CURRENTS Judge calls for plaintiffs to produce evidence of Corridor ownership

Hearn says that it’s still very early in the Birckhead case and premature to celebrate procedural wins

By TOM STAUSS Publisher

The judge presiding over the lawsuit filed by Theresa Birckhead and six other Captain’s Cove residents challenging road access to the proposed Hastings/Mariner Townhouse project has told the plaintiffs that they must produce evidence that Captain’s Cove Golf and Yacht Club owns the entire length of Captain’s Corridor, including the portion that provides direct access to the proposed townhouse development.

A hearing was held in Accomack County Circuit County Feb. 17 to address issues raised in initial arguments by the plaintiffs and defendants. CCGYC and CCG Note, the Cove’s developer, are being sued by the Birckhead group.

Ownership of the main thoroughfare that runs through Captain’s Cove is just one of many issues raised in the litigation that is pitting the seven Cove residents against the CCGYC Board of Directors and CCG Note and affiliates.

CCGYC President Tim Hearn, who has and has had business relationships with CCG Note principles, has said that the Mariner/Hastings family never conveyed a portion of Captain’s Corridor adjacent to the proposed townhome development to the Cove property owners association.

If the plaintiffs fail to produce a deed or other evidence proving Cove association ownership of the entire length of the Captain’s Corridor, then one of the primary arguments of the plaintiffs will fail, Hearn said in a Feb. 22 interview with the Cove Currents.

The judge during the hearing said the plaintiffs in the discovery process must be able to prove ownership of the entire length of Captain’s Corridor, Hearn said, adding “no such conveyance or deed exists.”

Hearn acknowledged that some of defendants’ motions in the pending case were not granted by the judge, except that he determined that the deed to Captain’s Corridor proving ownership will need to be produced during discovery.

Some of the plaintiffs in the case have taken to social media declaring victory in the Feb. 17 court hearing on the case, but Hearn was dismis- sive of any claims of victory this early in the case.

“That’s like saying you won the game because you showed up for the national anthem on time,” he said. “It’s very early.”

Hearn said another issue to be addressed during discovery will be the contention by the plaintiffs that a certain builder had not been assessed annual lot assessments.

“They’ll be asked during discovery what evidence do they have that assessments haven’t been paid,” Hearn said. “If they don’t have evidence, it’s very likely that the judge will reject this argument in the suit even before the case goes to trial.”

Previously Hearn has said that the builder in question had been assessed but was in arrears.

“This builder just made a $65,000 payment to the Cove including interest,” he said.

Another issue in the case involves a transaction that resulted in Aqua Virginia, the Cove’s water and sewer utility, acquring CCGYC land for possible use as future rapid filtration basins (RIBs),

Hearn indicated that the judge’s order for the plaintiffs to either drop the claims about the RIBs or to include Aqua Virginia in the lawsuit is “interesting. Including Aqua will drive up legal costs for the plaintiffs,

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