Saturday, February 27, 2010

Here is my oral argument before the VA Supreme Court on February 26, 2010

Peter Kleeman presented (Feb. 26, 2010) an oral argument (by telephone conference) supporting the Appeal of the Circuit Court Decision regarding granting of right of way by City of Charlottesville to VDOT. Argument (as drafted) is given below. It was a terrific experience to present our basis of appeal to the three-justice panel. I look forward to hearing the panel's recommendation in a few weeks. Not everyone has their day in court at the Supreme Court of Virginia!

Also - click on the "Meadow Creek Parkway" or "Charlottesville Circuit Court" labels below to see the history of this project and the case that started in February, 2009.

Case: Peter Kleeman, et al. v. City of Charlottesville, et al. (Record No. 092113)

Justices of the Supreme Court of Virginia on the three-justice panel hearing the oral argument:

.... Justices Barbara Milano Keenan (panel chair); Donald W. Lemons; S. Bernard Goodwyn

The argument as prepared for presentation:

It is our belief that the two paragraphs of Article VII – Section 9 of the Virginia Constitution state clearly how rights in and to city or town owned public places can be sold or the right to use public land can be granted and a plain language reading of this section is the basis of our appeal before this court.

The City of Charlottesville passed an ordinance on June 2, 2008 by 3/5 affirmative vote of council granting a permanent easement to VDOT for a road right-of-way on city owned land used by the city school system and the public.

We claim that the transfer of right to use this public place by deed of permanent easement was not carried out in compliance with Article VII – Section 9.

This section requires:

.... If right-of-way was sold to VDOT, then a 4/5 affirmative vote of council is required to pass the ordinance or resolution (as provided in paragraph 1 of Section 9);

.... If the right-of-way is granted other than by sale, then it can only be granted for a period not to exceed 40 years (as provided in paragraph 2 of Section 9).

The deed of easement filed in the Albemarle County Courthouse specified that the right-of-way) is granted permanently. Given that the enabling ordinance was only passed with a 3/5 affirmative vote of council, the deed filed is neither in compliance with paragraph 1 or paragraph 2 of Article VII – Section 9.

The deed itself doesn’t state if this right-of-way is provided as a sale but rather states that the perpetual right and easement is granted “in consideration of the sum of $43,120.00 paid by the Grantee to the Grantor” (by VDOT to City of Charlottesville). Neither does the deed state the right of way was granted by other than a sale. Circuit Court Judge Jay Swett accepted VDOT’s claim that the right-of-way was a gift from the City of Charlottesville to VDOT with the transferred funds paying “costs to cure” associated with the gift. There is no mention of a gift in the deed, and we contend that even granting the right-of-way as a gift is subject to a maximum period of 40-years as provided in paragraph 2 of section 9.

Transferring of right-of-way by deed of easement is not the typical means VDOT has acquired right-of-way. VDOT in the past has typically purchased right-of-way and this case is the first time I am aware of that this method of right-of-way acquisition was attempted by VDOT.

This being a case without precedent in case law, this is the first opportunity for the Supreme Court of Virginia to clarify how Article VII – Section 9 should be interpreted in transferring right-of-way to city over town owned property for use as road right of way.

We believe the City of Charlottesville has gone beyond its authority given in Article VII –Section 9 in granting right-of-way over a city owned public place and request that you consider our appeal.

We ask that the deed of easement be voided and we add that VDOT has other alternatives it can pursue to acquire right-of-way that will comply with the Virginia Constitution.

End of oral presentation.


The conference call lasted about 6 minutes. At the conclusion of my presentation, the justices opted not to ask questions. Justice Keenan concluded the conversation stating that the panel would consider the argument presented and provide a written result of the panel’s action in 2-3 weeks.