Federal Highway Administration Answers Federal Complaint Filed by Coalition to Preserve McIntire Park

(photo source: readthehook.com)

Below is a copy of the Answer provided by the Federal Highway Administration in Case 3:11-cv-00015-nkm (Document 6 Filed 04/20/11). The document was transformed for posting on the blog and differs from the original distributed copy only in formatting. The complaint to which this is the answer is available on this blog at http://kleemanblog.blogspot.com/2011/02/cpmp-files-lawsuit-in-federal-district.html.

The next step in this legal process would be issuance of a "Scheduling Order" by Judge Norman K. Moon who is the judge assigned to this case. A scheduling order will notify the attorneys in the case to collectively schedule a hearing date on the judges calendar.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

COALITION TO PRESERVE MC INTIRE PARK, et. al.,
Plaintiffs;
v.
VICTOR MENDEZ, ADMINISTRATOR OF THE FEDERAL HIGHWAY ADMINISTRATION
Defendant.

Civil No. 3:11-cv-00015

ANSWER

COMES NOW the defendant, Victor Mendez in his official capacity as Administrator of the Federal Highway Administration and states the following as his Answer to the Complaint in this law suit:

The numbered paragraphs in this answer correspond to the numbered paragraphs in the Complaint.

Introduction

1. The allegations in paragraph 1 are denied.

2. The allegations in paragraph 2 are denied.

3. The allegations in paragraph 3 are denied.

Jurisdiction

4. The allegations of jurisdiction in paragraph 4 are conclusions of law to which no
response is required. To the extent that a response may be required, jurisdiction is
admitted.

Venue

5. The allegation of venue in paragraph 5 is a conclusion of law to which no answer is required. To the extent that an answer may be required, venue is admitted.

Parties

6. Paragraph 6 describes a party involved in this action (Coalition to Preserve McIntire Park (CPMP)) and requires no response. However to the extent that a response is required, the defendant does not have enough information to admit or deny the allegations in paragraph 6.

7. Paragraph 7 references the CPMP Steering Committee and requires no response. However, to the extent that a response is required, the defendant does not have sufficient information to admit or deny the claims in paragraph 7.

8. Paragraph 8 describes parties involved in this action and requires no response. However, to the extent that a response is required, the defendant does not have sufficient information to determine the accuracy of the claims, and therefore cannot admit or deny the claims made in paragraph 8.

9. Paragraph 9 describes the parties involved in this action and requires no response. However, to the extent that a response is required, the defendant does not have sufficient information to admit or deny the claims in paragraph 9.

10. Paragraph 10 describes the parties involved in this action and requires no response. However, to the extent that a response is required, the defendant does not have sufficient information to admit or deny the claims in paragraph 10.

11. Paragraph 11 describes the parties involved in this action and requires no response. However, to the extent that a response is required, the defendant does not have sufficient information to admit or deny the claims made in paragraph 11.

12. Paragraph 12 describes the parties involved in this action and requires no response. However, to the extent that a response is required, the defendant does not have sufficient
information to admit or deny the claims in paragraph 12.

13. The allegations in paragraph 13 are admitted.

Statutory Background

14. The conclusions of law in paragraph 14 require no response. However, to the extent that a response is required, the NEPA and court decisions applying the NEPA speak for themselves.

15. Plaintiffs’ conclusions of law in paragraph 15 require no response. However, to the extent that a response is required, the NEPA and its implementing regulations speak for themselves.

16. Plaintiffs’ conclusions of law in paragraph 16 require no response. However, to the extent that a response is required, the NEPA and its implementing regulations speak for themselves.

17. Plaintiffs’ conclusions of law in paragraph 17 require no response. However, to the extent that a response is required, the NEPA and the FHWA’s implementing regulations speak for themselves.

18. The allegations in Paragraph 18 are denied.

Factual Background

19. The claims in Paragraph 19 are admitted with the following clarification: Early governmental efforts were carried out by the City of Charlottesville, Albemarle County and the Commonwealth of Virginia. FHWA did not become involved until 1983 when VDOT requested federal aid funds for preliminary engineering for a four lane roadway from Preston Avenue to the north corporate limits of Charlottesville. The FHWA project that is the subject of this law suit did not come to the attention of the FHWA until 2004 when FHWA authorized funding for preliminary engineering for an interchange.

20. The defendant does not have sufficient information to admit or deny the allegations in Paragraph 20 of the complaint.

21. The defendant does not have sufficient information to admit or deny the allegations in Paragraph 21 of the complaint.

22. The allegations in paragraph 22 are denied.

23. The allegations in paragraph 23 are denied.

24. The allegations in paragraph 24 are denied.

25. The allegations in paragraph 25 are denied.

26. The defendant does not have sufficient information to admit or deny the allegations in paragraph 26.

27. The allegations in paragraph 27 are admitted with the following clarification: This project is two-lane roadway located in Albemarle County and is under construction with a southern terminus at Melbourne Road. The allegation that the project is being built “to a specific point on the northeast perimeter of the McIntire Park”, is perhaps technically true, however the project is being built all the way to Melbourne Road to give it a connection.

28. The allegations in paragraph 28 are denied.

29. The allegations in paragraph 29 are admitted.

30. The allegations in paragraph 30 are admitted with the following clarification: The quotation from the Corps of Engineers letter is accurate, however that particular letter does not reflect the Corps of Engineers’ current position.

31. The allegation in paragraph 31 is admitted with the clarification that the Corps of Engineers subsequently reinitiated its evaluation.

32. The defendant does not have sufficient information to admit or deny the allegations in paragraph 32.

33. The defendant does not have sufficient information to admit or deny the allegation in paragraph 33.

34. The allegations in paragraph 34 are denied with the following explanation and partial admission: FHWA did not become aware of the potential interchange until 2004. The interchange has not been part of a long standing proposal. The defendant admits that the interchange is the only one of several “segments” (projects) for which federal funds will be used in construction.

