Kleeman Blog

Did Occupy Charlottesville Protesters actually Trespass in Lee Park

2012-01-28T09:47:00.000-08:00

I attended the trial of seventeen Occupy Charlottesville members for trespassing in Lee Park immediately after the city terminated the permit granted to Occupy Charlottesville movement to use the park. I believe the city would have done a great community service to have dropped the charges against the occupiers. The city was being pressured to end the occupation by local residents who were concerned about local issues while the occupiers were addressing national and global issues. The city of Charlottesville clearly made permit decisions in a highly politicized environment. By dropping all charges, the city would have achieved their goal of returning the park to normal use, while recognizing that the city is not opposed to use of public spaces in peaceful protest of national and global issues. Council recently made its own statement opposing involvement by the United States in possible war with Iran.

Both Maurice Jones, Charlottesville City Manager, and Brian Daly, Director of Parks and Recreation were called as witnesses in the case regarding the issuing of permits for the occupation. Their testimony illustrated how much politics - rather than established policy - influenced the issuing of a series of permits for use of Lee Park. Although I am not an expert on case law relating to free speech issues, it appeared to me that actions by the city may have not been in keeping with the protections of free speech relevant to this trespassing case. I applaud the occupiers for their civil disobedience and willingness to stipulate that they in fact trespassed in Lee Park to raise the issue of their right to protest peacefully in the park and that the city's action to arrest and remove the occupiers may have not have been within established free speech guidelines.

Perhaps the trade-off between having Jones' and Daly's testimony in court showing that the city was not clearly prepared to handle this free speech issue in a well established manner in return for achieving conviction of the 17 occupiers for trespassing (a warning to future protesters, perhaps) was in the City's interest, but I believe the city didn't look good at the end of the trial. I was surprised that the occupiers were fined given the testimony.

The defense attorney stipulated that all seventeen occupiers were in the park after the curfew and after termination of the permit. Thus the prosecution did not have to establish that trespassing actually occurred and the case was decided for all 17 defendants in about two hours from beginning to end. I believe that the city's action were not clearly appropriate within the free speech guidelines presented by the defense attorney and actually expected that the judge would find the defendants guilty of trespass, but not fine them (other than court costs). I suppose part of civil disobedience is to violate a law and accept the punishment, but I don't believe that the city's actions clearly showed that the permits were properly issued and withdrawn and in my mind it was not clear if in fact the defendants were trespassing. Perhaps the judge having already fined one other defendant $100 who plead guilty in a prior action resulted in the same fine being imposed - to have a consistent penalty. Without the prior case decision (where actions by the City were not considered due to the guilty plea) a lower or zero dollar fine might have well have been appropriate. The inconsistent and politically influenced actions by city officials presented by the defense was a bit embarrassing to the city administrtion. I do hope the city learns from this experience. This trial was a good learning opportunity for the city and the public in some of the finer points of free speech guaranteed under the U.S. Constitution. Dropping all charges might well have been an action the city could have taken that would have achieved their goal of returning the park to normal use with significantly less cost and embarrassment to the city.

Will Charlottesville City Council act - or not act - to prematurely open Meadow Creek Parkway

2011-12-07T08:37:00.001-08:00

Charlottesville City Council is poised to drop a legal condition relating to the controversial Meadowcreek Parkway. In June 2008, the City Council approved permanent and temporary easementsfor VDOT to build a portion of the Parkway across City-owned property nearMelbourne Road in the County. One of the five conditions (by ordinance) "That no part of the Meadow Creek Parkway project (i.e., the AlbemarleCounty Meadow Creek Parkway section, the City McIntire Road Extendedsection, or the Interchange/Intersection project at the 250 Bypass andMcIntire) will be open for public use until the entire project is complete andready for opening." Given that McIntire Road Extended and the Interchange/Intersection project at the 250 Bypass and McIntire are years away from completion (if they are ever completed) council would have to amend (replace) this ordinance to eliminate this condition to allow the Meadow Creek Parkway to open.

Councilor Szakos may be the swing vote on deciding whether or not to drop this condition. Councilors Brown and Huja have consistently voted to move the parkway forward while councilor Edwards and Mayor Norris have consistently voted not to move the parkway forward. Interestingly, councilor Szakos has stated her opposition to the parkway, but also that she would not vote to overturn decisions on the parkway of previous councils. These nuanced positions were a key part of Szakos' campaign when she was elected to council in 2009. Now, if councilor votes to remove the condition she appears to be flopping on both of these positions. She will both be voting for the parkway (at least part of it) to open AND to overturn the decision of the 2008 easement decision by council prior to her election!

Of further interest, I am unaware of the Albemarle Board of Supervisors formally requesting city council to amend this ordinance. Council appears to be acting in advance of any such request.

Councilor Szakos may be spending significant political capital if she in fact votes to allow premature opening of Meadow Creek Parkway. I believe council in 2008 acted wisely in not allowing any portion of the parkway project between Route 250 Bypass and Rio Road to open and only open the road when completed. I believe the current council should honor that wise decision. VDOT constructed the portion of the parkway north of Melbourne Road fully aware that the other sections would require many additional months or years of planning, design, environmental approval and construction.

It appears to me that VDOT chose to construct early to get a favorable bid price in a 'down' construction period and now may be realizing that early construction to reduce construction cost may entail extended maintenance costs making their decision not an economic one. I suppose both VDOT and Albemarle County want to cover that questionable decision by premature opening of the road and spending even more money to mitigate safety concerns for the opening of one part of the road.

Is Charlottesville City Council race about party, issues, or what the council voting majority will be?

2011-10-22T10:26:00.000-07:00

The Charlottesville City Council race has taken on a new dimension with independent candidate Bob Fenwick publicly endorsing Dede Smith, one of the Democratic Party candidates in the race.

Both Fenwick and Smith are both active members of the Citizens for a Sustainable Water Plan that promotes dredging of the Rivanna Reservior and opposes the construction of the proposed earthen dam at Ragged Mountain. The water plan issue is one of the several controversial issues before city council.

Bob Fenwick's endorsement of Dede Smith is an effort to get a majority of council that will ensure that the water plan is developed on the basis of basic planning information that is now available, but not included in development of the currently proposed plan. He is asking voters to vote for both Dede Smith and himself so that a majority of councilors will have a similar commitment to considering all relevant data in this and other controversial infrastructure decisions.

On the current council, Kristin Szakos, Satyendra Huja and David Brown all support the current proposal to build an earthen dam at Ragged Mountain and also support moving forward with the equally controversial VDOT plans for the proposed Meadowcreek Parkway. Majority support for these projects will likely continue if Democratic Party candidates Huja and Kathy Galvin are elected to join Szakos on council.

Some local news stories state that Bob Fenwick is endorsing an opponent in the council race, but coalitions are not uncommon in this race where three candidates will be successful. Fenwick is aware that one candidate needs to be part of a majority to be successful in getting action on council and he clearly does not consider Dede Smith to be an opponent - but rather the candidate he would best be able to work with on council among the other candidates.

If the campaign is presented as an opportunity to select a voting majority on council on these very expensive and controversial projects, voters have on November 8 the opportunity to form a Szakos-Huja-Galvin majority or a Norris-Smith-Fenwick majority. I expect that the decisions council will make regarding all of the infrastructure decisions before council will clearly reflect which voting majority is on council.

I encourage Charlottesville voters to consider not only the strengths and weaknesses of each individual candidate, but which three candidates they believe will best work with two incumbent councilors not up for re-election this year.

Will Local Tea Party Group Support Independent City Council Candidates

2011-08-26T09:54:00.000-07:00

The Jefferson Area Tea Party invited all eight of the Charlottesville City Council candidates to attend a candidate forum at the Hibachi Grill in Charlottesville on August 26. I attended the forum to see how engaged the local Tea Party group might be in supporting candidates in the upcoming election while enjoying the Chinese Dinner Buffet. Four of the five Independent candidates attended - Bob Fenwick, Brandon Collins, Paul Long and Scott Bandy. Each candidate presented a five minute opening statement about their candidacy and participated in a question and answer session for about one hour.

Tea Party members in attendance listened intently to each candidate and asked a broad range of questions of the candidates. But, will the Tea Party as a group or its members actively support any of the candidates in the council election? If the Tea Party wants to be an influence in local government it seems to me that they should should back one or more of the candidates in the field.

As a political observer, it appears to me that candidates opposing the overly expensive Water Supply Plan would be consistent with the fiscal conservatism of the Tea Party principles. I am interested to see if support for those candidates will emerge. Is it possible that Tea Party voters will support Dede Smith from the Democratic Party and Bob Fenwick and possibly another of the independent candidates who support dredging of the Rivanna Reservior first and repair (and possible expansion) of the existing Ragged Mountain Dam as necessary Water Plan option.

None of the Democratic Council Nominees were present at the forum, but I hope the Tea Party members will consider how their positions may or may not resonate with the Tea Party principles.

With no clear Tea Party affiliated candidate in the race many voters may simply opt not to vote. But voting is the best way to influence who the members of the new council will be.

I will be watching to see if the Tea Party chooses to participate in the city council campaign in any significant way. This looks like the "think globally - act locally" concept applies.

Council Candidate Kathy Galvin misses rather then makes political point in recent press connference

2011-08-02T11:58:00.000-07:00

Kathy Galvin, candidate for the Democratic Party nomination for City Council stated in a recent press conference that "the city has reached a 'low point' in its political discourse that mirrors the rancor and 'paralysis' of Washington politics as the local debate continues to focus on a few controversial projects." [See the Graham Moomaw Daily Progress story entitled "Galvin blasts some opponents as 'single-issue oriented'" dated Aug 1, 2011]. I think candidate Galvin is missing the point of the debate among candidates. What better time to discuss controversial topics than now.

Candidate Galvin's position on two of these controversial issues - the 50-year water plan and the Meadowcreek Parkway construction - is to consider them done-deals. Frankly, this looks like an attempt to dodge two of the major issues before City Council now and likely into the next council term. I certainly respect Galvin's right to her opinion on these issues, but find her claim that having candidates feature these issues in their candidacy as displaying a "bunker mentality" is just plain silly.

I will be voting for candidates that are eager to discuss the controversial issues in an open and constructive way. Kathy Galvin is clearly at this moment one candidate in the Democratic primary that will not be among my council choices. Perhaps candidate Galvin will explore the reasons why these issues are so controversial and participate in future efforts toward resolving these issues rather than asking other candidates not to include them in the council campaign conversation.

NOTICE OF VOLUNTARY DISMISSAL, WITHOUT PREJUDICE, OF DEFENDANT VIRGINIA DEPARTMENT OF TRANSPORTATION

2011-07-19T08:10:00.000-07:00

Plaintiffs in the McIntire Road Extended case agree to dismiss VDOT from the case as requested in VDOT's July 6, 2011 motion to dismiss. Thus, U.S. Army Corps of Engineers is the only defendant in this case. Judge Moon will hear arguments on the plaintiffs motion for a preliminary injunction or temporary restraining order on Thursday July 21, 2011 (10:00 AM) in the federal courthouse in Charlottesville.

Below is the notice of dismissal reformatted slightly for posting on this blog. The original document is on available for viewing at the clerk's office.

- - - - -

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

COALITION TO PRESERVE MCINTIRE PARK,

DANIEL BLUESTONE,

Plaintiffs,

v.

UNITED STATES ARMY CORPS OF ENGINEERS,

VIRGINIA DEPARTMENT OF TRANSPORTATION,

Defendants.
_______________________________________

Case 3:11-cv-00041-NKM

NOTICE OF VOLUNTARY DISMISSAL, WITHOUT PREJUDICE, OF DEFENDANT VIRGINIA DEPARTMENT OF TRANSPORTATION

Plaintiffs, pursuant to Fed. R. Civ. P. 41(a)(1), hereby notify the Court and all parties as to the voluntary dismissal of VDOT as a defendant, without prejudice.

Plaintiffs will not respond to VDOT’s motion to dismiss, filed July 6, 2011.

Respectfully submitted,

/s/ James B. Dougherty, Esq.
Dated: July 19, 2011 709 3rd St. S.W.
Washington, D.C. 20024
Tel: 202-488-1140
Email: JimDougherty@aol.com

/s/ James D. Brown, Esq.
Law Office of James D. Brown
P.O. Box 2921
Charlottesville VA 22902
Va. Bar. No. 81225
Tel.: 434-218-0891
Email: jd@lawofficejdb.com

Counsel for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of July, 2011, I will cause the foregoing Notice of Voluntary Dismissal, to be served, via the Court’s CM/ECF filing system, on the following:

Thomas L. Eckert
Assistant U.S. Attorney
P.O. Box 1709
Roanoke, VA 24008

Suzanne T. Ellison
Office of the Attorney General
900 E. Main St.
Richmond, VA 23219

/s/ James B. Dougherty

The Corp of Engineers Respond to request for Preliminary Injunction

2011-07-18T14:37:00.000-07:00

The attorney for the U.S. Army Corps of Engineers filed the following response to the Coalition to Preserve McIntire Park's motion for a preliminary injunction or temporary restraining order. I suppose there will be a lively discussion of the request and response at the June 21, 2011 hearing in the Federal District Court in Charlottesville starting at 10:00 AM.

Note that the format of the filing is modified slightly to allow it to be posted on this blog. In this document the footnoting has been placed closest to the reference to that note as this document is not paginated. - Peter Kleeman

- - - - -

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

COALITION TO PRESERVE MC INTIRE PARK, et. al.;

Plaintiffs;

v.

UNITED STATES ARMY CORPS OF ENGINEERS, et. al.,

Defendants.
______________________________________

Civil No. 3:11-cv-00041

RESPONSE OF DEFENDANT CORPS OF ENGINEERS TO PLAINTIFFS’ APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

COMES NOW the defendant U.S. Army Corps of Engineers and states the following as its response to the plaintiffs’ application for a temporary restraining order (TRO) and preliminary injunction:

1. At issue in the plaintiffs’ application is enjoining (1) “the authorization issued by the United States Army Corps of Engineers on May 25, 2011 to the Virginia Department of Transportation (VDOT) under §404e of the Clean Water Act, 33 U.S.C. §1344e, and (2) prohibiting the defendant VDOT from constructing McIntire Road Extended pursuant to that authorization”. See “Plaintiff’s Application For A Temporary restraining order and / or A Preliminary Injunction” p.1. The plaintiffs’ law suit and this application are premised on the Corps of Engineers’ authorization of VDOT to construct a box culvert in an unnamed small tributary of Schenks Branch.[1] In their complaint, the plaintiffs allege that the Corps of Engineers violated both the Clean Water Act, 33 U.S.C. §1344, and the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332 by issuing this permit to VDOT. This court reviews the Corps of Engineers NEPA and Clean Water Act decisions pursuant to the Administrative Procedure Act (APA), 5 U.S.C. §551 et. seq., using an arbitrary or capricious standard. Ohio Valley Environmental Coalition v. Aracoma Coal Co., 556 F.3d 177, 189 (4th Cir. 2009). “In determining whether agency action was arbitrary or capricious, the court must consider whether the agency considered the relevant factors and whether a clear error of judgment was made”. Id. at 192. This judicial review “is highly deferential, with a presumption in favor of finding the agency action valid”. Id. (citation omitted).

---
[1] The authorization by the Corps of Engineers was issued pursuant to a State Program General Permit (SPGP). This unknown tributary impacts 0.05 acre of non-tidal waters of the United States which is far less than the 1/3 acre of impact permitted under the SPGP. The MRE project involves no wet lands.
---

2. There are no federal funds paying for any of the MRE project.

3. NEPA is a procedural statute. Id. at 191. It does not mandate or dictate substantive results. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Under NEPA, the court is limited to reviewing the Corps of Engineers’s decision making process. Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227-28 (1980) (The court “cannot ‘interject itself within the area of discretion of the executive as to the choice of the action to be taken’”.) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)). “[E]ven agency action with adverse environmental effects can be NEPA- compliant so long as the agency has considered those effects and determined that competing policy values outweigh those costs”. Ohio Valley Environmental Coalition, at 191.

4. The plaintiffs have moved this court for TRO and preliminary injunctive relief “(1) vacating the authorization issued by the United States Army Corps of Engineers on May 25, 2011 to VDOT under §404(e) of the Clean Water Act, 33 U.S.C. §1344(e) and (2) prohibiting defendant VDOT from constructing the McIntire Road Extended pursuant to that authorization”. See “Plaintiffs’ Application for a Temporary Restraining order and / or a Preliminary Injunction” p.1. The factors for the court to consider prior to issuing either a preliminary injunction or TRO are the same. See Flicker v. Touhy, 305 F. Supp. 2nd 569, 571 (D. Md. 2004).

5. The MRE project is not a “road to nowhere” as alleged by the plaintiffs in their memorandum of law in support of their application. See “Plaintiffs’ Memorandum in Support of Their Application for a Temporary Restraining Order and /or a Preliminary Injunction” ( here-inafter the “Plaintiffs’ Memorandum) P. 9. Even if the Route 250 above grade interchange is not built, MRE will be built and tie into Route 250 probably with an at grade intersection following submission of revised plans by the VDOT to the Corps of Engineers and the Corps’ amending the present permit. The Route 250 interchange project and MRE are separate and distinct projects, they are separately funded, and they involve separate entities. However, the Corps added the impact of the waters of the United States cumulatively for both MRE and the interchange project and the total was below the amount permissible for an SPGP permit. The present plans prudently call for the MRE to stop short of Route 250 until it is determined if the Route 250 interchange will be built since there is pending litigation on that issue in this court. See Coalition to Preserve McIntire Park v. Mendez, civil docket number 3:11-cv-00015.

6. The plaintiffs’ allegation on page 7 of the Plaintiffs’ Memorandum that the “the Corps created a ‘Memorandum of Agreement’ for each of the two projects” and “also produced an EA for the interchange” are wrong. The Corps of Engineers produced a Memorandum of Agreement only for the MRE project and had nothing to do with the Federal Highway Administration’s Environmental Assessment (EA) done for the Route 250 Interchange project.

7. On page 15 of the Plaintiffs’ Memorandum, they reference the Council on Environmental Quality’s (COQ’s) guidance involving historic properties and Environmental Impact Statements (EISs). The COQ provides guidance, it does not issue mandates. The COQ lays out ten steps that have to be “considered in evaluating intensity”, but the COQ does not hold that any one of the ten constitutes a causal factor requiring an EIS.

8. On page 26 of the Plaintiffs’ Memorandum, they allege that “construction and operation of the MRE will have highly deleterious effects on the great number of historic properties situated in the immediate vicinity of the MRE ...”. In fact, only a portion of the golf course in McIntire Park is adversely effected.

9. On page 16 of the Plaintiffs’ Memorandum, they state that there will be “[p]ermanent and in many cases unmitigated- damage to federally protected historic properties properties...”. In fact the effects of the MRE are mitigated by the commitments contained in the Memorandum of Agreement that were agreeable to all signatories.

10. On page 31 of the Plaintiffs’ Memorandum, addressing the issue of bond, they allege that “[p]laintiff Coalition to Preserve McIntire Park ... has almost no assets”. This statement appears to contradict other statements by the plaintiffs in their memorandum that the MRE has long standing, wide spread and intense opposition. See Plaintiffs’ Memorandum pp. 4,16, and17.

11. MRE has only 263 linear feet of stream impact and no impact on any of the following: wetlands; threatened or endangered species; trout, shell fish, or anadromous fish; public water supply; scenic rivers; riffle pool complex or other special aquatic site; air quality nonattainment area, or flood plain elevations greater than or equal to one foot. Cultural resources effects are satisfied and resolved through the section 106 consultation process and resulting memorandum of agreement.

12. The plaintiffs correctly state the four elements applicable to preliminary injunctive relief as stated in The Real Truth About Obama v. Federal Election Commission, 575 F.3d 342, 346-47 (4th Cir. 2009)[2]. Those elements are “(1) [plaintiffs are] likely to succeed on the merits; (2) [plaintiffs are] likely to suffer irreparable harm absent preliminary relief; (3) the balance of equities [tip] in [plaintiffs’] favor; and (4) an injunction is in the public interest.” Montgomery v. Housing Authority of Baltimore City, 731 F. Supp. 2d 439, 441 (D. Md. 3010) (citing Real Truth at 346).[3] The plaintiffs bear the burden to satisfy each of the four elements. Id. at 441-42. As to success on the merits, the plaintiffs “must show more than a ‘grave or serious question for litigation’, [they] bear “the ‘heavy burden’ of making a ‘clear showing that [they] are likely to succeed at trial on the merits’”. Chattery International, Inc. v. Jolida, Inc., 2011 WL 1230822 *9 (D. Md. Mar. 28, 2011) (quoting Real Truth at 347) (emphasis in original). The plaintiffs must “make a clear showing” of likely success on the merits and irreparable harm and “only then may the court consider whether the balance of equities tips in the [plaintiffs’] favor”. Cross v. Deutche Bank Trust Company Americas, 2011 WL 1624958 *3 (D.S.C. Apr. 28, 2011) (citing Winter v. Nat. Resources Def. Council, Inc., 555 U.S. 7, ____, 129 S.Ct. 365, 376 (2008); Real Truth 575 F.3d at 345-47). “Finally, the court must pay particular regard to the public consequences of employing the extra ordinary relief of injunction.” Id. (citing Real Truth, 575 F.3d at 347).

---
[2] Real Truth overruled Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977) and was vacated on other grounds at ____U.S. _____, 130 S.Ct. 2371 (2010). The Fourth Circuit then reissued, inter alia, that portion of their 2009 opinion stating the standards for preliminary injunctive relief. See 607 F.3d 355 (4th Cir. 2010).

