BY DENNIS HARTIG
WEST NECK — Who has the right to control what happens with the 178 acres of dormant fairways, greens and bunkers at the former Signature at West Neck golf course?
Is it the company that paid $2.3 million dollars for it in 2020, the year after the course closed down?
Or is it a homeowners association which, without spending a nickel, in August 2022 exerted control by amending the original bylaws governing the neighborhood and the course?
At issue is whether the association is taking liberties with the company’s property rights or merely doing what normally happens when the developer leaves the picture after a community is built out.
The question has now been put before a federal district court judge for a decision.
The association wants the property to be a golf course again. A company has an option with the owner of the course to redevelop if it can be rezoned.
Over the past two years, the question of control has been at the heart of the disputes, lawsuits and angry words between the West Neck Community Association and JBWK, LLC, the current property owner. A Florida resident, David LaClair, is the sole partner in JBWK, according to a court filing.
Tension over such issues are behind dueling lawsuits that began in Virginia Beach General District Court but have migrated to U.S. District Court in Norfolk and been consolidated.
In court papers, the association insists the aim of these actions is “to keep West Neck a desirable community to live in.”
JBWK argues that the association has a different motive, taking actions “which the association believed would increase the holding costs of the property in hopes of forcing a quick sale.” It alleges that the association has put pressure on city officials “to oppose any use of the property other than a golf course.”
Until there is a resolution of the dispute with the neighborhood, JBWK stated in a November 2022 filing that it cannot plant more trees at a tree farm operating on the property or “take other potential actions.”
Last month, a Peninsula developer, with JBWK’s blessing, announced plans to seek a rezoning to put 153 homes on 19 of the 200 acres in a new community to be called Signature Meadows. The plan is not mentioned in the lawsuit, but a finding by the judge for the association would be for JBWK an unwelcome development.
A date for trial has not been set as the attorneys for the two sides are continuing to submit arguments.
The fight over control boils down to a single paragraph in an official document from 2000 when West Neck was established by the Baymark Construction Company’s owner Richard Foster.
The document is called the “Declaration of Covenants, Conditions and Restrictions.” These bylaws serve as rules and regulations to which every property owner must adhere. The bylaws in West Neck restrict, for example, what can be built, planted or even painted.
The bylaws vest in the “declarant” authority over the “overall development, administration, maintenance and preservation” of West Neck.
From West Neck’s inception, including the construction of 936 homes in eight villages plus the Arnold Palmer-designed Signature golf course, Baymark, Foster’s company was the declarant.
The identity of the declarant became murkier when the course shut down in September 2019.
Into this apparent vacuum over the control of the community, the homeowner’s association in August 2022 submitted an amendment to the declaration, without, according to JBWK, its knowledge or consent.
The amendment substituted the name of the association as the declarant in the place of Baymark.
This amendment, the association asserts, gives it control over West Neck and the authority to enforce its requirements, as it has done against JBWK.
In its complaint, JBWK claims the purpose of the amendment “is apparently to try to reclassify the property so that the association can exert control over it.”
In a filing, JBWK said that in November 2021, eight months earlier, it acquired from Baymark its rights as declarant for an undisclosed sum. This was made official in a deed of sale recorded in the Virginia Beach Circuit that month, according to a court filing.
The bylaws allow the association, its suit claims, to enforce fines for violating bylaw prohibitions against a tree farm, the construction of a fencing and the overgrown brush conditions. It held a hearing in March 2022, at which the complaints were aired to the attorney for JBWK, who in turn said JBWK was not in violation of the bylaws.
Ever since, the association alleges, JBWK, has “arbitrarily ignored and disregarded requests” for it to comply with the bylaws.
The association in its lawsuit said there is no legal remedy available other than to seek an injunction requiring JBWK to comply with the West Neck rules. It asked the court to levy a $900 fine and to require JBWK to reimburse the association for the expense of bringing the suit.
Meanwhile, JBWK asks for the court to declare that JBWK is not subject to enforcement actions by the association because the association lacked authority to change the bylaws.
Attorneys for JBWK and the association declined requests for comment by The Independent News.
The association is represented by Jeffrey Hunn of Pender & Coward in Virginia Beach. JBWK is represented by John D. McIntyre of McIntyre, Stein & Ashby in Norfolk.
© 2023 Pungo Publishing Co., LLC
How an HOA thinks it can “decide” that they own or control 200 acres of someone else’s property is absolutely preposterous! Unless that owner voluntarily agreed IN ADVANCE to that decision, the HOA should be punished simply for their egregious overreach and positive harm to the owners right to peaceful ownership. The residents of that community need to pay close attention to who’s running the show in their neighborhood — i.e. their out of control board of directors. The community residents have just been subjected to well deserved countersuits and the risk that monetary damages could be awarded. HEY…..HOA!…. THAT’S NOT YOUR PROPERTY!!!!!
I replied to your post earlier, Carson, but somehow my reply was deleted. Maybe I offended the moderator. I’ll try one more time…
My best guess is that the current owner of the ex-golf course must have known that the property he bought was already zoned as a golf course. I would also guess that he stands to make more money if he can get it rezoned it for housing, probably a lot more money. Can’t blame the fellow for trying.