35. The allegations in paragraph 35 are denied.

36. The allegations in paragraph 36 are denied.

37. The allegations in paragraph 37 are denied.

38. The allegations in paragraph 38 are denied.

39. The defendant does not have sufficient information to admit or deny the allegations in paragraph 39.

40. The allegations in paragraph 40 are denied.

41. The allegations in paragraph 41 are denied.

42. The allegations in paragraph 42 are admitted.

43. The allegations in paragraph 43 are denied.

44. The allegations in paragraph 44 are denied.

45. The allegations in paragraph 45 are denied.

46. The allegations in paragraph 46 are denied.

47. The allegations in paragraph 47 are denied.

Claims for Relief

Count I (Violation of Department of Transportation Act)

48. The defendant’s answers to all preceding paragraphs are incorporated herein by reference.

49. Plaintiffs’ conclusion of law in paragraph 49 requires no response. However, to the extent that a response is required, section 4(f) of the U.S. Department of Transportation Act of 1966 speaks for itself.

50. The allegations in paragraph 50 are denied.

51. The allegations in paragraph 51 are denied.

52. The allegations in paragraph 52 are denied.

Count II (Violation of the National Environmental Policy Act)

53. The defendant’s answers to all preceding paragraphs are incorporated herein by reference.

54. The allegations in paragraph 54 are denied.

55. The allegations in paragraph 55 are denied.

56. The allegations in paragraph 56 are denied.

Count III (Violation of the National Environmental Policy Act)

57. The defendant’s answers to all preceding paragraphs are incorporated herein by reference.

58. The Plaintiffs’ conclusion of law in paragraph 58 requires no response. However, to the extent that a response may be required, the NEPA speaks for itself.

59. The allegations in paragraph 59 are denied.

60. The allegations in paragraph 60 are denied.

By way of further answer, the defendant denies that the plaintiffs are entitled to any of the relief sought in their “Prayer For Relief” and that all the relief sought by the plaintiffs should be completely denied by the Court.

WHEREFORE, having fully answered the allegations in the plaintiffs’ complaint, the defendant prays that the plaintiffs take nothing by way of their complaint, that the same be dismissed, and that judgment be awarded in favor of the defendant together with costs and such other and further relief as the Court deems appropriate.

Respectfully submitted,

TIMOTHY J. HEAPHY
UNITED STATES ATTORNEY

/s/ Thomas L. Eckert
Assistant U.S. Attorney
P.O. Box 1709
Roanoke, VA 24008
(540) 857-2761 voice
(540) 857-2155 FAX
Virginia Bar # 18781
Attorney for the Defendant

CERTIFICATE OF SERVICE

I hereby certify that on April 20, 2011 I caused this Answer to be filled with the Clerk of this Court using the CM/ECF system which will electronically send notice of this filing and a true copy of this Answer to the attorneys for the Plaintiffs.

/s/ Thomas L. Eckert
Assistant U.S. Attorney

Corps of Engineers distributes final MOA on McIntire Road Extended

The U.S. Army Corps of Engineers distributed by electronic mail on April 15, 2011 the following cover memo and text of their final draft Memorandum of Agreement for the McIntire Road Extended project. I and other consulting parties to this agreement do not believe that the level of mitigation proposed is adequate and provided comments in response to the last draft suggesting that additional mitigation - including construction of replacement holes to allow the historic golf course at McIntire Park to maintain its historic character. Is photographic documentation and a lecture series about the historic properties being destroyed by this project adequate mitigation for the impacts of this project? I welcome comments you might have on this issue and suggest you share your comments with Charlottesville City Council.

Dear Consulting Parties:

Attached is our final MOA for your signature. For those who wish to sign, please sign the appropriate signature page and email back to me, also copyingMary Ellen Hodges.

I appreciate all of your time and effort in the Section 106 process. We are sending this via email but will mail hard copies upon request.

Sincerely,
Kathy Perdue [U.S. Army Corps of Engineers, Norfolk District]

MEMORANDUM OF AGREEMENT
AMONG
THE NORFOLK DISTRICT, CORPS OF ENGINEERS, THE ADVISORY COUNCIL ON HISTORIC PRESERVATION, THE VIRGINIA STATE HISTORIC PRESERVATION OFFICER, THE VIRGINIA DEPARTMENT OF TRANSPORTATION, AND THE CITY OF CHARLOTTESVILLE
RELATIVE TO THE MCINTIRE ROAD EXTENDED PROJECT IN THE CITY OF CHARLOTTESVILLE, VIRGINIA

WHEREAS, the Virginia Department of Transportation (VDOT) proposes to construct the McIntire Road Extended Project (hereinafter “MRE”) under VDOT Project No. U000-104-102, P101 (VDOT UPC Nos. 2529, 15487; Norfolk District, Corps of Engineers Project No. 08-4060, NAO 2008-1787; DHR File No. 1993-2606); and

WHEREAS, the MRE, located in the City of Charlottesville (City), is proposed as a road on new alignment, which will run from Melbourne Road south to a point approximately 775 feet north of the Route 250 Bypass (Attachments A and B); and

WHEREAS, the MRE’s southern end will connect to the Route 250 Bypass Interchange (grade-separated), which is being developed, constructed, and administered separately by the City of Charlottesville, with the Federal Highway Administration (FHWA) as the lead Federal agency for purposes of Section 106 of the National Historic Preservation Act (NHPA); and Section 106 requirements for the Route 250 Bypass Interchange have been coordinated among the City, the Advisory Council on Historic Preservation (ACHP), the Virginia State Historic Preservation Officer (SHPO), the VDOT, the Department of the Army, Norfolk District, Corps of Engineers (Norfolk District), and other Consulting Parties, and established through a separate Memorandum of Agreement executed on May 28, 2010, the stipulations of which will be implemented by the responsible parties; and