[3] The plaintiffs must prove these same four elements for either TRO or preliminary injunctive relief. See Flicker v. Touhy, 305 F. Supp. 2nd 569, 571 (D. Md. 2004).
---

13. Preliminary injunctive relief is an “‘extra ordinary remedy ... which is to be applied “only in [the] limited circumstances” which clearly demand it’”. Howard v. Phillips, 2011 WL 947123 (W.D. Va. Mar. 15, 2011) (quotation citation omitted).

14. The plaintiffs cannot satisfy the Fourth Circuit standard for the “extra ordinary remedy” of preliminary injunctive relief. First, the plaintiffs cannot make a clear showing that they are likely to succeed on the merits. A review of the administrative record by this court will show that the Corps of Engineers did not issue or cause to be issued any permit using an arbitrary or capricious standard. Nor can the plaintiffs establish that the equities tip in their favor, or that injunctive relief is in the public interest.

THEREFORE, the plaintiff’s motion for the “extra ordinary remedy” of injunctive relief must be denied.

Dated: July 18, 2011.

Respectfully submitted,

TIMOTHY J. HEAPHY
UNITED STATES ATTORNEY
/s/ Thomas L. Eckert
Thomas L. Eckert
Assistant U.S. Attorney
P.O. Box 1709
Roanoke, VA 24008
(540) 857-2761
(540) 857- 2283
Virginia Bar # 18781
E-mail: thomas.eckert@udsoj.gov
Attorney for the Corps of Engineers

CERTIFICATE OF SERVICE

I hereby certify that on July 18, 2011 that I filed this response of the Corps of Engineers
with the court using the CM/ECF system which will electronically notify all counsel of record of
the filing and send them a true copy of the same.

/s/ Thomas L. Eckert

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF THEIR APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND/OR A PRELIMINARY INJUNCTION

2011-07-12T13:44:00.000-07:00

Here is an online version of the PLAINTIFFS’ MEMORANDUM IN SUPPORT OF THEIR APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND/OR A PRELIMINARY INJUNCTION that has been submitted to the court and will be considered on July 21, 2011.

- - -

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

COALITION TO PRESERVE MCINTIRE PARK,

DANIEL BLUESTONE,

Plaintiffs

v.

UNITED STATES ARMY CORPS OF ENGINEERS,

VIRGINIA DEPARTMENT OF TRANSPORTATION,

Defendants
______________________________________

Civ. No. 3:11-cv-0041

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF THEIR APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND/OR A PRELIMINARY INJUNCTION

James B. Dougherty, Esq.
709 3rd St. S.W.
Washington, D.C. 20024
Tel: 202-488-1140
Email: JimDougherty@aol.com
Pro Hac Vice Counsel for Plaintiffs

James D. Brown, Esq.
Law Office of James D. Brown
P.O. Box 2921
Charlottesville VA 22902
Va. Bar. No. 81225
Tel.: 434-218-0891
Email: jd@lawofficejdb.com
Counsel for Plaintiffs

July 7, 2011

TABLE OF CONTENTS
TABLE OF AUTHORITIES

INTRODUCTION

FACTS

ARGUMENT

1. Plaintiffs have Demonstrated A Substantial Likelihood of Success on the Merits

2. Failure to Issue the Requested Injunction will Result in Immediate and Irreparable Harm to Plaintiffs and to the Environment

3. Because Defendants Will Suffer No Significant Harm in the Event Injunctive Relief is Granted, the Balance of Harms Tips Strongly in Plaintiffs’ Favor

4. Considerations of the “Public Interest” Weigh Heavily in Favor of the Issuance of Injunctive Relief

5. No Bond Should Be Required

CONCLUSION

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases
Amoco Prod. Co. v. Village of Gambell, 480 U. S. 531 (1987) .. page 23

Arkansas Nature Alliance, Inc. v. United States Army Corps of Engineers, 266 F. Supp. 2d 876 (E.D. Ark.)

Blue Mts. Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998)

Brady Campaign to Prevent Gun Violence v. Salazar, 612 F. Supp. 2d 1 (D.D.C. 2009)

Catron County v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996)

Center for Biological Diversity v. Stahn, (D. Az. 2008) (unpublished opinion) (reproduced in Pltfs’ Exh. 22)

Citizens for Responsible Growth v. Adams, 477 F. Supp. 994 (D.N.H. 1979)

Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)

City of South Pasadena v. Slater, 56 F. Supp. 2d 1106 (C.D. Cal. 1999)

Coalition for Canyon Preservation v. Bowers, 632 F.2d 774 (9th Cir. 1980)

Conservation Law Found. v. FHWA, 630 F.Supp. 2d 183 (D.N.H. 2007)

Colo. Wild, Inc. v. U.S. Forest Serv., 523 F. Supp. 2d 1213 (D. Colo. 2007)

Conservation Law Foundation v. Watt, 560 F. Supp. 561 (D. Mass)

Corrigan Dispatch Co. v. Casa Guzman, S.A., 569 F.2d 300 (5th Cir. 1978)

Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802 (4th Cir. 1991)

E. Tenn. Natural Gas Co. v. Clanton, 361 F.3d 808 (4th Cir., 2004)

Florida Wildlife Federation v. U.S. Army Corps of Engineers, 401 F. Supp. 2d 1298 (S.D. Fla. 2005)

Friends of the Earth v. Coleman, 518 F.2d 323 (9th Cir. 1975)

Highland Co-op v. City of Lansing, 492 F. Supp. 1372 (D. Mich. 1980)

Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437 (4th Cir. 1996)

I-291 Why? Association v. Burns, 372 F. Supp. 223 (D. Conn. 1974)

Idaho Sporting Congress, Inc. v. Alexander, 222 F.3d 562 (9th Cir. 2000)

In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 524-25 (4th Cir. 2003)

Kleppe v. Sierra Club, 427 U.S. 390 (1976)

Lands Council v. Martin, 479 F.3d 636 (9th Cir. 2007)

Maryland Conservation Council v. Gilchrist, 808 F.2d 1039 (4th Cir. 1986)

Maryland Native Plant Society v. Army Corps of Engineers, 332 F. Supp.2d 845 849 (D. Md. 2004)

Md. Native Plant Soc'y v. United States Army Corps of Eng'rs, 332 F. Supp. 2d 845 (D. Md. 2004)

Mullin v. Skinner, 756 F. Supp. 904 (E.D.N.C. 1990)

Named Individual Members of The San Antonio Conservation Society v. Texas Highway
Department, 496 F.2d 1017 (5th Cir. 1974)

Named Individual Members of The San Antonio Conservation Society v. Texas Highway
Department, 446 F.2d 1013 (5 Cir. 1971)

National Audubon Society v. Dept. of the Navy, 422 F.3d 174 (4th Cir. 2005)

Natural Resources Defense Council v. Morton, 337 F. Supp. 167 (D.D.C. 1971)

Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722 (9th Cir. 2001)

Ohio Valley Envtl. Coal. et al. v. Aracoma Coal Co. et al. ("Aracoma Coal"), 556 F.3d 177 (4th Cir. 2009)

Omega World Travel, Inc. v. Trans World Airlines, 111 F.3d 14 (4th Cir. 1997)

People ex rel. Van De Kamp v. Tahoe Regional Planning Agency, 766 F.2d 1319 (9th Cir. 1985)

Public Citizen v. Dept. of Transp., 316 F.3d 1002 (9th Cir. 2003)

Real Truth About Obama v. Fed. Election Comm'n, 575 F.3d 342 (4th Cir. 2009)

Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353 (4th Cir. 1991)

Save the Yaak Committee v. Block, 840 F.2d 714 (9th Cir. 1988)

Scherr v. Volpe, 466 F.2d 1027 (7th Cir. 1972)

Seattle Audubon Society v. Evans, 771 F. Supp. 1081 (W.D. Wash. 1991)

Sierra Club v. Block, 614 F. Supp. 488 (D.D.C. 1985)

Sierra Club v. Dept. of Energy, 255 F. Supp. 2d 1177 (D. Colo. 2002)

Sierra Club v. Marsh, 714 F. Supp. 539 (D. Me. 1989)

Sierra Club v. United States Army Corps of Eng'rs, 464 F. Supp. 2d 1171 (M.D. Fla. 2006)

Sierra Club v. U.S. DOT, 962 F. Supp. 1037 (N.D. Ill. 1997)

Sierra Club v. United States Forest Service, 843 F.2d 1190 (9th Cir. 1988)

Steubing v. Brinegar, 511 F.2d 489 (2d Cir. 1975)

Utahns for Better Transp. v. United States Dept. of Transp., 305 F.3d 1152 (10th Cir. 2002)

Washington Trails Ass'n v. United States Forest Serv., 935 F. Supp. 1117 (W.D. Wash. 1996)

West v. Secretary of Department of Transportation, 206 F.3d 920 (9th Cir. 2000)

West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4th Cir. 1971)

Wilderness Society v. Tyrrel, 701 F. Supp. 1473 (E.D. Cal. 1988)

Wildlaw v. U.S. Forest Serv., 471 F. Supp. 2d 1221 (D. Ala. 2007)

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)

Wisconsin Heritages, Inc. v. Harris, 476 F. Supp. 300 (E.D. Wis. 1979)

Statutes

National Environmental Policy Act, 42 U.S.C. § 4332(2)(C) .. pages 14-25

Clean Water Act, 33 U.S.C. § 1251 et seq. .. pages 8-14

Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users,” Pub. L. No. 109-59 (119 Stat. 1144, Aug. 10, 2005) .. page 6

Regulations and Regulatory Materials

33 C.F.R. Part 325, Appendix B, § 6 .. pages 18, 20

33 C.F.R. § 230.9 .. page 18

40 C.F.R. § 1500 et seq. .. page 14

40 C.F.R. § 1507.3(b)(2)(ii) .. page 18

40 C.F.R. § 1508.27(b)(7). .. page 20

40 C.F.R. §§ 1501.3 .. page 17

INTRODUCTION
Plaintiffs submit this memorandum in support of their application for a temporary restraining order and/or a preliminary injunction barring construction of the McIntire Road Extended (“the MRE”), a highway project slated to be built part way through McIntire Park (“the Park”), in Charlottesville, Virginia. Specifically, Plaintiffs challenge the validity of the United States Army Corps of Engineers’ (“Corps”) May 25, 2011 authorization, issued under § 404 of the Clean Water Act, which permits Defendant Virginia Department of Transportation (“VDOT”) to construct the MRE, and request this Court to issue an order preserving the status quo until legal issues raised by Plaintiffs can be resolved.

Below, Plaintiffs demonstrate that they have satisfied all of the elements that must be satisfied in order to obtain expedited injunctive relief according to the standards set forth by the Fourth Circuit Court of Appeals in Real Truth About Obama v. Fed. Election Comm'n, 575 F.3d 342 (4th Cir. 2009), to wit: (1) whether Plaintiffs are likely to succeed on the merits; (2) whether Plaintiffs are likely to suffer irreparable harm in the absence of injunctive relief; (3) whether the balance of the equities tips in Plaintiffs’ favor; and (4) whether an injunction would be in the public interest.

FACTS
As approved by the Corps, the MRE would be a two-lane thoroughfare of approximately 2,100 feet in length; it would extend south from Melbourne Road to a point inside McIntire Park.

The MRE is depicted in the Memorandum of Agreement (“MOA”) prepared for the project under the National Historic Preservation Act – see Plts’ Exh. 1, pp. 18, 60. In the following closeup, the black line depicts the actual features of the proposed road:

As shown in the graphic, the MRE will not reach all the way south to the proposed Rt. 250 Bypass Interchange (“Interchange”). Rather, its planned southern terminus lies some 775 feet north of the Interchange. As discussed below in the Argument, this 775-foot gap has important implications as to the legal merits of both of Plaintiffs’ substantive claims, and as to the lack of urgency in completing the MRE unless and until the Interchange has been (1) successfully defended in court, (2) put out to bid and (3) actually constructed.

Background: Five Decades of Stop-and-Go Planning

The MRE is part of a larger government endeavor, more than 50 years in the making, to construct a highway starting at Rio Road on the north and extending south through the length of McIntire Park, to the Interchange. See p. 2 of Pltfs’ Exh. 2, a 1959 City of Charlottesville street plan, in which a boxed dotted line (QQQQ) depicts a proposed two-lane road, running along the southeast side of “McIntire Municipal Park.” Also depicted (OOOO) is the proposed new traffic interchange at the southern terminus of the proposed new road.

At that time, and until fairly recently, the MRE and the Interchange were considered parts of a unified proposal – the “Meadow Creek Parkway.”

In its early decades, the proposed “Meadow Creek Parkway” proceeded under the aegis of several governmental agencies, including the Federal Highway Administration (“FHWA”), which in 1985 prepared a draft environmental impact statement (“EIS”) pursuant to the National Environmental Policy Act, 42 U.S.C. § 4332, (“NEPA”) as well as a “Section 4(f) Statement”[1] for the proposed project. However, the proposed road ran into considerable controversy, confrontation and delay. The draft EIS prepared by the FHWA was roundly criticized by citizens groups and, more importantly, by federal agencies. The U.S. Department of the Interior, expressing concerns about the project’s likely adverse effects on cultural resources, water quality in Schenks Creek, and wildlife habitat, objected formally to the building of any road through the Park:

“We recommend the selection of Alternative B, which... completely avoids McIntirePark.”Pltfs’ Exh. 3 at 1. See also id. at 3 (“We object ... to Section 4(f) approval of [the trans-park alternatives].”). The Interior Department’s opposition was echoed by the Department of Housing and Urban Development, which wrote:

“In examining the 4(f) Statement, however, we note that both Alternatives A and D require the taking of land from McIntire Park. Alternative B would not require the taking of any park land.... Based on the above considerations, it would appear that under the requirements of Section 4(f), Alternatives A and D would not be approvable ...”Pltfs’ Exh. 4 at 1.
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[1] Section 4(f) of the Department of Transportation Act of 1966 prohibits federal approval or funding of a transportation project that requires “the use of publicly owned land of a public park, recreation area, or . . . land of an historic site of national, State, or local significance,” unless (1) “no prudent and feasible alternative” exists, and (2) the agency engages in “all possible planning to minimize harm” to protected property. 49 U.S.C. § 303(c). See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 412-13 (1971).
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Even the Commonwealth of Virginia, through its Department of Conservation and Historic Resources, opposed the construction of the highway through the Park. In its comments of January 27, 1986, the Department observed that the highway would not only consume many acres of park land, but would effectively destroy an undetermined number of additional acres of adjacent lands. See Pltfs’ Exh. 6 at 2. Even the City of Charlottesville turned its back on the project out of concerns that an influx of vehicular traffic into the Downtown would have unacceptable adverse effects.[2]
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[2] “Shortly after the public hearing in 1986, the McIntire Road Extension project was dropped due to concerns of the city management about traffic impacts to the downtown area...” See Pltfs’ Exh. 7 at 2.
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These comments, particularly those of the Department of the Interior (the official defender of all “§ 4(f) resources”[3]), effectively terminated the idea of a highway through the Park, at least for several years. But in 1992 the City changed its mind and joined with Albemarle County in asking the FHWA to reconsider federal funding for the MRE.[4] Two years later, the FHWA initiated another NEPA process – recirculating a version of the DEIS that had been published in 1985. Pltfs’ Exh. 8 at 2. But the agency ultimately determined that a full EIS was not required for the MRE, and that an “environmental assessment” (“EA”) would suffice. A final EA was released in 1995. Id.
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[3] See Stop H-3 Assn. v. Coleman, 533 F. 3d 434, 441 (9th Cir. 1976) (describing jurisdiction of Department of the Interior in identifying local park properties deserving of federal protection).

[4] In a VDOT memorandum dated December 1, 2008, Pltfs’ Exh. 8, a detailed history of the MRE is set forth.
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It was around this time when the proponents of the MRE came up with a new approach designed to circumvent the restrictions of §4(f): the project would be bifurcated. Federal funding would be obtained for the Interchange, and the highway-through-the-park, renamed the MRE, would be developed without the federal funding that it had enjoyed since 1983.[5] But without federal funding the project languished for another decade or so, until federal funding was secured for the Interchange and state funding secured for the MRE.
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[5] See letter from John Simkins, FHWA, to Carol Legard, Advisory Council on Historic Preservation, May 28, 2009, Pltfs’ Exh. 5 (“In the case of the McIntire Road Extended Project, the Virginia Department of Transportation (VDOT) made a decision over twelve years ago to not use Federal-aid funds to develop the project.”). See also Pltfs’ Exh. 8 at 3 (indicating that federal funding was abandoned in 1995).

This approach had been employed successfully elsewhere. Compare Named Individual Members of The San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013 (5 Cir. 1971) (rejecting federally-funded trans-park highway on § 4(f) grounds) with Named Individual Members of The San Antonio Conservation Society v. Texas Highway Department, 496 F.2d 1017 (5th Cir. 1974) (upholding same trans-park highway because federal funding had been withdrawn and replaced with state funding).
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Twenty-five million dollars in federal funding for the Interchange was secured by then-Senator John Warner in 2005.[6] Thus the third major initiative since 1979 to build this now-bifurcated project was again underway. The Route 250 Bypass Interchange was approved by the FHWA in October, 2010, see 75 Fed. Reg. 62,919 (Oct. 13, 2010). Litigation over that project is pending before this Court. See Civ. No. 3:11CV0015.
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[6] See the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users,” Pub. L. No. 109-59 (119 Stat. 1144, Aug. 10, 2005), Subtitle G, § 1701 – High Priority Project #5044.
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A Corps permit was required for each project because each involved construction in and around a tributary to Schenk’s Branch, a “water of the United States” that runs through the park, thus requiring a “dredge and fill” permit under § 404 of the Clean Water Act, (“CWA”), 33 U.S.C. § 1344. The Corps’ consideration of a “404 permit,” in turn, triggers its duty to evaluate the likely impacts on the environment generally under NEPA, and on historic resources under the National Historic Preservation Act, 16 U.S.C. § 470 (“NHPA”).

Under the NHPA, the Corps conducted an extensive review of the adverse impacts that each would impose on historic properties in the construction area, including most notably McIntire Park itself. After years of data-gathering, analysis, inter-governmental consultation and public participation, the Corps created a “Memorandum of Agreement” for each of the two projects. See Pltfs’ Exh. 1 at 18; see also Pltfs’ Exh. 9 at p. 24 of 55. The Corps also produced an EA for the Interchange.

Under the CWA, the Corps had three possible ways of issuing permits for the two projects. It could have issued “individual permits” under § 404; it could have issued “letters of permission;”[7] or it could have issued authorizing letters under the “State Program General Permit,” 07-SPGP-01 (“SPGP”). On May 25, 2011, the Corps selected the latter option, [s]ee Pltfs’ Exhs. 1 (at 14), 9. On information and belief, the Corps released no environmental review of these actions under NEPA.
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[7] 33 C.F.R. § 325.2(a)(4).
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ARGUMENT

Four factors are to be applied in determining whether to issue a preliminary injunction: (1) whether the Plaintiff is likely to succeed on the merits; (2) whether the Plaintiff is likely to suffer irreparable harm in the absence of injunctive relief; (3) whether the balance of the equities tips in the Plaintiff's favor; and (4) whether an injunction would be in the public interest. Real Truth About Obama v. Fed. Election Comm'n, 575 F.3d 342, 346-47 (4th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)).[8]
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[8] The standard for granting either a TRO or a preliminary injunction is the same. Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir. 1991).
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The issuance of a preliminary injunction is entrusted to the district court's discretion. See In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 524-25 (4th Cir. 2003). "The traditional office of a preliminary injunction is to protect the status quo and to prevent irreparable harm during the pendency of a lawsuit ultimately to preserve the court's ability to render a meaningful judgment on the merits." Id. at 525 (citing Omega World Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997) ("The purpose of interim equitable relief is to protect the movant, during the pendency of the action, from being harmed or further harmed in the manner in which the movant contends it was or will be harmed through the illegality alleged in the complaint.").

Plaintiffs will discuss these four criteria to show that Plaintiffs satisfy each, and that a preliminary injunction should be issued (1) invalidating the Corps’ work authorization and (2) preventing VDOT from beginning construction of the MRE pending briefing on the full administrative record and a hearing on the full merits of the case.

1. Plaintiffs have Demonstrated A Substantial Likelihood of Success on the Merits

The first element of the four-part test for preliminary injunctive relief requires the Court to assess the merits of the moving party’s claims. Plaintiffs are highly likely to prevail on their dual claims that the Corps violated the CWA wrongly authorizing construction of the MRE pursuant to the SPGP, and that NEPA required some kind of advance environmental review.

A. The Corps Violated the Clean Water Act by Permitting the MRE pursuant to the State Program General Permit

Statutory Background

The Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., is designed to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251 (a). Under the CWA, dredged or fill materials are pollutants. 33 U.S.C. § 1362(6). Section 404 of the CWA authorizes the Corps to issue permits "after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters," including wetlands. 33 U.S.C. § 1344.

Pursuant to § 404, the Corps is empowered to issue individual permits for these discharges under § 404(a), or it may issue general permits for them on a nation-wide, regional or state-wide basis under § 404(e). General permits are used to authorize certaincategories of discharge activities when they are similar in nature and will cause only minimal adverse environmental effects, individually and cumulatively. 33 U.S.C. § 1344(e).Md. Native Plant Soc'y v. United States Army Corps of Eng'rs, 332 F. Supp. 2d 845, 848 (D. Md. 2004). General permits provide for fast-track permission to proceed; once a general permit has issued, one who seeks to conduct activities in conformity with a general permit's terms need only secure an "authorization" from the Corps before beginning dredge and fill activities.” See Sierra Club v. United States Army Corps of Eng'rs, 464 F. Supp. 2d 1171, 1178 (M.D. Fla. 2006).

