Mathews supervisors wrangled over issues with Hole in the Wall Waterfront Grill once again at its most recent meeting, with supervisor Mike Walls initially moving that the county sue the restaurant for breach of lease and “start all over.”

That motion was ultimately amended to having the board seek legal advice on the matter and was passed unanimously. The monthly meeting was held on Thursday, Feb. 27, in the historic courthouse.

Walls prefaced the lengthy discussion with the comment that there had been a lot of talk about the issue in closed sessions and that “it’s time the public knows what’s going on.”

He gave a recent history of the actions the board has taken to deal with its problems with the restaurant, which is owned by the county and leased to the restaurant owners. He said that last August the board called in the attorneys for the county’s insurance company, Virginia Risk Sharing Association, to discuss the matter, and those attorneys recommended that the county file suit against Hole in the Wall for breach of its lease.

“We all agreed to give them 30 days, then use the nuclear option,” said Walls. “It’s now been six months.”

In the interim, Walls said the board had been offered an offsite drain field by an adjoining property owner, and the county “made a reasonable offer.” However, the property owner wanted over three times that amount, he said, adding, “We all agreed that’s not gonna happen.”

During the January meeting, said Walls, supervisor Tom Bowen suggested fixing the drain field and selling the property to the renter. But the Milford Haven boat ramp at Hole in the Wall is the busiest boat ramp in the county, said Walls, “and possibly the most sought-after boat ramp on the Middle Peninsula” because of its “perfect geographic location.”

“In my mind, it’s first and foremost a boat ramp,” he said.

In February, said Walls, it was suggested that the board buy a piece of property on Callis Wharf Road and install a mile-long force main sewer line to pump the restaurant’s effluent off-site. A prior estimate for a force main from the existing HRSD sewage line to Hole in the Wall was $1 million a mile in 2018 or 2019, he said, adding, “and I can’t imagine it’s any cheaper today.”

Walls said one of the insurance company’s attorneys had characterized a suit against the restaurant as “a slam-dunk” for the county. He said the county should sue, then re-advertise the building for rent, with “the current renter welcome to be involved.” He said a contract with reasonable rent could be negotiated, with the lessee knowing the property has a failed septic system and that they would have to pay 100 percent of the cost of pump-and-haul.

Walls also suggested the county could offer the property back to the civic league, which originally donated it to the county, or the building could just be demolished.

After seconding Walls’ motion, supervisor David Jones offered further argument for having the board file yet another suit against Hole in the Wall. He said the board had directed County Administrator Ramona Wilson to gather the information about the Next Gen septic system the county had at one time agreed to purchase for Hole in the Wall, and on which it had spent $72,000. He said the agreement had been for a 384 gallons-per-day system. However, he said, the engineer for the system had found that the Virginia Health Code requires a capacity of 50 gallons per day per person.

Jones said he had called the engineer and asked why the bill the county had received for the system was larger than what was originally agreed on, and the engineer explained that his company had already built the original system when it received a request from Hole in the Wall restaurant owner Mac Casale to redesign the system to increase its capacity to 1,000 gallons per day.

“Who gave him the authority to negotiate?” said Jones. “He’s the tenant.”

On top of the ongoing septic issue, said Jones, Hole in the Wall now has a notice of violation from the health department for installing a deck member on top of the septic tank.

With those points made by Walls and Jones, Bowen brought forth some counterpoints. He said that the lease for the restaurant, which was signed in 2016, gave the county the responsibility for operating the well and septic system and for repairs and maintenance to the building. He said both the county and the health department knew there were problems with the septic, and it took 19 months after the lease was signed to get the septic system ready for use.

“It puts the responsibility on the county in a legal contract we’re obligated to honor,” he said.

Bowen said he had asked the attorney for the county’s insurance company what evidence they had to sue for breach of contract, and they weren’t able to tell him.

“I’m opposed to file a lawsuit until we have evidence,” he said.

Bowen said the attorney further suggested that the county “increase the legal fees as much as possible on the defendant until he agrees to settle.”

“We’re talking about Mathews County suing a resident of Mathews County, using its massive financial strength against a citizen to where the citizen can’t go forward,” he said. “If we’re going to win, we should win based on facts and law. Might does not make right. I have seen businesses and industry do that, but a government should never do that to its citizens.”

Bowen acknowledged that the board had a meeting at which it said it didn’t want to spend more money on structural issues at Hole in the Wall. But at that time, he said, an estimate said repairs would cost over $300,000, while the repairs were ultimately made for $7,700.

The building has been on pump and haul for five years, spending over $50,000 just last year, said Bowen, and the county has done nothing of significance to try to fix it. He said that a mile-long force main had been installed by the Middle Peninsula Planning District Commission recently at Captain Sinclair’s Recreational Area in Gloucester at a cost of $70,000.

Bowen pointed out that Mathews County had spent $250,000 in legal fees trying to fight an opinion issued by the Mathews County Board of Zoning Appeals on Hole in the Wall before finally dropping the appeal.

One issue with trying to bring suit against the restaurant, he said, is that the building permit for the structure was issued in 2016, and the statute of limitations for filing suit is five years. While some people argue that supervisors have to approve capital improvements, he said, the county administrator serves as the chief operating officer for the county, and former county administrator Mindy Conner filed a sworn affidavit that all activities were done properly, with the board’s approval. Bowen said the county’s building official had done the inspections and had issued a certificate of occupancy.

“Are they not proper agents of the county,” he asked. “Are we gonna say a supervisor has to go out and make inspections? That’s foolish.”

If the county sues the restaurant, said Bowen, the owner will file his own suit for breach of lease for the county not fixing the septic system.

“We’ve already spent $250,000, and we might be able to fix it for $70,000 to $100,000,” he said.

Bowen said he doesn’t think the county could win the suit.

“It’s a contract. We can’t just change it because we don’t like it,” he said. “If there’s an attorney who thinks it’s a slam-dunk, let them come to us in closed session and tell us, because you’d better know what your evidence is before you go to court.”

Jones said the county would’ve had a working septic system “if Mr. Casale hadn’t interfered.”

Supervisor Janice Phillips said it would behoove the board to have the VRSA attorney address the board, and Walls amended his motion to do so.

In further discussion, Walls said that the board was not suing Casale, but was suing the restaurant, and he said the entire lease needs to be honored, not just the part that benefits the renter. He told Bowen that he needs to “concentrate on what’s best for the county.”

Supervisors’ chairman Tim Doss said the board has had many discussions on the issue and has tried to work out an amenable agreement.

“I don’t want Hole in the Wall to go anyplace,” he said. “A lot of people like it.”

He said he’s not taking anybody’s side, and that all he wants is for the lease to be enforced.

“If it benefits the tenant, it benefits the tenant,” Doss said. “If it benefits the county, it benefits the county … If the tenant has violated the lease, they need to fix what’s violated. The side I’m taking is enforce the lease. If the tenant’s been wronged, do whatever we need to do and move forward.”

The board directed Wilson to request an appointment with VRSA at 4 p.m. on March 20, prior to the regular March meeting.