WHEREAS, the MRE will include two 11-foot undivided travel lanes on two lanes of right of way; two 5-foot bike lanes, located on each side of the travel lanes; a 10-foot enhanced pedestrian trail, located at a distance from the travel lanes; a box culvert carrying the travel lanes, bike lanes, and pedestrian trail at the crossing of an unnamed tributary to Schenks Branch; two extended stormwater detention basins; and the upgrading and slight relocation of a section of an existing Rivanna Water and Sewer Authority (RWSA) sewer line and easement at the north end of the MRE between approximately Sta. 23 + 50.00 and Sta. 36 + 50.00; and

WHEREAS, pursuant to Section 404 of the Clean Water Act of 1973 (33 U.S.C. 1344), a permit from the Department of the Army, Norfolk District (hereinafter “Permit”) will be required for the MRE, for permanent impacts to approximately 263 linear feet of nontidal waters of the United States, for construction of a road, bike path, pedestrian trail, and utility line crossing of an unnamed tributary to Schenks Branch for the MRE; and

WHEREAS, the aforementioned Route 250 Bypass Interchange will also entail permanent impacts to nontidal waters of the United States and will require a Permit, and the Norfolk District cannot complete its review of VDOT’s Permit application until it either completes its review of the Joint Permit Application for the Interchange as the terminus for the Project, or receives a recognition in writing from the appropriate official in the City that the at-grade intersection with Route 250 will be the terminus, if the grade-separated terminus is not constructed; and

WHEREAS, pursuant to 36 CFR Part 800, regulations implementing Section 106 of the National Historic Preservation Act of 1966, as amended (NHPA) (16 U.S.C. 470f), and 33 CFR 325, Appendix C, Processing of Department of the Army Permits: Procedures for the Protection of Historic Properties, the Norfolk District is required to take into account the effects of federally permitted undertakings on properties included in or eligible for inclusion in the National Register of Historic Places (NRHP) prior to the issuance of a Permit to the undertaking, and to consult with the SHPO; and

WHEREAS, the Norfolk District, in consultation with the SHPO and other consulting parties, has defined the Area of Potential Effects (APE) for the undertaking as shown in Attachment C; and

WHEREAS, the Norfolk District, in consultation with the SHPO and other consulting parties, has identified three historic properties within the undertaking’s APE: McIntire Municipal Park (DHR Inventory No. 104-5139), a property determined eligible for the National Register of Historic Places (NRHP), and two of its contributing elements, the McIntire Golf Course (DHR Inventory No. 104-5102) and the Dogwood Vietnam Memorial (DHR Inventory No. 104-5139-0001); the Rock Hill Academy landscape (DHR Inventory No. 104-5137), a property determined eligible for the NRHP; and the Charlottesville and Albemarle County Courthouse Historic District (DHR Inventory No. 104-0072), a property listed on the NRHP, and two of its contributing elements, 501 Park Hill (DHR Inventory No. 104-1087) and 502 Park Hill (DHR Inventory No. 104-5129); and

WHEREAS, the Norfolk District, in consultation with the SHPO, has determined that the undertaking will have an adverse effect only on the McIntire Municipal Park and its contributing element, McIntire Golf Course, and has consulted with the SHPO and other consulting parties to resolve the adverse effect on the historic property; and

WHEREAS, the MRE design (Attachment B) reflects VDOT’s efforts to minimize the effects of the project on park land and historic properties by reducing the footprint of the proposed highway from a four-lane divided facility on four-lane right of way to a two-lane undivided facility on two-lane right of way in response to comments during the project development process from the Charlottesville City Council and the public; and

WHEREAS, as requested by Charlottesville City Council as a measure to minimize the effects of the MRE, the VDOT has engineered the MRE for a design speed of 35 miles per hour and has included signage specifying a speed limit of 35 mph in the construction plans for the project; and
WHEREAS, as requested by the Charlottesville City Council, the VDOT has engineered the MRE for non-truck traffic only; and

WHEREAS, at their March 16, 2009 meeting, the Charlottesville City Council adopted a master planning process, applicable to all City parks, which involves the preparation of a natural and cultural resources inventory of any subject park early in the planning process, as well as numerous opportunities for stakeholders and the general public to provide input on and review of a master plan as it is developed; and

WHEREAS, the City intends to develop and implement a master plan for the east side of McIntire Municipal Park, and decisions regarding the use, design, and long-term management of McIntire Municipal Park cannot be made outside of the City’s parks master planning process; and

WHEREAS, pursuant to 36 CFR 800.6(a)(1), the Norfolk District has notified the ACHP of its determination of adverse effect, and the ACHP has chosen to participate in consultation; and

WHEREAS, the VDOT has participated in this consultation pursuant to 36 CFR 800.2(c)(4), and the Norfolk District has invited the VDOT to be a signatory to this Memorandum of Agreement (Agreement) pursuant to 36 CFR 800.6(c)(2)(iii); and

WHEREAS, the City has participated in this consultation pursuant to 36 CFR 800.2(c)(3), and the Norfolk District has invited the City to be a signatory to this Agreement pursuant to 36 CFR 800.6(c)(2)(iii); and

WHEREAS, the Charlottesville Regional Chamber of Commerce, , the County of Albemarle, the Dogwood Vietnam Memorial Committee, the North Downtown Neighborhood Association, the Piedmont Group of the Sierra Club, Preservation Piedmont, Sensible Transportation Alternatives to the Meadowcreek Parkway (STAMP), the Thomas Jefferson Branch of the APVA/Preservation Virginia, and Mr. Richard Collins, have participated in consultation pursuant to 36 CFR 800.2(c)(5), and the Norfolk District has invited each of these parties to concur in this Agreement pursuant to 36 CFR 800.6(c)(3);

NOW, THEREFORE, in order to satisfy the Norfolk District’s Section 106 responsibilities to take into account the effects of permitted activities on historic properties, the Norfolk District, the ACHP, and the SHPO agree that the Norfolk District may issue a Permit to VDOT for the undertaking after the Norfolk District completes its Permit review of the MRE, and such Permit will require compliance with this Agreement as a Permit condition; thereby effectively incorporating all terms, provisions and stipulations of this Agreement as conditions to the Permit such that if any provision or stipulation herein is not fulfilled, such failure will constitute noncompliance with the Permit, and the Norfolk District may pursue enforcement and may seek all available remedies.

