Smithfield’s town government will for now stay out of an ongoing dispute between the Cypress Creek Homeowners Association and the developer of the subdivision’s sixth and final phase.

HOA Vice President Russ MacConnell, during the public comment period at the Sept. 3 meeting of the Town Council, produced a circa-2017 conceptual plan for the 152-home Phase Six intended to complete the 450-home development that’s been building out since 1986 around the Cypress Creek Golfers Club.

The plan showed a community fitness center surrounded by a fenced in-ground pool, hot tub, bocce ball courts, a barbecue area and an adjacent walking trail buffered by more than 20 trees leading up to a scenic overlook at Cypress Creek. Virginia Beach-based Robinson Development Group, the developer of Phase Six, had as of 2020 proffered that a pool and fitness facility “as outlined on the conceptual plan” was to be built and conveyed to the HOA no later than the 55th certificate of occupancy issued by Isle of Wight County for Phase Six, and the walking trail by the 108th certificate of occupancy.

MacConnell contends that in the transition from a conceptual plan to the official site plan approved by the town, the developer reduced the number of trees from 43 to six and eliminated several amenities, including bocce ball courts and park benches along the walking trail. Tim Culpepper, senior vice president of Robinson Development Group, contends it’s not uncommon for there to be changes from a conceptual plan to an engineer-drawn site plan to account for stormwater infrastructure, and contends the HOA was provided with a copy of the final engineered plan in 2021.

MacConnell returned to speak at the council’s Dec. 3 meeting, where during the public comment period he asked the council for an update on the situation.

Town Attorney Bill Riddick said he and Community Development and Planning Director Tammie Clary had spoken with Culpepper following MacConnell’s September appearance and had received assurances from him that the situation would be resolved.

Riddick said it “remains undetermined” whether the situation amounts to a zoning violation. Riddick, in September, said written proffers by a developer are legally binding and that the town has several avenues of recourse it can use should a developer not adhere to what was proffered at the time of rezoning, such as withholding permits or the refunding of a developer’s bond. Developers in Smithfield must set aside 20% of the value of what they proposed to build, which is refunded to the developer upon satisfactory completion of the subdivision agreement.

Riddick said the HOA and Robinson have each retained their own lawyers, while he represents the town.

“Unless we’re in a position to start bringing litigation, and I don’t think that we can do that at this point, I don’t think there’s a lot more that the town can really do about this,” Riddick said. “He’s given us a commitment that he’s going to fix this. They’re represented by legal counsel.”

Citing that many of the Phase Six houses are now built and occupied, Riddick advised against revoking the “cluster” suburban residential zoning amendment that had allowed houses to be built closer together than the maximum density for typical developments. 

“There are lots of people who live in those houses out there and I don’t know that that’s a very good solution because that causes lots of problems for a lot of people that extend far beyond the issue of the HOA and the recreational facility,” Riddick said.