Supreme Court of Virginia dismisses appeal of Judge Jay Swett's decision on the Meadow Creek Parkway lawsuit

Image: Supreme Court of Virginia
Source: http://valawyersweekly.com/files/2010/02/va-supreme-court.jpg

In a letter dated April 22, 2010, the Supreme Court of Virginia dismissed the appeal (Record No. 092113 - Peter Kleeman et al. v City of Charlottesville, et al.) of the case (Circuit Court No. CL09000084-00) heard by Charlottesville Circuit Court Judge Jay Swett. Below is a digital version of the letter from the Supreme Court.

I am disappointed that the case was dismissed on a technicality rather than on the merits of the case. A request to reconsider the issue may be filed within fourteen days if a basis for such a request exists. I am awaiting information from the Chief Clerk of the Court regarding this possibility to decide if any request will be made.

It should be noted that this case is totally independent of the Coalition to Preserve McIntire Park's primary concern about federal environmental and historic preservation issues that are only addressable in federal court after a final federal action by the Federal Highway Administration (FHWA) is taken. An action of this type may be taken by the FHWA in the next few months. The coalition may file a federal lawsuit once it has had an opportunity to analyze the FHWA action.

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court Building in the City of Richmond on Thursday the 22nd day of April, 2010.

Peter Kleeman, et al., Appellants,

against Record No. 092113
Circuit Court No. CL09000084-00

City of Charlottesville, et al., Appellees.

From the Circuit Court of the City of Charlottesville

Finding that the appeal was not perfected in the manner provided by law because the appellant failed to timely file the petition for appeal, the Court grants appellee City of Charlottesville's motion and dismisses the petition filed in the above-styled case. Rue 5:17(a)(1).
Justice Mims took no part in the consideration of this case.

A Copy,

Teste:

Patricia L. Harrington, Clerk

By: Lesley David>

Deputy Clerk

Coalition to Preserve McIntire Park asks City Council to Consider McIntire Road Extended Resolution

The Coalition to Preserve McIntire Park (CPMP) distributed the text of a proposed resolution concerning future council actions associated with the proposed McIntire Road Extended project that would significantly impact McIntire Park. An article in today's Daily Progress entitled "Group offers new appeal on parkway" by Rachana Dixit discusses how CPMP worked with the City Attorney to get the language of the proposed resolution in a form suitable for council consideration, but it is not clear if council has yet discussed the proposed resolution in the closed session of council held on Monday April 19, 2010. The Daily Progress Headline is a bit misleading in that this is not a new appeal on the Meadowcreek Parkway project. CPMP submitted a similar proposal to council several weeks ago. The new text is the result of discussions on the wording of the resolution between CPMP and the City Attorney carried out at the request of council.

The Daily Progress article suggests that some council members are hoping what the resolution calls for will occur, but that council may not act to ensure that CPMP is afforded a fair opportunity for judicial review of the project segmentation claim.

I certainly encourage council to pass this resolution so that CPMP members and other area residents can be assured that their concerns are fairly addressed in Federal court if that turns out to be necessary. Approving this proposed resolution will be consistent with Charlottesville City Council's vision statement where they strive to be "A leader in innovation, environmental sustainability, and social and economic justice." In the vision statement council states the following:

"The delivery of quality services is at the heart of Charlottesville’s social compact with its citizens. Charlottesville’s approach to customer service ensures that we have safe neighborhoods, strong schools, and a clean environment. We continually work to employ the optimal means of delivering services, and our decisions are informed at every stage by effective communication and active citizen involvement."

CPMP believes that the proposed resolution is necessary to ensure that our opportunity to exercise active citizen involvement may be prempted by actions by the Virginia Department of Transportation or the City of Charlottesville. Passing the proposed resolution or some variant of the resolution agreed upon by CPMP and City Council would clearly demonstrate that council acts in concert with its own vision statement.

Below is the draft resolution submitted to city council for its consideration.

Dear Councilors, The Coalition to Preserve McIntire Park believes the proposed McIntire Road Extended and Rt. 250 Bypass Interchange are not in full compliance with federal project development, historic preservation, and environmental laws. It is our belief that no damage should occur in McIntire Park until the legal question has been resolved. We request that you act in the best interests of the citizens of Charlottesville by passing a resolution to protect McIntire Park from premature and unnecessary disturbance. The people have a right to know that if a large section of McIntire Park is threatened with loss, there would first be full compliance with our nation’s laws. If construction begins in McIntire Park before a judicial review of the Interchange has occurred, citizens will lose a significant resource that is protected by federal law. It could also lead to the significant expense of undoing the damage done. We respectfully ask that you pass a resolution to prevent any ground disturbing activity south of Melbourne Road before the Federal Highway Administration has made a final determination on the Interchange and there has been an opportunity for an expeditious review of the FHWA decision. Here is possible wording for such a resolution: “The Charlottesville City Council hereby states that it is the will of Council that no contract for the construction of a McIntire Road Extended is to be signed, that no ground disturbing activity is to take place south of Melbourne Road, and that no agreements will be signed with the Virginia Department of Transportation for project construction, operation,and maintenance before the Federal Highway Administration has made its final determination on the proposed Route 250 Bypass Interchange at McIntire Road and there has been an opportunity for an expeditious judicial review of the merits of the legal claim on the FHWA decision on the Interchange.” Please feel free to contact me if you have any questions regarding this request. John A. Cruickshank Coalition to Preserve McIntire Park 973-0373

Charlottesville Regional Chamber of Commerce advocates for building McIntire Road Extended - Again

The Charlottesville Regional Chamber of Commerce distributed this press release on April 9, 2009 announcing the extension of a construction bid for the McIntire Road Extended project for 60 days. The chamber leadership has enthusiastically supported construction of the proposed Meadowcreek Parkway (of which the McIntire Road Extended is a part) for many years.