STIPULATIONS

I. LANDSCAPE PLANS FOR MCINTIRE ROAD EXTENDED

A. Stormwater Detention Basin Landscape Plan

The VDOT shall implement the landscape plans shown in Attachment D for the two extended stormwater detention basins included in the MRE. These landscape plans make extensive use of native plants, and the City and RWSA have determined that the design of the plan for Basin No. 3 accommodates planting requirements associated with their planned upgrade to a nearby sanitary sewer line and sewer easement. The intent of the design of these landscape plans is to integrate the detention basins visually into the existing natural features of their setting and thereby minimize the visual effects of the MRE on McIntire Municipal Park.

B. Integrated Landscape Plan

1. The VDOT shall provide the City funds to be used by the City to implement the City’s planned integrated landscape plan for the McIntire Road/McIntire Road Extended transportation corridor. The design of this landscape plan shall serve, in part, to integrate McIntire Road Extended visually into the existing natural features of its setting and thereby minimize the visual effects of the MRE on McIntire Municipal Park. In designing the landscape plan, the City shall accommodate planting requirements associated with RWSA sanitary sewer easements that run through McIntire Park. The amount of funding the VDOT shall provide the City for development and installation of the landscape plan is $30,000.

2. The City shall provide the landscape plan to the VDOT, the SHPO, the Norfolk District, and other consulting parties to this Agreement (not to include the ACHP) for review and comment for a period of thirty (30) calendar days. If any of these parties fails to respond within thirty (30) calendar days of receipt, the City may assume the non-responding party has no comment. Should the Norfolk District or the SHPO notify the City that the submitted landscape plan is not acceptable, the City shall resubmit a landscape plan to the VDOT, the Norfolk District, the SHPO, and the other consulting parties to this Agreement. The VDOT, the Norfolk District, the SHPO and the other consulting parties shall have thirty (30) calendar days after receipt of a revised landscape plan to respond to the City with any comments. If any of these parties fails to respond within thirty (30) calendar days of receipt, the City may assume the non-responding party has no comment.

3. The City shall implement the landscape plan during the construction phase of the MRE. The VDOT shall release the funds it will provide for the landscape plan to the City on a reimbursement basis after the City has completed implementation of the landscape plan.

C. RWSA Sanitary Sewer Upgrade

There is an existing sanitary sewer line running through McIntire Park near Schenks Branch that the City’s Department of Public Utilities has plans to upgrade as a separate project in conjunction with RWSA. If the City and RWSA construct this sewer upgrade after the VDOT has installed the stormwater detention basin landscape plan or after the City has installed the integrated landscape plan, the City shall replace in kind any plant materials previously installed in accordance with either of these landscape plans that are removed or damaged during implementation of the sewer upgrade.

II. TRAFFIC MANAGEMENT ON MCINTIRE ROAD EXTENDED

In accordance with the intention of Charlottesville City Council, the VDOT shall ensure that highway signage is installed indicating that truck traffic is prohibited on McIntire Road Extended, as well as signage specifying a speed limit of 35 mph. The number and location of signs necessary for these purposes shall be determined by VDOT in consultation with the City.

III. DOCUMENTATION OF MCINTIRE MUNICIPAL PARK AND MCINTIRE GOLF COURSE

A. McIntire Municipal Park

1. The VDOT shall prepare photographic documentation of the developed areas of McIntire Municipal Park, east of the Norfolk Southern Railroad and north of Route 250 Bypass, to include the McIntire Golf Course, the Dogwood Vietnam Memorial, and the wading pool and bath house. The documentation shall consist of large format black & white photographs, and 35 mm black & white and color field photographs prepared 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 large format photographs shall conform to Level II coverage, as defined under the content standard in these guidelines. The large-format black & white photographs shall be consistent with the Historic American Landscape Survey’s (HALS) guidelines for large format photography (http://www.nps.gov/hdp/standards/HALS/HALSPhotographyGuidelines.pdf), with the exception that the numbering and labeling of negatives, negative sleeves, contact prints, and larger prints shall be coordinated by VDOT in advance with the Archivist of the Virginia Department of Historic Resources (DHR) and executed in a manner acceptable to the Archivist. The 35 mm black & white and 35 mm color field photographs shall be taken in film and digital format, respectively; depict significant aspects of the landscape and its historic setting; capture essentially the same views captured in the large format, black & white photographs, at a minimum; and be suitable for use in public presentations or exhibits.

2. The VDOT shall submit photographic documentation to the Norfolk District, the SHPO, and the City for review and approval, and to the other consulting parties to this Agreement (not to include the ACHP) for review and comment. The Norfolk District, the SHPO, the City, and the other consulting parties to this Agreement shall have thirty (30) calendar days after receipt of the photographic documentation to respond to the VDOT with any comments. If any of these parties fails to respond within thirty (30) calendar days of receipt, the VDOT may assume the non-responding party has no comment. Should the Norfolk District, the SHPO, or the City notify VDOT that the submitted photographic documentation is not acceptable, the VDOT shall resubmit documentation to the Norfolk District, the SHPO, the City and the other consulting parties to this Agreement. The Norfolk District, the SHPO, the City and the other consulting parties shall have thirty (30) calendar days after receipt of revised documentation to respond to the VDOT with any comments. If any of these parties fails to respond within thirty (30) calendar days of receipt, the VDOT may assume the non-responding party has no comment.

3. The VDOT shall not commence with any ground-disturbing construction activity within McIntire Municipal Park until it has submitted photographic documentation acceptable to the SHPO and so notified the Norfolk District in writing. The VDOT shall not commence any MRE activities authorized under the Norfolk District’s’ Permit until notified in writing by the Norfolk District that the requirements for photographic documentation of McIntire Municipal Park under this stipulation have been met. The Norfolk District agrees to review and respond to VDOT’s notification within ten (10) business days of receipt.

