Cape Charles Council Gets Up to Speed on Annexation Agreement

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By Stefanie Jackson-  With three new Cape Charles council members learning their roles, the council was briefed last week on the November 1991 annexation order made on behalf of the town and construction company Brown & Root. The annexation increased the town’s area by approximately three square miles, founded the unfulfilled expectation of extensive commercial and residential development – including nearly 3,000 homes that were never built – and remains a source of contention for some residents almost 30 years later.

Michael Sterling, managing partner of the Norfolk-based law firm Vandeventer Black, made the Sept. 6 presentation that was open to the public.

Sterling taught a brief history lesson on Cape Charles’ relationship with Brown & Root and the company’s successors.

The Brown & Root story can be traced back to 1977, when the construction company requested farm land it purchased to be rezoned for industrial use — specifically, to build an offshore drilling platform — and Northampton County complied.

But the offshore drilling concept failed. A new concept surfaced in the early 1990s: a resort and retirement community called Accawmacke Plantation. Over the course of 20 years, 3,000 homes were to be built, along with a golf course, marina, hotel, and retail outlets.

Part of the land Brown & Root purchased already belonged to the town of Cape Charles. The remainder belonged to Northampton County.

The original agreement made between Cape Charles and Brown & Root in March 1990 committed the construction company to develop the land on the condition that the portion belonging to Northampton County would be annexed into Cape Charles and the town would extend its utilities to the area.

Northampton filed a lawsuit opposing the annexation agreement but later settled.

In a court document filed in October 1991, former Northampton County Attorney Bruce Jones explained why the petition for the annexation should have been dismissed.

“Whether Accawmacke Plantation will ever become a reality or, if so, what form it will take, no matter what decision this Court makes, is a matter of rankest speculation … depending on social and economic considerations and Brown & Root’s fancy,” the document stated.

One specific reason for the county’s opposition to the annexation was, “The Supreme Court has not ruled on the power of annexation courts to order non-financial terms and conditions not specifically contemplated by the specific enumerated powers of this section.”

In other words, demands in the annexation agreement for anything other than money could not be enforced. For example, Cape Charles could not be required to hire a full-time town planner. Brown & Root could not be required to hire local construction workers. Neither the town nor the construction company could be required to build a road, and the county could not be required to change its zoning ordinance.

The annexation agreement was amended in November 1991 and was signed by former Northampton County Board of Supervisors Chairman Charles Bell, former Cape Charles Mayor Edward “Alex” Parry, and former Brown & Root Vice President Joel Bates.

The golf resort and community was built on the land purchased by Brown & Root and was renamed Bay Creek. The land also contains the subdivisions of Marina Village East, Kings Bay, and The Colony, as well as other properties such as Kings Creek Marina.

Among the key points of the annexation agreement Sterling highlighted was Brown & Root’s responsibility to pay the costs of planning the development, including consultants, engineers, architects, and other experts.

Sterling addressed the belief of some Cape Charles residents that Brown & Root was responsible to pay for the town’s new wastewater treatment plant, which cost about $19.2 million.

A Virginia Water Quality Improvement Fund grant and an American Recovery and Reinvestment Act grant covered about $14 million, or around 73 percent of the cost. The remainder was covered by the town with a 20-year, nointerest loan from the state.

Sterling pointed out language in the original annexation agreement that confirmed “Brown & Root agrees to pay the cost of the physical expansion of the town’s sewer and water treatment systems,” but only “to accommodate the additional treatment demands of the Brown & Root property beyond the limits of the town’s current permitted capacities.”

But the Brown & Root development was never completed. It would have required a wastewater treatment capacity of more than 1 million gallons per day. The new wastewater treatment plant, which was built to meet current state regulations for nutrient removal, has the same permitted capacity as the old plant, 250,000 gallons per day.

It uses about 150,000 gallons of water per day. Members of the public who attended the town council work session were permitted to ask questions.

Eyre Baldwin asked if Brown & Root has any obligation for expansion of the wastewater treatment plant. Sterling responded, “I won’t answer that.”

The Virginia Department of Transportation recently completed road improvements on Old Cape Charles Road (Route 642), which leads past Bay Creek and provides access to Cape Charles Harbor. The $10 million project (including engineering, right of way, and construction) opened to traffic this summer.

Old Cape Charles Road connects to Stone Road, the main road leading from Route 13 to the town of Cape Charles.

Wayne Creed said Brown and Root should have paid for a new connector road as stated by the annexation agreement. But the agreement indicated road construction should begin when average annual peak hour traffic entering and leaving south Accawmacke Plantation, now Bay Creek, exceeds 400 and average annual peak hour traffic on Old Cape Charles Road exceeds 250.

Because the area was never built up enough, the traffic studies were never done, Sterling said.

If Brown & Root had finished building the 3,000 new homes as proposed and those homes were occupied, Cape Charles would have had five times as many residents and the total county population would have increased 50 percent.

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