However, I also understand that the residents of West Neck bought their property with the understanding that the City of Virginia Beach had zoned this land to be a golf course. I consider this to be a promise to the home owners in West Neck, including myself. But I’m reasonably sure that the developer knew it was zoned as a golf course when he bought it — if anyone knows I’m wrong about that, feel free to correct me.
There is much uncertainty about exactly what the developer plans to develop and how it will affect the current residents in terms of both livability and property values.
As for zoning laws, the truth is that the reason they exist at all is precisely to tell property owners what they can, and cannot, do with their own property. Imagine waking up and your next-door neighbor’s house burned to the ground. Now, imagine a developer bought that property. Then, imagine that he thinks he could get more money if he got it rezoned to commercial. Next thing you know, next door to your house stands a Salvation Army store. Or an abortion clinic. Or a rehab house. Or a Taco Bell. Just a guess, here, but you, or whoever was in this position, might possibly try to leverage the zoning of your neighborhood against such a move, even though HEY! THAT’S NOT YOUR PROPERTY!!!!
Zoning laws are not just a grab at controlling other people’s property. Sometimes, they can help people protect the value of their own property.
The comment was not deleted. It had not yet been approved. Thanks.
Thanks, but now there are two posts from me saying basically the same thing. If possible, could you delete one of them? Perhaps the first?
Thanks.
The fallacy that zoning is permanent is the root of this problem. It appears you and many of our neighbors are the ones pushing all your chips into the middle of the poker table on the belief that zoning lives in perpetuity. Well let me clear that up for you.
Firstly, everything could change in one simple conversation between a few council members, and now — with the new voting system in the city — councilwoman Henley has zero support outside our district (and only a third within it based on the last election). That means that no other council member needs Ms. Henley’s support on ANYTHING so long as their decision meets the favor of their own constituents. They are free to vote in any way they like with no concern for retribution from any voters other than those in their own districts. And to be clear, West Neck is not getting much in the way of sympathy from the VB community at large who simply views West Neck as a haven for petulant boomers who are stamping their feet demanding what they want and ONLY what they want no matter the needs of the city as a whole. What council member wouldn’t love to say they brought a new rec center, or park, or affordable housing, or any other amenity to the Beach?
Secondly, even if the council shoots down the owners intentions for the property, a judge could overrule the council and grant the owner development rights. Almost every time a landowner takes the city to court in such a circumstance the landowner wins.
Thirdly, Ms. Henley’s support for the REZONING, clear-cutting, and development of the Kellam family property near the courthouse (a project that has been approved and is going forward with nearly 100 homes on what is now an old growth forest) smacks of the highest level of hypocrisy possible given Ms. Henley’s familiarity and history with the Kellam family. She’s telling our neighborhood that the zoning is to stand in West Neck while approving zoning changes (all of which are far more destructive than the removal of a golf course) less than a mile away.
Rezoning is a fact of life. Nearly every single home and development in Virginia Beach (including the homes you and I write from) started with the REZONING of the property on which they are built.
I suggest you get right with that reality and participate in a solution that is satisfactory to both the landowner (who is, again, not the West Neck HOA!) and the nearby residents. Otherwise, voters from outside your region will be making the decision for you.
Freedom of speech isn’t permanent either. It must be safeguarded at all times in every generation.
So, zoning works the same way…? Imagine that. Politics is political. Who knew?
Ultimately, it will probably come down to which faction has more influence with the city council. I know that. Not pissing off one of the wealthier neighborhoods in the city is, I suspect, a strong motivation. But I also know it isn’t absolute, and that there has always seemed to be a strong affinity between developers and politicians. That’s a general truth, I think, not just here in Hampton Roads. It’s a different kind of affinity than a politician’s appreciation for his voters and taxpayers, in my opinion. It seems analogous to a man who loves his wife, but is being flirted with by a smoking hot young lady. On the one hand, he has made promises to his wife that he may have always intended to keep, but, on the other hand, that young lady sure is attractive.
They do need to address covenantal issues. I’m no expert on zoning regs and real estate, but it may be more complex than you have stated. It may turn out to be not quite as easy as getting the majority of a fickle council to vote yes.
Not quite sure why it is relevant, or why West Neck residents ought to care, whether the rest of Virginia Beach thinks we are “petulant boomers.” That seems like a red herring to me, but truth is, nobody really cares about such things like rezoning as long as they are happening to someone else. Either way, I think deploying such a question-begging epithet seems more like a distraction than an argument. The City may not like us, but they rely on our money and we still have our votes. How that will all play out, I don’t know, but I hope their reasoning is based on something more substantive than name-calling.
That last paragraph seems to me just weird. Sort of like, surrender now or you won’t like what happens to your neighborhood. If that’s a best offer, then, no thanks.
OK, then let me make that last paragraph clearer.
If you find your home backs up to a public park open to any and all residents of Virginia Beach, won’t you have wished you had taken a more active role in the outcome of the property?
Any golfer with an ounce of business sense knows in his heart that the golf course will never come back. There’s simply no money to be made, and the developer seems dead set against selling anyway. So, the best we could hope for is more of the same wasteland behind our homes? Is that a win?
So, absent the possibility of a golf course and with the possibility of a public access nightmare, I say the smart thing to do is to negotiate with the developer so that we get, at the very least, certainty that the property will be maintained, is accessible only to us, and any LIMITED development is of a type we like.
Make it a drive in movie theater!! It will make more money and will make it right away!!