B. McIntire Golf Course

1. The VDOT shall prepare historical documentation of the McIntire Golf Course. This documentation shall consist of a written history prepared 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 shall conform to Level II coverage, as defined under the documentation content standard in these guidelines and shall take into account the applicable guidance set forth in Preservation Brief 36, Protecting Cultural Landscapes: Planning, Treatment, and Management of Historic Landscapes (National Park Service 1994) and the Secretary of the Interior’s Standards for the Treatment of Historic Properties with Guidelines for the Treatment of Cultural Landscapes (National Park Service 1996). The written history shall be consistent in regard to substantive content and in grammar and punctuation to the HALS guidelines for historical reports (http://www.nps.gov/hdp/standards/HALS/HALSHistoryGuidelines.pdf) and shall be prepared by or under the direct supervision of a qualified landscape historian, landscape architect, or other pertinent landscape expert with experience working with historic designed landscapes.

2. The VDOT shall submit a draft written history to the SHPO, the Norfolk District, and the City for review and approval and to the other consulting parties to this Agreement (not to include the ACHP) for review and comment within eight (8) months of initiation of construction of the MRE. The SHPO, the Norfolk District, the City and consulting parties shall have thirty (30) calendar days after receipt of the draft to respond to the VDOT with any comments on the documentation. If any of these parties fails to respond within thirty (30) calendar days of receipt, the VDOT may assume that the non-responding party has no comment. The VDOT shall consider all comments received within the thirty (30)-day review period.

3. The VDOT shall submit a final written history for McIntire Golf Course acceptable to the SHPO, the Norfolk District, and the City prior to or concurrent with completion of the construction phase of the MRE.

4. The VDOT shall provide the Albemarle Charlottesville Historical Society and the City of Charlottesville each a copy of the photographic documentation (excluding photographic negatives) of McIntire Municipal Park (in JPEG format) and the written history of McIntire Golf Course (in Adobe PDF format) within two (2) months of completion of the construction phase of the MRE.

IV. EDUCATIONAL INITIATIVES RELATED TO MCINTIRE MUNICIPAL PARK AND MCINTIRE GOLF COURSE

A. Exhibit Module

1. The VDOT, in consultation with the City, shall design and fabricate a mobile exhibit module, comprised of one or more free-standing display panels, text, and graphics, that summarizes the history of McIntire Municipal Park, with particular focus on the McIntire Golf Course, and examines the significance of the park and golf course within the social history of Charlottesville and as a designed historic landscape within the area of landscape architecture. Upon completion of the exhibit module, the VDOT shall transfer ownership of the exhibit to the City of Charlottesville, for the purpose of displaying the exhibit at appropriate citizen meetings associated with the City’s planned master planning process for the McIntire Municipal Park. Following transfer of ownership of the exhibit from VDOT, the City’s use of the exhibit shall be unrestricted, and the City may also display the exhibit, or loan it for the purposes of display, in other suitable contexts or facilities.

2. The VDOT shall submit a draft of the design of the exhibit to the SHPO, the Norfolk District, and the City for review and approval and to the other consulting parties to this Agreement (not to include the ACHP) for review and comment within eight (8) months of initiation of construction of the MRE. The SHPO, the Norfolk District, the City and consulting parties shall have thirty (30) calendar days after receipt of the draft to respond to the VDOT with any comments on the design. If any of these parties fails to respond within thirty (30) calendar days of receipt, the VDOT may assume that the non-responding party has no comment. The VDOT shall consider all comments received within the thirty (30)-day review period.

3. The VDOT shall submit a final design of the exhibit acceptable to the SHPO, the Norfolk District, and the City, and shall provide the fabricated exhibit to the City, prior to or concurrent with completion of the construction phase of the MRE.

B. Public Lecture Series

1. The VDOT shall partner with the City of Charlottesville, through the City’s Preservation Planning staff, to co-sponsor a public lecture series on the topic of “historic designed landscapes” (as that term is defined in National Register Bulletin No. 18, How to Evaluate and Nominate Designed Historic Landscapes, published by the U. S. Department of the Interior, National Park Service) and relevant to examining the historical significance of McIntire Municipal Park, McIntire Golf Course, and other historic designed landscapes in Charlottesville or the surrounding region. The series shall be comprised of three (3) public lectures. The lectures shall be delivered at a time and location convenient to the general public.

2. The VDOT and the City jointly shall develop a budget for the lecture series. The VDOT and the City of Charlottesville, in consultation with the SHPO, jointly shall determine the speakers and topics to be included in the lecture series. The City, in consultation with the VDOT, shall be responsible for planning and implementing the logistics associated with presenting the lecture series including, but not necessarily limited to inviting the speakers; making and implementing arrangements for the speakers; identifying appropriate dates and locations for the lectures; reserving these locations; advertising the lecture series, and providing a host for introducing the speaker at each lecture. The VDOT shall reimburse the City for reasonable expenses associated with the City’s role in presenting the lecture series including, but not necessarily limited to time spent by City staff planning and implementing the lecture series, the cost of speaker’s stipends and travel expenses, room rental fees, and advertising costs.

3. The VDOT and the City shall provide a detailed plan for the public lecture series to the SHPO and the Norfolk District, and the City shall present at least the first lecture in the series, prior to or concurrent with completion of the construction phase of the MRE. The City may schedule the remaining lecture(s) for after completion of the construction phase.

V. FINANCIAL RESPONSIBILITY

The VDOT and the City agree to carry out the tasks assigned to each in this Agreement, and the VDOT shall allocate a budget sufficient to carry out the requirements of Stipulations I-IV.

VI. REPORTING REQUIREMENTS

Upon completion of Stipulations I, II, III, and IV of this Agreement, the VDOT shall provide to the Norfolk District, the SHPO, the ACHP, the City, and other consulting parties signed correspondence documenting that the requirements of these stipulations have been fulfilled.

