Kingsmill Resident's Case Against Busch Dismissed

By Desiree Parker Saturday, August 21, 2010

A circuit court judge ruled Friday that a frustrated Kingsmill resident didn’t have a case against Busch Properties, but the resident isn’t ready to give up.

Resident Don Tortorice, a law lecturer at William and Mary, has been arguing that Busch Properties should hand over control of the homeowners association to homeowners.

Since its creation in the 1970s, the Kingsmill Community Services Association (Kingsmill’s home owners association) has had nine board members, five of whom are chosen by the developer, Busch Properties, and four who are voted on by residents. Tortorice claims this is a violation of state law, but on Friday a Williamsburg/James City County Circuit Court judge didn’t agree and tossed the case out.

“I was surprised and disappointed that in handing down its ruling today, retired Judge Walter Ford did not see fit to give his attention to a formal Attorney General’s opinion in 2002 that concludes that under the Virginia Property Owners' Act, a developer ‘can maintain control over the property owners' association only as long as it owns a majority of lots in the development’,” Tortorice said in an email.

“He also did not follow the Virginia Supreme Court's opinions holding that Attorney General opinions are authoritative when they have not been corrected by the legislature, and three legislative sessions have left the 2002 Attorney General's opinion untouched.”

Tortorice also claims that the decision conflicts with various interpretations of state code, which say land owners need assurances that their homeowner’s associations should revert to their control in a reasonable time.

“Justice was not done today, and I will not stop until it is,” wrote Tortorice. “A timely appeal is being prepared.”

The attorney for Busch Properties was not immediately available for comment Friday afternoon, but the KCSA board refuted Tortorice’s claims in March in their newsletter, calling them “slanderous.”

The developer intended to retain control “throughout the development period” and this control is completely legal, according to the KCSA statement. The board also wrote Tortorice’s “serious and untrue” allegations “substantially misrepresent the law in Virginia.”

“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 statement continued.

The board said at the time that the developer would one day give up its board control, but that day hasn’t yet come.

Aside from his legal battle with the KCSA, Tortorice is also supporting two new candidates vying for seats in the upcoming KCSA board elections on September 13. He hopes to get more non-Busch control of the board, and make public information that some residents have been asking for regarding the KCSA’s financial ties to Busch Properites.

In an editorial on a resident-created website, Tortorice writes, “although they sit as fiduciaries, the KCSA board, through its legal counsel, has refused resident requests for fundamental information, such as: a list of KCSA employees; a list of KCSA members and addresses; material invoices from Busch Properties to KCSA; a schedule of KCSA assets; copies of minutes of the KCSA contingency planning committee; and invoices for legal services paid by KCSA.

“We need desperately to have resident directors with substance and integrity to represent truly the interests of Kingsmill residents.”