The Coalition to Preserve McIntire Park (CPMP) believes that the original advertisement for construction bids for this project was premature and the extension of the contract by 60 days will have little bearing on moving this project forward. CPMP continues to claim that this project is not independent of the proposed Route 250 Bypass Intersection at McIntire Road, and that the Corps of Engineers is justifiably reluctant to grant a necessary water quality permit for construction of the McIntire Road Extended until VDOT submits a suitable southern terminus for McIntire Road Extended. In the current VDOT plan, the road terminates 775 feet north of the Route 250 Bypass in the McIntire Golf Course. As I understand the Corps' concern, no permit can be issued for a project without the project having logical termini. The only currently planned logical southern terminus for the road would be the interchange proposed at the Route 250 Bypass.

If the Chamber wishes to see this project move forward, I encourage the Chamber to encourage VDOT to submit a complete road project plan to the Corps of Engineers that includes both the McIntire Road Extended and Route 250 Bypass Interchange at McIntire Road - containing a southern terminus at Route 250 Bypass and a northern terminus at Melbourne Road - so that the Corps of Engineers can legitimately consider their permit application.

The Chamber included the following statement in the email cover memo for the distribution of the press release below. Clearly the Chamber thinks of these multiple projects as on road project, yet appears comfortable supporting VDOT's current strategy of artificially segmentation to avoid a comprehensive review of the environmental, historic, and community impacts of this single project.

"Expeditious construction of the Meadowcreek Parkway & McIntire Road Extended projects -- from Rio Road in Albemarle County to a new federal intersection project at US 250 & McIntire Road in the City of Charlottesville -- providing a safe, attractive, accessible gateway to a vibrant, sustained downtown residential, shopping, entertainment and employment center, remain our Chamber's highest transportation priority projects. "

“… dedicated to representing private enterprise, promoting business
and enhancing the quality of life in our Greater Charlottesville communities.”

cvillechamber.com
PO Box 1564 • Fifth & Market Streets • Charlottesville, Virginia 22902

RELEASE: IMMEDIATE
CONTACT: Timothy Hulbert
434.295.3141
434.973.3396

CHAMBER STATEMENT REGARDING EXTENSION OF FAVORABLE CONSTRUCTION BID FOR MCINTIRE ROAD EXTENDED PROJECT

(Charlottesville, Virginia – April 9) The following is a statement from Timothy Hulbert, President and chief executive of the Charlottesville Regional Chamber of Commerce regarding the announcement late yesterday that the Virginia Department of Transportation has successfully negotiated an extension of a favorable construction bid for construction of the $3 million McIntire Road Extension Project.

“Our Chamber, and the many supporters of improved, safe vehicular access into our vibrant Downtown Charlottesville, thank officials at the Virginia Department of Transportation for their successful effort to get the highly favorable construction bid for the $3 million McIntire Road Extended Project – extended 60 additional days.

“This additional time provides the City of Charlottesville and the US Army Corps of Engineers the opportunity to resolve the remaining technical issues regarding the project and thus allow VDOT to award the bid. Furthermore, once the final technical permit is issued, opponents of the project will have the action needed to bring their anticipated court case against the project. Thus, for very differing purposes, both project supporters and opponents can applaud this action and move forward.”

The Charlottesville Regional Chamber of Commerce is dedicated to representing private enterprise, promoting business and enhancing the quality of life in the greater Charlottesville communities. Founded in 1913, the Chamber has 1,000 member enterprises which employ more than 45,000 people in Greater Charlottesville, representing an estimated total payroll of more than $1.3 billion a year. ####

FHWA distributes new draft Memorandum of Understanding for consideration in historic review of Route 250 Bypass Interchange at McIntire Road

A new draft Memorandum of Agreement (MOA) for the Route 250 Bypass Interchange at McIntire Road project was distributed by John Simkins of the FHWA Virginia Division. In the distribution email Mr. Simkins states: "The MOA has been revised based on comments received on the version that was circulated in December 2009 as well as comments received at a meeting among the signatories."

If this agreement is approved, then the Historic Preservation Review Process that is commonly known at the Section 106 review (from Section 106 of the National Historic Preservation Act of 1966) will have been completed - one of the required steps in environmental review of the interchange project.