VII. POST-REVIEW DISCOVERIES

A. Section 107.16(d) of the VDOT's Road and Bridge Specifications govern all VDOT construction contracts and require the construction contractor to act immediately to suspend work at the site of the discovery of any previously unidentified archaeological resource encountered during construction and to notify the VDOT Project Engineer.

B. Immediately upon receipt of notification of the post-review discovery by the contractor, the VDOT shall:

1. Inspect the construction site to determine the extent of the discovery and ensure that construction activities have halted;

2. Clearly mark the area of the discovery;

3. Implement additional measures, as appropriate, to protect the discovery from looting and vandalism; and

4. Have a qualified archeologist meeting the requirements of Stipulation IX of this Agreement inspect the construction site to determine the extent of the discovery and provide recommendations regarding its NRHP eligibility and treatment.

C. Within 48 hours of the discovery, the VDOT shall notify the Norfolk District, the SHPO, the ACHP, the City, and other consulting parties of the discovery, describing the measures that have been implemented to comply with this Stipulation. In the case of prehistoric or historic Native American sites, the VDOT shall also notify appropriate tribal leaders and the Virginia Council on Indians (VCI).

D. Upon receipt of the information required in Stipulation VII.B, the Norfolk District shall provide the VDOT, the SHPO, the ACHP, the City, and other consulting parties with its assessment of the NRHP eligibility of the discovery and the measures proposed to resolve any adverse effects. In making its evaluation, the Norfolk District, in consultation with the SHPO, may assume the discovery to be NRHP eligible for the purposes of Section 106 pursuant to 36 CFR § 800.13(c). The VDOT, the SHPO, the ACHP, the City, and other consulting parties shall respond to the Norfolk District’s assessment within forty-eight (48) hours of receipt.

E. The Norfolk District shall take into account the recommendations of the SHPO, the ACHP, the City, and other consulting parties on eligibility and treatment of the discovery and will notify VDOT of any appropriate required actions. VDOT must comply with the required actions and provide the Norfolk District and consulting parties with a report on the actions when implemented. Any actions that the Norfolk District deems appropriate for VDOT to take with regard to such discovery will automatically become additional stipulations to this Agreement and thereby will be incorporated in the Permit and become conditions to the Permit. If VDOT fails to comply with such actions, such failure will constitute a breach of this Agreement and noncompliance with the Permit.

F. Construction activities may proceed in the area of the discovery when the Norfolk District has determined that implementation of the actions undertaken to address the discovery pursuant to this Stipulation is complete.

VIII. HUMAN REMAINS

A. The VDOT shall make all reasonable efforts to avoid disturbing gravesites, including those gravesites containing Native American human remains and associated funerary artifacts. The VDOT shall treat all human remains in a manner consistent with the ACHP’s Policy Statement Regarding Treatment of Burial sites, Human Remains, and Funerary Objects (February 23, 2007; http://www.achp.gov/docs/hrpolicy0207.pdf).

B. The VDOT shall ensure that human skeletal remains and associated funerary objects encountered during the course of actions taken as a result of this Agreement shall be treated in accordance the Regulations Governing Permits for the Archaeological Removal of Human Remains (Virginia Register 390-01-02) found in the Code of Virginia (10.1-2305, et seq., Virginia Antiquities Act). If removal is proposed, the VDOT shall apply for a permit from the SHPO for the removal of human remains in accordance with the regulations stated above.

C. The VDOT shall make a good faith effort to ensure that the general public is excluded from viewing any Native American burial site or associated funerary artifacts. The consulting parties to this Agreement shall release no photographs of any Native American burial site or associated funerary artifacts to the press or general public.

D. The Norfolk District shall notify appropriate Federally-recognized Tribe(s), the VCI, and appropriate tribal leaders when Native American burials, human skeletal remains, or funerary artifacts are encountered on the project, prior to any analysis or recovery. The VDOT shall deliver any Native American human skeletal remains and associated funerary artifacts recovered pursuant to this Agreement to the appropriate tribe to be reinterred. The disposition of any other human skeletal remains and associated funerary artifacts shall be governed as specified in any permit issued by the SHPO or any order of the local court authorizing their removal. The VDOT shall be responsible for all reasonable costs associated with treatment of human remains and associated funerary objects to resolve the effects of the MRE.

IX. PROFESSIONAL QUALIFICATIONS

All architectural, historical, or archaeological work carried out pursuant to this Agreement shall be conducted by or under the direct supervision of an individual or individuals who meet, at a minimum, the Secretary of the Interior's Professional Qualifications Standards (48 FR 44738-9, September 29, 1983) in the appropriate discipline.

X. PREPARATION AND REVIEW OF DOCUMENTS

A. Except as described under Stipulation III.A, the VDOT shall submit a draft of any technical reports, treatment plans and other documentation prepared under this Agreement to the Norfolk District (one (1) copy), the SHPO (two (2) copies), the City (two (2) copies), and other consulting parties (one (1) copy) for 30-day review and comment. The VDOT shall address all comments received within thirty (30) days of confirmed receipt in the revised technical report/documentation. Following written approval by the Norfolk District, the VDOT shall provide two (2) copies of all final reports, bound and on acid-free paper, and one electronic copy in Adobe PDF format to the SHPO, one (1) electronic copy to the Norfolk District, and one (1) electronic copy to the City.

B. Except as described under Stipulations III.A and III.B., all technical reports prepared pursuant to this Agreement shall be consistent with the federal standards entitled Archeology and Historic Preservation: Secretary of the Interior's Standards and Guidelines (48 FR 44716-44742, September 29, 1983) and the SHPO’s Guidelines for Conducting Cultural Resource Survey in Virginia (rev. 2003), or any subsequent revisions or replacements of these documents.

C. The SHPO, the Norfolk District, the City, and other consulting parties agree to provide comments on all technical reports, treatment plans, and other documentation arising from this Agreement within thirty (30) calendar days of receipt. If no comments are received from the SHPO, the City, or other consulting parties within the thirty (30) day review period, the Norfolk District and VDOT may assume the non-responding party has no comments.

