The Virginia Constitution and Meadow Creek Parkway

The local Charlottesville media have been reporting on the recent Charlottesville Circuit Court filings for a preliminary injunction and declaratory judgment regarding a part of the right-of-way acquired by VDOT from the City of Charlottesville. This blog is to clarify a bit about the bounds of the issue at hand. I hope this helps.

The only land transaction included in the filing is a portion of the land owned by the City of Charlottesville north of Melbourne Road. This land is the southernmost portion of the purple line in the map provided (from www.c-ville.com) The proposed Meadow Creek Parkway alignment runs about 600 yards north from Melbourne Road through this parcel of land and as noted in the title of the June 2, 2008 ordinance passed by a 3-2 vote by City Council. This ordinance 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" clearly granted more than 4 acres of this land in permanent easements. The deed filed on January 14, 2009 shows that the city received the sum of $43,120.00 for these permanent easements and some additional temporary construction easements. Many of the local media reports stated that this issue was about easements in McIntire Park that were granted as temporary easements only. But, the easements in McIntire Park are not considered in the filings and has likely confused the nature of the circuit court filing.

As I see this matter, the Virginia Constitution section entitled "Sale of property and granting of franchises by cities and towns" requires a three-fourths vote of council (at least 4 affirmative votes of Charlottesville City Council) - but council only had three affirmative votes. The entire section 9 is provided below so you can decide for yourself if council acted in compliance with the constitution. By removing all of the words in the first paragraph of this section that do not relate to this case the paragraph simplifies to the following:

No rights of a city in and to its parks, or other public places shall be sold except by an ordinance or resolution passed by a recorded affirmative vote of three-fourths of all members elected to the governing body.

A right to use this public land (a public place) was sold (for $43,120.00 as indicated in the deed) under an ordinance of council that did not achieve a recorded affirmative vote of three-fourths of the members (five) of the governing body. Isn't this a clear indication that the transfer of rights was not done in compliance with this section of the Virginia Constitution? I believe that is the case. I believe that this paragraph applies to any sale of rights - such as right-of-way - whether as a permanent or temporary easement can be sold without a recorded affirmative vote of three-fourths of all members elected to the governing body.

A similar streamlining of the second paragraph of section 9 yields the following:

No right of any kind to use any easement of any description in a manner not permitted to the general public shall be granted for a longer period than forty years, except for air rights together with easements for columns of support, which may be granted for a period not exceeding sixty years. Before granting any such privilege for a term in excess of five years, the city shall, after due advertisement, publicly receive bids therefor.

In my opinion, this paragraph applies to the use of temporary easements only in that the term permanent indicate no time limitation. Thus the sale of a permanent easements would be controlled exclusively by the first paragraph and not at all by the second paragraph.

I am not an attorney, but this constitutional section suggests to me that three affirmative votes of council is insufficient for this transfer of a right of permanent easement to meet the constitutional requirement.

To my knowledge, no court date for a hearing of this matter in the circuit court has yet been scheduled. I do look forward to hearing the decision as soon as possible. The land is being cleared and more damage to this land can happen every day without a preliminary injunction being granted. I expect the circuit court judge will agree with the formal filings in the case and void the deed as requested by the attorney for the Coalition to Preserve McIntire Park.

What do you think? Post a comment and share your thoughts and analysis.

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VA Constitution
Article VII - Local Government
Section 9. Sale of property and granting of franchises by cities and towns.

No rights of a city or town in and to its waterfront, wharf property, public landings, wharves, docks, streets, avenues, parks, bridges, or other public places, or its gas, water, or electric works shall be sold except by an ordinance or resolution passed by a recorded affirmative vote of three-fourths of all members elected to the governing body.

No franchise, lease, or right of any kind to use any such public property or any other public property or easement of any description in a manner not permitted to the general public shall be granted for a longer period than forty years, except for air rights together with easements for columns of support, which may be granted for a period not exceeding sixty years. Before granting any such franchise or privilege for a term in excess of five years, except for a trunk railway, the city or town shall, after due advertisement, publicly receive bids therefor. Such grant, and any contract in pursuance thereof, may provide that upon the termination of the grant, the plant as well as the property, if any, of the grantee in the streets, avenues, and other public places shall thereupon, without compensation to the grantee, or upon the payment of a fair valuation therefor, become the property of the said city or town; but the grantee shall be entitled to no payment by reason of the value of the franchise. Any such plant or property acquired by a city or town may be sold or leased or, unless prohibited by general law, maintained, controlled, and operated by such city or town. Every such grant shall specify the mode of determining any valuation therein provided for and shall make adequate provisions by way of forfeiture of the grant, or otherwise, to secure efficiency of public service at reasonable rates and the maintenance of the property in good order throughout the term of the grant.