The Coalition to Preserve McIntire Park continues to request that the interchange and the McIntire Road Extended project be combined into one project and that only one Section 106 agreement covering both interchange and roadway be considered. The Coalition to Preserve McIntire Park will be studying this most recent draft MOA and commenting formally to all of the signatories by April 23, 2010.

This draft is given provided below and is open for comments through April 23, 2010 by all of the signatories and consulting parties in the process.

DRAFT, April 8, 2010

MEMORANDUM OF AGREEMENT

Among the
FEDERAL HIGHWAY ADMINISTRATION,
CITY OF CHARLOTTESVILLE,
VIRGINIA DEPARTMENT OF TRANSPORTATION,
VIRGINIA STATE HISTORIC PRESERVATION OFFICER, and the
ADVISORY COUNCIL ON HISTORIC PRESERVATION

Regarding the
ROUTE 250 BYPASS INTERCHANGE AT MCINTIRE ROAD in the
CITY OF CHARLOTTESVILLE, VIRGINIA

WHEREAS, the City of Charlottesville (the City), in cooperation with the Federal Highway Administration (FHWA), proposes to construct a grade-separated interchange at the existing intersection of the Route 250 Bypass and McIntire Road in the City of Charlottesville (State Project No. 0250-104-103, PE-101, UPC 60234; Federal Project No. STP-5104 (156); VDHR File No. 2006-1589); and

WHEREAS, FHWA has determined that the provision of financial assistance for the project is an undertaking as defined in 36 CFR 800.16(y); and

WHEREAS, the undertaking is being administered by the City using funds allocated by the Commonwealth Transportation Board pursuant to an agreement executed between the City and the Virginia Department of Transportation (VDOT) governing the City’s participation in the VDOT’s Urban Construction Initiative (also known as the First Cities Initiative); and

WHEREAS, the City anticipates receiving federal financial assistance for the project through VDOT from FHWA; and

WHEREAS, the City Council has identified Alternative G1, a signalized urban diamond interchange, as the preferred alternative for the undertaking as shown on Attachment A; and

WHEREAS, pursuant to Section 404 of the Clean Water Act, a Department of the Army permit will likely be required from the U.S. Army Corps of Engineers (Corps) for this project, and the Corps has designated FHWA as the lead federal agency to fulfill federal responsibilities under Section 106; and

WHEREAS, FHWA has consulted with the Virginia State Historic Preservation Officer (SHPO) pursuant to 36 CFR 800, the regulations implementing Section 106 of the National Historic Preservation Act (16 U.S.C. 470f); and

WHEREAS, the FHWA in consultation with the SHPO and with the cooperation of the City, has defined the undertaking's area of potential effects (APE) as shown on Attachment B pursuant to 36 CFR 800.16(d); and

WHEREAS, the FHWA, in consultation with the SHPO and with the cooperation of the City, has determined that within the APE two properties are listed on the National Register of Historic Places (NRHP): Hard Bargain (VDHR No. 104-0210) and the Charlottesville and Albemarle County Courthouse Historic District (104-0072) as shown in Attachment B; and

WHEREAS, the FHWA in consultation with the SHPO and with the cooperation of the City, has determined that three properties located within the APE are eligible for listing on the NRHP: McIntire School/Covenant School (104-0120), Rock Hill Landscape (104-5237, 44AB0215), and McIntire Park (104-5139), including as contributing resources, the Dogwood Vietnam Memorial, wading pool, bath house, and the McIntire Golf Course, as shown in Attachment B; and

WHEREAS, the FHWA, in consultation with the SHPO and with the cooperation of the City, has determined that the undertaking will have an adverse effect on the Rock Hill Landscape and McIntire Park pursuant to 36 CFR 800.5(a); and

WHEREAS, in accordance with 36 CFR 800.6(a)(1), FHWA has notified the Advisory Council on Historic Preservation (ACHP) of its adverse effect determination with specified documentation and the ACHP has chosen to participate in the consultation pursuant to 36 CFR 800.6(a)(1)(iii); and

WHEREAS, the City, participating in the consultation pursuant to 36 CFR 800.2(c)(4), has responsibility for implementing stipulations under this Memorandum of Agreement (MOA), and pursuant to 36 CFR 800.6(c)(2)(iii), FHWA has invited the City to be a signatory to this MOA; and

WHEREAS, the VDOT has participated in this consultation pursuant to 36 CFR 800.2(c)(4), and FHWA has invited the VDOT to be a signatory to this MOA pursuant to 36 CFR 800.6(c)(2)(iii); and

WHEREAS, FHWA and the City have consulted extensively with the Association for the Preservation of Virginia Antiquities (APVA), the North Downtown Residents Association (NDRA), Piedmont Preservation, Sensible Transportation Alternatives to the Meadowcreek Parkway-2025 (STAMP-2025), the Monticello Area Community Action Agency (MACAA), and the Dogwood Vietnam Memorial Committee regarding the effects of the undertaking on historic properties and have invited these other consulting parties to concur with this MOA pursuant to 36 CFR 800.6(c)(3); and

WHEREAS, the City, in cooperation with FHWA, has afforded the public an opportunity to comment on the effect of the undertaking on historic properties; and

