Kingsmill Resident Challenges Home Owners Association

By Desiree Parker Tuesday, March 02, 2010

A Kingsmill homeowner and William and Mary law lecturer has been vocal enough with his complaints about his home owners association that the board felt it necessary to refute his claims Monday in their printed community newsletter.

Since its creation in the 1970s, the Kingsmill Community Services Association (Kingsmill’s home owners’ association) has had nine board members, five of which are chosen by the developer, Busch Properties, and four of which are voted on by residents.

In February, resident and law lecturer Donald Tortorice sent a letter to Robin Carson, president of the KCSA and executive vice president at Busch Properties, and the KCSA board of directors, in which he argued that board control should no longer belong to the developer but rather it should completely be in the hands of home owners.

Tortorice has made it clear that he’d like to see the issue taken to court. He has ignored a cease and desist letter from the KCSA and shared his thoughts with residents and the press, which prompted the association board to respond in the community’s March newsletter with their assertion that his claims are “slanderous.” The board also says the developer will one day relinquish control back to homeowners.

“Continued voting control of the organization and operation of KCSA is a continued outrage that flies in the face of reason and fairness,” Tortorice wrote in his original letter, dated February 9. “It contradicts statutory law, legislative statement of intent, the clear opinion of the Attorney General of the Commonwealth, and principles of Virginia statutory construction…

“I call upon Busch Properties and its appointed directors to…transfer voting control of the Association to its residential members, and more profoundly, I call upon homeowner directors to insist upon homeowner control.”

Torotrice told WYDaily that his concern over the issue came as a response to tensions between home owners and the board over various issues in which “Busch Properties was not forthcoming with information,” namely regarding questions about property management being done (and paid for) without a written contract.

Resident John Niland, who aims to run for a seat on the board, sent out an email to residents in which he mentioned similar concerns. Niland also questioned KCSA expenditures on professional fees, which jumped from $45,000 annually several years ago to $460,000 in 2009 (over $235,000 over budget).

Both men distributed Tortorice’s letter to residents. A few days later, the Kingsmill police hand delivered letters to each from the KCSA attorney, demanding they send all communication about the issue through her.

“This outrageous abuse of the Kingsmill police and bush-league attempt at intimidation may have been a successful technique by the former East German Stasi, but it will not work in Kingsmill and it will not intimidate me,” Tortorice wrote in response. “Instead, it shall strengthen my resolve to see that fairness of representation and management of the KCSA board will be realized.”

Elizabeth White, attorney for the KCSA, explains the use of police, saying “KMPD plays a number of roles within Kingsmill and routinely drops off letters [or] packages to residents' homes… the KMPD is in a friendly posture with the residents who tend to know them by name and interact with them on a weekly basis…”

She says there was an urgent need to get these letters to the men faster than through the mail, and the officers are Special Conservators of the Peace and authorized to deliver these sorts of messages.

As to why the letters were sent in the first place, White says, “The cease and desist letter pertains to the slanderous and defamatory nature of his correspondence in which he states emphatically that KCSA is breaking the law – which is clearly not the case. Due to his persistent threats of legal action against KCSA, we have asked that he communicate only through KCSA's legal counsel regarding the subject matter of his allegations.”

Tortorice says he sent his original letter to the KCSA newsletter, the KCSA Bulletin, but they wouldn’t print it. On Monday, the Bulletin ran a letter from the board of directors in response to Tortorice’s claims.

The response says the developer intended to retain control “throughout the development period” and that this control is completely legal.  The response letter also says Tortorice’s “serious and untrue” allegations in his original letter “substantially misrepresent the law in Virginia.”

The response continues: “Given the slanderous nature of his claims of illegal operations of the KCSA, the KCSA board wants to assure residents that Mr. Tortorice’s claims of improper board seat retention by the developer have been thoroughly reviewed and rejected by KCSA’s legal counsel and the attorney at the state’s CIC Board has confirmed KCSA’s legal counsel’s analysis of the controlling law.”

The resident-elected portion of the board last month signed an official one-year contract with Busch Properties to manage the KCSA, the response letter points out (likely in response to Tortorice’s and others’ complaints that there was no contract for this service).

The letter concludes, “When the time comes that the developer announces its intent to give up its right to appoint 5 persons to KCSA’s board, KCSA will be ready and well positioned to keep moving this unique community forward.”