However, there are carefully circumscribed limits on the availability of this fast-track process. First and foremost, the SPGP provides that it may not be invoked where “more than minimal individual or cumulative adverse environmental impacts” will result. Pltfs’ Exh. 1 at 6, § V(2). This standard was not and cannot be met in this case. As discussed below in the context of “irreparable harm,” construction and operation of the MRE will impose substantial adverse impacts on local neighborhoods and historic resources, the Park, and the ecological systems of which it is an integral part. See discussion at pp. 18 and 23-24. Second, the MRE and the Interchange will have profound and extensive “cumulative adverse environmental impacts,” as documented in many federal and state agency analyses. See discussion at pp. 5-6.

This leads to the single most important legal defect in the Corps’ reliance on the SPGP: it is available only to authorize “single and complete projects.” See § V(4):

Single and complete projects.

The MRE fails this test abjectly. In reality, it is a “road to nowhere,” as its southern terminus lies at a remote spot in the middle of the forest in McIntire Park. This is best demonstrated by the Corps’s own documentation – a letter it sent to the Virginia Department of Historic Resources on April 21, 2009 - Pltfs’ Exh. 21. As shown by the graphic images contained in that letter, it is clear the the MRE has no logical terminus:

Images reproduced from Pltfs’ Exh. 21 at p. 4

Without any doubt, the MRE would be nothing more than a strip of pavement leading south from Melbourne Road to a desolate, isolated patch of forest – unless, that is, someone were to build another road some 775 feet north from the Interchange to the MRE’s southern terminus.

This, of course is exactly what is proposed in the plans for the Interchange, as shown in this reproduction of Figure 3, from p. 12 of the EA for the Interchange, Pltfs’ Exh. 7:

Turning back to the limiting language of the SPGP, the MRE would manifestly not “be constructed absent the construction of other projects in the project area.” It is, undeniably, a “[portion] of a multi-phase project that depend[s] upon other phases of the project,” meaning that it does not have independent utility and was not legitimately approvable under the SPGP.

Indeed, the dependency of the Corps’ work authorization for the MRE on the completion of the Interchange is evident in its very language, which provides:

if for any reason the Interchange is not constructed, this permit will not be valid

It therefore appears that this work authorization is not actually a work authorization, but rather a conditional work authorization that can be rendered invalid by the acts of third parties not under the permit holder’s control. The document leaves unanswered the question whether VDOT is to await construction of the Interchange until it begins construction of the MRE, or whether it enjoys immediate authority to begin construction, but might be required to halt (or reverse) construction of the MRE if the Interchange doesn’t advance. (i.e., “Please contact this office if you build the MRE but the City doesn’t build the Interchange.”)

Plaintiffs submit that the Corps’ employment of a conditional work authorization must lead the Court to one of several legal conclusions:

1 - the authorization is invalid on its face

hope

2 - the MRE and the Interchange are interdependent and inseparable

3 - the conditional nature of the authorization awarded to VDOT means that VDOT would not suffer harm if this Court were to order it to delay construction pending consideration of Plaintiffs’ arguments on the merits

For these reasons, and because authorization was also issued in violation of § V(1) of the SPGP, which may be used to authorize only projects that will have “minimal ... cumulative adverse environmental impacts...”[9] this Court should vacate and remand the Corps action in question.
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[9] Elsewhere in this brief Plaintiffs document the array of cumulative environmental effects that would be caused by the construction and operation of the MRE. See infra at pp. 23-24. For example, according to the EA for the Interchange, McIntire Road Extended would introduce additional features into the park. Therefore, the context of the cumulative impacts is one whereby past, present, and reasonably foreseeable future actions have affected, and are planned to continue to affect, McIntire Park independent of the interchange project.
Pltfs’ Exh. 7 at 47.
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B. The Corps Violated NEPA by Failing to Prepare an Action-specific Environmental Review of Some Kind

NEPA established “a national policy of protecting and promoting environmental quality.” Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir. 1996). It is well established that Army Corps’ permitting decisions must be made in compliance with NEPA. Maryland Native Plant Society v. Army Corps of Engineers, 332 F. Supp.2d 845, 849 (D. Md. 2004). Under NEPA, the Corps is required to take a “hard look” at the environmental implications of all of its permitting decisions - even those implications that fall outside the purview of its specialized expertise in the area of water quality. Ohio Valley Envtl. Coal. et al. v. Aracoma Coal Co. et al. ("Aracoma Coal"), 556 F.3d 177, 191 (4th Cir. 2009).[10] See also Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21 (1976) (“hard look” required in all cases).
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[10] Standard of Review: when reviewing a claim that an agency has violated NEPA, the Court is bound by the "arbitrary and capricious" standard of the Administrative Procedure Act. See 5 U.S.C. § § 706(2)(A),(C). Under that standard, a decision is arbitrary and capricious if the agency "entirely failed to consider an important aspect of the problem." Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 287 (4th Cir. 1999).

NEPA requires the reviewing court to “make a searching and careful inquiry into the facts and review whether the decision . . . was based on consideration of the relevant factors and whether there has been a clear error of judgment.” National Audubon Society v. Dept. of the Navy, 422 F.3d 174, 185 (4th Cir. 2005) (citing Fourth Circuit precedent).
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NEPA requires the preparation of an EIS in connection with any proposal for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332 (2)(C).[11] The key concept here is the threshold of “significance.” This is addressed in regulations issued by the Council on Environmental Quality (“CEQ”), see 40 C.F.R. § 1500, et seq.. As to whether the environmental impacts of a given agency action will be sufficiently “significant” to trigger the EIS requirement, CEQ has prescribed 10 criteria.[12] See 40 C.F.R. § 1508.27(b)(1)–(10):

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[11] The EIS has a dual purpose. First, it serves “to sensitize all federal agencies to the environment in order to foster precious resource preservation.” National Audubon Society v. Dept. of the Navy, 422 F.3d 174, 184 (4th Cir. 2005). Second, it “ensures that the public and government agencies will be able to analyze and comment on the action's environmental implications.” Id.

[12] If an agency’s action is “environmentally ‘significant’ according to any of these criteria,” then the agency erred in failing to prepare an EIS. Public Citizen v. Dept. of Transp., 316 F.3d 1002, 1023 (9th Cir. 2003), rev’d on other grounds, 541 U.S. 752 (2004) (emphasis in original); see also Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 731 (9th Cir. 2001) (assessing two criteria under intensity and determining that “[e]ither of these factors may be sufficient to require preparation of an EIS in appropriate circumstances”).
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Predicting the adverse environmental consequences of the construction of a highway through McIntire Park is intuitive. In the section of this memorandum addressing the “irreparable harm” that they will suffer if injunctive relief is not granted promptly, Plaintiffs below set forth, in detail, based on written declarant testimony as well as extensive documentation from government documents pertaining to this case, the array of significant adverse environmental impacts of the MRE. They include:

VDOT itself recognized that construction and operation of the MRE would result in an array of adverse environmental impacts, including “conversion of recreational land to transportation uses, removal of golf course holes, increased traffic and noise, and impacts to habitat and wildlife.” Pltfs’ Exh. 17 at 13.

Notably, several of these categories of adverse effects jibe with the CEQ’s ten “significance” criteria, including damage to historic properties (Criterion 8) and violations of federal law (Criterion 10) due to the Corps’ failure to subject the MRE to “individual permitting” under the CWA, as discussed below.

If nothing else, the decades of intense public fighting over the MRE should have signaled to the Corps that this was an atypical dredge-and-fill permit. “Charlottesville’s Civil War,” as described by the Charlottesville Weekly 14 years ago, Pltfs’ Exh. 14, has long pitted citizens, neighborhoods and politicians against one another in anguished debate and conflict. State-court litigation over the project made headlines two years ago, just as a statewide preservation organization named the Park an “endangered site.” Pltfs’ Exh. 20. Large-scale protests against the project continue to the present day. See "Parkway Foes Join Hands in Demonstration in McIntire Demonstration,” Charlottesville Daily Progress, front page, Sept. 28, 2009 – Pltfs’ Exh. 15. As shown in this 2009 article, former Mayors Fife and Cox stood opposed to the MRE, just as current Mayor David Norris remains defiantly opposed, though his faction consistently remains one vote short of the majority needed to terminate the project. Pltfs’ Exh. 16 at 5 (minutes of City Council vote on the project). And, as pointed out above, back when federal funding had been earmarked for the MRE, federal agencies took consistent, unified and strong stands in opposition to the contemplated destruction of park land, as had the City of Charlottesville itself. See discussion at p. 6, above. This is exactly the kind of controversy which, under “significance criterion #4" of the CEQ regulations, triggers the Corps’ duty to prepare an EIS.

If, arguendo, the Corps was not required to prepare an EIS in connection with its permitting action, it was required, at a minimum, to prepare an environmental assessment which (1) demonstrated that it had taken the requisite “hard look” at the MRE’s environmental pros and cons, and (2) justified its decision not to prepare an EIS. The CEQ regulations provide that an agency shall prepare an EA to determine whether to prepare an EIS. 40 C.F.R. §§ 1501.3, 1501.4, 1508.9 (An EA is a “concise public document for which a Federal agency is responsible that serves to: . . . [b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement.”) The Corps’ procedures for implementing NEPA state that “[m]ost permits will normally require only an EA.” 33 C.F.R. § 230.7(a).

In some cases, however, neither an EA nor an EIS is required. The CEQ regulations authorize an agency to use a "categorical exclusion" to avoid written environmental reviews for "... actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations." 40 C.F.R. § 1508.4; see also 40 C.F.R. § 1500.4(p). Neither an EIS nor an EA is required for actions categorically excluded from NEPA review. 40 C.F.R. § 1507.3(b)(2)(ii).

The Corps has promulgated such regulations. See 33 C.F.R. § 230.9 (listing actions which “when considered individually and cumulatively do not have significant effects on the quality of the human environment and are categorically excluded from NEPA documentation.”) 33 C.F.R. Part 325, Appendix B, § 6 provides in relevant part:

not

On their face these regulations do not provide the Corps with a legal excuse for not complying with NEPA in this case. Nothing exempts actions taken pursuant to the SPGP from NEPA. In other words, some kind of contemporaneous environmental review was required.[13]
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[13] Plaintiffs acknowledge that the Corps prepared an EA in connection with the issuance of the SPGP. See Norfolk District Regional Permits, Letters of Permission, and State Program General Permit, http://www.nao.usace.army.mil/technical%20services/Regulatory%20branch/RBregional.asp (page last viewed July 1, 2011). However, this document, by its own terms, “only authorizes specific activities in waters of the United States within the Commonwealth of Virginia that would cause no more than minimal adverse environmental effects, individually and cumulatively, subject to the terms and conditions of this general permit.” (emphasis added). For reasons described below, Plaintiffs contend that the environmental impacts of the MRE, especially when considered cumulatively with those of the Interchange, substantially exceed the Corps’s prescribed threshold of “minimal.”

Prominent among these considerations is the 25-year history of public battles over this highway project, as described below. Controversy like this impels the Corps to conduct some kind of environmental review. See Arkansas Nature Alliance, Inc. v. United States Army Corps of Engineers, 266 F. Supp. 2d 876, 886-87 (E.D. Ark.), modified, 266 F. Supp. 2d 895 (E.D. Ark. 2003) (enjoining project that had been authorized via a Letter of Permission. Held: Letters of Permission may not be issued where a project generates “substantial controversy.” See 33 C.F.R. § 325.2(e)(1)(i).)
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Even if the Corps action challenged in this case were to fall within the scope of a categorical exclusion, some kind of action-specific environmental review was required nevertheless. This is because Corps regulations contain an important exception: any action that nominally falls within the scope of a categorical exclusion will require a plenary, action-specific environmental review where there are “extraordinary circumstances.”[14] A categorical exclusion cannot be invoked when a highway construction project is intended to have substantial impacts on regional traffic movements. West v. Secretary of Department of Transportation, 206 F.3d 920, 928-29 (9th Cir. 2000) (reversing District Court; rejecting FHWA’s reliance on categorical exclusion for new highway interchange).[15] Below, see pp. 23-24, Plaintiffs set forth the range of significant environmental impacts that will flow from construction of the MRE, above and beyond the destruction of a significant portion of the Park. Because of the array of substantial adverse environmental impacts that will be caused by construction and operation of the MRE, NEPA required the Corps to conduct some kind of site-specific environmental review.

Therefore, the Corps’ generic, four-year-old EA does not give it regulatory carte blanche in this case.
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[14] See 33 C.F.R. § 230.9. “Actions listed below when considered individually and cumulatively do not have significant effects on the quality of the human environment and are categorically excluded from NEPA documentation. However, district commanders should be alert for extraordinary circumstances which may dictate the need to prepare an EA or an EIS.”

See also Wildlaw v. U.S. Forest Serv., 471 F. Supp. 2d 1221, 1241 (D. Ala. 2007) (“When an agency determines that a proposed action falls within a CE, it must also assess whether there are any extraordinary circumstances that render the proposed action likely to have a significant impact on the human environment despite fitting into a CE.”)

[15] See also Brady Campaign to Prevent Gun Violence v. Salazar, 612 F. Supp. 2d 1, 15 (D.D.C. 2009). (Categorical exclusions may be invoked only after careful analysis of “all direct, indirect, and cumulative impacts that were foreseeable as a result” of the action.) (emph. in original). Failure to analyze foreseeable consequences “is sufficient by itself to render [a CE decision] arbitrary and capricious.” Id. at 17 (footnote omitted).
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1. The Corps Failed to Consider Whether Construction of the MRE Would Result in Cumulatively Significant Impacts.

In making the threshold determination as to whether a project will have a significant impact on the environment, an agency must consider “[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts.” 40 C.F.R. § 1508.27(b)(7). (emphasis added). “Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment.” Id. The CEQ regulations define “cumulative impact” as “the impact on the environment which results from the incremental impacts of the action when added to other past, present, and reasonably foreseeable future action . . . .” 40 C.F.R. § 1508.7. The “cumulative impacts rule” is mirrored in the Corps' NEPA implementing regulations, which require that, where the activity requiring a permit is "merely one component of a larger project," the Corps must "address the impacts of the specific activity requiring [a] permit and those portions of the entire project over which the district engineer has sufficient control and responsibility to warrant Federal review." 33 C.F.R. Part 325, Appendix B § 7(b).[16]
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[16] See also Kleppe v. Sierra Club, 427 U.S. 390 (1976), in which the Court held that "when several proposals for . . . actions that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together. Only through comprehensive consideration of pending proposals can the agency evaluate different courses of action." 427 U.S. at 410.
__________

The Corps’ implicit determination that an EA was not required in this case reflects its conscious disregard of the sister highway project that it approved on the very same day - the Interchange.[17] In reality, the two project have been inseparable components of the same concept for over 50 years. The permitting paperwork for the two project proceeded through bureaucratic channels in parallel. More important, the two projects will, when viewed cumulatively, cause cumulative harms to the Park, the environment, and the surrounding neighborhoods that substantially exceed those of either project, viewed independently.
__________

[17] See Blue Mts. Biodiversity Project v. Blackwood, 161 F.3d 1208, 1214-16 (9th Cir. 1998) (holding that related projects approved on same day should have been evaluated for cumulative impacts.)
__________

This is demonstrated by documents in the file:

1. When VDOT requested that FHWA prepare an EA (not an EIS) for the Interchange,[18] it stated that the MRE:

“would have an additive effect such as conversion of recreational land to transportation uses, removal of golf course holes, increased traffic and noise, and impacts to habitat and wildlife. Thus, the context of the cumulative impacts is one whereby past, present and reasonable forseeable future actions have affected, and are planned to continue to affect, McIntire Park, and therefore, the Preferred Alternative would cause incremental and cumulative impacts on the park.Pltfs’ Exh. 17 at 13-14. (emphasis added).
__________

[18] Letter from R. Wofford, VDOT, to I. Rico, FHWA, August 17, 2010 (Pltfs’ Exh. 17).
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2. According to the EA for the Interchange,

Construction of the new interchange would introduce additional features into the setting, location, and feeling of the park. ... Likewise, McIntire Road Extended would introduce additional features into the park. Therefore, the context of the cumulative impacts is one whereby past, present, and reasonably foreseeable future actions have affected, and are planned to continue to affect, McIntire Park independent of the interchange project.Pltfs’ Exh. 7 at 47. See also id.:

A draft plan, submitted to City Council in 2004 and shown on the City’s McIntire Park website at www.charlottesville.org/index.aspx?page=367, recognizes that McIntire Golf Course would be affected as a result of the cumulative effects of the interchange project and McIntire Road Extended.See also id. at 49:

[the MRE and the Interchange] would have an additive cumulative effect that would include conversion of park recreational land to transportation uses, increased traffic and noise through the park, and impacts to habitat and wildlife in the park.” (emphasis added).3. Similarly, in comments submitted with regard to the Interchange just two years ago, the federal Advisory Council on Historic Preservation just two years ago, remarked:

The effects of the Interchange on McIntire Park are compounded by the extension of McIntire Road to the north

Pltfs’ Exh. 19 at 2, ¶ 2 (emphasis added).

In short, it is obvious that the MRE and the Interchange are, as they have always been, parts of a larger transportation initiative. Plaintiffs need not belabor this argument; this observation has been made repeatedly by federal agencies. It was therefore arbitrary and capricious for the Corps to ignore the cumulative impacts of the MRE and the Interchange when it decided that no environmental review was called for under NEPA.[19]
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[19] See Sierra Club v. Dept. of Energy, 255 F. Supp. 2d 1177, 1182 (D. Colo. 2002) (vacating agency decision and issuing preliminary injunction; reliance on categorical exclusion reversed for failure to weigh cumulative impacts); accord, Center for Biological Diversity v. Stahn, (D. Az. 2008) (unpublished opinion) (reproduced in Pltfs’ Exh. 22 at 2-4).
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2. The Corps Illegally Failed to Recognize that the MRE and the Interchange are “Connected Actions” Requiring Joint Environmental Review

In their work to set forth the proper scope of an EIS, the CEQ regulations call for analysis of “connected actions.” Proposed agency actions are "connected" to other actions, thus requiring collective consideration, if the proposed actions: (i) automatically trigger other actions which may require environmental impact statements; (ii) cannot or will not proceed unless other actions are taken previously or simultaneously; or (iii) are interdependent parts of a larger action and depend on the larger action for their justification." 40 C.F.R. § 1508.25(a)(1). Although this requirement exists in the contexts of preparing EISs, courts often apply it in other contexts; e.g., evaluating EAs or judging whether the Corps has unlawfully “segmented” its consideration of the action in question in defense of a determination not to provide any kind of action-specific environmental review. See, e.g., Save the Yaak Committee v. Block, 840 F.2d 714, 720 (9th Cir. 1988) ("road reconstruction, timber harvest, and feeder roads are all 'connected actions' that must be analyzed by the Forest Service in deciding whether to prepare an EIS or only an EA"); Florida Wildlife Federation v. U.S. Army Corps of Engineers, 401 F. Supp. 2d 1298, 1313-14 (S.D. Fla. 2005) (invalidating EA due to Corps’ disregard of connected actions); Sierra Club v. Dept. of Energy, 255 F. Supp. 2d 1177, 1182 (D. Colo. 2002) (vacating agency decision and issuing preliminary injunction; reliance on categorical exclusion reversed for failure to recognize connected actions); Washington Trails Ass'n v. United States Forest Serv., 935 F. Supp. 1117 (W.D. Wash. 1996) (rejecting invocation of categorical exclusion because of agency disregard of connected actions).

The MRE and the Interchange are quintessential examples of “connected actions.” This is so because the MRE, in its current configuration, can serve no useful purpose if the Interchange is not built. Its southern terminus is a point 775 feet north of the Interchange. Pltfs’ Exh. 1 at 1 ¶ 2; see also Pltfs’ Exh. 21 at 2, ¶ 1. Terminating a highway in the middle of a forest in absurd.

The MRE is nothing without its siamese twin - the Interchange.

2. Failure to Issue the Requested Injunction will Result in Immediate and Irreparable Harm to Plaintiffs and to the Environment

The "likelihood of irreparable harm to the plaintiff" is the first equitable factor that a court should consider when ruling on a motion for a preliminary injunction. Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991). As the United States Supreme Court has emphasized, “Environmental injury, by its nature, seldom can be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment.” Amoco Prod. Co. v. Village of Gambell, 480 U. S. 531, 545 (1987) (emphasis added). "Consequently, when environmental injury is 'sufficiently likely, the balance of harms will usually favor the issuance of an injunction to protect the environment.'" Idaho Sporting Congress, Inc. v. Alexander, 222 F.3d 562, 569 (9th Cir. 2000), (reversing District Court failure to issue injunctive relief; quoting Sierra Club v. United States Forest Service, 843 F.2d 1190, 1195 (9th Cir. 1988)); accord, Catron County v. U.S. Fish and Wildlife Service, 75 F.3d 1429, 1440 (10th Cir. 1996) (“An environmental injury usually is of an enduring or permanent nature, seldom remedied by moneydamages and generally considered irreparable.”

In this case, there is no question that the environment will be harmed in the event that construction of the MRE begins. Indeed, the building of a highway through a park is the epitome of irreversible environmental destruction. See generally Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 406 (1971) (describing Supreme Court’s issuance, in that case, of a stay to halt construction of highway that would have destroyed 26 acres (including a golf course) of an urban park in Tennessee). It scarcely needs to be argued that once the bulldozers have gone in and done their work, the harms cannot be undone – at least without great additional harm and at great expense. See Lands Council v. Martin, 479 F.3d 636, 643 (9th Cir. 2007) (logging of old-growth trees is a permanent environmental injury).