WHEREAS, throughout the design and consultation process the FHWA and the City, in consultation with the SHPO and other consulting parties, have considered alternatives that avoid or minimize the adverse effects that the undertaking will have on historic properties; and

WHEREAS, the City has performed a topographic survey of stone walls and terraces that contribute to the historic character of the Rock Hill Landscape; and

WHEREAS, separate from this undertaking, the City will be developing a final McIntire Park master plan. This master planning process involves the preparation of a natural and cultural resources inventory of any subject park early in the planning process, and numerous opportunities for stakeholders and the general public to provide input on and review of the master plan as it is developed; and

WHEREAS, the McIntire Road Extended project (MRE) is a separate project in the same area as the FHWA undertaking that is the subject of this MOA, and while the MRE is not funded by the FHWA or under its jurisdiction, the FHWA has, in consultation with the parties to this MOA, considered the contribution of FHWA’s undertaking to the cumulative effects of transportation improvements on McIntire Park as a historic property; and

NOW, THEREFORE, FHWA, the City, VDOT, SHPO, and ACHP agree that the undertaking shall be implemented in accordance with the following stipulations in order to take into account the effect of the undertaking on historic properties.

STIPULATIONS

FHWA shall ensure that the following measures are carried out:

I. Documentation and Photographic Recordation

A. The City shall develop a plan to document and photograph the Rock Hill Landscape and the eligible portion of McIntire Park (east of the railroad alignment and north of the Route 250 Bypass) including its contributing resources (Dogwood Vietnam Memorial, wading pool, bath house, and golf course). The plan for recordation shall be implemented in accordance with the standards of the Historic American Landscape Survey (HALS). This documentation shall consist of a written history, large format black and white photographs, and color field photographs prepared in accordance with the following standards and guidelines.

B. The City shall document the Rock Hill Landscape and the eligible portion of McIntire Park in accordance with the Secretary of the Interior’s Standards and Guidelines for Architectural and Engineering Documentation (Federal Register Vol. 48, No. 190, pp. 44730-44734; Federal Register Vol. 68, No. 139, pp. 43159-43162). The written history and large format photographs shall conform to Level II coverage, as defined under the documentation content standard in these guidelines. The written history shall be consistent in regard to substantive content and in grammar and punctuation to HALS guidelines for historical reports (www.nps.gov/history/hdp/standards/halsguidelines.htm). The large-format black and white photographs shall be consistent with HALS guidelines for large format photography (http://www.nps.gov/history/hdp/standards/halsguidelines.htm), with the exception that the numbering and labeling of negatives, negative sleeves, contact prints, and larger prints shall be coordinated by the City in advance with the SHPO and executed in a manner consistent with the latest SHPO guidelines for conducting cultural resources survey in Virginia and “Photographic Documentation for National Park Service (NPS) Register Nominations and Virginia Department of Historic Resources (VDHR) Basic Survey” (Updated September 13, 2006). Color field photographs shall be taken in digital format; depict significant aspects of Rock Hill Landscape and the eligible portion of McIntire Park, as well as their historic settings; and capture essentially the same views as the large format, black and white photographs, at a minimum. The images should be suitable for use in public presentations or exhibits.

C. In developing the documentation and photo recordation, the City shall make a comprehensive effort to research both Rock Hill Landscape and McIntire Park at repositories such as the Albemarle Charlottesville Historical Society, VDHR Archives & Library, property records, University of Virginia libraries, and local libraries. The City shall also use past and ongoing studies such as historic and current McIntire Park master plans and MRE cultural resources investigations.

D. The City shall develop a draft of the recordation materials required in Stipulation I.B and submit it for comment to the SHPO and other consulting parties. The recordation shall be supported by the topographic survey which was completed for the Rock Hill Landscape. The City shall consider all comments on the draft before implementing the final recordation. If after thirty (30) calendar days following submittal of the draft documentation no comments are received, the City may assume the non-responding party has no comments. Upon receiving approval in writing from the FHWA, the City may proceed with the final version of the recordation.

E. The City shall not commence with any demolition or construction activity concerning the affected properties until it has submitted photographic documentation acceptable to the SHPO. The City shall also provide the VDHR Archives & Library a copy of the final written history and photographic documentation (including the negatives) within six (6) months of completion of the project. The City shall provide five additional copies of the recordation package to appropriate local repositories designated in consultation with the FHWA, VDOT, SHPO, and other consulting parties. These materials will be easily accessible to the greater community – in both format and reference location. Possible repositories include the City’s website, local libraries, and the Piedmont Area Preservation Alliance (PAPA).

II. Interpretive Signs

A. Using the information obtained in Stipulation I.C, the City shall provide two interpretive signs: one on the McIntire Park property and another on the public right-of-way adjacent to the Rock Hill Landscape property. The two interpretive signs will provide historical overviews of the two properties.

B. The interpretive sign at McIntire Park will place the Park in the context of the history of Charlottesville and Park design, point out significant features of the Park, and describe the location and significance of nearby contributing resources such as the Dogwood Vietnam Memorial, bath house, wading pool, and golf course. The interpretive sign near the Rock Hill Landscape within the public right-of-way will place the landscape in the context of Charlottesville’s history, articulate the landscape’s significance, and direct the visitor’s gaze to significant features of the garden landscape.

