BY DENNIS HARTIG
WEST NECK — The owner of the defunct Signature at West Neck Golf Course has raised the possibility of turning it into a farm and enclosing it in a fence — and pushed back against a suggestion from the city that neighboring communities try to have it declared a public nuisance.
This is the latest volley in a war of words between the city, the neighborhood associations and the owner in the wake of an unsettling March brush fire. At issue for neighbors of the former course is how to prevent it from happening again.
The associations want the thick overgrown areas of the course, called buffers, cut back to reduce the risk from another brush fire. Because the buffers are hard to walk through, the owner sees them as a way to discourage trespassers, who it blames — without evidence — for starting the fire.
The city tried and failed in a 2021 lawsuit to make the owners cut back these overgrown areas that squeeze up to the homes lining the course. Facing defeat, the city signed a settlement agreement that obliged the owners to keep the grass cut only along high visibility areas and certain interior sections, but not the buffers.
High winds and dry brush fed the blaze that scorched shrubs, fences and landscaping at ten properties in Indian River Plantation, causing damages estimated at $52,000 by the city fire department. No one was hurt and no homes caught fire. The fire burned 36 acres on the course, including a small, newly-planted tree farm. The fire department did not estimate damages to the old course. The cause of the fire was officially listed as “undetermined.”
John McIntyre, attorney and spokesperson for the owner, JBWK LLC, disputed that finding during an interview with The Independent News.
“There was no lightning that day,” he said. “We had no one on the course doing work with mowing equipment that could have caused a spark. Of course it was started by trespassers. Fires do not start themselves.”
The fire made already testy relationships between JBWK, the city and neighborhood associations in Indian River Plantation and West Neck even more tense. After the fire, the associations demanded more aggressive enforcement from the city than was required in the 2021 settlement. The city equivocated, instead suggesting in a Thursday, April 6, email from the city manager’s office that the associations could take matters into their own hands.
That correspondence suggested that the associations petition the courts for a special grand jury to investigate whether the course has become a public nuisance. So far, the associations have not filed a petition, though people in each community have told The Independent News it is being discussed.
Now, the property owner’s lawyer has answered in a Tuesday, April 25, letter to Virginia Beach City Attorney Mark Stiles.
McIntyre promised to go back to court to defend JBWK’s rights against the claim that its property has become a public nuisance. He accused the city in its Thursday, April 6, correspondence of engaging in a business conspiracy by enticing the associations into “meritless litigation” by potentially filing a public nuisance claim in Virginia Beach Circuit Court.
McIntyre gave these legal reasons in his letter to Stiles why the golf course can not be classified as a public nuisance:
- “[T]he current condition of the property does not constitute a public nuisance since it is neither ‘public’ nor a ‘nuisance’ as the law defines those terms.” For a nuisance to be public, the law requires that it must disturb the “whole community” not just adjacent property owners.
- “Likewise, under the common law, maintaining property in its natural state does not constitute a ‘nuisance’ and Virginia has not enacted any statute to the contrary.”
- Virginia law defines vegetation as a nuisance only when it encroaches or damages neighboring property. Nor does property in a natural state become a nuisance when a trespasser sets it on fire.
- If the golf course is a public nuisance, then so too are other properties, private and public, on which there have been brush fires.
McIntyre gave the city a week “to stipulate in writing” whether or not the city still stands by the 2021 settlement agreement and whether it considers JBWK’s property a public nuisance.
Stiles responded by letter on Friday, April 28.
Noting McIntyre’s “aggressive” tone, Stiles wrote, “I categorically reject the contention that the City has repudiated the settlement agreement or engaged in a business conspiracy” against JBWK. Stiles wrote that the city regards the settlement to be in full force and has taken no position on whether the JBWK land is a public nuisance.
“Rather,” he wrote, “in the city’s communication with the residents of the community, the city simply advised of a provision of law within the Virginia Code that allows private citizens, if they believe a public nuisance exists, to take certain actions to address such condition.”
McIntyre told The Independent News that this means city “wants it both ways.”
If the city said the land is not a public nuisance, then it would inflame public opinion for suggesting residents go to court to have it declared a public nuisance, he said. And, if the city backed away from the settlement agreement, the owners would no longer have to abide by the minimal grass and underbrush cutting it required.
To defend its property rights, McIntyre said the owners plan to go back to court to ask a judge whether the recent developments have undermined the settlement agreement.
If the judge rules that the settlement agreement is still valid, then the owner will “have to live with it.” If the judge voids the settlement agreement, the owner will be free to farm the property, something it gave up in the settlement agreement.
In addition, the owner may bring a “malicious prosecution” lawsuit against the city for encouraging the associations to ask a special grand jury to declare its property a public nuisance.
And finally, to protect against another fire started by a trespasser, the owner intends to fence the entire property.
“We hate that it has come to this,” McIntyre said.
The settlement agreement was not an ideal solution, he said, but it allowed the owner and the neighbors to move on. Now, it is apparent to the owner, McIntyre said, that the city does not intend to live by the agreement in order to placate a small number of surrounding property owners.
Read the records
- VBFD Report On The Fire 3/29/23
- McIntyre Letter To The City 4/25/23
- Stiles Response From The City 4/28/23
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