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Confusion sends sparks flying in Kilmarnock

Posted on Wednesday, April 3, 2013 at 11:47 am

William Smith

A rushed local government meeting related to the acquisition of property in Kilmarnock had council members questioning each other’s communication and awareness last Wednesday.

On March 27, Council members William Smith and Shawn Donahue called a special meeting of the Kilmarnock Town Council to discuss a contract that was allegedly never voted on during the Feb. 25 meeting when the purchase of the Bay Trust Property on 1 North Main St was approved 4-2.

Smith had opposed the purchase because of council’s decision to acquire the building as the new town hall without a certified appraisal, while Donahue expressed his concerns that property’s price was excessive in comparison to the current value of real estate in Kilmarnock.

Councilmember Howard Straughan disagreed with Smith’s claim that the town council never approved a contract.

Councilmember Rebecca Nunn agreed, noting that according to the Code of Virginia, in order to enter into a real estate negotiation, there must be an offer and a contract in place.

“We entered into a negotiation,” said Nunn. “There was an offer, it was accepted. There was a contract, we voted on it.”

But Smith said he did not receive the contract until last Thursday, March 21, when he called the town office upon learning that town council would be renting the Bay Trust building in April, May and June.

According to Smith, the office informed him that the rent was part of the contract.

“This was the first time that I had ever heard the word ‘contract’ mentioned,” said Smith, who added that a majority of the council was unaware of the contract’s existence.

The only members who appeared to be aware of the contract were Nunn, Straughan and Vice Mayor Gravatt.

The three members compose the Town Centre Committee that was authorized by the council to negotiate for and buy the building. Town Manager Tom Saunders and Town Attorney Chris Stamm were also aware of the contract prior to March 21.

Smith said that the third page of the contract made it subject to approval by the town council of the Town of Kilmarnock.

“How can we as town council approve something that we have never seen?” he asked.

Straughan replied that the town had done many contracts during the course of the year. “How many contracts have we gotten into where the members of the town have actually seen the contract?” Straughan asked.

“How many contracts do we enter into at $730,000?” Smith replied.

“That doesn’t have anything to do with it,” Straughan fired back.

“I think a real estate contract is a much different contract from a copier contract,” said Smith.

Straughan replied that the contract was available to anyone who wanted to see it.

Although Smith agreed, he noted that council held several closed session meetings regarding the purchase and that the word ‘contract’ was never mentioned during the sessions.

“I don’t think it was up to us to ask someone to provide it to us.” Smith said. “If there are people on [the Town Centre] committee who already knew that contract was out there, I think there was some type of obligation to share that with everyone else.”

Smith said the contract was not valid

“As far as Admin and Finance goes, I don’t want any kind of exposure of the town to be out there on my watch,” said Smith. “This contract calls for approval by town council. In my opinion, that has not happened.”

Smith also pointed out that council needed to put down a $5,000 consideration deposit as required by the contract, which, to his knowledge, had not happened.

Nunn said that whether or not council approved the contract, they would still purchase the building.

“If we don’t approve the contract, then we lose all of our protection in the contract and the bank can say to us tomorrow, ‘We want the $729,500,’” she said. “I think it’s a matter of semantics, but we have already bought the building. That’s a done deal.”

But Town Attorney Chris Stamm replied the contract had not yet been presented and therefore required council’s approval.

Nunn made motion to approve the contract and make the deposit, which Smith said should have been made March 1, but Nunn countered by saying it wasn’t required.

Council approved the contract 4-2, with Smith and Donahue opposing.

When asked by Umphlett and Gravatt why he was in opposition, Smith replied: “I’ve never approved the $729,500, so I can’t approve the contract.”

Donahue said council was holding the special call meeting because of a lack of communication.

“The frustrating thing for us is that we’re out of the loop,” he said. “We should’ve been included. We shouldn’t read about it in the paper.”

“I guess you didn’t read the paper two weeks before that when Tom was quoted as saying, “We were moving into the building in late June,’” said Nunn, “or…the paper two weeks before that when [it was] reported that we were going to start renovations on April.

“You think the bank is just going to let us walk in there and do all this?” Nunn added. “It’s always been, we’re paying for it July 1, but we’re getting it ready, we’re going to make renovations [and then] we’re going to move in.”

Planning Commissioner and former Kilmarnock Councilmember Les Spivey questioned if proper public notice had been given for the meeting.

“I didn’t find out about it until yesterday [March 26],” said Spivey. “I’m a little concerned.”

Councilmember Emerson Gravatt was not aware of what the meeting was about prior to attending.

Smith said there was short notice for the meeting because he wanted council to settle matters regarding the contract before their due diligence on the property ran out.

Nunn said council’s due diligence would not have expired until April 14 since the contract was ratified March 1.

“We have 45 days from the day of contract,” said Nunn.