Constructing a highway in an urban park does more than simply destroy parkland -- and the associated wildlife habitat – forever. It also generates a substantial amount of noise pollution, thus diminishing the quality of the user experience for McIntire Park visitors anywhere within earshot of the proposed MRE. See Pltfs’ Exh. 11 (Declaration of Daniel Bluestone) ¶ 12. Why would park users choose to picnic, or to bring their children for play, next to a bustling highway? Certainly playing golf next to a road is less pleasant than playing golf in a secluded park setting. Adverse effects like these represent harm to the environmental interests of Plaintiffs. As the Corps itself has acknowledged:

Current measured and modeled noise levels near the southern terminus of the [MRE’s] project area, 775 feet north of the Route 250 Bypass, are predicted to rise to 61 dBA.... This difference should be readily perceptible to the human ear...See Pltfs’ Exh. 13 at 5.

Construction and operation of the MRE will have a highly negative effect on the quality of life of those Charlottesville residents who reside adjacent to or near the park. Previously the views from their porches and windows were of a pastoral woodland landscape. If the MRE is built, the views will be permanently degraded by the thousands of cars that pass by each day. This will be particularly true in the evenings and during the winter, when seasonal vegetation disappears – and with it any natural screening of the annoying sounds and sights of a busy highway.

In 1995, when FHWA was contemplating funding the “McIntire Road Extension,” it deemed the likely environmental impacts sufficiently serious to prepare an EA under NEPA. See Pltfs’ Exh. 10. Noise impacts (for what was then planned to be a four-lane road) were a key focus of that environmental review. FHWA predicted “substantial increases in noise impacts” for people within the park and for nearby residents, to the point that the agency actively considered erection of sound-blocking walls. Id. at 16-17. According to FHWA, such barriers, which are notoriously expensive, were “not reasonable.” Id.

All new roads, of course, attract vehicular traffic. Indeed, the average daily traffic volume on the MRE is projected to rise to 19,500 vehicles per day by 2030.[20] This generates several kinds of adverse effects on neighborhoods, cities, and the environment. First, existing traffic tends to relocate from existing routes to the new route – along the path of least resistance, or most convenience. Second, when construction of a new road makes it easier to drive into a city, more drivers will do so. Third, when driving into a city is made more convenient from a certain direction – in this case the north – people will preferentially seek new housing in that general area, leading to growth in population density, increasing property values and increased housing construction – and ultimately increased traffic congestion. Courts have regularly recognized that roads tend to induce additional growth by increasing access to cities and residential areas, in accordance established principles of supply and demand. Mullin v. Skinner, 756 F. Supp. 904, 921 (E.D.N.C. 1990); Sierra Club v. U.S. DOT, 962 F. Supp. 1037, 1043 (N.D. Ill. 1997); Conservation Law Found. v. FHWA, 630 F.Supp. 2d 183, 209-16 (D.N.H. 2007).
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[20] Federal Highway Administration, Virginia Department of Transportation, Revised Environmental Assessment, Route 250 Bypass Interchange of McIntire Road, at 4 (Oct. 2009), Pltf’s Exh. 7.
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In addition, construction and operation of the MRE will have highly deleterious effects on the great number of historic properties situated in the immediate vicinity of the MRE, including most notably the Park itself, relevant portions of which have been determined to be eligible for listing on the National Register of Historic Places. Pltfs’ Exh. 13 at 3, 4.

The Corps has determined that its undertaking will alter important characteristics of McIntire Park that will diminish the property’s integrity of design, setting, and feeling as a result of land disturbance within the golf course landscape and the introduction of incompatible visual and auditory elements.Id. at 4. “The integrity of the broader historic setting of the golf course will also be diminished.” Id. at 5.

3. Because Defendants Will Suffer No Significant Harm in the Event Injunctive Relief is Granted, the Balance of Harms Tips Strongly in Plaintiffs’ Favor

In contrast to the magnitude and certainty of Plaintiffs’ irreparable injury, the Corps will suffer no harm from an order from this Court suspending the legal validity of the CWA authorization that the Corps issued to VDOT pending a determination as to the merits of Plaintiffs’ legal claims. It stands on the sideline, in its limited role as a regulator.

VDOT is likely to claim harm in the form of potential increased costs or other economic factors as weighing against an injunction. In reality, it can suffer little, if any, harm from an order restraining its road-building plans for a few additional months while the court reaches a final decision on the merits. This project has been on the drawing board for over 50 years already. During this odyssey, it has been started and stopped, expanded, shrunk, subdivided and renamed countless times. There can be no argument that time does not permit some opportunity for judicial review of this project.

VDOT may also argue that it is a state agency rather a federal agency, and that the MRE enjoys no federal funding; it would therefore be unfair for VDOT to be penalized by a federal court injunction when any violations of federal law were committed not by VDOT, but by the Corps. Such an argument would misperceive NEPA’s requirements. Proposals to build highways through parks are often propounded by an admixture of federal, state and municipal entities – and indeed even private entities. But the law does not permit the non-federal actors to construct their particular segments without full compliance on the part of the federal regulators with the requirements of the CWA or NEPA. “Non-federal actors may not be permitted to evade NEPA by completing a project without an EIS and then presenting the responsible federal agency with a fait accompli.” Maryland Conservation Council v. Gilchrist, 808 F.2d 1039, 1042 (4th Cir. 1986).

Increased costs associated with the additional time needed to conduct any review required by NEPA is not irreparable harm, as NEPA contemplates that proper environmental study will often take considerable time. Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 780 (9th Cir. 1980). Accordingly, interlocutory injunctions are frequently issued to prevent
the construction of highways based on a failure to examine adequately the adverse effects on the environment.[21]
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[21] Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971); Named Individual Members of The San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013 (5 Cir. 1971); Steubing v. Brinegar, 511 F.2d 489, 497 (2d Cir. 1975) (“compliance with NEPA invariably results in delay and concomitant cost increases, and Congress has implicitly decided that these costs must be discounted”); see also I-291 Why? Association v. Burns, 372 F. Supp. 223 (D. Conn. 1974), aff'd mem., 514 F.2d 1077 (2d Cir. 1975).
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4. Considerations of the “Public Interest” Weigh Heavily in Favor of the Issuance of Injunctive Relief

The final equitable factor that the Court must consider in determining whether to issue the injunction requested by Plaintiffs is whether it will serve the public interest. The Fourth Circuit has made it clear that courts of equity may go to greater lengths to give equitable "relief in furtherance of the public interest than they are accustomed to go when only private interests are involved." E. Tenn. Natural Gas Co. v. Clanton, 361 F.3d 808, 826 (4th Cir., 2004), (citing Va. Ry. Co. v. Sys. Fed'n No. 40, 300 U.S. 515, 552 (1937).

Generally speaking, the public interest is synonymous with environmental conservation. See Sierra Club v. Marsh, 714 F. Supp. 539, 593 (D. Me. 1989), in which the court, in discussing the public interest consideration, stated: Absent a showing that environmental harm is likely if an injunction does issue …, or that an injunction would cause other public hazards …, or that significant irreparable harm would be caused to innocent third parties … , the public interest is not adversely affected by enjoining actions likely to cause irreparable environmental harm.

Additionally, there is a powerful alignment between considerations of “the public interest” and the duty of compliance with federal law. See Conservation Law Foundation v. Watt, 560 F. Supp. 561, 583 (D. Mass) (“It is plain that the public interest calls upon the courts to require strict compliance with environmental statutes”), aff’d sub nom. Commonwealth of Massachusetts v. Watt, 716 F. 2d 946, 953 (1st Cir. 1983). “Refusal of administrative agencies to comply with environmental laws "invokes a public interest of the highest order the interest in having government officials act in accordance with law." Seattle Audubon Society v. Evans, 771 F. Supp. 1081, 1096 (W.D. Wash. 1991)(citation omitted), aff'd in part and rev'd on other grounds, 952 F.2d 297 (9th Cir. 1991). Indeed, the Tenth Circuit has suggested that "harm to the environment may be presumed when an agency fails to comply with the required NEPA procedure." Davis v. Mineta, 302 F.3d 1104, 1114 (10th Cir. 2002).

Finally, it is worth reemphasizing that the MRE is a “road to nowhere.” Because it has been designed to terminate in the middle of the woods (with the hope that the Interchange will be completed at some unknown point in the future), the public transportation benefits that its proponents would tout cannot possibly be delivered until both the MRE and the Interchange have been completed and connected to one another. Unless and until it is known whether and when the Interchange is to be completed, the public interest will be served by not building the MRE, and not taking the chance that the Interchange is cancelled or delayed significantly.

5. No Bond Should Be Required

Rule 65(c) of the Federal Rules of Civil Procedure states that an applicant for preliminary relief should post a bond "...in such sum as the court deems proper..." This language is extremely permissive. "The amount of security required is a matter for the discretion of the trial court; it may elect to require no security at all." Corrigan Dispatch Co. v. Casa Guzman, S.A., 569 F.2d 300, 303 (5th Cir. 1978). Accord, People ex rel. Van De Kamp v. Tahoe Regional Planning Agency, 766 F.2d 1319, 1325 (9th Cir. 1985), amended on other grounds, 775 F.2d 998 (9th Cir. 1985).

As a general proposition of law, bond is disfavored in environmental cases. In some cases federal courts have recognized that nominal bond is sufficient and appropriate where public interest groups seek enforcement of environmental laws. See, e.g., West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4th Cir. 1971) ($100). See also Sierra Club v. Block, 614 F. Supp. 488 (D.D.C. 1985) ($20); Sierra Club v. Block, 614 F. Supp. 134 (E.D. Tex. 1985) ($1); Natural Resources Defense Council v. Morton, 337 F. Supp. 167, 169 (D.D.C. 1971), aff'd, 458 F.2d 827 (D.C. Cir. 1972) ($100). More typically the courts waive the bond requirement altogether. See, e.g., People ex rel. Van de Kamp v. Tahoe Regional Plan, 766 F.2d 1319 (9th Cir. 1985) (no bond); Scherr v. Volpe, 466 F.2d 1027 (7th Cir. 1972) (no bond); Colo. Wild, Inc. v. U.S. Forest Serv., 523 F. Supp. 2d 1213, 1230-31 (D. Colo. 2007) (no bond); City of South Pasadena v. Slater, 56 F. Supp. 2d 1106, 1148 (C.D. Cal. 1999) (recognizing “general rule” against requiring bond in public interest cases); Highland Co-op v. City of Lansing, 492 F. Supp. 1372 (D. Mich. 1980) (no bond); Citizens for Responsible Growth v. Adams, 477 F. Supp. 994 (D.N.H. 1979) (no bond); Wisconsin Heritages, Inc. v. Harris, 476 F. Supp. 300 (E.D. Wis. 1979) (no bond).

There are sound public policy reasons for not requiring a bond. Open access to the courts is essential to the efficacy of virtually all federal environmental laws, and requiring plaintiffs to post a substantial bond would effectively deny them access to the courts and thus have a chilling effect on enforcement litigation. See, e.g., Natural Resources Defense Council v. Morton, above, 337 F. Supp. at 169; Tahoe Regional Plan, above, 766 F.2d at 1325; Wisconsin Heritages, above, 476 F. Supp. at 302; Wilderness Society v. Tyrrel, 701 F. Supp. 1473, 1492 (E.D. Cal. 1988); Friends of the Earth v. Coleman, 518 F.2d 323 (9th Cir. 1975).

Where plaintiffs have demonstrated a high likelihood of success on the merits, imposition of a surety bond is even more strongly disfavored. See People ex rel. Van de Kamp v. Tahoe Regional Plan, 766 F.2d 1319, 1325-26 (9th Cir. 1985) (upholding District Court’s waiving of bond for non-profit environmental group where plaintiff was likely to succeed on merits and requiring security would effectively deny access to judicial review), amended on other grounds, 775 F.2d 998 (9th Cir. 1985). See also Utahns for Better Transp. v. United States Dept. of Transp., 305 F.3d 1152, 1192 (10th Cir. 2002) (countermanding District Court’s imposition of bond where Plaintiffs had shown winning legal arguments).

The primary reasons for waiving bonds in these cases are the plaintiffs’ lack of a financial interest in the outcome, lack of financial resources, and the chilling effect on litigation undertaken to serve the public interest. Tahoe Regional Plan, 766 F.2d at 1325. In the attached Declaration of John Cruickshank, Pltfs’ Exh. 12, Mr. Cruickshank verifies that Plaintiff Coalition to Preserve McIntire Park, an unincorporated organization with no regular source of revenue, has almost no assets – only the few thousands of dollars that it has raised to pursue this case and the parallel case involving the Interchange. For these reasons Plaintiffs respectfully request that the Court follow the mainstream approach and grant the requested injunctive relief without a bond pursuant to Fed. R. Civ. P. 65.

CONCLUSION

If injunctive relief is not issued promptly, Plaintiffs’ claims will effectively become moot and this case will effectively be concluded. Once the bulldozers have been let loose and the corpus of McIntire Park has been torn apart, the equities will have been shifted profoundly, if not irrevocably. As observed in the myriad of cases cited above, environmental damage is inherently irreparable.

This case is unlike many environmental cases, where plaintiffs seek to prevent or abate the generation of pollution. Pollution is, regrettably, a fact of modern life. It waxes and wanes; if it is not remedied this year, it can generally be remedied the next. Here, on the other hand, the environmental stakes are much higher. A park, once destroyed, can never be restored. Highways built through parks are designed as permanent fixtures that endure through the
centuries. Thus the tradeoffs that we strike now represent our legacy to future generations.

For these reasons the Corps should not have summarily glossed over the environmental consequences of its permitting actions under NEPA and the CWA. Its see-no-evil approach stands in stark contrast to the FHWA’S determination that NEPA required it to prepare an EA for the Interchange. The Interchange, after all, is only an interchange. And it’s not new – it’s merely an upgrade to an existing interchange. Common sense indicates that the environmental harms associated with beefing up an existing Interchange can’t compare with those of building a new highway through virgin parkland. Yet the former benefitted from a NEPA review, and the latter did not. Only a lawyer could claim that this is not arbitrary and capricious decisionmaking.

This case is similarly unlike other environmental cases, where Plaintiffs attempt to “flyspeck” an agency’s regulatory documentation by seizing on minor flaws and attempting to win injunctive relief until the judicially-identified flaws have been remedied. See, e.g., National Audubon Society v. Dept. of the Navy, 422 F.3d 174, 186 (4th Cir. 2005). In this case the Corps’ disregard of the environmental was blatant and intentional. It turned its back on the larger environmental consequences of its action, utterly abdicating its environmental review responsibilities. It is therefore appropriate that this Court would vacate the Corps’ action and order it to take the “hard look” required by law. Plaintiffs ask this Court to prevent construction of the MRE until the arguments of the parties on the merits, based on an administrative record, can be fleshed out.

Respectfully submitted this 7th day of July, 2011.

/s/ James B. Dougherty, Esq.
709 3rd St. S.W.
Washington, D.C. 20024
Tel: 202-488-1140
Email: JimDougherty@aol.com
Pro Hac Vice Counsel for Plaintiffs

/s/ James D. Brown, Esq.
Law Office of James D. Brown
P.O. Box 2921
Charlottesville VA 22902
Va. Bar. No. 81225
Tel.: 434-218-0891
Email: jd@lawofficejdb.com
Counsel for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on this 7th day of July, 2011, I will cause the foregoing Motion for TRO And/or Preliminary Injunction, and the accompanying Memorandum of law in support thereof, to be served, via the Court’s CM/ECF filing system, on the following:

Thomas L. Eckert
Assistant U.S. Attorney
P.O. Box 1709
Roanoke, VA 24008

Suzanne T. Ellison
Office of the Attorney General
900 E. Main St.
Richmond VA

/s/ James B. Dougherty

Coalition to Preserve McIntire Park files complaint in federal court agains USACE and VDOT

2011-06-15T11:30:00.000-07:00

On June 15, 2011 the Coalition to Preserve McIntire Park filed a complaint for declaratory and injunctive relief in an effort to preserve McIntire Park. This suit, filed against both the U.S. Army Corps of Engineers and the Virginia Department of Transportation was necessary to enable the coalition to ask the federal court to stop any construction activity in McIntire Park. Due to the segmentation of Meadowcreek Parkway into three segments claimed to have independent utility it is not possible to ask the federal judge overseeing the Route 250 Bypass Interchange at McIntire Road (the southern terminus of the Meadowcreek Parkway) lawsuit to halt construction on McIntire Road Extended (the middle section of the Meadowcreek Parkway).

The coalition will ask the judge assigned to this case to grant an injunction to prevent any activity in McIntire Park until the environmental issues outlined in the lawsuit are resolved. An unofficial transcript of the filing is given below. The case number is 3:11-cv-00041. You can see this and all other documents associated with this case at the Clerk's Office at the Federal District Courthouse in Charlottesville.

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

COALITION TO PRESERVE MCINTIRE PARK
324 Parkway St.,
Charlottesville, VA 22902,

DANIEL BLUESTONE
501 Park Hill
Charlottesville, VA 22902,

Plaintiffs,

v.

UNITED STATES ARMY
CORPS OF ENGINEERS,
441 G Street, NW
Washington, DC 20314-1000,

VIRGINIA DEPARTMENT OF TRANSPORTATION
1401 E. Broad St.
Richmond VA 23219,

Defendants.
_________________________________________

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION
1. This action seeks declaratory and injunctive relief for violations of federal law by the United States Army Corps of Engineers (the “Corps”) in authorizing Defendant Virginia Department of Transportation (“VDOT”) to construct a highway project known as the “McIntire Road Extended,” (the “Road”) through McIntire Park , located in Charlottesville, Virginia. As described more fully below, the construction and subsequent use of the MRE would literally destroy much of the east side of McIntire Park (“the Park”). As for those parts of the Park that would not be destroyed by construction of the Road itself, many would be devastated by the vehicular traffic that it would support. The Road would also have a significant adverse effect on
the quality of life in local neighborhoods and on historic resources located nearby, as it is proposed to be constructed on land eligible for listing on the National Register of Historic Places.

2. The Project is part of a larger government endeavor, some 52 years in the making, to construct a highway starting at Rio Road on the north and extending southward to and through the length of McIntire Park, to and beyond the Rt. 250 Interchange. Litigation over the Federal Highway Administration’s approval and funding of a highway project, known as the Rt. 250 Bypass Interchange at McIntire Road, is now pending before this Court. (CPMP v. FHWA, Civ. No. 3:11-cv-00015)

3. Plaintiffs contend that the Corps violated the Clean Water Act, 33 U.S.C. § 1344 (“CWA”), by authorizing VDOT to proceed with the project pursuant to a “State Program General Permit” rather than requiring VDOT to obtain an “individual permit.” In addition, the Corps conducted no environmental impact statement (“EIS”) or environmental assessment (“EA”) in connection with its action, thereby violating the National Environmental Policy Act, 42 U.S.C. § 4332 (2)(C) (“NEPA”).

JURISDICTION
4. Jurisdiction is proper in this Court under 28 U.S.C. § 1331 because Plaintiffs’ claims arise under the laws of the United States, including the CWA, NEPA and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551, et seq.. This Court may issue a preliminary injunction and other relief pursuant to 28 U.S.C. § 2201 (declaratory relief) and § 2202 (injunctive relief). All available administrative remedies have been exhausted. The challenged agency action is final and subject to this Court’s review. This Court has jurisdiction over Defendant VDOT by virtue of the doctrine of pendent jurisdiction.

VENUE
5. Venue is proper in this District pursuant to 28 U.S.C. § 1391(e).

PARTIES
6. The Coalition to Preserve McIntire Park (“CPMP”) is a non-profit, unincorporated conservation organization dedicated to the protection and enhancement of the Park and the neighboring communities. CPMP has 36 members; it brings this action on behalf of its members. CPMP’s members use and appreciate the lands in the Park for their scenic beauty and for hiking, watching birds, and viewing wildflowers and other flora and fauna, as well as outdoor recreational and educational activities. The construction of the Road will directly and significantly affect the interests of Plaintiffs and the members of CPMP, because it will degrade all of these values and uses.

7. CPMP’s Steering Committee has authorized the filing of this action.

8. John Cruickshank is a member of CPMP – as well as a member of its Steering Committee. He resides at 324 Parkway St., Charlottesville, VA 22902. His residence is located approximately one-half mile from the Park. He and his wife chose to live there in large part because of the neighborhood’s proximity to the Park.

9. Additionally, Mr. Cruickshank is a regular user of the Park, for hiking, bird watching and other recreational purposes. He plans to continue these activities in the Park for the indefinite future. If the Road were to be built, it would adversely affect the quality of his life, as it would reduce the aesthetic beauty of the area in which he lives, and impair his enjoyment of the Park.

10. Richard Collins is a member of CPMP – as well as a member of its Steering Committee. He resides at 108 Wilson Court, Charlottesville, VA 22901. His residence is located approximately one-half mile from the Park. He and his wife chose to live there in large part because of the neighborhood’s proximity to the Park. Additionally, Mr. Collins is a regular user of the Park, for hiking, golfing and other recreational purposes. He plans to continue these activities in the Park for the indefinite future. If the Road were to be built, it would adversely affect the quality of his life, as it would reduce the aesthetic beauty of the area in which he lives, and impair his enjoyment of the Park.

11. Plaintiff Daniel Bluestone is a member of CPMP – as well as a member of its Steering Committee. He resides at 501 Park Hill, Charlottesville, VA 22902. His residence is located on the perimeter of the Park. He chose to live there in large part because of the neighborhood’s pastoral character.

12. Mr. Bluestone is a regular user of the Park, for hiking, birdwatching and other recreational purposes. He plans to continue these activities in the Park for the indefinite future. If the Road were to be built, it would adversely affect the quality of his life, as it would reduce the aesthetic beauty of the area in which he lives, and impair his enjoyment of the Park.

