Judge Swett denies request for injunction - declaratory judgement to be heard in May

The local media were out in force to cover the hearing on the Coalition to Preserve McIntire Park (CPMP) request for a preliminary injunction to protect further damage to the land that CPMP claim was illegaly transferred to VDOT for Meadow Creek Parkway construction. Althought the injunction was not granted, Judge Jay Swett of the Charlottesville Circuit Court offered to find an early court date for the hearing on the legality of the land transfer.

Here are several links to local media stories on the Wednesday March 18, 2009 hearing.

Charlottesville Tomorrow blog by Sean Tubbs

Daily Progress article by Rachana Dixit;

WVIR TV - NBC29 news report by Henry Graff (with video);

Charlottesville Newsplex - TV news story by Cheryn Stone (with video)

WINA - 1070 AM radio report by Rob Graham;

The HooK - article by Lisa Provence

C-ville Weekly - article by Will Goldsmith

The trees may be gone, but perhaps we can replant them.

Here is a photo of the trees that are or will soon be removed from the path of the Meadow Creek Parkway. The Coalition to Preserve McIntire Park (CPMP) had its first day in court today in an effort to save the Charlottesville owned land that CPMP believes was provided to VDOT for construction of the parkway but the ordinance of council failed to meet the number of council votes to legally transfer the right of way. Circuit Court Judge J. C. Sweat heard the case at 2:00 pm today on CPMP's filing for a preliminary injunction to preserve the trees and land not yet destroyed on this land. After two and one-half hours of presentations, testimony, and discussion Judge Sweat commented that the significant damages to the trees and land were already done, and that VDOT would lose $20,000 per day if construction was stopped and opted not to grant the request for preliminary injunction. Judge Sweat also stated that our claim had sufficient merit to schedule a hearing on the CPMP request for declaratory judgement on an expedited schedule. A hearing on that issue will be scheduled in late May of 2009.

There is virtually no case law upon which the court could base a decision. I believe that this lack of case law is because this Meadow Creek Parkway project is apparently the first time VDOT is attempting to build a state funded roadway on easements from a local jurisdiction. Typically VDOT purchase right of way, negotiates utility and other easements as necessary on the land they own, build the road, and then grant the land to the local jurisdiction once construction is completed. Being the first project of this type, I believe there are a host of problems that have not yet been brought before the courts - and thus no case law.

I was encouraged that Judge Sweat carefully considered the input from CPMP's Attorney, Ms. McKeever, City Attorney Mr. Brown, and VDOT Attorney Ms. Pound, and had lively interactions with all three attorneys on the merits of their arguments in the limited case before the court.

I am exhausted after being in the courthouse much of the afternoon, and being a witness on behalf of CPMP during the hearing. Much can happen in two and one-half hours of courtroom action. I will have to let my mind rest a bit and then help Ms. McKeever develop the strongest case possible for the upcoming hearing on the land transfer issue in May.

Many members of the media were on hand to cover the hearing. Henry Graff of TV-29 manned a camera in the court room for the entire hearing. I look forward to seeing his coverage of the hearing on tonight's TV-29 news.

This was the first of at least two hearings on this matter. I invite you to learn more about the case by reading my last several postings to this blog. Your comments are always welcome.

Justice Delayed is Justice Denied

When I arrived at the Melbourne Road site where last week a large pile of cut trees were being cut into logs I saw a lone workman with chain saw in hand cutting limbs off one of a few cut trees at the edge of the open area. A few minutes later a few more few other trees (see photo) were dragged to the cutting area from land likely north of the city-owned parcel that is the subject of the Coalition to Preserve McIntire Park (CPMP) filing in the Charlottesville Circuit Court. I could hear the towing vehicle for a while before it came into view from the dirt road running behind the Charlottesville High School athletic fields. I don't believe the Coalition to Preserve McIntire Park's day in court on the request for a preliminary injunction will be in time to save even one tree. The earliest possible date for a hearing appears to be March 18 - two weeks from now. I expect the tree cutting and hauling of this initial phase of the project will be over by then and Old Dominion Lumber (the company name on the door of the truck hauling a load of fresh-cut logs) will have processed the trees into products by then. In this case the phrase "justice delayed is justice denied" come to mind. As I understand it, one can't file for an injunction until some action deemed to be illegal has occurred. But if the request for injunction isn't heard until all of the damage is done this legal option is of little use in protecting resources. Is this a defensible public policy?

I also visited the Rio Road end of the proposed Meadow Creek Parkway alignment and saw no tree cutting activity at all further indicating to me that the access roads from the south (Melbourne Road) and the north (Rio Road) are virtually cleared.

Of course, CPMP plans to question the legality of the transfer of the right-of-way across the city-owned land adjacent to Melbourne Road whenever our hearing date arrives.

On Saturday March 7 at 10:00 am, folks opposed to a variety of threats to McIntire Park will be gathering near the intersection of Route 250 Bypass and McIntire Road to express their concerns in a peaceful and positive manner. You are invited to share your thoughts in a peaceful and positive manner there too.

Charlottesville Tomorrow posts item on CPMP court filings

Charlottesville Tomorrow posted a blog item on March 2, 2009 that provides a very good description of the various legal opportunities currently being pursued by the Coalition to Preserve McIntire Park (CPMP). If you read that material and the background links provided in the blog and in the comments you should be able to understand what is being asked in the Circuit Court filings, and why. The filing for a preliminary injunction against construction activity on the city owned land on which the Meadow Creek Parkway is proposed was submitted on February 24, but no court date has yet been set. Irreparable damage can continue until at least the hearing on the preliminary injunction is held. I visited the Circuit Court today to see if I could find out if there is a statutory limit on time between filing for a preliminary injunction and when the hearing occurs, but was informed there is no upper time limit. I suppose it is possible that there won't be a tree standing or deer or beaver or squirrel to be found when the hearing finally occurs. The technology being used on the site can reduce a tree to logs stacked and ready to haul in a matter of minutes. At two minutes each, one machine group (as in a photo taken several days ago) can reduce 1200 large trees to logs in a 40 hour work week. In the time I watched this machinery at work, a tree was lifted, had its branches stripped, and sawed into logs (perhaps for lumber) and to long thin tops (perhaps for paper) in just over one minute each. Even this one machine group could have that entire wooded area cut, stacked and hauled before court day. Somehow this doesn't seem like justice is even possible if one can't be heard in a timely manner by a circuit court judge.