C. The City shall coordinate sign content, appearance and location to ensure compatibility with other signs within McIntire Park and the City, as appropriate. The SHPO and other consulting parties shall then have thirty (30) calendar days after the receipt of adequate documentation to review and comment on content, layout, appearance, and placement of both signs. If no comments are received, the City may assume the non-responding party has no comments. The City shall ensure that all comments received within thirty (30) calendar days of receipt are considered as appropriate into the final sign design. The signs shall be erected within one year of completion of construction of the undertaking.

III. Landscape Design

As described in the following paragraphs, the City shall prepare a landscape plan for the undertaking which includes specific landscape plans for affected areas of McIntire Park, Rock Hill Landscape, and the Charlottesville and Albemarle County Courthouse Historic District. The plans shall be prepared by the City in consultation with a professional who meets the Secretary of Interior’s Professional Qualifications Standards for Historic Architecture (48 FR 44739) and has expertise in preservation landscape design. For each plan, the City shall provide thirty (30) calendar days for the SHPO and the other consulting parties to review and comment on the concept plan. If no comments are received, the City may assume that the non-responding party has no comments. The City shall ensure that all comments received within thirty (30) calendar days of receipt are considered as appropriate in the final plans. The City shall implement all landscape plans during construction of the undertaking.

A. McIntire Park (and the Dogwood Vietnam Memorial)

1. The City shall develop a conceptual landscape plan to improve the portion of McIntire Park within the vicinity of the interchange, including the setting of the Dogwood Vietnam Memorial. The landscape plan area shall encompass the interchange, and shall be completed through coordination with the Department of Parks and Recreation and the Memorial’s caretakers, the Dogwood Vietnam Memorial Committee (DVMC).

2. The landscape plan shall accommodate the change in existing ground elevations caused by construction of the undertaking, and shall include treatment of surrounding slopes and enhancement and/or replacement of existing landscape features. The City shall also construct new public multi-purpose trails within McIntire Park that would provide access from existing and proposed trails to the Dogwood Vietnam Memorial.
The landscape plan shall maintain the Memorial at its existing position within the Park and provide a gathering space for the annual Memorial rededication ceremony.

3. The landscape plan shall be in keeping with the historic character of McIntire Park and the original theme for the Memorial. Therefore, the plan will propose plantings that properly balance the historic open landscape of McIntire Park and visibility of the Dogwood Vietnam Memorial with the desired screening of other park features. The landscape plan shall not preclude the use of McIntire Park for golf outside of areas directly affected by the undertaking. Plantings proposed in the McIntire Park landscape plan will also have the intent to provide screening between the new interchange and the adjacent Rock Hill Landscape. The landscape plan shall also ensure that desired vegetative screening would not be affected by the potential upgrade of the existing Schenk’s Branch Interceptor sewer line by the Rivanna Water and Sewer Authority in the interchange area.

B. Rock Hill Landscape

1. The City shall develop a landscape plan for the Rock Hill Landscape property. The landscape plan shall be completed according to the guidelines of The Secretary of the Interior’s Standards for the Treatment of Historic Properties for Restoration and Guidelines for Restoring Historic Buildings (U.S. Department of the Interior, National Park Service, 1992) and Preservation Brief 36: Protecting Cultural Landscapes (U.S. Department of the Interior, National Park Service, 1994). The landscape plan shall consist of three major elements:

a. Rehabilitation plan: The City shall prepare a rehabilitation plan for Rock Hill Landscape, using information from the research and written history under Stipulation I. The plan shall provide an accurate restoration planting plan for the gardens as well as recommendations for rehabilitating the garden terraces, stairs, walls, and other landscape features. The plans shall be prepared by a professional who meets the Secretary of Interior’s Professional Qualifications Standards for Historic Architecture (48 FR 44739) and has expertise in preservation landscape design. MACAA shall be consulted during development of the Rock Hill landscape plan.

b. Reconstruct outer rock wall: The City shall reconstruct the portion of the outermost rock wall that would be disassembled by the undertaking. The wall would be reconstructed along a revised Rock Hill Landscape property boundary, northeast of the bicycle/pedestrian path and Route 250 westbound off-ramp proposed by the undertaking. The wall shall be reconstructed using the rock material from the existing wall, and to a similar height and depth of the existing wall. The wall reconstruction shall be overseen by a professional who meets the Secretary of Interior’s Professional Qualifications Standards for Historic Architecture and has expertise working with historic masonry.

c. Screening vegetation: The City shall install vegetation in areas disturbed by the undertaking with the intent to screen the interchange from Rock Hill Landscape. The screening shall consider replanting vegetation along the Route 250 Bypass adjacent to the Landscape and adjacent to the reconstructed outer rock wall.