13. Defendant U.S. Army Corps of Engineers is an agency within the United States Department of Defense. It has the duty to administer the permitting provisions of the Clean Water Act, in compliance with the laws established by Congress for such administration and with the Corps’ regulations.

14. Defendant Virginia Department of Transportation is an agency created under the laws of the Commonwealth of Virginia. VDOT is the lead agency constructing the Road.

STATUTORY BACKGROUND
The National Environmental Policy Act
15. “NEPA . . . makes environmental protection a part of the mandate of every federal agency and department,” Calvert Cliffs Coord. Comm. v. United States, 449 F.2d 1109, 1112 (D.C. Cir. 1971), and is the “basic national charter for protection of the environment,” 40 C.F.R. § 1500.1(a). Its purpose is “to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.” Id. § 1500.1(c).

16. To accomplish this purpose, NEPA requires that all federal agencies prepare a “detailed statement” regarding all “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). The “detailed statement” is known as an “environmental impact statement” (“EIS”). To determine whether a proposed action significantly affects the quality of the human environment, and whether an EIS is therefore required, regulations promulgated by the Council on Environmental Quality provide for the preparation of an EA. Based on this analysis, a federal agency either decides to prepare an EIS or issue a finding of no significant impact (“FONSI”). 40 C.F.R. § 1501.4.

The Clean Water Act and Regulations Issued Thereunder
17. Congress enacted the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The CWA makes it illegal for anyone to discharge pollutants into the Nation’s waters without a permit. 33 U.S.C. § 1311. The Corps may authorize discharges and/or disposal of materials into streams and creek through the issuance of individual permits or general permits. 33 U.S.C. § 1344.

18. The Corps issues individual permits for discharging materials into streams and creeks on a case-by-case basis. CWA § 404, 33 U.S.C. § 1344. Such permits are issued following an extensive review process that includes public notice and an opportunity, as well as the completion of a thorough “public interest review” process. See 33 C.F.R. § § 320.1, 322.2(e).

19. The Corps issues general permits on the basis of abbreviated procedures; the “public interest review” is not conducted for projects that are authorized pursuant to general permits. See 33 C.F.R. § 325.5(c).

20. One type of general permit issued by the Corps is known as the “State Program General Permit.” State Program General Permit No. 07-SPGP-01 (the “SPGP”) establishes procedures and substantive standards governing authorizations of activities causing discharges of materials into waters of the United States located within Virginia. See http://www.nao.usace.army.mil/technical%20services/Regulatory%20branch/spgp_2007/07-SPGP-01.pdf. (last viewed June 12, 2011).

21. Of particular relevance to this matter is § III B of the SPGP; it applies to “linear transportation projects” conducted by Defendant VDOT. Pursuant to this section of the SPGP, VDOT may obtain Corps’ permission under the CWA to construct roads, provided that the criteria and conditions of the SPGP are satisfied.

22. The Corps may not authorize a VDOT transportation project under the SPGP if the
project will have more than “minimal individual or cumulative adverse environmental
impacts...” SPGP § V. 2.

23. The Corps may not authorize a VDOT transportation project under the SPGP unless
the project is a “single and complete project.” “A project is considered to have independent utility if it would be constructed absent the construction of other projects in the project area.” Id.

FACTUAL BACKGROUND
24. As approved by the Corps, the Road is a proposed two-lane thoroughfare of approximately 2,100 feet in length; it would extend south from Melbourne Road to a point inside McIntire Park. The Road is depicted in the Memorandum of Agreement prepared for the project under the National Historic Preservation Act:

25. The Road is preceded by a long history of governmental attempts to construct a road through McIntire Park.

26. This history begins in or before 1959, when government transportation planners first proposed to construct a north-south highway of approximately three miles in length through and beyond McIntire Park in order to relieve traffic congestion along residential streets and facilitate ingress/egress to and from downtown Charlottesville. This so-called “McIntire Road Extension project” or “Meadow Creek Parkway” was formally incorporated into the Charlottesville Major Arterial Street and Highway Plan in 1967.

27. In 1979 the Virginia Commonwealth Transportation Board approved the construction of a new, limited-access highway through McIntire Park, between the Rt. 250 Bypass on the south and Rio Road on the north. This project, too, ran north-south through and beyond the Park for a distance of approximately three miles.

28. On August 28, 1985, the Charlottesville/Albemarle County Metropolitan Planning Organization incorporated a similar, 2.1-mile variant of the “McIntire Road Extension project” or “Meadow Creek Parkway” into its Charlottesville Area Transportation Study (CATS) Year 2000 Transportation Plan, denominating it a “committed project.”

29. In or about 2001, the overall highway project was subdivided into three segments. Albemarle County and the Virginia Department of Transportation proposed to construct a 1.4-mile northern segment, then renamed the “Meadow Creek Parkway,” south from Rio road to Melbourne Road.

30. This segment received all necessary government approvals in 2008.

31. Construction of this segment began in 2009 and continues to this day. It is being
built to a specific point on the northeast perimeter of McIntire Park.

32. The middle segment, referred to herein as “the Road,” was renamed “McIntire Road Extended.” This segment is proposed to be funded and constructed by VDOT; it is proposed to be built through the heart of the eastern half of McIntire Park, thus connecting the southern terminus of the Meadow Creek Parkway at Melbourne Road with the Rt. 250 Bypass at McIntire Road.

33. However, as currently configured, the Road does not extend south to the Rt. 250
Bypass. Rather, as shown in the graphic in ¶ [24] above, it terminates at a point 775 feet north of the Route 250 Bypass.

34. On May 25, 2011, the Corps issued a two-page authorization (described therein as a “permit”) to VDOT to begin construction of the Road. See Attachment A.

35. This authorization from the Corps is conditional. It states:
“This permit is being authorized with the understanding that the MRE’s southern end will connect to the Route 250 Bypass Interchange .... However, if for any reason the
Interchange project is not constructed, this permit will not be valid, and you must contact our office regarding authorization for the MRE project”

36. The Route 250 Bypass Interchange project has not been constructed.

CLAIMS FOR RELIEF

COUNT I

Violations of the Clean Water Act and the Administrative Procedure Act

37. The contents of the foregoing paragraphs are incorporated by reference.

38. The Corps’ May 25, 2011 authorization to VDOT violates the CWA, the Corps’
regulations thereunder, and the SPGP because its issuance violated SPGP § V. 2, which bars the Corps from authorizing projects that will have more than “minimal individual or cumulative adverse environmental impacts...”. The adverse environmental impacts of the MRE will be substantial by any measure, particularly when viewed in conjunction with those of the Meadow Creek Parkway and the Route 250 Bypass Interchange, as they must be under federal law.

39. Similarly, the terms of the SPGP proscribe the issuance of work authorizations for projects that are not “single and complete.” The MRE is not single and complete. On the contrary, it is intertwined with and functionally dependent on the construction and completion of the Meadow Creek Parkway and the Route 250 Bypass Interchange projects.

COUNT II

Violations of the National Environmental Policy Act and the Administrative Procedure Act
40. The contents of the foregoing paragraphs are incorporated by reference.

41. NEPA requires that all federal agencies prepare an EIS for all “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C).

42. The environmental impacts of the Road, particularly when assessed cumulatively with the impacts of the two other associated highway projects, exceed the statutory threshold of “significance,” thus triggering the duty to prepare an EIS.

43. The Corps’ failure to prepare an EIS for the Road thus violates NEPA.

44. Alternatively, the Corps was required by NEPA to prepare an EA assessing the likely environmental impacts of the Road. The Road is not the kind of environmentally insignificant project that enjoys an exemption from the statute’s environmental review requirement.

PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request this Court to provide the following relief:

a. A declaration that the Corps has violated the requirements of the CWA, its CWA implementing regulations, and the terms of the SPGP by authorizing VDOT to proceed with construction of the Road;

b. A declaration that the Corps has violated the requirements of NEPA by authorizing
VDOT to construct the Road without preparing an EIS or performing any other kind of projectspecific environmental review;

c. An order vacating the Corps’ authorization of May 25, 2011;

d. Injunctive relief barring VDOT from beginning construction of the Road unless and
until the violations of law described above are remedied;

e. An order that Plaintiffs may recover their reasonable litigation expenses (including attorney fees) pursuant to the the Equal Access to Justice Act, the Clean Water Act and/or other applicable provisions of law; and

f. Such other relief as the Court deems just and proper.

Respectfully submitted this 15th day of June, 2011.

James B. Dougherty, Esq.
709 3rd St. S.W.
Washington, D.C. 20024
Tel: 202-488-1140
Email: JimDougherty@aol.com

___________________________

James D. Brown, Esq.
Law Office of James D. Brown
P.O. Box 2921
Charlottesville VA 22902
Va. Bar. No. 81225
Tel.: 434-218-0891
Email: lawofficejdb@gmail.com

Amended Scheduling Order filed in Route 250 Bypass Interchange at McIntire Road case in federal court

2011-05-26T12:06:00.000-07:00

On May 13, 2011, United States District Attorney Timothy Heaphy filed a Joint Notice of Parties' Intent to Submit a Proposed Case Management Order. On May 19, 2011 that document was filed in the court and on that same day the Amended Scheduling Order given below was ordered and filed as document 17 in the case document file for case 3:11-cv-00015.

The schedule indicates two different tracks dependent on the adequacy of the Administrative Record due on June 30, 2011.

Note that it is possible that the case can actually be settled at anytime by the parties in the case.

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

AMENDED SCHEDULING ORDER

UPON CONSIDERATION of the parties' Joint Proposal Case Sceduling Order, it is hereby ORDERED that the parties shall abide by the following dates and deadlines.

Defendant's Production of the Administrative Record with Index in Electronic Format - June 30, 2011

Track 1 (Agreement is Reached as the Scope of the Administrative Record)

If Plaintiffs Do Not Object toe the Scope of the Administrative Record, Plaintiffs So Notify the Defendants and the Court - August 12, 2011

Plaintiffs Motion for Summary Judgement Due - October 7, 2011

Defendants' Opposition and Cross-Motion for Summary Judgement Due - November 7, 2011

Plaintiffs' Reply and Opposition to Defendant's Cross-Motion for Summary Judgement Due - December 2, 2011

Respondent's Reply on Summary Judgement Due - December 23, 2011

Track 2 (Agreement is Not Reached as the Scope of the Administrative Record)

Plaintiffs' Motion for Modification of the Administrative Record Due - August 26, 2011

Defendants' Opposition thereto Due - September 16, 2011

Plaintiff's Reply Due - September 23, 2011

ENTERED this 19th day of May, 2011

Will Albemarle County Loose its Cool?

2011-05-19T11:06:00.000-07:00

After hearing concerns about big government and perceived threats to property rights at a Jefferson Area Tea Party forum in March 2011 entitled "The Deceptive Agenda of Sustainability in Local Government," and hearing comments from Tea Party members at Board of Supervisor Meetings, Albemarle County Supervisors Ken Boyd and Rodney Thomas are hoping to drop the county's participation in the Cool Counties initiative. On Dec. 5, 2007 the Albemarle BOS passed the resolution below declaring that Albemarle County would participate in a worldwide effort to reduce greenhouse gas emissions that are considered a major contributor to global climate change. Brendan Fitzgerald wrote an article in the May 6, 2011 in C-ville Weekly entitled "Boyd follows tea party lead, asks Albemarle to drop emissions commitment" stating that Boyd was now against Albemarle being a member of the Cool Counties Initiative.

Fitzgerald's article included ' “I don’t think that big government should dictate [energy consumption] to our citizens,” said Boyd. “Or regulate it, for that matter.” Local Tea Party members claim that groups like ICLEI [International Council for Local Environmental Initiatives] use global warming as rationale to assert internatinal control over energy consumption and personal property rights.'

I find it interesting that about one week after supporting the Tea Party opposition to the Cool Counties Initiative that Kenneth Boyd announced that he has changed his mind and will now be seeking re-election to the Board of Supervisors. I suppose electoral politics may be the major driving force behind Boyd's opposition to reducing greenhouse gas emission. Or, does he truly believe that providing leadership in reducing these emissions is not in the best interest of the county?

Fitzgerald also reported that "Boyd told Charlottesville Tomorrow that Albemarle is 'being infiltrated...by an agenda that is set by this international organization [ICLEI].' " I guess a good conspiracy theory might be just the thing to bring some interest to the BOS elections.

Albemarle BOS will be discussing this matter at a work session on June 8. I am curious to see what comes out of that work session. I am also interested in seeing if more candidates for BOS elections will be emerging. I think issues like this might just encourage county residents to join the race.

---

U.S. Cool Counties Climate Stabilization Declaration

WHEREAS, there is a consensus among the world's leading scientists that global warming caused by human emission of greenhouse gases is among the most significant problems facing the world today; and

WHEREAS, documented impacts of global warming include but are not limited to increased occurrences of extreme weather events (i.e., droughts and floods), adverse impacts on plants and wildlife habitats, threats to global food and water supplies – all of which have an economic impact on communities and their local governments; and

WHEREAS, leading scientists have projected that stabilization of climate change in time to minimize such impacts will require a reduction of global warming emissions to 80 percent below current levels by the year 2050; and

WHEREAS, currently the United States is responsible for producing approximately 25 percent of the world’s global warming pollutants; and

WHEREAS, many leading U.S. companies that have adopted greenhouse gas reduction programs to demonstrate corporate and operational responsibility have also publicly expressed preference for the federal government to adopt precise and mandatory emissions targets and timetables as a means by which to provide a uniform and predictable regulatory environment to encourage and enable necessary and long-term business investments; and

WHEREAS, state, regional and local governments throughout the U.S. are adopting emissions reduction targets and programs and that this effort is bipartisan, coming from Republican and Democratic leadership; and

WHEREAS, the U.S. Conference of Mayors has endorsed the U.S. Mayors Climate Protection Agreement, which commits cities to reduction of global warming emissions to 7 percent below 1990 levels by 2012, and calls for a federal limit on emissions; and

WHEREAS, the State of California has mandated statewide reduction of greenhouse gas emissions to 80 percent below 1990 levels by 2050; and

WHEREAS, more than 100 county leaders signed a letter written by Dane County, Wisconsin, that was sent to the President in March 2006 calling for increased energy investment and development of jobs focused on clean energy technologies; and

WHEREAS, counties have a unique role to play in reducing greenhouse gas emissions and preparing for the impacts of climate change through their regional jurisdiction over policy areas such as air quality, land use planning, transportation, zoning, forest preservation, water conservation, and wastewater and solid waste management; and

WHEREAS, the economic arguments for implementing climate solutions are compelling, from the near-term economic gains of energy efficiency to the long-term climate stabilization that can prevent irreparable harm from catastrophic climate change impacts; and

WHEREAS, many counties throughout the nation, both large and small, are reducing global warming pollutants through programs that provide economic and quality of life benefits such as reducing energy bills, preserving green space, implementing better land use policies, improving air quality, promoting waste-to-energy programs, expanding transportation and work choices to reduce traffic congestion, and fostering more economic development and job creation through energy conservation and new technologies;

NOW, THEREFORE WE DECLARE, that: We, as Cool Counties, will take immediate steps to help the federal, state, and our governments within our county to achieve the 2050 climate stabilization goal by making the following commitments:

i. Create an inventory of our county government (operational) greenhouse gas (“GHG”) emissions and implement policies, programs and operations to achieve significant, measurable and sustainable reduction of those operational GHG emissions to help contribute to the regional reduction targets as identified in paragraph ii; and

ii. Work closely with local, state, and federal governments and other leaders to reduce county geographical GHG emissions to 80 percent below current levels by 2050, by developing a GHG emissions inventory and regional plan that establishes short-, mid-, and long-term GHG reduction targets, with recommended goals to stop increasing emissions by 2010, and to achieve a 10 percent reduction every five years thereafter through to 2050; and

iii. Urge Congress and the Administration to enact a multi-sector national program of requirements, market-based limits, and incentives for reducing GHG emissions to 80 percent below current levels by 2050. Urge Congress and the Administration to strengthen standards by enacting legislation such as a Corporate Average Fuel Economy (“CAFE”) standard that achieves at least 35 miles per gallon (mpg) within 10 years for cars and light trucks.

We will take immediate steps to identify regional climate change impacts; and

We will draft and implement a county plan to prepare for and build resilience to those impacts.

Route 250 Bypass Interchange at McIntire Road hearing soon to be scheduled

2011-05-09T12:50:00.000-07:00

Federal District Court Judge Norman K. Moon filed a scheduling order on April 25, 2011 directing the attorneys for the Federal Highway Administration and the Coalition to Preserve McIntire Park to schedule a date for a bench trial. Below is a summary of the order filed as document 9 for case number 3:11-cv-00015. Here is a summary of the schedule proposed by Judge Moon.

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

PRETRIAL ORDER

The court proposes the following pretrial scheduling order pursuant to Federal Rule of Civil Procedures 16(b). If no party requests changes within 10 days, it will constitute the scheduling order in this case. The court may amend the order on its own motion, or the parties may amend the order's disclosure and discovery provisions by submitting an agreed written plan tat satisfies the requirements of Rule 26(f).

Summary

TRIAL DATE: Contact Heidi Wheeler, scheduling clerk at 434-296-9284 within 14 days of this order for the purpose of setting a trial date.

PLACE: UNITED STATES DISTRICT COURT, 255 West Main Street, Charlottesville Virginia.

FED.R.CIV.P.26(F) CONFERENCE: 14 days from this order.

INITIAL DISCLOSURES UNDER FED.R.CIV.P.26(A): 30 days from this order.

PLAINTIFF(S) INITIAL EXPERT DISCLSURE: 75 days from this order.

DEFENDANT(S) INITIAL EXPERT DISCLOSURE: 90 days from this order.

DEADLINE TO COMPLETE DISCOVERY: 90 days before trial.

DEADLINE TO FILE DISPOSITIVE MOTIONS: 75 days before trial.

DEADLINE FOR HEARING DISPOSITIVE MOTIONS: 45 days before trial.

Note: The order was signed by Judge Moon on April 22, 2011, but filed on April 25, 2011. I am assuming that the schedule is relative to the filing date of the order.

According to this schedule, a trial date could be set any day now and the schedule can be put into terms of calendar dates rather than relative times from the order or the yet to be scheduled trial date. I will post the dates when they are finalized.

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

2011-04-22T10:35:00.000-07:00

(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

2011-04-15T11:33:00.000-07:00

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

2011-04-02T12:43:00.000-07:00

[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

My NCAA Basketball Bracket is still in decent shape

2011-03-21T10:39:00.000-07:00

The ball has been bouncing my way for the most part. In the round of 32, I successfully picked 10 of the 16 winners - including having Richmond, Florida State, and Butler making the "Sweet 16" as upset winners.

The Next Round: Both Syracuse and Purdue are gone, but I can still get 6 teams on my bracket into the "Elite 8"; 3 teams into the final four; and my Ohio State-BYU final is still a possibility. If Butler (8) can upset Wisconsin (4) and BYU (3) can upset Florida (2) and four of the favorites Ohio State, Duke, SDSU, and Kansas win I will have successfully picked 6 of the Elite 8 teams.

My record to date:

Picked 3 of the "First 4"
Picked 26 of 32 in the round of 64 [see previous blog post for details]
Picked 10 of 16 in the round of 32

Thus, I have picked 39 winners in the 52 games played so far - for a 75-percent success rate.

This is about as well as I have done in picking winners in the NCAA National Championships. Now I am sorry I didn't register my picks in some sports channel competition. I might have one of the better brackets around (but I don't know how to check others' successes).

Check back next week for my results in the next two rounds.

Beating the favorites in the NCAA Basketball Championship

2011-03-19T10:02:00.000-07:00

The NCAA basketball tournament had 32 teams remaining after four days of play. Although I haven't watched a full game of basketball all season and only a few partial games (mostly University of Virginia games) my NCAA bracket is doing extremely well heading into the round of 32.

In the play-in [First Four] games on Tuesday and Wednesday I picked three winners (Clemson, UT San Antonio, and VCU) in the four games for a 75-percent success rate.

The round of 64:

In the round of 64 I picked nine teams to upset a higher ranked team of which five teams (Marquette, Richmond, VCU, Florida State, and Gonzaga) succeeded. My unsuccessful upset picks were Georgia to beat Washington, Memphis to beat Arizona, Penn State to beat Temple, and Belmont to beat Wisconsin. There were actually seven upsets in the 32-game round of 64 of which I picked five - not too shabby, eh? The only upsets I missed were Morehead State University over Louisville and Illinois over UNLV.

In the round of 64 I picked 26 of the 32 winners for an 81-percent success rate in the round.

For the tournament as a whole so far I have picked 29 of 36 winners for an 80-percent success rate.

If I had picked all of the favorites (higher seeds) in all of the round of 64 games, I would have had only 25 winners or a 78-percent success rate.

The round of 32:

The best I can do in the round of 32 is get 15 winners in the 16 games. I picked Memphis to get to the Sweet 16 but they are gone (losing to Arizona). I am looking to West Virginia to upset Kentucky, Cincinnati to upset Connecticut, Florida State to upset Notre Dame, Butler to upset Pittsburg, and Kansas State to upset Wisconsin. But, anything can happen in this tournament.

Looking further ahead.

With luck in the current round I am picking the Elite 8 to be Ohio State, Syracuse, Duke, San Diego State, Kansas, Purdue, Butler and BYU (all still in the tournament); the Final 4 to be Ohio State, Duke, Purdue, and BYU; and Ohio State to beat BYU in the championship game.

