date, VDOT has not released the requested FOIA correspondence.
What is contained in the information requested by the FOIA, and why it is considered privileged, not being released to the public raises serious concerns. The Mirror has contacted Lt. Governor Ralph Northam’s office, as well as the office of the Attorney General about the project, and has not received a response as of this date.
The Mirror has also contacted Northampton County staff and members of the Board of Supervisors attempting to find out who spoke with VDOT, and why information about the Annexation Agreement and Law No. 27 was withheld.
County Attorney Bruce Jones responded that he was “not aware of being in possession of any correspondence between the County and VDOT in connection with the project you name.”
The Mirror is still attempting to gather more information from county officials.
About the Author
FOIA is a complex statute. Your request went for the “jugular”, rather than requesting background official records. Re-cast, you might get what you want. Your request, looking for determination of “violation” walked squarely into an exemption from FOIA.
Keep asking, as a tax payer if a private corporation should be paying for the project, they certainly need to do so, spending tax payers dollars where other funding may be available is just not right.
Private citizen (not the Bruce Jones mentioned in the article).