Townhouse developers respond to Captains Cove lawsuit

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A rendering of townhouses proposed to be built on property adjacent to the Captains Cove community near Greenbackville. Screenshot by Carol Vaughn of an Accomack County image.

By Carol Vaughn —

Captain’s Cove Golf & Yacht Club, Inc. (CCGYC), and CCG Note LLC have responded to a lawsuit filed against them in Accomack County Circuit Court by seven Captains Cove residents.

The residents filed the civil lawsuit in June against the company proposing to build a 140-unit townhouse development adjacent to the Captains Cove subdivision near Greenbackville.

The residents established a fund to pay their legal expanses.

The lawsuit alleges past and proposed actions by the development company, CCG Note LLC, by virtue of having a controlling majority of its own representatives on Captains Cove’s property owner’s association board of directors (CCGYC), “represent self-dealing in breach of its fiduciary duty owed” to Captains Cove property owners.

The plaintiffs asked the court to declare their property rights, as established in documents related to the subdivision, called a declaration; to find that CCG Note controls the property owner’s association; to award damages against CCG Note, in an unspecified amount; and to enjoin the developer and the property owner’s association “from taking any actions that interfere with or damage” residents’ established property rights.

CCGYC in a court document responding to the lawsuit says the residents “have failed to allege a justiciable controversy” and ask the court to dismiss the lawsuit. CCG Note LLC filed a similar document.

“We are not at all surprised by the CCG Note LLC’s responses to the lawsuit. We definitely plan to move forward. The residents and lot owners of Captain’s Cove are adamant about protecting their property rights and ownership of their great community,” said Teresa BIrckhead, chairperson of Concerned Citizens of Captain’s Cove, in an email to the Post Monday. Birckhead is among the plaintiffs in the lawsuit.

CCGYC in the document says claims about “self-dealing in breach of (CCG Note’s) fiduciary duty,” which the residents made about actions between 2014 to 2016, are barred by Virginia’s five-year statute of limitations for written contracts.

A document filed by CCG Note LLC includes a similar claim.

The actions related to CCGYC’s sale of property to the utility company that served the development at the time and CCG Note’s sale of lots to the current utility company, along with CCGYC’s granting of a perpetual easement to the utility company.

Additionally, the defendants say the residents’ complaint “fails to raise any allegation of breach or prospective breach” of CCGYC’s declaration (the basic governing document for the property owners’ association) and that the residents’ allegations declaration was violated also are barred by the statute of limitation.

They also say the lawsuit improperly “seeks declaratory judgment on future or speculative acts.”

Among the residents’ allegations is that the developer proposes to supply water to the new townhouse development in violation of Captains Cove’s current groundwater withdrawal permit and proposes to convey lots to the Greenbackville Volunteer Fire Department for non-residential use, in violation of the CCGYC declaration.
Additionally, the defendants say the residents’ lawsuit “fails to establish … that the plaintiffs will somehow suffer an irreparable harm” if they are not granted the relief they request.

CCG Note in a document filed July 29 says the company does not owe the plaintiffs a fiduciary duty and that the judgment the plaintiffs are seeking is based on “future and speculative facts.”

In another document, CCG Note claims the residents who filed the lawsuit failed to attach any documents by which the residents establish ownership of Captains Corridor, which the residents say is a private street in Captains Cove subject to the declaration’s restrictions. The developer proposes to use the street to access the townhouse development.

CCG Note also asks for documents to be attached to the lawsuit that are related to the sale of land in the development for future sewer system use.

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