3. The City shall continue its efforts to seek a partnership arrangement with MACAA to establish a property interest for the Rock Hill Landscape gardens. The following items shall be considered to determine the nature of a partnership and whether a partnership is reasonable:

a. Ownership: The City shall pursue the property interest of the Rock Hill Landscape gardens through fee simple ownership or through permanent easement. Both the entire gardens and a portion of the gardens shall be pursued.

b. Public access: The City shall consider requirements for providing public access to the gardens, including American with Disabilities Act guidelines, liability, site security, and potential effects on the garden’s historic integrity.

c. Cost: The City and FHWA shall determine if the cost to establish a property interest on the property is a reasonable public expenditure in consideration of the undertaking’s effects to historic properties. The cost shall not exceed the fair market value of owning the gardens or establishing an easement.

d. Maintenance: The City shall consider the long-term maintenance costs and needs (including staffing) associated with the gardens.

e. Use of remaining property: The City shall consider the foreseeable land use of the remaining Rock Hill Landscape property and whether the land use would be compatible with garden rehabilitation.

The City shall conduct negotiations for the partnership arrangement before and during the undertaking’s right-of-way acquisition phase. The effort shall be considered complete if, after nine (9) months following initiation of the right-of-way phase, a viable and legally-acceptable arrangement cannot be negotiated. In the event negotiations are successful, and a partnership or title transfer is agreed on, the City shall obtain a property interest in the gardens (or portion of the gardens). The City shall notify FHWA, SHPO and other consulting parties of the result of seeking a partnership arrangement.

4. If a partnership arrangement or acquisition of title is not accomplished per Stipulation III.B.3, the City shall provide the final rehabilitation plan to MACAA for its use. In lieu of the partnership arrangement, the City shall establish a website which describes the history of Rock Hill Landscape and McIntire Park. The website would provide public access to material such as historic and current photographs and maps; written and photographic material resulting from documentation under Stipulation I; links to other resource websites and source data; and, as appropriate, audio interviews and still-photo video presentation(s). The website would be created and maintained by the City and made available in a conspicuous location at an appropriate City of Charlottesville webpage.

The City shall provide the FHWA, SHPO, and other consulting parties an opportunity to review and provide comments on the website prior to public availability. If after thirty (30) calendar days following submittal of the website no comments are received, the City may assume the non-responding party has no comments. The City shall ensure that all comments received within thirty (30) calendar days of receipt are considered, as appropriate, within the website.

C. Charlottesville and Albemarle County Courthouse Historic District
The City shall develop a plan for planting vegetation with the intent to screen the interchange from the Charlottesville and Albemarle County Courthouse Historic District. The planting plan shall include consideration of replanting vegetation along Route 250 next to the north side of 502 Park Hill (if vegetation is removed as part of the undertaking), and planting new vegetation on City-owned property between the Charlottesville Albemarle Rescue Squad, existing McIntire Skate Park, and 501/502 Park Hill. Landowners of the 501/502 Park Hill properties shall be consulted during development of the planting plan.

IV. Financial Responsibility

The City agrees to carry out the tasks assigned in this Agreement and will allocate a budget sufficient to carry out the requirements of Stipulations I–III based on the below estimated costs. The costs associated with Stipulations I-III are eligible for federal reimbursement from FHWA as project costs.

A. $60,000 for documentation and recordation of the Rock Hill Landscape and eligible portion of McIntire Park (Stipulation I);

B. $12,000 for the design, fabrication and installation of interpretive signs (Stipulation II);

C. $175,000 for development and construction of the McIntire Park landscape plan (Stipulation III.A)

D. $45,000 for completing a rehabilitation plan and providing screening vegetation for the Rock Hill Landscape (Stipulations III.B.1.a and III.B.1.c);

E. $250,000 for reconstruction of the outer rock wall of the Rock Hill Landscape (Stipulation III.B.1.b); and

F. $15,000 to prepare and implement the planting plan for the Charlottesville and Albemarle County Courthouse Historic District (Stipulation III.C). If there is a property interest required for a Rock Hill Landscape partnership (Stipulation III.B.3), the cost of this interest shall not exceed fair market value. If for any reason, the City determines that the requirements of Stipulations I, II, and III cannot be completed for the estimated costs, the City may initiate consultation with FHWA, VDOT, SHPO, and the ACHP to consider alternatives. If, after consultation, the signatories to this Agreement concur, in writing, to changes to the items in the budget, the City may proceed on that basis without formally amending this Agreement pursuant to Stipulation XI.C.
V. Coordination with the McIntire Park Master Plan

Decisions regarding the long-term management of McIntire Park (including the golf course) cannot be made outside of the City’s McIntire Park master planning process. However, using the research and the coordination completed for this undertaking as a source of information, the City’s Department of Parks and Recreation will ensure that the public participation process considers the historic character of McIntire Park during master plan development. Furthermore, the City shall ensure that historic features contributing to McIntire Park’s eligibility for inclusion in the NRHP will be highlighted in the McIntire Park master plan.