XI. CURATION

The VDOT shall make a good faith effort to ensure that any archaeological materials collected as a result of archeological investigations arising from this Agreement (with the exception of human skeletal remains and associated funerary objects) are deposited by the landowner for permanent curation with either the DHR or another repository meeting the requirements of 36 CFR 79, Curation of Federally Owned and Administered Archaeological Collections.

XII. DISPUTE RESOLUTION

A. Should any party to this Agreement object in writing to the Norfolk District regarding any action carried out or proposed with respect to any undertakings covered by this agreement or to implementation of this Agreement, the Norfolk District shall notify the signatories to this Agreement and consult with the objecting party to resolve the objection.

B. If after initiating such consultation, the Norfolk District determines that the objection cannot be resolved through consultation, the Norfolk District shall forward all documentation relevant to the objection to the ACHP, including the proposed response to the objection. The Norfolk District shall provide a copy of the materials forwarded to the ACHP to the signatory parties to this Agreement.

C. Within thirty (30) days after receipt of all pertinent documentation, the ACHP shall exercise one of the following options:

1. Advise the Norfolk District that the ACHP concurs with its proposed response to the objection, whereupon the Norfolk District will respond to the objection accordingly; or

2. Provide the Norfolk District with recommendations, which it shall take into account in reaching a final decision regarding its response to the objection; or

3. Notify the Norfolk District that the objection will be referred for comment pursuant to 36 CFR 800.7(a)(4), and proceed to refer the objection and comment. The Norfolk District shall take the resulting comment into account in accordance with 36 CFR 800.7(c)(4) and Section 110(l) of the NHPA.

D. Should the ACHP not exercise one of the above options within thirty (30) days after receipt of all pertinent documentation, the Norfolk District may assume the ACHP’s concurrence in its proposed response to the objection.

E. The Norfolk District shall take into account any ACHP recommendation or comment provided in accordance with this stipulation with reference only to the subject of the objection; the Norfolk District’s responsibility to carry out all the actions under this Agreement that are not the subjects of the objections shall remain unchanged.

F. At any time during implementation of the measures stipulated in this Agreement, should a member of the public object to the Norfolk District regarding the manner in which the measures stipulated in this Agreement are being implemented, the Norfolk District shall notify the parties to this Agreement and take the objection into account, consulting with the objector and, should the objector so request, with any of the parties to this Agreement to resolve the objection.

XIII. AMENDMENTS AND TERMINATION

A. Any signatory party to this Agreement may propose to the Norfolk District that the Agreement be amended, whereupon the Norfolk District will consult with the other parties to this Agreement to consider such an amendment. All signatories to the Agreement must agree to the proposed amendment in accordance with 800.6(c)(7).

B. If the VDOT decides it will not proceed with the undertaking, it shall so notify the Norfolk District, the SHPO, the ACHP, the City, and the other consulting parties, and this Agreement shall become null and void.

C. If the VDOT determines that it cannot implement the terms of this Agreement, or if the Norfolk District, the SHPO, the City, or the ACHP determines that the Agreement is not being properly implemented, the VDOT, the City, the Norfolk District, the SHPO, or the ACHP may propose to the other parties to this Agreement that it be amended or terminated.

D. This Agreement may be terminated by any signatory to the Agreement in accordance with the procedures described in 800.6(c)(8). Termination shall include the submission of a technical report or other documentation by the VDOT on any work done up to and including the date of termination. If the Norfolk District is unable to execute another Agreement following termination, it may choose to modify, suspend, or revoke the Department of the Army Permit as provided by 33 CFR 325.7.

XIV. DURATION OF AGREEMENT

This Agreement will continue in full force and effect until five (5) years after the date of the last signatory party signature. Except as described in Stipulation IV.B.3 of this Agreement, the VDOT and the City shall fulfill the requirements of this Agreement prior to and in conjunction with the work authorized by the Permit. All obligations under this Agreement must be complete before expiration of this Agreement. If any obligation is not complete, the party responsible for such obligation is in violation of this Agreement; such violation may also constitute a violation of the Permit. Failure of the Norfolk District to pursue such violation is not a waiver. At any time in the six-month period prior to such date, the Norfolk District may request the signatory parties to consider an extension or modification of this Agreement. No extension or modification will be effective unless all signatory parties to the Agreement have agreed with it in writing.

XV. EXECUTION OF AGREEMENT

This Agreement may be executed in counterparts, with a separate page for each signatory. The Norfolk District shall ensure that each party is provided with a copy of the fully executed Agreement.

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

Charlottesville City Council may vote to fence off sidewalk on Belmont Bridge

[photo source: Charlottesville Tomorrow]

Charlottesville City Council will consider a proposal to fence-off the sidewalk on the east side of the Belmont Bridge in downtown Charlottesville rather than repair the sidewalk. A replacement bridge is under consideration, but there is no clear date that a replacement will be in place. I have weighed in on this topic in recent weeks. If you wish to share your ideas on this topic with city councilors, you can email them at council@charlottesville.org, or present comments at the April 4, 2011 meeting in city hall at 7:00 pm.

My comment to council on the matter sent today.

Dear council members,

I was surprised at the recommendation of staff concerning the item "Approval of Concept for Belmont Bridge Sidewalk Fence" on the April 4, 2011 agenda. The 'analysis' presented seems to contradict the goals and practice of the Art in Place program. The staff response fails to provide any reasonable argument against the art in place option, and the rationale could just as easily be used to eliminate consideration of an attractive fence to block the sidewalk from pedestrian use. I have provided below the three points provided that staff considers problematic with my response to each for your consideration.

• The weight of the art is generally too heavy for this sidewalk to support.
-- clearly any request for artistic sidewalk project can specify a maximum weight for the installation - as you may recall from my previous email that some sort of light-weight material or even fabric presentation could be an effective and attractive solution.

• The sidewalk is too brittle to attach the necessary supports for the art.
-- the proposed fencing will also need to be fastened to the sidewalk in some manner. I do not believe that the support for a fence can only be through the proposed connection to the bridge railing.

