LETTER: State Bar President-Elect on Old School Battle



January 15, 2014


For well over a year, a group of residents has been battling to save the historic Cape Charles High School from being lost as an historic public asset. I will explain why and suggest a course of action to protect other historic property.

First, the primary excuse for transferring the property to a private developer, for a nominal price, was a supposed need to unload a building that had been allowed to fall into disrepair. Of course, the Town of Cape Charles has ordinances that prohibit allowing property to become dilapidated, so it appears that the local governing body violated its own laws. That type of excuse for disposing of historic property is sad, ironic, and unacceptable.

Second, the deal involving Cape Charles High School converts a public asset into private property, with no public space and no future intended public use. The deal takes a building that was considered to be a part of the public park and allows it to be converted into private residences. The “renovated” building will bear little resemblance to the old high school. This would appear to be contradictory to the Cape Charles Comprehensive Plan, which calls for the preservation of public space.

Third, saving an historic school property like the Cape Charles High School is not complicated to do. The Town of Onancock managed to save the old Onancock High School, and the community is richer for the effort. Many residents urged the Cape Charles Town Council to follow the Onancock example, to no avail. In fact, a competing bid to purchase the school for more money and keep it public was rejected without any Council vote or public discussion. No good reasons were ever offered for the refusal to engage in a serious preservation effort.


Finally, many people believe that the Cape Charles Town Council cut corners and violated mandatory procedures in voting to dispose of the school property.

Numerous examples were offered, and many residents warned the Town Council that significant procedural mistakes were being made. The public is entitled to rely on policies, procedures, and local ordinances, and the public should be permitted to force a local governing body to comply. This is a basic concept in every level of a representative democracy.

Unfortunately, the circuit court ruled, among other things, that the residents do not have “legal standing” to maintain a lawsuit designed to set aside the transfer of the historic public property to a private developer. The Virginia Supreme Court initially declined to hear an appeal of this ruling, but a petition for rehearing is pending at this time. If the Virginia Supreme Court continues to refuse to hear the matter, an appeal to the United States Supreme Court is an option.

It seems fundamental that residents of a community should all be deemed to have the right to object to the improper disposal of important historic properties and assets. If the people cannot protect their community’s history, who can? If the people cannot air their grievances in court, what good is the legal system?

Regardless of how this particular dispute turns out, I urge the residents of Cape Charles to pursue legislation in the General Assembly to guarantee that all residents in a community are deemed to have legal standing to object to the improper, illegal disposal of historic public properties. As a life-long Virginian, I believe that I have a legitimate interest in protecting against the reckless and illegal disposal of historic assets, particularly those in my community. I believe that the same applies to the residents of Cape Charles. It is hard to imagine a good argument to the contrary.

In conclusion, this battle was necessary and appropriate, no matter how it ends. The residents should be applauded for their bravery and energy. No one should be ashamed for attempting to protect a community’s history. And despite how this particular battle concludes, I hope that the General Assembly sees the wisdom of enacting new legislation to guarantee that the citizens have the right to protect their history and be heard in the courts that serve them.

Virginia Beach

Kevin Martingayle is President-Elect of the Virginia State Bar and will become President in June. He represented Old School Cape Charles LLC before the Virginia Supreme Court Writ Panel and Northampton Circuit Court.

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5 Responses to “LETTER: State Bar President-Elect on Old School Battle”

  1. Kearn Schemm on January 15th, 2014 9:26 am

    This guy needs to run for public office. He has my vote.

  2. Steve Downs on January 15th, 2014 9:42 am

    The “buyers” of the property that was GIVEN to them by our town government have admitted that they wanted it for tax credits.
    Watch how fast they unload the property if and when they are granted the tax credits they were after in the first place!

  3. Mike Kuzma, Jr. on January 15th, 2014 9:46 am

    Well said Sir, but do you really expect Terry McCauliffe to sign such legislation?

    His very existence depends upon being able to reward his donors with(the Public’s) lucre and privilege.

    Frankly, the whole matter of ‘standing’ in this issue, and many at the Federal level are disgusting, and patently anti-American.

  4. Deborah Bender on January 15th, 2014 11:04 am

    The whole idea that we as citizens have no “standing” makes me wonder. Seems like the people running this town can do whatever they want with “our” property and money and we really have no say at all. It just doesn’t seem right.

    As far as the tax credits go, we always knew they were after the tax credits. What these men do is find backers to pony up the money to renovate the building. Then they get the tax credits and spread them around with the investors. Now they rent the “one bedroom apartments” for 5 years. After 5 years they either sell the whole building or condo it out and make a boatload of money.

    The thing that really irritates me is that a lot of people have spent their hard earned money renovating homes into apartments in this town and a lot are sitting empty. When this “new” building opens up many people might rent the apartments in the building and the people that have spent their own money to create apartments in the historic district will be out of luck.

    Again it’s the same old story with the town catering to developers and the heck with the property owners.

  5. Kevin E. Martingayle on January 15th, 2014 1:28 pm

    Please note that while it is true that I am President-Elect of the State Bar, this letter was submitted in my capacity as an individual lawyer and citizen, and not on behalf of the State Bar. The opinions expressed are my own. Thank you for reading and considering these important matters.