There are 67 games in the tournament. With 29 winners in 36 games so far I cannot do any worse than 43-percent success - but if I get the rest correct, I will reach an incredible 60 out of 67 for an approximately 90-percent success rate.

Unfortunately I didn't get my bracket into any contests. But then again I am very surprised at my success rate so far and my bracket might be a wreck by Sunday night. Those last second shots - missed or made - could have changed my bracket success significantly. Perhaps it was my Irish grandmother Sarah Malarky sending the luck of the Irish to me this round.

Let the games continue......

US Army Corps of Engineers distributes new draft MOA for McIntire Road Extended

2011-03-11T08:46:00.000-08:00

The U. S. Army Corps of Engineers just released a new draft for comment of the Memorandum of Agreement currently being developed as a part of the review process for a water quality permit application necessary for construction of the McIntire Road Extended road project in McIntire Park. The cover letter for this distribution is provided below. I will provide the draft text of the MOA in a separate posting. I received this cover letter as a scanned page image and used optical character recognition software to convert to online text. I apologize in advance for any errors that may have slipped by me in preparing the text for posting.

- - - - -

DEPARTMENT OF THE ARMY
NORFOLK DISTRICT CORPS OF ENGINEERS
FORT NORFOLK 803 FRONT STREET
NORFOLK VIRGINIA 23510-1096

March 4, 2011

CENAO-WR-RE

Eastern Virginia Regulatory Section
(08-4060-09) (Schenks Branch)
NAO-2008-1787
McIntire Road Extended
VOOT Project No. U000-104-V02, P101
VDHR/SHPO File No. 1993-2606

Ms. Charlene Vaughn
Assistant Director, Office of Federal Agency Programs
ATTN. Mr John Eddins, Ph.D., Program Analyst
The Advisory Council on Historic Preservation
Old Post Office Building
1100 Pennsylvania Avenue, NW, Suite 803
Washington, DC 20004

Ms. Kathleen S. Kilpatrick, Director
ATTN: Ms. Ethel Eaton, Ph.D., Senior Policy Analyst,
Division of Resource Services and Review
Virginia Department of Historic Resources
2801 Kensington Avenue
Richmond, VA 23221

Dear Ms. Vaughn and Ms. Kilpatrick:

The Norfolk District, United States Army Corps of Engineers (Norfolk District) is in receipt of comments your agencies provided in response to the second draft of a Section 106 Memorandum of Agreement (MOA) we distributed for review on October 21, 2010, for our undertaking associated with the Virginia Department of Transportation's (VDOT) McIntire Road Extended (MRE) project. The Norfolk District also received comments on the draft MOA from the following consulting parties to the Section 106 process: Mr. Richard Collins, Preservation Piedmont, the Charlottesville Regional Chamber of Commerce, North Downtown Residents Association, the Piedmont Group of the Sierra Club, the City of Charlottesville (City), and Sensible Transportation Alternatives to the Meadowcreek Parkway (STAMP). The Norfolk District has taken the comments of each of these parties into account and is providing the enclosed revised MOA (3rd Draft) for your consideration.

In our review of comments received in response to the October 2010 draft of the MOA (2nd Draft), the Norfolk District identified three major areas of concern. We have addressed these concerns in changes and substantive additions made to the text of the agreement document as discussed below:

1. In light of the City's earlier intention to sign the MOA as a concurring party, some concern was expressed about the legal enforceability of the City's commitment to design and implement the landscape plan described in Stipulation I.B of the MOA. The City has since accepted the Norfolk District's invitation to sign the MOA as a signatory party, and changes have been made in the 3rd Draft to reflect this change.

2. Concern was also expressed about an existing Rivanna Water and Sewer Authority (RWSA) sanitary sewer line and easement that runs through McIntire Park near Schenks Branch. There was concern about how potential upgrades to the sewer line might affect VDOT's landscape plan for its Stormwater Detention Basin No.3, described in Stipulation I.A, and the City's planned integrated landscape plan for the McIntire Road/McIntire Road Extended transportation corridor, described in Stipulation I.B.

As background to understanding this issue, we would like to reiterate that the section of sewer line that will be upgraded by VDOT under the MRE project extends from approximately Station 23+50.00 (roughly 1,300 feet north of Route 250 Bypass) on the project to roughly 150 feet south of Melbourne Road. The boundary of the proposed easement associated this segment is shown on an aerial photograph of McIntire Park in Figure 1, outlined in green. Also depicted in this illustration are the boundaries of VDOT's Basin No.3, outlined in yellow, and the boundaries of the historic properties Hard Bargain and Rock Hill, outlined, respectively, in pink and red. Close examination of this illustration will show that there are few existing trees, if any, lying between Hard Bargain and Rock Hill and the path of the MRE in the near vicinity of the two historic properties that will be removed by VDOT's construction of the highway, the detention basin, or the upgraded sewer line.

The sewer line that runs through McIntire Park is a gravity line; and flows from south (Route 250 Bypass) to north (Melbourne Road); and there are roughly 1,300 feet of line between Route 250 Bypass and the southern end of the section of line VDOT will upgrade as part of the MRE project. The line upgrade that VDOT will accomplish does not necessitate an upgrade to the remainder of the line within McIntire Park because the existing, shallower and narrower line at the south end of the park will still flow without encumbrance into the upgraded, deeper and wider pipe. That being said, the City, in conjunction with the RWSA, has recently developed a separate project to upgrade the remainder of the sewer line within McIntire Park (south of the section VDOT will upgrade) for the purpose of increasing capacity and replacing aged pipes.

The Norfolk District and VDOT have taken the City's planned sanitary sewer project into account in developing the 3rd Draft of the MOA for the MRE project. Stipulation I.B now acknowledges that the City's design for an integrated landscape plan for the McIntire Road/McIntire Road Extended corridor will need to accommodate RWSA planting requirements for its planned revised easement within McIntire Park. These requirements permit certain "sewer-safe" shrubs and understory trees within the outer 10 feet of RWSA's 40-foot easement and, thereby, will allow the City to design and implement a landscape plan which achieves the stated goal of integrating the MRE into the existing natural features of its setting.

The existing RWSA sewer line runs along the east side of VDOT's Stormwater Detention Basin No. 3. Under the City's planned upgrade project, the line will be moved to run along the west side of this basin. RWSA reviewed VDOT's existing landscape plans for Basin No.3 and noted that five trees along the west side presented a potential conflict with the planned upgraded line. Consequently, as recommended by RWSA, VDOT has revised its landscape plans for Basin No.3 to replace these five trees with species from RWSA's list of "sewer-safe" shrubs and understory trees. These revised plans have been incorporated into the 3rd Draft.

The revised agreement document also contains a new commitment, Stipulation I.C, related to the RWSA sanitary sewer line. If The City's planned sewer upgrade is constructed after VDOT and the City have installed the landscape plans described in Stipulations I.A and I.B, the City will replace in kind any plants previously installed in accordance with either of these landscape plans that are removed or damaged during implementation of the sewer upgrade.

3. The third major area concern the Norfolk District identified among the responses received to the 2nd Draft was the sufficiency of previously proposed mitigation for addressing the project's adverse effect on McIntire Municipal Park and McIntire Golf Course. One or more parties suggested that, in addition to the previously proposed mitigation, VDOT should participate in a rehabilitation of the Rock Hill Gardens or should build new golf holes within McIntire Park to replace those that will be removed by the MRE. Several of the consulting parties suggested that the VDOT should commit to implementing Traffic Demand Management (TMD) practices on the MRE (e.g., car-free days, privileged access for public transit, privileged access for bicyclists and pedestrians, or HOV/HOT lane options) as mitigation.

We have addressed each of these concepts in previous correspondence. In previous consultation with your agencies it has been determined that the MRE will have no adverse effect on the Rock Hill Gardens. Further, the City has already made a commitment regarding rehabilitation of Rock Hill in the separate MOA the Federal Highway Administration executed for the Route 250 Bypass Interchange project. In regard to reconstruction of golf holes, this or similar commitments affecting the future use of McIntire Park cannot be made outside of the City's mandatory parks master planning process, involving a larger group of stakeholders beyond those represented as Section 106 consulting parties for this project. Commitments that would place restrictions on the future use of the MRE cannot be imposed or enforced by the Norfolk District and are also best vetted before a larger constituency. There is no language in the MOA that would prevent Charlottesville City Council from imposing TDM restrictions on the MRE in the future if that idea finds broad support among City residents.

In order to address concerns about the sufficiency of the mitigation, all previous commitments to mitigation have been retained in the 3rd Draft of the MOA and new commitments to prepare or present two educational products - an exhibit module and a lecture series - have been added to the agreement document. These two new initiatives are described in detail in Stipulation IV of the 3rd Draft. As recommended earlier by the State Historic Preservation Officer (SHPO), the new mitigation we have added is of more obvious direct benefit to the general public than the historical documentation (Stipulation III) that VDOT will also prepare.

In addition to the substantive changes discussed above, the 3rd Draft of the MOA contains technical changes in Stipulations III.A.2 (review period) and VIII.A (human remains) requested by the SHPO. As suggested by the Advisory Council on Historic Preservation, we also have removed the former 14th "Whereas" clause that acknowledged VDOT's acquisition of replacement parkland, since agreements on this issue were made between VDOT and Charlottesville City Council outside of the Section 106 process and arose out of concern over the loss of green space and recreational use.

In response to additional comments received from consulting parties which have not been discussed above, we provide the following:

o Comments received from several consulting parties concerning "segmentation" and inadequate alternatives analysis appear to be directed at decisions made by the Federal Highway Administration (FHWA) in regard to the Route 250 Bypass Interchange project rather than the Norfolk District's present undertaking. Thus, it would not be appropriate for the Norfolk District to respond on these issues.

o STAMP cited the following "WHEREAS" clause;

o "WHEREAS, the aforementioned Route 250 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 and unless it receives and reviews either a Joint Permit Application for the Interchange as the terminus for the Project or a recognition in writing from the appropriate official in the City that the at-grade intersection with Rt 250 [Bypass] will be the terminus, if the above-grade terminus is not constructed."

Based upon this, STAMP cited our regulations (Section 3.a. of 33 CFR 325, Appendix C), and commented that it is "currently inappropriate to be considering approval of this proposed MOA in that there is no completed Permit application to which this MOA will apply." However, VDOT's application is a complete application for the project VDOT proposes to construct; and the MRE MOA contained herein will apply to VDOT's project alone. To clarify our requirement, since the Interchange will connect the MRE to the existing Route 250 Bypass, and since we were aware that the Interchange would entail impacts to waters regulated by the Norfolk District, we stated in our October 12, 2010 cover letter, "receipt of a permit application for the Interchange project from the City will allow the Norfolk District to recognize the Interchange as the southern terminus of the MRE and complete our review of VDOT's permit application". We have received the City's application for the Interchange and we are currently reviewing its impacts. But as you know, the Interchange has already been through the Section 106 process with the FHWA acting as the Lead Federal Agency. As a result, the Interchange has its own separate MOA.

o The North Downtown Residents Association called for including the Charlottesville and Albemarle County Courthouse Historic District within the Area of Potential Effects (APE) for the Norfolk District's undertaking. In fact, since our letter of March 27, 2009, to the SHPO, the Norfolk District has defined the APE to include portions of this historic property. We assessed the visual and auditory effects of the MRE on the district in that letter.

o Preservation Piedmont and Mr. Bluestone commented that project effects on Hard Bargain have not been adequately assessed. As you know, our agencies concurred on our effect determination early on in the Section 106 process. The Norfolk District has considered the additional comments provided on this issue, but continues find that Hard Bargain lies outside the APE for our undertaking.

o STAMP commented that there has been insufficient opportunity for the public to review and comment on the design of the MRE. In the documentation it provided to the ACHP on May 27, 2009, in accordance with 36 CFR 800.6(a)(l), the Norfolk District has described the extensive opportunities that the Norfolk District, VDOT, and Charlottesville City Council have provided for public comment on the project. Additionally, the 2nd Draft of the MOA was reviewed by City Council in regular session before the public on November 15, 2010. There is no requirement for a public hearing inherent to the Section 106 process.

The Norfolk District believes the terms of this 3rd Draft of the MOA adequately and effectively address the adverse effects of our undertaking on historic properties. We request that the ACHP, the SHPO, and the other consulting parties to the Section 106 process respond within 30 calendar days of receipt of this letter, with each party letting us know if it is willing to sign the attached MOA in its current form. If you are not willing to sign the MOA, please provide specific requests for changes that would allow you to sign the document. If no response is received within 30 calendar days, then we will assume that Consulting Parties have no further comments on the draft.

Thank you for your assistance. If you have any questions about this undertaking, please contact Kathy Perdue at 757-201-7218 or Kathy.S.Perdue@usace.army.mil.

Sincerely,

William T. Walker
Chief, Regulatory Branch

Enclosures

cc: Mr. Marc Holma, Virginia SHPO
Ms. Angela Tucker, Development Services Department, City of Charlottesville
Mr. Michael Farruggio, Charlottesville Parks and Recreation Advisory Board
Mr. David Benish, Albemarle County
Mr. John A. Cruickshank, Piedmont Group of the Sierra Club
Mr. Daniel Bluestone, Preservation Piedmont
Mr. Peter Kleeman, STAMP
Ms. Colette Hall, North Downtown Residents Association
Mr. Richard Collins
Ms. Mary A. R. Howard, Thomas Jefferson Branch, APVA/Preservation Virginia
Mr. James Shisler, Dogwood Vietnam Memorial Committee...
Mr. Bob Hodous, Charlottesville Regional Chamber of Commerce
Ms. Mary Ellen N. Hodges, VDOT Central Office
Mr. Rick O. Crofford, VDOT Culpeper District
Mr. Gregory F. Krystyniak, VDOT Culpeper District
Mr. D. Brent Sprinkel, VDOT Culpeper District
Mr. Chris Egghart, Virginia Department of Environmental Quality

Figure 1. Aerial view of McIntire Municipal Park. VDOT MRE construction easement outlined in blue; easement for section of RWSA sewer line that VDOT will upgrade outlined in green;and location of Stormwater Detention Basin No. 3 outlined in yellow. (NOTE: The southern terminus of the MRE is being planned to connect to the City of Charlottesville's proposed Route 250 Bypass Interchange, the permit application for which is also being reviewed by the Norfolk District and is covered under separate MOA).

CPMP Press Conference Images

2011-02-23T14:34:00.000-08:00

The graphical images below were presented at the Coalition to Preserve McIntire Park (CPMP) press conference on February 23, 2011 to help explain the basis of the lawsuit filed in Federal District Court on February 22, 2011.

The first graphic (below) shows that the Federally funded interchange (Route 250 Bypass Interchange at McIntire Road) is located on and near both federally protected parkland and historic properties either on or eligible for listing on the National Register of Historic Places. CPMP claims in their lawsuit that the proposed interchange violates federal protection requirements that prohibit use of federal funding for the projects construction.

(click on image to view at a larger scale)

The second graphic (below) shows the single project version of the proposed project from 1995 that was considered ineligible for federal funding due to its impacts on parkland because there existed reasonable and practible alternatives to the proposed alignment. The project was considered in violation of what is commonly known as Section 4(f) of the Department of Transportation Act of 1966. It also shows the current segmented project (as three separate projects with only the interchange portion of the project being considered a federally funded project). CPMP claims that the segmentation of the project is illegal and that the environmental assessment for the interchange project developed by the Federal Highway Administration is inadequate.

(click on image to view at a larger scale)

The full copy of the CPMP complaint filed on Feb. 22 is available in a posting yesterday on this blog

Coalition to Preserve McIntire Park initiatiating legal action

2011-02-22T11:34:00.000-08:00

The Coalition to Preserve McIntire Park distributed this Press Advisory on February 21, 2011. The complaint will be posted on this blog tomorrow afternoon after the press conference.

----------
Dear Park Lovers,

CPMP is taking legal action to Save McIntire Park. Please read the Press Advisory below. We hope you can join us at the press conference on Wednesday at 3:00 p.m. in front of the federal courthouse.

Thanks for your continued support,
John Cruickshank

Press Advisory: Coalition to Preserve McIntire Park will hold a Press Conference to announce the initiation of federal legal action to save McIntire Park.

Coalition to Preserve McIntire Park

February 21, 2011

Contacts: John Cruickshank 434 973-0373 / Peter Kleeman 434 296-6208

On Wednesday, February 23, 2011, the Coalition to Preserve McIntire Park (CPMP) will commence legal action to prevent destruction of McIntire Park and surrounding historic sites from the construction of the proposed Rt. 250 Bypass Interchange. This action seeks declaratory and injunctive relief for violations of federal law by the U.S. Federal Highway Administration (FHWA) in approving and providing federal funding for this interchange. CPMP contends that actions taken by the FHWA have violated Section 4(f) of the Department of Transportation Act and the National Environmental Policy Act. Details about the legal case will be available at the press conference and from the contacts designated above.

Time: Wednesday, February 23, 2011 3:00 p.m.

Location: In front of the Federal Courthouse Building in Charlottesville (Next to the Omni Hotel)

Background:

This legal action is the reluctantly taken “last resort” of the CPMP, which has made many efforts to convince the Federal Highway Administration and elected officials to abandon plans to build this unnecessary interchange and also the connecting McIntire Road Extended that would cause serious environmental damage and increase traffic congestion in downtown Charlottesville. Many area residents are opposed to this excessive and ill-conceived transportation project. We are determined to use all available federal laws to prevent the destruction of McIntire Park and protect the rights of citizens. Among those is the right to the quiet enjoyment of land donated in perpetuity to our city by Paul Goodloe McIntire for use as a park. Mr. McIntire never intended for a road carrying 24,000 cars a day to bisect this parkland.

The construction of the proposed Rt. 250 Bypass Interchange would destroy beautiful natural parkland, a section of the historic Rock Hill Gardens, and the Skateboard Park on McIntire Rd. It would also increase the number of cars on McIntire Rd. and nearby streets and cause even more congestion on Rt. 250 eastbound at Free Bridge.

The CPMP is working for the protection and enhancement of McIntire Park. We believe public access to the park should be improved for pedestrians and bicyclists. A citizens committee should develop a master plan for McIntire Park that will preserve its beauty for future generations. Our transportation dollars should be invested in pedestrian sidewalks, bike trails, public transit, and the repair of existing roads and bridges.

CPMP Files Lawsuit in Federal District Court

2011-02-22T11:26:00.000-08:00

Below is a version of the Coalition to Preserve McIntire Park (CPMP) lawsuit filed on February 22, 2011 in a form providing easy access to material cited in the text. I converted the document into a web-friendly format that provides hyperlinks to online documents and endeavored to ensure this document corresponds in content to the original filed document.

CPMP has scheduled a press conference for 3:00 pm today - February 23, 2011 in front of the Federal Courthouse in downtown Charlottesville.

-----

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
COALITION TO PRESERVE McINTIRE PARK
324 Parkway St.
Charlottesville, VA 22902,

DANIEL BLUESTONE
501 Park Hill
Charlottesville, VA 22902,

Plaintiffs,

v.

VICTOR MENDEZ, Administrator,
Federal Highway Administration
1200 New Jersey Avenue, S.E.
Washington, DC 20590,

Defendant.

__________________________

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
INTRODUCTION
1. This action seeks declaratory and injunctive relief for violations of federal law by the United States Federal Highway Administration (“FHWA”) in approving and providing federal funding for a highway project known as the “Route 250 Bypass Interchange at McIntire Road,” (hereinafter “the Project”). As depicted and described more fully below, the Project would dramatically expand the existing Rt. 250 Bypass and McIntire Road intersection in a way that compromises and destroys many acres of McIntire Park, Bailey Park and McIntire Skate Park (hereinafter collectively “the Park”). Similarly, the Project would destroy or impair many of the historic and natural features found therein, as well as many of the historic and natural features located near the proposed project including Hard Bargain/ Rock Hill estate/Garden/Monticello Area Community Action Agency, residences at 501 Park Hill and 502 Park Hill, and the McIntire/Covenant School.

2. The Project is part and parcel of a larger government endeavor, some 52 years in the making, to construct a highway of approximately three miles in length, starting at Rio Road on the north and extending southward to and through the length of McIntire Park, to and beyond the Rt. 250 Bypass.

3. Plaintiffs contend that (1) the FHWA was required by federal law to select an alternative alignment that would have had no or lesser impact on the Park and the nearby historic resources, (2) the scope of its environmental review was far too narrow, and (3) federal law required the FHWA to prepare an environmental impact statement (“EIS”) for the Project.

JURISDICTION
4. Jurisdiction is proper in this Court under 28 U.S.C. § 1331 because Plaintiffs’ claims arise under the laws of the United States, including Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303 & 23 U.S.C. § 138, and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551, et seq.. This Court may issue a preliminary injunction and other relief pursuant to 28 U.S.C. § 2201 (declaratory relief) and § 2202 (injunctive relief) . All available administrative remedies have been exhausted. The challenged agency action is final and subject to this Court’s review.

VENUE
5. Venue is proper in this District pursuant to 16 U.S.C. § 1540(g)(3)(A) and 28 U.S.C. § 1391(e).

PARTIES
6. The Coalition to Preserve McIntire Park (“CPMP”) is a non-profit, unincorporated conservation organization dedicated to the protection and enhancement of the Park, located in Charlottesville, Virginia, and the neighboring communities. CPMP has 36 members; it brings this action on behalf of its members. CPMP’s members use and appreciate the lands in the Park for their scenic beauty and for hiking, watching birds, and viewing wildflowers and other flora and fauna, as well as outdoor recreational and educational activities. The construction of the Project will directly and significantly affect the interests of Plaintiffs and the members of CPMP, because it will degrade all of these values and uses.