VI. Design Minimization Measures

The City shall incorporate the following measures into the undertaking design to minimize direct and indirect effects to historic properties:

A. place the north-south multi-use paths (located east and west of McIntire Road) closer to McIntire Road to shorten the proposed Route 250 Bypass bridge over McIntire Road;

B. lower the profile and/or visual impact of the Route 250 Bypass bridge;

C. construct a retaining wall adjacent to Route 250 Bypass near the bath house to reduce the area of impact to McIntire Park and preserve the building;

D. place the proposed westbound Route 250 Bypass off-ramp as close as practicable to the Route 250 Bypass mainline roadway so that the undertaking’s direct impacts to the Rock Hill Landscape inner stone wall and terraced gardens are avoided;

E. minimize ground disturbance to the Rock Hill Landscape, and ensure that the boundaries of the project right of way and temporary construction easements are respected, by installing temporary orange construction fencing around the limit of construction and educating the construction contractor about the sensitivity of this resource;

F. post signage on the Route 250 Bypass exit ramps of the interchange prohibiting trucks from traveling through McIntire Park;

G. post a speed limit of no higher than 35 miles per hour within the interchange; and

H. minimize delays for emergency response vehicles exiting from the Charlottesville-
Albemarle Rescue Squad (CARS) through signal optimization and/or other appropriate technology.

I. not preclude the use of McIntire Park for golf outside of areas directly affected by the undertaking.

VII. Review of Project Plans

The City shall provide the FHWA, SHPO, and other consulting parties an opportunity to review and provide comments on relevant sections of the 65% project plans. If after thirty (30) calendar days following submittal of the 65% plan no comments are received, the City may assume the non-responding party has no comments. The City may proceed with implementation of the plans upon receipt of written approval by the FHWA. The City shall ensure that all comments received within thirty (30) calendar days of receipt are considered as appropriate in the plans.

VIII. Subsequent Changes to the Project

If, subsequent to the implementation of Stipulation VII, the City proposes any significant changes to the undertaking affecting design or disturbance area of the undertaking, the City shall provide the SHPO and other consulting parties with information concerning the proposed changes. If after thirty (30) calendar days following submittal of project changes no comments are received by the City, the City may assume the non-responding party has no comments. The City shall ensure that all comments received within thirty (30) calendar days of receipt are considered as appropriate in the changes.

IX. Post-Review Discoveries

A. In the event that previously unidentified historic properties are discovered or if unanticipated effects on historic properties occur during construction activities, the City shall require the construction contractor to halt all construction work in the area of the resource. In addition, for any discovered archaeological resources, work shall also halt in surrounding areas where additional subsurface remains can reasonably be expected to occur. Work in all other areas of the project may continue.

B. The City shall notify the FHWA and SHPO within two (2) working days of the discovery (36 CFR 800.13). In the case of prehistoric or historic Native American sites, the City shall also notify appropriate state and federally recognized tribal leaders, and the Virginia Council on Indians (VCI) within two (2) working days of the discovery.

C. The City shall ensure that an archaeologist or architectural historian meeting the Secretary of the Interior’s Professional Qualifications Standards shall investigate the work site and the resource, and then the City shall forward to the FHWA and SHPO (and state and federally recognized tribal leaders, and VCI in the case of Native American sites), an assessment of the NRHP eligibility of the resource (36 CFR 60.4) and/or proposed treatment actions to resolve any adverse effects on the resource. The SHPO, tribal leaders, and VCI shall respond within five (5) working days of receipt of the City’s assessment of NRHP eligibility of the resource and proposed action plan. The City, in consultation with FHWA, shall take into account the recommendations of the SHPO, tribal leaders, and VCI regarding NRHP eligibility of the resource and/or the proposed action plan to resolve adverse effects, and then carry out appropriate actions.

D. The City shall ensure that construction work within the affected area does not proceed until appropriate treatment measures are developed and implemented, or the determination is made that the located resource is not eligible for inclusion on the NRHP.
X. Human Remains

A. The City shall treat all human remains in a manner consistent with the ACHP “Policy Statement Regarding Treatment of Burial Sites, Human Remains and Funerary Objects”
(February 23, 2007; http://www.achp.gov/docs/hrpolicy0207.pdf).

B. Human remains and associated funerary objects encountered during the course of actions taken as a result of this MOA shall be treated in a manner consistent with the provisions of the Virginia Antiquities Act, Section 10.1-2305 of the Code of Virginia, and its implementing regulations, 17 VAC5-20, adopted by the Virginia Board of Historic Resources and published in the Virginia Register on July 15, 1991.

C. In the event that human remains encountered are likely to be of Native American origin, whether prehistoric or historic, the FHWA, with the cooperation of the City, shall immediately notify appropriate state and federally recognized tribal leaders, and the VCI. The FHWA and the City shall determine the treatment of Native American human remains and associated funerary objects in consultation with the appropriate tribal leaders and the VCI. The City shall make all reasonable efforts to ensure that the general public is excluded from viewing any Native American gravesites and associated funerary objects. The signatories to this MOA shall release no photographs of any Native American gravesites or associated funerary objects to the press or to the general public.

D. The City may obtain a permit from the SHPO for the removal of human remains in accordance with the Commonwealth of Virginia's regulations cited above, should removal be necessary.

