The Virginia Department of Transportation is planning to open a portion of a road project in the very near future. I contacted the City Attorney to inquire about the legality of VDOT doing this. Below is my note to Attorney Craig Brown on the subject. I like to think that the city will follow its own ordinances. We shall see.
Date: September 14, 2010
To: Mr. Craig Brown, Charlottesville City Attorney
From: Peter Kleeman
RE: Opening of Meadow Creek Parkway on a temporary basis north of Melbourne Road
Dear Mr. Brown
I was recently informed by VDOT that VDOT intends to open the Meadow Creek Parkway facility on a temporary basis starting in the next few week to facilitate construction activities on Rio Road in Albemarle County. As I read the June 2, 2008 ordinance passed by City Council 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", no opening of a portion of the highway improvement project(s) connecting Rio Road to the Route 250 Bypass at McIntire Road is allowed until all of the projects are complete. VDOT’s proposed temporary opening of the Meadow Creek Parkway north of Melbourne Road even on a temporary basis appears to be a direct violation of the June 2, 2008 ordinance
The specific wording stating this condition in the resolution portion of the June 2, 2008 ordinance is as follows:
“BE IT FURTHER ORDAINED that the Council’s consent to the conveyances of easements as described herein is contingent on the following conditions:
(1) that no part of the Meadow Creek Parkway project (i.e., the Albemarle County Meadow Creek Parkway section, the City McIntire Road Extended section, or the Interchange/Intersection project at the 250 Bypass and McIntire) will be open for public use until the entire project is complete and ready for opening;”
I explored the City Code to determine what would be necessary to amend this ordinance if council wished to allow opening of the Meadow Creek Parkway facility on a temporary basis. The process necessary for council to follow is stated in Article II, Division 1, Section 2-100 of the City Code (given below) where the issue of amending an ordinance is addressed.
"Sec. 2-100. Repealing and amending ordinances generally.
No ordinance shall be amended or repealed except by an ordinance regularly introduced and adopted.
(Code 1976, § 2-34)"
I believe it is unlawful for VDOT to open the Meadow Creek Parkway unless and until City Council formally amends or otherwise supersedes the explicit prohibition of such an opening as provided in the June 2, 2008 ordinance. It is my recollection that the Charlottesville School Board originally requested that this condition be included in any ordinance granting construction easements to VDOT for the Meadow Creek Parkway because of their concern for safety of students traveling to and from Charlottesville High School on Melbourne Road. I believe that an investigation into the safety concerns expressed by the Charlottesville School Board must be done that shows the opening not to result in significant risks to Charlottesville High School students, teachers, and staff prior to amending the June 2, 2008 ordinance to allow opening of the Meadow Creek Parkway.
I am copying this email to council and the Charlottesville School Board for their consideration of this matter.
If there is some legal agreement that is in place that supersedes this ordinance, and explicitly allows opening of the Meadow Creek Parkway as proposed by VDOT, I would appreciate your providing me a copy of that agreement.