Motion for Preliminary Injunction and Declaratory Judgements filed in Charlottesville Circuit Court to halt Parkway Construction

Below is a press release distributed by the Coalition to Preserve McIntire Park on February 25, 2008. As of this posting, I am unaware of any scheduled date for the motions to be considered by the Charlottesville Circuit Court. It is important to note that these motions only apply to land owned by the City of Charlottesville north of Melbourne Road. Links to online versions of the two motions are provided in the text of the press release. The relevant City Ordinance and the Deed that are key to these motions are also linked in the text of the motions.

The photo was taken this morning at the Melbourne Road end of the proposed Meadow Creek Parkway alignment on the city owned property that the legal motions claim was provided to VDOT by the City of Charlottesville as a combination of temporary and permanent easements and not in compliance with Article VII, section 9 of the Virginia Constitution. I invite you to read the linked material and decide for yourself whether the transfer of right-of-way to VDOT complies with requirements of the Virginia Constitution.

I will post information as I get it regarding these motions. Stay tuned.

Press Release: Coalition to Preserve McIntire Park files an injunction to stop construction of Meadow Creek Parkway.

Coalition to Preserve McIntire Park
For immediate release
February 25, 2009

Contacts:

John Cruickshank 434 973-0373
Peter Kleeman 434 296-6208
Stratton Salidis 434 882-1069

On February 24, 2009 an attorney representing the Coalition to Preserve McIntire Park (CPMP) filed two motions in the Circuit Court of the City of Charlottesville.

- The first is a motion for declaratory judgment requesting the court to declare the conveyance of land by the City of Charlottesville to VDOT unconstitutional because the transfer of land was not approved by a 3/4 vote of the City Council as required by Article VII Section 9 of the Virginia Constitution.

- The second is a motion for preliminary injunction to halt construction-related activities on land unlawfully conveyed to VDOT.

Attached to this email are the court documents for “Coalition to Preserve McIntire Park v. City of Charlottesville and Commonwealth Department of Transportation.”

The CPMP has made many efforts to convince VDOT and elected officials to abandon plans to build this unnecessary road that would cause serious environmental damage, increase traffic in downtown Charlottesville, and is not wanted by many area residents. We are determined to use all available state and federal laws to prevent the destruction of McIntire Park and protect the rights of citizens. Among those rights is the right to the quiet enjoyment of land donated in perpetuity to our city by Paul Goodloe McIntire for use as a park.

[Note: reformatted as online .html file. Format may differ from original]

CPMP sends letter to FHWA on McIntire Road Extended and Route 250 Bypass Environmental Concerns

The Virginia Department of Transportation (VDOT) is beginning work on the northernmost end of the Meadow Creek Parkway project. The Coalition to Preserve McIntire Park (CPMP) contends that VDOT has inappropriately segmented this project into three parts to avoid carrying-out environmental review of the project as a whole. There was a news story on this start of construction in The Hook some time ago showing the start of clearing the proposed construction area (and the source of this photo) but now VDOT is starting utility and other construction work near Rio Road.

Andrea C. Ferster, attorney for CPMP sent a letter (provided below) to the Federal Highway Administration (FHWA) identifying CPMP's concerns regarding avoiding environmental consideration and inappropriately segmenting the project. The letter contains a legal argument, but to help you understand what this all means I have reconstructed this letter with links to all of the referenced material that I could locate online. I invite you to read this letter and visit some of the court cases that make up the basis for the argument presented.

I have been involved in this project in one capacity or another since 1997 and have learned much about the way highway projects are planned in Virginia and elsewhere. As you can see some of the material referenced in the letter were responses to inquiries I made on the legalities of the project development process by FHWA. I have gotten such good exposure to the legal issues surrounding this (and other) highway projects that I am currently contemplating pursuing further formal legal education.

I invite you to explore this letter, the legal basis for the arguments made, and comment to this blog, Charlottesville City Council, Albemarle Board of Supervisors, VDOT, or FHWA as appropriate and participate in promoting a sustainable transportation future for our Charlottesville / Albemarle County community.