XI. Administrative Stipulations

A. Personnel Qualifications

The City shall ensure that all cultural resources work required by this MOA is carried out by or under the direct supervision of a person or persons meeting at a minimum the Secretary of Interior’s Standards and Guidelines as amended and annotated, located at www.nps.gov/history/local-law/arch_stnds_9.htm (formerly located at 36 CFR 61, Appendix A).

B. Resolving Objections

1. FHWA, the City, VDOT, SHPO, and ACHP (the signatories) shall notify all other signatories in writing of any instance where a signatory to this MOA objects to the implementation of any of the stipulations set forth above. FHWA, the City, VDOT, and SHPO shall consult to resolve the objection. If FHWA determines that the objection cannot be resolved, FHWA shall forward all documentation relevant to the dispute to the ACHP as well as a proposed response to the objection. Within fifteen (15) days after receipt of such documentation, the ACHP shall:

a. advise FHWA that the ACHP concurs with FHWA’s proposed response to the objection, whereupon FHWA shall respond to the objection accordingly;

b. provide FHWA with recommendations, which the FHWA shall take into account in reaching a final decision regarding its response to the objection; or

c. notify FHWA that it shall comment in accordance with 36 CFR 800.7(c) and proceed to comment. Any comment provided in response to such a request shall be taken into account by FHWA in accordance with 36 CFR 800.7(c)(4).

2. Should the ACHP not exercise one of the above options within fifteen (15) days after receipt of all pertinent documentation, FHWA may assume the ACHP’s concurrence in its proposed response to the objection.

3. Any recommendations or comments provided by the ACHP shall be understood to pertain to the subject of the dispute. The City’s responsibility to carry out all actions under this MOA that are not the subject of the dispute shall remain unchanged.

C. Amendments

This MOA may be amended only upon agreement of the FHWA, City, VDOT, SHPO, and ACHP (the signatories). Any signatory party may request an amendment, whereupon the other signatory parties must respond with any comments within thirty (30) days. This MOA may be amended only upon the written agreement of the signatory parties.

D. Duration

This MOA shall remain in force for five (5) years from the date of its execution. Prior to five (5) years following the date of execution of the MOA, the City may consult with the other signatories to consider an extension to the MOA. If construction does not begin within five years following the date of execution of the MOA, the signatories will revisit the MOA and determine if its terms still apply, and the MOA may be extended. An extension shall be treated as an amendment in accordance with Stipulation XI.C.

E. Review of Implementation

The City shall review the project annually to monitor progress of the implementation of the terms of this MOA. Upon completion of the each review, the City shall submit a memorandum summarizing the status of MOA implementation to the ACHP, FHWA, VDOT, and SHPO. The review should occur in January each year following implementation of the MOA until all stipulations have been executed.

F. Termination

If any signatory to this MOA determines that its terms will not or cannot be carried out, that party may immediately consult with the other parties to attempt to develop an amendment per Stipulation XI.C. If within thirty (30) calendar days an amendment cannot be reached, any signatory may terminate the MOA upon written notification to the other signatories. Once the MOA is terminated, and prior to work continuing on the undertaking, FHWA must either (a) execute an MOA pursuant to 36 CFR § 800.6 or (b) request, take into account, and respond to the comments of the ACHP under 36 CFR § 800.7. FHWA shall notify the signatories as to the course of action it shall pursue.

Execution of this MOA by FHWA, the City, VDOT, SHPO, and ACHP, and implementation of its terms, evidence that FHWA has taken into account the effects of this undertaking on historic properties and afforded the ACHP an opportunity to comment.

SIGNATORIES

FEDERAL HIGHWAY ADMINISTRATION

By: _______________________________________ Date: _________________
Irene Rico
Division Administrator

CITY OF CHARLOTTESVILLE

By: _______________________________________ Date: _________________
City Manager

VIRGINIA DEPARTMENT OF TRANSPORTATION

By: _______________________________________ Date: _________________
Stephen J. Long
Environmental Division Administrator

VIRGINIA DEPARTMENT OF HISTORIC RESOURCES

By: _______________________________________ Date: _________________
Kathleen S. Kilpatrick
Director, Virginia Department of Historic Resources

ADVISORY COUNCIL ON HISTORIC PRESERVATION

By: _______________________________________ Date: _________________
John M. Fowler
Executive Director

CONCURRING PARTIES

ASSOCIATION FOR THE PRESERVATION OF VIRGINIA ANTIQUITIES,
THOMAS JEFFERSON CHAPTER

By: _______________________________________ Date: _________________
Mary O. R. Howard

PIEDMONT PRESERVATION

By: _______________________________________ Date: _________________
Daniel Bluestone

SENSIBLE TRANSPORTATION ALTERNATIVES TO THE MEADOWCREEK
PARKWAY-2025

By: _______________________________________ Date: _________________
Peter Kleeman

By: _______________________________________ Date: _________________
Richard Collins

NORTH DOWNTOWN RESIDENTS ASSOCIATION

By: _______________________________________ Date: _________________
Colette Hall

MONTICELLO AREA COMMUNITY ACTION AGENCY

By: _______________________________________ Date: _________________
Karen Shepard

DOGWOOD VIETNAM MEMORIAL COMMITTEE

By: _______________________________________ Date: _________________
James Shisler