The Virginia Constitution and Meadow Creek Parkway

The local Charlottesville media have been reporting on the recent Charlottesville Circuit Court filings for a preliminary injunction and declaratory judgment regarding a part of the right-of-way acquired by VDOT from the City of Charlottesville. This blog is to clarify a bit about the bounds of the issue at hand. I hope this helps.

The only land transaction included in the filing is a portion of the land owned by the City of Charlottesville north of Melbourne Road. This land is the southernmost portion of the purple line in the map provided (from www.c-ville.com) The proposed Meadow Creek Parkway alignment runs about 600 yards north from Melbourne Road through this parcel of land and as noted in the title of the June 2, 2008 ordinance passed by a 3-2 vote by City Council. This ordinance entitled "AN ORDINANCE GRANTING PERMANENT AND TEMPORARY EASEMENTS ACROSS CITY-OWNED PROPERTY IN ALBEMARLE COUNTY (MELBOURNE ROAD AREA) TO THE COMMONWEALTH OF VIRGINIA (VDOT) FOR CONSTRUCTION OF THE MEADOW CREEK PARKWAY" clearly granted more than 4 acres of this land in permanent easements. The deed filed on January 14, 2009 shows that the city received the sum of $43,120.00 for these permanent easements and some additional temporary construction easements. Many of the local media reports stated that this issue was about easements in McIntire Park that were granted as temporary easements only. But, the easements in McIntire Park are not considered in the filings and has likely confused the nature of the circuit court filing.

As I see this matter, the Virginia Constitution section entitled "Sale of property and granting of franchises by cities and towns" requires a three-fourths vote of council (at least 4 affirmative votes of Charlottesville City Council) - but council only had three affirmative votes. The entire section 9 is provided below so you can decide for yourself if council acted in compliance with the constitution. By removing all of the words in the first paragraph of this section that do not relate to this case the paragraph simplifies to the following:

No rights of a city in and to its parks, or other public places shall be sold except by an ordinance or resolution passed by a recorded affirmative vote of three-fourths of all members elected to the governing body.

A right to use this public land (a public place) was sold (for $43,120.00 as indicated in the deed) under an ordinance of council that did not achieve a recorded affirmative vote of three-fourths of the members (five) of the governing body. Isn't this a clear indication that the transfer of rights was not done in compliance with this section of the Virginia Constitution? I believe that is the case. I believe that this paragraph applies to any sale of rights - such as right-of-way - whether as a permanent or temporary easement can be sold without a recorded affirmative vote of three-fourths of all members elected to the governing body.

A similar streamlining of the second paragraph of section 9 yields the following:

No right of any kind to use any easement of any description in a manner not permitted to the general public shall be granted for a longer period than forty years, except for air rights together with easements for columns of support, which may be granted for a period not exceeding sixty years. Before granting any such privilege for a term in excess of five years, the city shall, after due advertisement, publicly receive bids therefor.

In my opinion, this paragraph applies to the use of temporary easements only in that the term permanent indicate no time limitation. Thus the sale of a permanent easements would be controlled exclusively by the first paragraph and not at all by the second paragraph.

I am not an attorney, but this constitutional section suggests to me that three affirmative votes of council is insufficient for this transfer of a right of permanent easement to meet the constitutional requirement.

To my knowledge, no court date for a hearing of this matter in the circuit court has yet been scheduled. I do look forward to hearing the decision as soon as possible. The land is being cleared and more damage to this land can happen every day without a preliminary injunction being granted. I expect the circuit court judge will agree with the formal filings in the case and void the deed as requested by the attorney for the Coalition to Preserve McIntire Park.

What do you think? Post a comment and share your thoughts and analysis.

---

VA Constitution
Article VII - Local Government
Section 9. Sale of property and granting of franchises by cities and towns.

No rights of a city or town in and to its waterfront, wharf property, public landings, wharves, docks, streets, avenues, parks, bridges, or other public places, or its gas, water, or electric works shall be sold except by an ordinance or resolution passed by a recorded affirmative vote of three-fourths of all members elected to the governing body.

No franchise, lease, or right of any kind to use any such public property or any other public property or easement of any description in a manner not permitted to the general public shall be granted for a longer period than forty years, except for air rights together with easements for columns of support, which may be granted for a period not exceeding sixty years. Before granting any such franchise or privilege for a term in excess of five years, except for a trunk railway, the city or town shall, after due advertisement, publicly receive bids therefor. Such grant, and any contract in pursuance thereof, may provide that upon the termination of the grant, the plant as well as the property, if any, of the grantee in the streets, avenues, and other public places shall thereupon, without compensation to the grantee, or upon the payment of a fair valuation therefor, become the property of the said city or town; but the grantee shall be entitled to no payment by reason of the value of the franchise. Any such plant or property acquired by a city or town may be sold or leased or, unless prohibited by general law, maintained, controlled, and operated by such city or town. Every such grant shall specify the mode of determining any valuation therein provided for and shall make adequate provisions by way of forfeiture of the grant, or otherwise, to secure efficiency of public service at reasonable rates and the maintenance of the property in good order throughout the term of the grant.