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ANDREA C. FERSTER
LAW OFFICES
2121 WARD COURT, N.W., 5TH FL.
WASHINGTON, D.C. 20037
__________
TEL.(202) 974-5142 FAX (202) 233-9257
AFERSTER@RAILTRAILS.ORG
WWW.ANDREAFERSTERLAW.COM

February 13, 2009

Mr. Roberto Fonseca-Martinez
Division Administrator
Federal Highway Administration -Virginia Division
400 N. Eighth Street
Richmond, VA 23240

Re: Route 250 Bypass Interchange and McIntire Road Extended

Dear Mr. Fonseca-Martinez:

These comments are submitted on behalf of the Coalition to Preserve McIntire Park concerning the Draft Environmental Assessment (“EA”)/Section 4(f) Evaluation circulated by the Federal Highway Administration (“FHWA”) and the Virginia Department of Transportation (VDOT) for the Route 250 Bypass Interchange at McIntire Road. In my opinion, the FHWA has unlawfully constrained the scope of the EA and Section 4(f) Evaluation by failing to evaluate McIntire Road Extended and the Interchange as part of a single, federalized project, in violation of both the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. and Section 4(f) of the Department of Transportation Act (“Section 4(f)).” 23 U.S.C. § 138; 49 U.S.C. § 303.

As you know, from its inception in the 1970s, the Meadow Creek Parkway has historically been developed as a single facility running from Rio Road, through the McIntire Park and golf course to the Route 250 Bypass, for which an Environmental Impact Statement (“EIS”) was contemplated. However, in 1997, VDOT decided to subdivide the Meadow Creek Parkway into separate “projects.” Funding for a new interchange at the Route 250 bypass was later earmarked by Congress as part of the 2005 transportation re-authorization funding act. As a result, the Meadow Creek Parkway is now characterized [a]s consisting of the following segments: (1) the federally-funded Route 250 Bypass Interchange at McIntire Road, including a 775-foot segment of a new highway --- McIntire Road Extended -- north of Route 250 Bypass; (2) McIntire Road Extended, a two-lane highway extending 2100 feet north from the end of the 775-foot segment of McIntire Road Extended to Melbourne Road; and the (3) Meadow Creek Parkway, from Melbourne Road to Rio Road. As segmented, only the Route 250 [Bypass] interchange, plus the 775-foot segment of McIntire Road Extended, is characterized as a major federal action, to which NEPA applies.

The scope of the Draft EA/Section 4(f) Evaluation for the Route 250 bypass interchange is confined to the impacts of the interchange itself. This document does not evaluate the impacts of or alternatives to the full McIntire Road Extended under either NEPA or Section 4(f). This is particularly troubling, since McIntire Road Extended will use 13 acres of land from McIntire Park and the golf course, both of which are resources protected by Section 4(f). As the EA for the Route 250 [Bypass] interchange itself acknowledges, “McIntire Road Extended will introduce features into the park that are incompatible with the qualities that make the resource historic, including one of McIntire Park’s contributing historic elements, the McIntire Park Golf Course, which will be altered by both projects. These two projects will result in a larger incremental impact on the historic resource than what has occurred from past development, and is thus considered a cumulative effect.” Route 250 Bypass Interchange at McIntire Road, EA, § 3.11.3, at 42. While the EA further acknowledges that cumulative impacts 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,” (id. § 3.11.3, at 45), the EA fails to evaluate whether or not there are any prudent and feasible alternatives to the construction of McIntire Road Extended under Section 4(f)’s stringent standard. [Note 1: Section 4(f) states that the Secretary of Transportation “shall not approve any program or project” which requires the “use” of land from a park, wildlife or waterfowl refuge, recreation area, or historic site, unless (1) there is no feasible and prudent alternative to the use of the site, and (2) the project incorporates all possible planning to minimize harm to the protected site. 23 U.S.C. § 138; 49 U.S.C. § 303.] Instead, the EA considers only a series of alternative design options for the interchange itself.

While NEPA and Section 4(f) are triggered only by major federal actions, such as funding, “[t]he absence of federal funding is not necessarily dispositive in determining whether a [transportation] project is imbued with a federal character.” Historic Preservation Guild of Bay View v. Burnley, 896 F.2d 985, 990 (6th Cir. 1989). Rather, “[i]n order to determine when a group of segments should be classified as a single project for purposes of federal law, a court must look to a multitude of factors, including the manner in which the roads were planned, their geographic locations, and the utility of each in the absence of the other.” Id. at 991 (citing River v. Richmond Metropolitan Authority, 359 F. Supp. 611, 635 (E.D. Va. 1973)). The FHWA’s regulations codify this standard by requiring that the action evaluated in any NEPA document “shall: (1) Connect logical termini and be of sufficient length to address environmental matters on a broad scope; (2) Have independent utility or independent significance, i.e. be usable and be a reasonable expenditure even if no additional transportation improvements in the area are made.” 23 C.F.R. § 771.111(f) (emphasis added)