• The Traffic Engineer is concerned about traffic implications as drivers slowed to look at the art given the existing traffic concerns on the bridge.
-- a large number of Art in Place installations have been place in medians of roadways and along roadsides where motorists routinely can view them.This concern by staff for the bridge sidewalk appears to be an unjistifiable claim by staff in light of the routine installation of art on many city roadways.

I urge you not to discount the value of providing a creative, attractive and effective means of temporary restriction of pedestrian travel on the bridge sidewalk and not be coerced into considering that a fence is the only possible solution. My recommendation is that council redirect staff to provide a more credible analysis of the alternatives related to the structural concerns on the Belmont Bridge.

For me, the current three identified choices in order of desirability are as follows:

1. Have staff repair the sidewalk so that pedestrian traffic will be restored. The best option by far.
2. Promote submission of creative solutions to a temporary restriction of pedestrian travel if the restriction has a clearly identified termination point when pedestrian traffic can again be restored.
3. Building a fence that blocks the pedestrian traffic for an indeterminate period.

I am also concerned at the safety issue of pedestrians choosing to walk along the fence to cross the bridge. I do not believe that the construction of a fence and signage will necessarily keep people from this behavior.

I urge council to reject the staff recommendation (below) and reconsider a broad range of creative and superior solutions befitting a community like Charlottesville. This is a time where council can indicate clearly to its community that creativity in meeting public needs is the normal order - not reducing community access by accepting clearly uninspired actions on the basis of poor analysis of alternatives.

I have included my original email to you on this subject below so you can recall my argument for a creative approach to this matter.

Peter Kleeman

Staff Report:

CITY OF CHARLOTTESVILLE, VIRGINIA
CITY COUNCIL AGENDA

Agenda Date: April 4, 2011
Action Required: Approval of Concept for Belmont Bridge Sidewalk Fence
Presenter: James E. Tolbert, AICP, Director of NDS
Staff Contacts: James E. Tolbert, AICP, Director of NDS
Tony Edwards, City Engineer

Title: Belmont Bridge East Sidewalk Repair/Fencing

Background: Several weeks ago staff approached Council about fencing off the sidewalk on the east side of the Belmont Bridge while awaiting the bridge repair. You asked that we explore a more aesthetic option than either chain link or wood fencing. Council also acknowledged the concerns with weight and wind loading and asked that those be addressed in any solution.

Discussion: At the request of City Council, staff has explored additional options for fencing this section of sidewalk in a more attractive manner. What is now proposed is to fence the sidewalk with decorative metal fencing at a cost of $14,530. A drawing of the fence is attached to this memo. This is essentially a four foot version of the fencing that has been used to protect the railroad tracks near the C & O Property and near the University Hospital. The cost is in line with all other proposals and it is much more attractive.

Alternative: Staff was asked to consider the possible installation of Art in Place along the bridge. As our engineers examined this possibility, it was determined that there were several issues that made art installation problematic on this sidewalk:

• The weight of the art is generally too heavy for this sidewalk to support.
• The sidewalk is too brittle to attach the necessary supports for the art.
• The Traffic Engineer is concerned about traffic implications as drivers slowed to look at the art given the existing traffic concerns on the bridge.

Budgetary Impact: $14,500 that can be paid from the Bridge Repair Account.

Recommendation: Staff met as requested with Councilors Szakos and Huja to discuss this option and both agreed that it is an appropriate solution. Staff recommends approval of the concept.

Attachments: Fence Proposal/Example

My original email:

From: Peter Kleeman <peter.kleeman@gmail.com>
Date: Sat, Feb 26, 2011 at 3:26 PM
Subject: Follow-up Thoughts on the Belmont Bridge Sidewalk Issue
To: Charlottesville City Council <council@charlottesville.org>


Dear council members,

After hearing your discussion at the Feb. 22, 2011 council meeting regarding the possible closing and fencing of the pedestrian walkway on the east side of the bridge, and having an opportunity to reflect on the discussion a bit, I offer you the following possible course of action.

If you decide to restrict use of the sidewalk, rather than fence off, blockade, or prevent ready access to the sidewalk in some similar fashion - thereby creating a space that is a fenced in void and possibly an attractive nuisance, I suggest you offer an opportunity for some Art in Place type installation that will fill that space. Clear criteria for the project can be specified including that the space must fill the sidewalk, be restricted in weight, not present a hazard to motorists, etc, but also be designed to be best viewed from the sidewalk on the opposite side of the road. Perhaps the installation can complement the form of the pavilion that is visible from the Belmont Bridge creating a pedestrian and vehicle corridor with a unique visual character in the city and beyond.

Several benefits of this idea come to mind.

First, the city can sponsor the chosen project and likely pay less than the cost of providing barriers or fencing;

Second, the aesthetics of an art installation will be an asset to the ambiance of the entrance corridor,

Third, there will be an advantage for pedestrians to cross the street to use the opposite sidewalk an have the opportunity to enjoy the installation from its best viewpoint;

Fourth, the area will likely not collect debris as would a fenced in space;

Fifth, it will provide some artist - or group to provide the city an installation that could be a truly creative challenge and source of pride in the community and the city as a whole.


Of course, as I have clearly presented to you in comments at recent council meetings, I believe repair of the pedestrian path is be the best solution and is consistent with the Charlottesville City Council goal of being a pedestrian friendly community. But, if a majority of council opposes repair, I believe this suggestion is a positive way to reprogram that space for an indeterminate period of time rather than simply closing the path and creating a less than satisfactory barricaded void space in the entrance corridor.

I encourage you to consider this proposal prior to your next council meeting. I anticipate that a design challenge to fill that space would be welcomed by members of our robust art, architecture, and design communities, and I believe our entire community will appreciate the result.

Sincerely, Peter Kleeman
--
Peter T. Kleeman
407 Hedge Street
Charlottesville VA 22902
peter.kleeman@gmail.com
(434) 296-6208