7. CPMP’s Steering Committee has authorized the filing of this action.

8. John Cruickshank is a member of CPMP – as well as a member of its Steering Committee. He resides at 324 Parkway St., Charlottesville, VA 22902. His residence is located approximately one-half mile from the Park. He and his wife chose to live there in large part because of the neighborhood’s proximity to the Park. Mr. Cruickshank is a “consulting party” to the ongoing governmental review of potential harms to regional historic properties as a result of proposed highway construction in McIntire Park.

9. Additionally, Mr. Cruickshank is a regular user of the Park, for hiking, bird watching and other recreational purposes. He plans to continue these activities in the Park for the indefinite future. If the proposed highway interchange were to be built, it would adversely affect the quality of his life, as it would reduce the aesthetic beauty of the area in which he lives, and impair his enjoyment of the Park.

10. Richard Collins is a member of CPMP – as well as a member of its Steering Committee. He resides at 108 Wilson Court, Charlottesville, VA 22901. His residence is located approximately one-half mile from the Park. He and his wife chose to live there in large part because of the neighborhood’s proximity to the Park. Additionally, Mr. Collins is a regular user of the Park, for hiking, golfing and other recreational purposes. He plans to continue these activities in the Park for the indefinite future. If the proposed highway interchange were to be built, it would adversely affect the quality of his life, as it would reduce the aesthetic beauty of the area in which he lives, and impair his enjoyment of the Park.

11. Plaintiff Daniel Bluestone is a member of CPMP – as well as a member of its Steering Committee. He resides at 501 Park Hill, Charlottesville, VA 22902. His residence is located on the perimeter of the Park. He chose to live there in large part because of the neighborhood’s pastoral character, which would be destroyed by the introduction of automobile traffic.

12. Mr. Bluestone is a regular user of the Park, for hiking, birdwatching and other recreational purposes. He plans to continue these activities in the Park for the indefinite future. If the proposed highway interchange were to be built, it would adversely affect the quality of his life, as it would reduce the aesthetic beauty of the area in which he lives, and impair his enjoyment of the Park.

13. Defendant Victor Mendez is the politically-appointed Administrator of the FHWA. The FHWA is an agency within the United States Department of Transportation and has the duty to administer the national highways system, and to distribute federal highway funds, in compliance the laws established by Congress for such administration. Defendant Mendez is sued in his official capacity.

STATUTORY BACKGROUND
The National Environmental Policy Act (“NEPA”)
14. “NEPA . . . makes environmental protection a part of the mandate of every federal agency and department,” Calvert Cliffs Coord. Comm. v. United States, 449 F.2d 1109, 1112 (D.C. Cir. 1971), and is the “basic national charter for protection of the environment,” 40 C.F.R. § 1500.1(a). Its purpose is “to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.” Id. § 1500.1(c).

15. To accomplish this purpose, NEPA requires that all federal agencies prepare a “detailed statement” regarding all “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). The “detailed statement” is known as an “environmental impact statement” (“EIS”). To determine whether a proposed action significantly affects the quality of the human environment, and whether an EIS is therefore required, regulations promulgated by the Council on Environmental Quality provide for the preparation of an “environmental assessment.” Based on this analysis, a federal agency either decides to prepare an EIS or issue a finding of no significant impact (“FONSI”). 40 C.F.R. § 1501.4.

16. NEPA also requires that every agency must “study, develop, and describe alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources . . . .” 42 U.S.C. § 4332(2)(E).

17. FHWA regulations implementing NEPA require that:

23 C.F.R. 771.111(f).

Section 4(f) of the Department of Transportation Act
18. Forty-four years ago Congress recognized the propensity of government transportation planners preferentially to route proposed highways through parkland, and to reject alternative routes through residential areas due to the increased political opposition and higher costs of acquisition through eminent domain. Section 4(f) of the Department of Transportation Act of 1966 prohibits federal approval or funding of a transportation project that requires “the use of publicly owned land of a public park, recreation area, or . . . land of an historic site of national, State, or local significance,” unless (1) “no prudent and feasible alternative” exists, and (2) the agency engages in “all possible planning to minimize harm” to protected property. 49 U.S.C. § 303(c). See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 412-13 (1971) (noting that “the very existence” of this law demonstrates that the “protection of parkland was to be given paramount importance.”)

FACTUAL BACKGROUND

Fifty-Two Years in the Making: A 2.1-mile North-South Highway Through the Park

19. The Project is preceded by a long history of governmental attempts to construct a road through McIntire Park.

20. This history begins in or before 1959, when government transportation planners proposed to construct a north-south highway of approximately three miles in length through and beyond McIntire Park in order to relieve traffic congestion along residential streets and facilitate ingress/egress to and from downtown Charlottesville. This so-called “McIntire Road Extension project” or “Meadowcreek Parkway” was formally incorporated into the Charlottesville Major Arterial Street and Highway Plan in 1967.

21. In 1979 the Virginia Commonwealth Transportation Board approved the construction of a new, limited-access highway through McIntire Park, between Preston Road on the south and Rio Road on the north. This project, too, ran north-south through and beyond the Park for a distance of approximately three miles.

22. On August 28, 1985, the Charlottesville/Albemarle County Metropolitan Planning Organization incorporated a similar, approximately 2.1-mile variant of the “McIntire Road Extension project” or “Meadowcreek Parkway” into its Charlottesville Area Transportation Study (CATS) Year 2000 Transportation Plan, denominating it a “committed project.” Also in 1985, FHWA prepared and approved a Draft Environmental Impact Statement (“DEIS”) for the above-referenced project.

23. FHWA’s 1985 DEIS was criticized by the U.S. Department of the Interior and the Department of Housing of Urban Development. Both of these agencies argued that there were “feasible and prudent” alternative alignments that would address local transportation needs yet comply with §4(f) because they would not destroy portions of McIntire Park.

24. Controversy swirled around the proposed highway because of the anticipated damage to the Park. Opponents argued that the use of federal funds was prohibited by §4(f). On or about 1997, federal funding was withdrawn from the “McIntire Road Extension project” or “Meadowcreek Parkway,” and on October 6, 1997 FHWA determined that §4(f) (which applies only to federally-funded projects) was no longer applicable.

The Highway Project is Divided into Three Segments

25. In or about 2001, the overall highway project was subdivided into three segments. Albemarle County and the Virginia Department of Transportation proposed to construct a 1.4-mile northern segment, then renamed the “Meadow Creek Parkway,” south from Rio road to Melbourne Road.

26. This segment received all necessary government approvals in or by 2008.

27. Construction of this segment began in 2009 and continues to this day. It is being built to a specific point on the northeast perimeter of McIntire Park.

28. The middle segment was renamed “McIntire Road Extended.” This segment is being funded by the Virginia Department of Transportation; it is proposed to be built through the heart of the eastern half of McIntire Park, thus connecting the southern terminus of the Meadow Creek Parkway at Melbourne Road with the Rt. 250 Bypass at McIntire Road.

29. However, as currently configured, the proposed McIntire Road Extended project does not extend south to the Rt. 250 Bypass. Rather, it terminates at a point 775 feet north of the Route 250 Bypass.

30. A July 16, 2009 letter from J. Robert Hume III, Chief of the Regulatory Branch for the U.S. Army Corps’ of Engineers Norfolk District, stated: “We have concluded that the project plans we are currently reviewing do not show a terminus at the southern end of McIntire Road [Extended]...”.

31. The same letter stated that the Army Corps would suspend its review of the McIntire Road Extended project and that “In order for us to continue our evaluation of the proposed McIntire Road Extension, the work must be a single and complete project with logical termini.”

32. This proposed project has yet to receive the necessary approvals from the City of Charlottesville, the Army Corps of Engineers and other regulatory agencies.

33. The McIntire Road Extended project has yet to complete the federal/state/local review required by the National Historic Preservation Act.

34. The southern segment of this long-standing proposal is the interchange project ith which this lawsuit is chiefly concerned. The Project is the only one of the three segments for which federal funds will be used in its construction.

35. The Project is now referred to as an “interchange” improvement. But, as discussed below, it would be much more than that.

FHWA Selects Alternative G-1, Rejects Avoidance Alternative 2

36. The FHWA, having nominally reduced its involvement in the larger highway development scheme to just the Project, released its Final Section 4(f) Evaluation on October 29, 2010, to document its claimed compliance with the requirements of §4(f) regarding the Project. In the Final Section 4(f) Evaluation, the FHWA revealed its selection of Alternative G1 as the best and final plan.

37. As described therein, the Project has the following elements: (1) the reconstruction and widening of the Rt. 250 Bypass for approximately .4 miles, along with associated ramps, (2) the reconstruction and widening of the northern end of McIntire Road for approximately 0.2 miles, along with associated ramps, and (3) the construction of 775 feet of new roadway, north from the intersection into McIntire Park. The Project is depicted on page 2 of the FHWA’s Final Section 4(f) Evaluation as follows:

38. The Final Section 4(f) Evaluation assumes that the middle segment of the larger project – the so-called “McIntire Road Extended” – will be completed. See id. at § 2.2.4, p. 6.

39. However, this assumption is incorrect. The McIntire Road Extended project has not received the necessary government approvals (federal, City and state), and may not be approved.

40. The FHWA’s arbitrary and capricious assumption regarding the completion status of McIntire Road Extended profoundly undermines and, indeed, invalidates the agency’s conclusions as to the utility, and proper endpoints of, the Project.

41. The Final Section 4(f) Evaluation assumes that if and when the McIntire Road Extended is constructed, it will extend south to terminate at the Rt. 250 Bypass.

42. However, as explained above, the current plans for the McIntire Road Extended call for it to terminate not at the Rt. 250 Bypass but at a point 775 feet north of the Rt. 250 Bypass.

43. In the Final Section 4(f) Evaluation, the FHWA considered and rejected three “Avoidance Alternatives.” See Final Section 4(f) Evaluation at pp. 20-24. Among these is Avoidance Alternative 2, which called for construction of 24 lanes of new road surface (counting all approaches).

44. Avoidance Alternative 2 differed from that which was finally selected – “Alternative G1" – chiefly in that it did not propose to build the 775-foot spur north into McIntire Park.

45. Avoidance Alternative 2 was rejected by the FHWA, in part because the proposed 24 lanes associated with that alternative were found insufficient to meet the official “purpose and need” for the proposed Interchange; 29 lanes would be necessary, according to the FHWA. Id. at 22.

46. Avoidance Alternative 2 was also rejected because it would allegedly not meet the requirements of the associated “Congressional earmark,” though those requirements were not described by the FHWA.

47. On October 6, 2009, FHWA released its environmental assessment (“EA”) for the Project. The EA, like the Final Section 4(f) Evaluation, rejected from detailed consideration the alternative of improving the Rt. 250 Bypass/McIntire Road intersection without building a highway spur north into McIntire Park . See EA at § 2.2.3, p. 7. No justification for this decision was provided within the EA.

CLAIMS FOR RELIEF
COUNT I
(Violation of the Department of Transportation Act)
48. The contents of the foregoing paragraphs are incorporated by reference.

49. Section 4(f) of the Department of Transportation Act of 1966 prohibits federal approval or funding of a transportation project that requires “the use of publicly owned land of a public park, recreation area, or . . . land of an historic site of national, State, or local significance,” unless (1) “no prudent and feasible alternative” exists.... 49 U.S.C. § 303(c).

50. However, in the Final Section 4(f) Evaluation, the FHWA illegally rejected one or more “feasible and prudent” alternative project designs that would have dramatically reduced or entirely eliminated the taking of parkland and land of historic sites.

51. Section 4(f) also requires that the FHWA must conduct “all possible planning to minimize harm” to protected property. In the design and selection of Alternative G1, the FHWA violated that statutory requirement.

52. The conclusions of the Final Section 4(f) Evaluation are based on faulty assumptions regarding the future status and likely alignment of the McIntire Road Extended, and are therefore invalid as well as arbitrary and capricious within the meaning of the APA.

COUNT II
(Violation of the National Environmental Policy Act)
53. The contents of the foregoing paragraphs are incorporated by reference.

54. An environmental assessment must discuss and evaluate all reasonable alternative means of achieving the goals of a proposed federal action. However, the EA prepared by the FHWA violated NEPA because it failed to consider alternative alignments for the Project that would have taken little or no parkland and/or caused less harm to historic resources.

55. The conclusions of the EA are based on faulty assumptions regarding the future status and likely alignment of the McIntire Road Extended, and are therefore invalid as well as arbitrary and capricious within the meaning of the APA.

56. The scope of the environmental review presented within the EA is illegally truncated. Because the Project is inextricably intertwined, in terms of both traffic engineering and environmental impacts, with the McIntire Road Extended and the Meadow Creek Parkway, federal law required the FHWA to identify and evaluate the environmental harms (including indirect harms and cumulative impacts) that will foreseeably be caused by the three projects when viewed as a whole.

COUNT III
(Violation of the National Environmental Policy Act)
57. The contents of the foregoing paragraphs are incorporated by reference.

58. NEPA requires that all federal agencies prepare an EIS for all “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C) .

59. The environmental impacts of the Project exceed the statutory threshold of “significance,” thus triggering the duty to prepare an EIS.

60. The FHWA’s failure to prepare an EIS for the Project thus violated NEPA.

PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request this Court to provide the following relief:

a. A declaration that FHWA has violated the requirements of §4(f) of the Department of Transportation Act by approving the Project;

b. A declaration that FHWA has violated the requirements of NEPA by approving the Project on the basis of an EA of inadequate scope;

c. A declaration that FHWA has violated the requirements of NEPA by failing to prepare an EIS;

d. An order vacating FHWA’s Final Section 4(f) Evaluation and EA;

e. Injunctive relief barring FHWA from implementing any aspect of the Final §4(f) Evaluation or EA, or transferring federal funds for the Project, unless and until the violations of law described above are remedied;

f. An order that Plaintiffs may recover their reasonable litigation expenses (including expert witness and attorney fees) pursuant to the the Equal Access to Justice Act and/or other applicable provisions of law; and

g. Such other relief as the Court deems just and proper.

Respectfully submitted this __22__ day of February, 2011.

James B. Dougherty, Esq.
709 3rd St. S.W.
Washington, D.C. 20024
D.C. Bar No. 939538
Tel: 202-488-1140
Email: JimDougherty@aol.com

Attorney for Plaintiffs
(Application for admission pro hac vice pending)

____[signature]____
James D. Brown, Esq.
Law Office of James D. Brown
P.O. Box 2921
Charlottesville VA 22902
Va. Bar. No. 81225
Tel.: 434-218-0891
Email: jd@lawofficejdb.com

Attorney for Plaintiffs

Will the Charlottesville Downtown Mall get more security cameras?

2011-02-16T16:51:00.000-08:00

I am surprised that the Charlottesville downtown business owners are contemplating installing "vast network of security cameras" to keep their customers safe. The Daily Progress ran a Brandon Shulleeta story under the headline "Security cameras for Downtown Mall?" on February 11, 2011 reporting that a group of downtown business owners are hoping to install these cameras in the next few months.

I think of the Downtown Mall as a very safe area to be and don't hesitate to go there just about any time of day or night. I know there are cameras on the mall, but have no idea how many. And in the Shulleeta article, Bob Stroh is quoted saying "I would challenge a customer or anybody who is going out to shop or eat or use any sort of services to find a place where he’s not on camera. I can guarantee you Fashion Square has endless number of cameras, Barracks Road Shopping Center has endless number of cameras — any place you go. If you’re in public, you’re on camera. … To not do that is to open up yourself to liability. You have to provide a safe place to shop and provide services." But if that is the case, what good will additional cameras do? And if the cost of adding this network of cameras is going to be expensive, I would expect that shoppers will be paying more for items on the mall to cover those costs.

Perhaps the downtown business owners will tell us how many so-called security cameras are currently operating on the mall and let us know if in fact we are already on camera throughout the public areas on the mall. Not only am I interested in knowing how the images recorded on the proposed cameras will be used, but I am now curious about how the images of the currently installed cameras are being used.

Any chance the business owners will share this information with us? I asked Bob Stroh if he know how many cameras are on the mall now and he said to me that he didn't know. Perhaps we have to ask each business and property owner individually to even have a chance of knowing what the camera coverage on the mall is now or might be in the near future.

Daily Progress editorial on McIntire Road Extended wrong on the facts.

2010-11-18T14:12:00.000-08:00

The Charlottesville Daily Progress editorial on Nov. 17, 2010 cheered city council action to sign a Memorandum of Agreement concerning preservation of historic resources impacted by the McIntire Road Extended project that is proposed to run through McIntire Park. Below is my comment submitted to the online posting of this editorial.

I was surprised to discover that the editorial staff is unaware of some basic facts relating to the McIntire Road Extended project.

The draft Memorandum of Agreement (MOA) approved by city council on November 15, 2010 requires several other official signatures for the document to be finalized including the Corps of Engineers, the Virginia State Historic Preservation Officer, the Advisory Council on Historic Preservation, and the Virginia Dept. of Transportation. Council's approval is necessary for this agreement to be finalized, but all of these agencies must agree before the document is finalized.

The first draft of the MOA was distributed by the U.S. Army Corps of Engineers for comment on August 27, 2009. Stating that the MOA was approved in 2006 in the editorial is a gross error.

I am not sure what document was approved by a 3-2 vote of council in 2006. I recommend that the Daily Progress editorial staff review their primary materials and get their facts straight. I look forward to seeing another editorial on the subject of the McIntire Road Extended after they do a bit more homework on the process and what has or has not been approved to date.

Obama Mosaic taken from Route 250 Bypass on Oct 29 after Obama visit to Charlottesville

2010-10-31T10:22:00.000-07:00

I learned yesterday that the Obama Mosaic that has been mounted on a heavy-duty wooden sign on Route 250 Bypass was removed sometime Friday night or early Saturday morning. Some unknown individual sawed through the 4"X4" posts and absconded with the sign. It is unknown if the sign was stolen for its artistic value, or by someone who is opposed to anything Obama. Simply put, this act is a crime and theft and/or destruction of private property is not something that we should tolerate in Charlottesville.

Local radio host Rob Schilling posted a comment about the Obama sign being removed on Oct 07, 2010 claiming a variety of political reasons for removal of the Obama sign. Schilling was totally wrong in his assessment. In fact, the Obama sign suffered from being exposed to sun, snow, salt, etc. and the adhesive backing used in constructing the mosaic sign failed. The sign was in my possession until I did the necessary repairs to the mosaic I created back in 2008. The sign was remounted on Route 250 Bypass earlier this month when the restoration was completed.

I realize that Rob Schilling is in the entertainment business and not necessarily in the business of providing factual material for consideration by his listeners. But had he done a bit of fact checking, he could easily have discovered the facts surrounding the temporary removal of the Obama Mosaic. Perhaps there is more entertainment value for listeners and better ratings for the Rob Schilling Show to present wild speculation rather than well researched information.

In a Schilling Show blog of Oct. 7, it is stated that "An inspection of the site yielded no evidence of vandalism or destruction; no shards of smashed ceramic were detected." But, now there is clear evidence of vandalism and destruction of the sign. I encourage Rob Schilling to discuss this vandalism on his show and post another blog entry about the Obama sign. Although I am not a regular listener of his show, I would gladly tune in to hear him condemn vandalism and destruction of this sign as an unacceptable and illegal act in our community.

I am sending a copy of this blog posting to the Schilling Show and I will encourage that Rob Schilling present a clear position on freedom of expression on private property and if he supports or opposes the removal of the Obama mosaic from private property.

-- Peter Kleeman

FHWA publishes Finding of No Significant Impact for Route 250 Bypass Interchange at McIntire Road - CPMP considers legal action.

2010-10-20T14:35:00.000-07:00

The Federal Highway Administration has published a Finding of No Significant Impact for the Route 250 Bypass Interchange at McIntire Road in the October 13, 2010 edition of the Federal Register.

This posting is given below with links to many of the documents, laws, etc. referenced in the posting. I added these links so that you can browse some of the documents, laws, etc. of interest to you.

The Coalition to Preserve McIntire Park (CPMP) is currently reviewing the Environmental Assessment, the Final Section 4(f) Evaluation for compliance with the National Environmental Policy Act, Section 4(f) of the Department of Transportation Act of 1966, and Section 106 of the National Historic Preservation Act. CPMP is working with its attorney to determine if legal action is desirable to preserve McIntire Park.

Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Notices, pp. 62919-20

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

Notice of Final Federal Agency Actions on the Route 250 Bypass Interchange at McIntire Road Project in Virginia

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of limitation on claims for judicial review of actions by FHWA.

SUMMARY: This notice announces actions taken by the FHWA that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to the Route 250 Bypass Interchange at McIntire Road project in the City of Charlottesville, Virginia. Those actions grant licenses, permits, and approvals for the project.

DATES: By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the project will be barred unless the claim is filed on or before April 11, 2011. Notwithstanding any other provision of law, a claim arising under Federal law seeking judicial review of a permit, license, or approval issued by a Federal agency for a highway or public transportation capital project shall be barred unless it is filed within 180 days after publication of a notice in the Federal Register announcing that the permit, license, or approval is final pursuant to the law under which the agency action is taken, unless a shorter time is specified in the Federal law pursuant to which judicial review is allowed.

FOR FURTHER INFORMATION CONTACT: Mr. John Simkins, Senior Environmental Specialist, Federal Highway Administration, 400 North 8th Street, Richmond, Virginia 23219; telephone: (804) 775–3342; e-mail: John.Simkins@dot.gov. The FHWA Virginia Division Office’s normal business hours are 7 a.m. to 5 p.m. (eastern time). For the City of Charlottesville (the project sponsor): Ms. Angela Tucker, Development Services Manager, P.O. Box 911, Charlottesville, Virginia 22902; telephone: (434) 970–3993; e-mail: tuckera@charlottesville.org. The City of Charlottesville’s normal business hours are 8 a.m. to 5 p.m. (eastern time).

