Williamsburg judge to decide Kingsmill election rules

JAMES CITY — A simmering dispute over future development at Kingsmill has resulted in postponement of a scheduled election for the community's board of directors while a court clarifies disputes over election procedures between the Xanterra-controlled Kingsmill Community Service Association and the opposing citizen group Kings-Mill United.

KCSA filed suit in Williamsburg-James City County Circuit Court earlier this month asking for a declaratory judgment specifying how the election will be conducted.

The suit names Kings-Mill United and four homeowners as defendants, saying the four have repeatedly alleged that the planned election violates state law and the terms of the homeowners association, have told residents they could "go to jail" for participating in the election as currently planned, and have set up Kings-Mill United as a competing "owners organization."

That's not something Kings-Mill United can do. State law defines property owners associations, which must be created through a "declaration," a purpose of intent filed when the subdivision is created.

"The can form any sort of association they would like," explained Heather Gillespie, the state's Common Interest Community Ombudsman. "But I can't see how it could take the place of the existing property owners association."

That was never the intention, according to John Niland, one of the four men named in the lawsuit.

"I haven't noticed that we're collecting dues or fixing the roads," he joked.

Gillespie said her office had heard from both sides in the Kingsmill dispute and that the courts, not state regulatory agencies, were the proper venue for the clarification of the Kingsmill articles of incorporation. That's because it's a matter of contract law.

Niland said the point of Kings-Mill United was to represent the interests of the homeowners, which he and others believe KCSA doesn't do because it's controlled by the developer, Xanterra.

"Basically, Xanterra controls our property owners association and so controls all the messaging," he said in a phone interview Tuesday. "We wanted to get the other side out there."

He said the fact that the elected members of the board went before the James City County Planning Commission to testify in favor of creation of another 200 housing units in Kingsmill shows the board isn't listening to community opinion. At the same meeting 22 other Kingsmill residents spoke against the plan. That's a point fellow defendants Michael McGurk and Andrew Lloyd-Williams made in recent letters published in the Gazette.

"Common Interest Communities are designed for community living by a developer. The community is created by a specific set of legal documents, generally drawn up by the developer and subject to change by the membership (owners). When the developer relinquishes control of the community, the community's affairs are then governed by the association of owners through an elected board," according the definition on the state ombudsman's website.

And issues with the developer — specifically with Xanterra — are the bottom line on the discontent of some Kingsmill homeowners.

"Everyone saw Busch as a benevolent despot," Niland said. "But then when they sold out to In-Bev and then to Xanterra, things changed."

One of the things that changed, according Niland, was the desire to build along the County Road that winds from Carter's Grove to South England Street. A portion of it borders Kingsmill.

"Busch had said they had no plans to develop there," Niland said.

"Kings-Mill United was founded following the announcement of plans by Xanterra to construct 322 new homes along Carter's Grove Country Grove and the Woods Golf Course," Lloyd-Williams wrote.

Niland said that development would thin the buffer between Kingsmill and the surroundings areas, among them the business district at McLaw's Circle, the Anheuser-Busch brewery and Busch Gardens theme park.

Niland said it was somewhat unique that Kingsmill in that the developer will retain control of the property owners association, "as long as they own one lousy lot."

"Usually, because of liability issues, developers don't want to control the homeowners association and they turn it over as soon as they can," he said."I think the issue here is that our community surrounds their resort, so they think they need to maintain control."