SUPPLEMENTARY INFORMATION: Notice is hereby given that FHWA has taken final agency actions subject to 23 U.S.C. 139(l)(1) by issuing licenses, permits, and approvals for the following project in the State of Virginia: Route 250 Bypass Interchange at McIntire Road. The project would involve construction of a grade-separated interchange at the existing intersection of Route 250 Bypass and McIntire Road. The project would reduce traffic congestion and improve community mobility. The actions taken by FHWA, and the laws under which such actions were taken, are described in the Revised Environmental Assessment, the letter finalizing the Environmental Assessment process and requesting a Finding of No Significant Impact (FONSI), the FONSI that was issued on September 29, 2010, the Final Section 4(f) Evaluation that was approved on September 29, 2010, and in other documents in the FHWA project records. The Revised Environmental Assessment, the letter finalizing the Environmental Assessment process and requesting a FONSI, the FONSI, and the Final Section 4(f) Evaluation can be viewed on the project’s internet Web site at http://www.250interchange.org. These documents and other project records are also available by contacting FHWA or the City of Charlottesville at the phone numbers and addresses provided above.

This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:

1. General: National Environmental Policy Act (NEPA) [42 U.S.C. 4321–4351]; Federal-Aid Highway Act (FAHA) [23 U.S.C. 109 and 23 U.S.C. 128].

2. Air: Clean Air Act [42 U.S.C. 7401–7671(q)].

3. Land: Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303].

4. Wildlife: Endangered Species Act [16 U.S.C. 1531–1544 and Section 1536].

5. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended [16 U.S.C. 470(f) et seq.].

6. Social and Economic: Farmland Protection Policy Act [7 U.S.C. 4201–4209].

(Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.)

Authority: 23 U.S.C 139(l)(1).
Issued on: October 6, 2010.
John Simkins,

Senior Environmental Specialist.

[FR Doc. 2010–25697 Filed 10–12–10; 8:45 am]
BILLING CODE 4910–RY–P

Can VDOT really open the Meadow Creek Parkway?

2010-09-19T12:35:00.000-07:00

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.

Sincerely,
Peter Kleeman

Back from fun in the sun at Virginia Beach

2010-09-13T12:47:00.001-07:00

I just spent a few very fun days in Virginia Beach at the Seaside Garden Hotel. Here is the picture of the hotel from their website. I was staying in room 452 and I believe this is the best room for ocean views in the area and at a very modest off-season price. The room is the one in the upper right corner of the photo (with south- and east-facing windows). You get a terrific view of the sunrise through the east-facing windows (and from the private balcony). You can also view the shoreline and boardwalk from about the fishing pier (14th street) to the northern end of the boardwalk from the balcony. What a treat.

The water is a very comfortable temperature now, too. So, if you are in need of a few days at the beach, check out the Seaside Garden Hotel. Rates go down even more in October. Perhaps I will spend another few days on the beach then.

Tom Perriello speaks at Jefferson Area Tea Party meeting

2010-08-27T11:16:00.000-07:00

photo: Daily Progress

I attended the Jefferson Area Tea Party meeting last night at Arby's - Forest Lakes to see how the interaction went between Tom Perriello and local Tea Party members. Little did I know that I would appear in the photo on the front page of the Aug. 27, 2010 Daily Progress (see photo below). I arrived one hour early to be sure to get in after being informed by Tom Slonaker - owner of the Arby's store - that there is limited seating and no more the 120 people - the fire code limit - would be allowed to be present for the meeting. As it turned out, I could have arrived anytime and been able to get in.

I enjoyed chatting with several early arriving Tea Party members and felt welcomed a non-member of the Tea Party by some, and not welcomed by others. I bought an Arby's Sandwitch and a drink and waited for the meeting to begin and for Tom Perriello to arrive for his 6:30 pm presentation and Q&A period.

photo: Daily Progress

During the Tom Perriello interaction, several of the members present expressed a high degree of anger and frustration in their questions of Tom Perriello's voting record, position on displaying signs at his town hall meetings, and statements he has made. Tom was quite impressive in answering these questions in a clear and understandable way. Clearly, not all in the room agreed with his answers, but the audience did allow him to speak and answer without any significant interference.

I was glad I went to this event. I hope I can discuss the nature of this interaction between Tom Perriello and the Tea Party members present in one of my TV-19 Political Monday segments I do with Joe Thomas (a Tea Party member himself) at 6:45 pm on Charlottesville TV-19 (WCAV) every Monday.

Perhaps I am a political optimist, but I believe Tom may have opened the minds of some in the room to the fact that he is working to improve the prospects of most of the people living in the Virginia 5th Congressional District and in fact agrees with and works to pass bills supported my many of the Tea Party members.

I continue to be impressed by Tom Perriello's ability to respond directly and honestly to questions that are asked of him by some of his most vigorous opponents.

I believe Tom Perriello has done an excellent job representing the 5th district, and I will be supporting him in his campaign to continue as our congressman in the upcoming election.

My Week on the Clearwater

2010-06-23T09:37:00.000-07:00

I have just finished a week of sailing, educating, fishing (with a net), singing, and more on-board the Clearwater. I boarded in Beacon NY on June 12, and left the boat at Croton-on-Hudson NY on June 18. Here are a few of my photos of my adventure.

Captain Nick uses a block and tackle to handle the tiller while most of the crew were delivering the education program and not available for tiller duty.

The tiller has this bigger than life-size fist carved into it. It is great to be working the tiller and holding onto this fist. In light wind, one person can handle the tiller, but when the wind is strong, several people are needed to steer.

Shade was hard to come by. Here is a row of crew sitting along the shade made by the boom. We were simply drifting in the middle of the Hudson River during lunch in the hot sun. The sails were down and we were preparing to dock the boat in Croton Point Park, NY where the Great Hudson River Revival festival was being held.

Pete Seeger, one of the primary advocates for cleaning up the Hudson River in the 1960's and one of the Clearwater founders signs autographs after singing at the Strawberry Festival in Beacon NY.

Here I am in my rain slicker during the Public Sail of Beacon NY. This was the first sail of about 12 sails we did during the week. Fortunately, this was the only sail I needed to use foul-weather gear during the week.

Captain Nick teaches two high-school students to handle the tiller. In high wind conditions, it may require four or more people to handle the force on the tiller.

The Mystic Whaler sails near Clearwater. Both Captains were enjoying the opportunity to compete with each other and get the most performance from their boats. Although they were not racing, they seemed to enjoy forcing the other boat to tack and demonstrating their ability to head closest into the wind.

The Mystic Whaler, a sister ship of Clearwater sails nearby of Croton Point. Both Clearwater and the Mystic Whaler were part of the Clearwater Festival that was held at Croton Point Park on June 19-20. This is a major annual music festival that is put on to support the Clearwater environmental mission.

Education Intern Laura teaches Hudson River Valley History to a group of students in the main cabin. My bunk was in the stern just off the main cabin. Twelve people had bunks in or just off the main cabin. Pretty close living, but fun for a week. Some of the permanent crew call their bunk 'home'.

Education Intern Laura teaches a group of students from a school in Harlem how to read nautical charts at the Navigation Station.

Two of the volunteer crew members (Lane and Beth) doing their dish-washing chores. Everyone including the captain, the crew, and volunteers had chores to do. A great experience in group living.

The fish, crabs, etc. are being removed from the Otter Net and put into what was called the "Fish Ambulance" before being sorted into various fish tanks at the "Life Station"

Here is a shot of dinner in the main cabin. About 16 people comprised the on-board staff for the week. Mandy, the cook, prepared three excellent meals a day. It was crowded if everyone was eating in the main cabin - but on most days the weather was fine for eating on-deck.

Deck hand, Chelsea prepares the Otter Net for tossing into the Hudson. During the week, we caught shrimp, crabs, Hog-Chokers, Perch, Flounder, and some other sea critters. These all get discussed in the "Life Station" during the education sails.

Deck Hand, Chelsea, sings the student written song (done to the tune of "This Land is Your Land"). The song contained verses about arithmetic, hair gel, and Jamaica, in addition to verses on sailing.

Permanent crew member, Chelsea, works with students in writing a song about sailing on the Clearwater.

Beth, one of the volunteer crew members, shows a crab caught in the fishing net to a group of students at the "Life Station".

This is a photo during a "Public Sail" at the Strawberry Festival (June 12, 2010) aboard Clearwater. I am standing about mid-ship looking toward the stern. The Clearwater is about 106 feet in length.

Captain Nick Rogers teaches a group of fifth grade students to sail Clearwater using the tiller during one of the several education sails during the week.

Yes, you too can be a Clearwater Volunteer and spend a week on-board Clearwater. Check out this opportunity at clearwater.org where you can become a member and submit an application to be a volunteer. Clearwater sails primarily in the Hudson River Valley south of Albany starting in April and ending in October of each year.

Political Monday clips available online

2010-05-25T10:28:00.000-07:00

If you are interested in seeing Political Monday TV clips, Joe Thomas (my Political Monday partner) posts the shows on his WCHV Radio Show website. If you are interested, check them out here (http://wchv.com/Joe-Thomas-on-CBS-19/4022311).

Joe has links to a large archive of shows so you can view many of our previous shows. Political Mondays with Peter Kleeman and Joe Thomas has been a weekly show at 6:45 pm on TV-19 since last July. That is about forty shows.

I invite you to tune in to hear our comments on political issues of the day. The 50-year water plan was yesterday's topic and we will likely be addressing the Republican Primary for the Fifth District U.S. Congressional Seat next Monday.

Photo Source: Newsplex.com (From left to right: Peter Kleeman, Dan Schutte, Joe Thomas)

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

2010-04-23T12:14:00.001-07:00

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

2010-04-21T08:00:00.000-07:00

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

2010-04-12T07:53:00.000-07:00

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

2010-04-11T12:47:00.000-07:00

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

Charlottesville Regional Chamber of Commerce expresses Grave Disappointment and Concern regarding Meadowcreek Parkway project

2010-03-24T10:22:00.001-07:00

The Charlottesville Regional Chamber of Commerce distributed the press release (below) expressing its "'GRAVE DISAPPOINTMENT AND CONCERN' TO CHARLOTTESVILLE MAYOR AND CITY COUNCIL OVER DIRECTION WITH “GREAT POTENTIAL TO DAMAGE” KEY ROADWAY PROJECTS." A copy of a letter sent to Charlottesville Mayor Dave Norris is attached.

I am a bit surprised that the Chamber is "concerned that Council is placing the City Attorney in the extremely difficult position of meeting with project opponents known to be preparing a suit to stop the project altogether, with an apparent assignment to assist those citizens with procedural elements of their case." I am curious if the Chamber contacted the city attorney on this matter prior to issuing this release. I attended the city council meeting where council asked the city attorney to meet with members of the Coalition to Preserve McIntire Park (CPMP) to ensure that all relevant issues of concern to the city and CPMP are included in a draft resolution for council consideration. It is well understood by CPMP members that the city attorney cannot provide legal advice to the coalition, and we have no intention to ask for legal advice. I have had conversations regarding legal issues regarding city actions in the past and know that our city attorney is well aware of his responsibilities as council to city council.

I am also disappointed that the Chamber appears to oppose consideration of all relevant federal, state, and local laws, regulations, ordinances, etc. prior to taking actions that may irreparably damage McIntire Park before legitimate concerns of parkland protection, historic resource preservation and federal transportation regulations are fully considered.

I requested during today's Charlottesville-Albemarle Metropolitan Planning Organization (MPO) meeting that it - as the forum for consideration of regional transportation issues - host a community discussion of the true costs and benefits of the proposed project to ensure that the community decisions relating to this project are based on a comprehensive set of facts rather than isolated bits of information or opinion provided by a broad range of project stakeholders. The MPO members were not interested in serving as a forum for clarifying issues surrounding the project and moved on to other matters on their agenda.

To learn more about the project please come to C'ville Coffee on Harris Road (near the skate park) where CPMP will be holding a FUNdraiser and be providing information about their project concerns. The FUNdraiser is from 2-4 pm on Sunday March 28 at C'ville Coffee. There will be musical entertainment, comedy, and information provided. Tickets are $15 ($5 for under 12 year olds) . Come and enjoy the event and learn a bit more about how the Meadowcreek Parkway project will impact Charlottesville and McIntire Park. Check the bulletin boards around town for event details.

Chamber press release and letter to Mayor Norris follow:

“… 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 P. O’Brien 434.295.3141

CHAMBER OF COMMERCE EXPRESSES “GRAVE DISAPPOINTMENT AND CONCERN” TO CHARLOTTESVILLE MAYOR AND CITY COUNCIL OVER DIRECTION WITH “GREAT POTENTIAL TO DAMAGE” KEY ROADWAY PROJECTS

(Charlottesville, Virginia – March 24) The Charlottesville Regional Chamber of Commerce released a letter today sent to the Charlottesville City Council expressing the area’s leading business organization’s “grave disappointment and concern” over recent City direction about the McIntire Road Extended project – a key project needed to provide vehicular access into Downtown Charlottesville.

The March 22^nd letter to Mayor David Norris and Charlottesville City Counselors stated, “Our Charlottesville Regional Chamber of Commerce expresses our grave disappointment and concern about recent actions on behalf of the City of Charlottesville which appear to greatly compromise the City’s and Commonwealth of Virginia’s legal standing regarding the McIntire Road Extended Project, and bringing into serious jeopardy that vital project and many other projects of benefit to the City.”

“As you know,” the letter continued, “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.”

A copy of the Chamber letter to the City is attached.

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, today the Chamber has 1,000 member enterprises. Chamber member enterprises employ more than 45,000 men and women in the Greater Charlottesville region, representing an estimated total payroll of more than $1.3 billion a year.

###

3.24.10 – 10

Attachment: March 22, 2010 Chamber letter to Charlottesville Mayor & City Council

“… 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

March 22, 2010

RE: McIntire Road Extended Project

Dear Mayor Norris and Honorable City Councilors:

Our Charlottesville Regional Chamber of Commerce expresses our grave disappointment and concern about recent actions on behalf of the City of Charlottesville which appear to greatly compromise the City’s and Commonwealth of Virginia’s legal standing regarding the McIntire Road Extended Project, and bringing into serious jeopardy that vital project and many other projects of benefit to the City.

As you know, 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.

Recent informal direction by City Council, apparently reversing more than forty years of City policy approved by numerous City Councils, politically linking two independent projects with separate and distinct functional utility, hold great potential to damage both of these projects’ prospects. This direction effectively halts progress on the McIntire Road Extended project just as the project is gaining its last needed permit, and at the 11-th hour of the awarding of a construction bid with very favorable pricing to the City’s and Virginia’s taxpayers. We are concerned that the impact of losing the $2 million benefit of these favorable construction bids was not treated more seriously. Clearly, if half or a full construction season is lost, it would be reasonable to assume project costs – taxpayer costs – will increase significantly.

Our Chamber is even more concerned that Council is placing the City Attorney in the extremely difficult position of meeting with project opponents known to be preparing a suit to stop the project altogether, with an apparent assignment to assist those citizens with procedural elements of their case. The City Attorney, by oath and public trust, represents the interests of the City – including advancing the McIntire Road Extended project, by repeated direction of City Council. Our Chamber respects Mayor Norris’ and others long-standing, firmly-held opposition to these projects. However, City Council has collectively voted to approve and forward this project on a number of occasions, and the public deserves to know that all Councilors, regardless of their personal opinion on a particular issue or project, will forward the official decisions of the Council, or, at a minimum, at least not interfere with such decisions. This is the basis of the public's trust in our democratic system.

– 2 –

As you know, the Commonwealth of Virginia has invested millions of dollars in the McIntire Road Extended project in reliance on the City Council's official actions to approve it. Should the City choose to maintain this highly inadvisable path and cause the project to not be constructed, it is very likely that the Commonwealth, in its fiduciary role as steward of extremely limited transportation funds, would pursue recovery from the City of those funds. Furthermore, it would make it extremely difficult for the City to ever obtain state transportation dollars in the future, given that funds will continue to be at record low levels for the foreseeable future, and the Commonwealth will likely be more inclined to invest those scarce transportation dollars in localities with a more reliable track-record of partnership. Other communities within the Commonwealth gladly would make use of funding Charlottesville cannot advance.

We are further concerned that these recent reversals may only further exacerbate already-frayed tensions between the City and Albemarle County. Our citizens and business enterprises want our two localities to work together for the common good of our larger community at all times, but especially when cost-savings can be achieved as a result of such cooperation. Albemarle County has invested millions of dollars in their project, and the City should see its project through as well since it has voted to officially approve the project.

Again, our Chamber urges the Charlottesville City Council to proceed with construction of the McIntire Extended project and final planning stages of the federal US250 – McIntire Road Intersection project – separately and independently, as these two projects clearly are.

We would greatly appreciate the opportunity to meet and discuss this very important matter with you.

Thank you.

Sincerely,

X / W. Rod Gentry

W. Rod Gentry

Chairman of the Board of Directors

X / Timothy Hulbert

Timothy Hulbert

President

X / Robert P Hodous

Robert P. Hodous, Esq.

First Vice Chairman of the Board of Directors

The Honorable David Norris and Honorable City Councilors

City of Charlottesville

Charlottesville City Hall

Charlottesville, Virginia 22902

cc: The Chamber Board of Directors

The Honorable Sean Connaughton, Virginia Secretary of Transportation

VDOT pushes to get McIntire Road Extended project underway.

2010-03-12T08:11:00.000-08:00

Brent Sprinkel, VDOT's preliminary engineering manager for the McIntire Road Extended project, sent the letter below to Charlottesville Mayor Dave Norris requesting that the city help VDOT get a construction contract signed with the low bidder before the end of March, 2010. But, VDOT is apparently not recognizing that the City of Charlottesville is not willing to approve an at-grade intersection of McIntire Road Extended with U.S. Route 250 Bypass at McIntire Road. The confusion appears to me to be VDOT's confusion, not the US Army Corps of Engineers.

Mayor Norris wrote a clarification letter to VDOT dated January 4, 2010 stating clearly that an at-grade intersection at Route 250 Bypass is not approved. The letter states the following:

"To clarify, the official position of the City of Charlottesville, as stated in a letter of 1/18/06 to VDOT (attached) is to only build the McIntire Road Extended with a grade separated interchange."

That is very clear to me. But, VDOT is still asking the City of Charlottesville to state something totally different. They ask that the city agree that:

"In the event that a grade-separated interchange is not built, an appropriately designed at-grade intersection constitutes an acceptable and realistic alternative."

VDOT is not asking for a clarification of some confusion, but asking the city to change or to misrepresent its official position on the intersection so that VDOT can possibly get the US Army Corps of Engineers permit necessary before signing a construction contract for the McIntire Road Extended project. The proposed construction contract will build McIntire Road Extended from Melbourne Road to a southern terminus 775 feet north of Route 250 Bypass. The Corps of Engineers has already stated that such a facility could not get a Corps of Engineers permit as it is not a complete road. I find VDOT's request to be totally inappropriate. The letter that VDOT drafted for the Mayor's consideration is given below.

There is a possibility that city council will consider a resolution relating to this issue at the March 15, 2010 city council meeting. I look forward to attending that meeting to witness the discussion on this matter by council.

Draft

Mr. Robert J. Hume
Chief, Regulatory Office
Norfolk District, U.S. Army Corps of Engineers
803 Front Street
Norfolk, VA 23510-1096

Dear Mr. Hume:

The purpose of this letter is to clarify the City's position on the McIntire Road Extended project presently under permit review by the Corps of Engineers and supplement our letter of January 4, 2010 to the Virginia Department of Transportation (VDOT). In doing so, the City wishes to provide you with a perspective on the desired transportation outcome that we wish to achieve.

The City of Charlottesville has worked with VDOT for nearly four decades to develop the McIntire Road Extended project. As early as 1975, City Council reserved right-of-way through McIntire Park for a road. From the late 1970s through the present, the City has continued to work with VDOT to develop and implement a project that provides a transportation connection through McIntire Park with a southern terminus at Route 250. While the design of the McIntire Road extended project has changed over time, especially with regard to reducing the number of lanes and including provisions for bicyclists and pedestrians, the concept of extending McIntire Road through McIntire Park, from Rt. 250 north to the Meadowcreek Parkway (now under construction) has been supported by every vote taken on the various portions of the project since the mid 1970s.

While the original plan for the road involved an at grade intersection, the City, in an effort to improve traffic flow sought, and in 2005 was able to obtain Federal funding specifically for the construction of a grade-separated interchange to connect the McIntire Road Extended project with Route 250. A grade-separated interchange at Route 250 is the City's preferred option and we are working closely with the Federal Highway Administration to complete preliminary engineering and an Environmental Assessment. This approach merely confirms the City's consistent position for almost 40 years that a complete transportation facility is constructed to connect the Meadowcreek Parkway to Route 250 through McIntire Park. In the event that a grade-separated interchange is not built, an appropriately designed at-grade intersection constitutes an acceptable and realistic alternative.

Sincerely,

Dave Norris
Mayor

Meadowcreek Parkway opponent makes arguements to panel of VA Supreme Court justices

2010-03-04T15:21:00.000-08:00

Check out the Charlottesville Tomorrow article to read the expanded version of the article that appeared in the Daily Progress on Tuesday March 2, 2010.

This article reports on the oral argument presented to a three-justice panel of the Virginia Supreme Court encouraging the court to hear an appeal related to Article VII - Section 9 of the Virginia Constitution and its application to transfer of right-of-way from Charlottesville to VDOT to construct the Meadow Creek Parkway.

Notice of the panel's decision is expected in late March 2010.

Image: The Supreme Court of Virginia