In general, “courts should look to the nature and purpose of the project in determining which termini are logical.” Indian Lookout Alliance v. Volpe, 484 F.2d 11, 18-19 (8th Cir. 1973)). In the highway context, the courts have looked at whether the segments terminated at “crossroads, population centers, major traffic generators, or similar highway control elements.” Id. at 18. At a minimum, in order for a segment to possess logical termini, the terminus must be at a point where there is an opportunity for traffic to enter or exit. See, e.g., Patterson v. Exon, 415 F. Supp. 1276, 1283 (D. Neb. 1976).

Here, the preferred alternative for the proposed Route 250 Bypass interchange clearly does not have logical termini. The northern ramp of the interchange extends 775 feet north of the Route 250 bypass, and terminates in the middle of McIntire Park, without connecting to any existing roadway, crossroad, or traffic generators. Absent the planned construction of McIntire Road Extended in its entirety, there would be no need for the 775-foot piece of McIntire Road Extended, since this highway stub would end “literally in the middle of the woods.” Patterson v. Exon, 415 F. Supp. at 1283; see also Swain v. Brinegar, 542 F.2d 364, 270 (7th Cir. 1976) (Court held that a highway had been improperly segmented where “[t]he northern terminus ends in the country at no logical or major terminus.”).

Moreover, it is clear that the interchange as a whole, and most particularly the 775-foot stub of McIntire Road Extended, would not “be a reasonable expenditure even if no additional transportation improvements in the area are made.” 23 C.F.R. § 771.111(f). To the contrary, as the EA concedes, the current signalized, at-grade intersection at McIntire Road and the Route 250 Bypass currently operates at a satisfactory level of service for most traffic movements. EA, at 2. The EA makes no attempt to determine whether or not a grade-separated interchange would be needed at McIntire Road and the Route 250 Bypass purpose “even if no additional transportation improvements in the area are made.” 23 C.F.R. § 771.111(f). Instead, the need for the massively over-designed interchange depends almost entirely on the traffic volumes generated under “Future Conditions,” which are based on 2030 traffic projection for “the future intersection of the Route 250 Bypass, McIntire Road, and McIntire Road Extended.” EA, at 2. Clearly, there would be no need for the interchange --- and certainly no need for the massive interchange proposed here – but for the construction of McIntire Road Extended.

In determining whether a highway has been unlawfully segmented, the courts have looked at whether the segments were planned as a single project or whether the segments were "planned to be constructed if at all at different times in the future over a period of years." Save Barton Creek Ass'n, 950 F.2d at 1141; see Village of Los Ranchos de Albuquerque v. Barnhard (finding no segmentation where "the [federal and statefunded] projects are, at best, only peripherally related"); Historic Preservation Guild of Bay View v. Burnley, 896 F.2d at 990 (finding no unlawful segmentation where federally funded segment was built 25 years before state-funded segment). In determining whether such segmentation is unlawful, courts have also looked at whether the state and federal segments served different or similar purposes. See River v. Richmond Metropolitan Auth., 359 F. Supp. at 992 (federally funded road provided commuter access between residential areas west of Richmond, while the state-funded segment connected two highways and provided access to residential area north of the city); Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d at 441 ("projects were separately proposed to accomplish independent purposes").

Here, as noted above, the Route 250 Bypass interchange and McIntire Road Extended were and continue to be planned as a single facility. The EA’s insistence that “[t]he purpose and need of the proposed interchange project is independent of the purpose and need for the McIntire Road Extended” (EA, at 4) is completely belied by the EA itself, which demonstrates that the need for the interchange is predicated on the future traffic volumes that will be generated by construction of McIntire Road Extended. Indeed, the two projects are so wholly intertwined that, as the FHWA acknowledges, “VDOT and the City [of Charlottesville] intended to issue construction contracts for the McIntire Road Extension project and the Route 250 Bypass interchange project as closely together as project development activities.” Letter to Peter Kleeman from Mr. Fonseca-Martinez, FHWA (Sept. 4, 2008).

The FHWA’s claim that the Route 250 interchange is “independent” of McIntire Road Extended, and that the two projects are being simply constructed jointly “in order to minimize disruption to the environment, adjacent communities and the traveling public” (id.) cannot be squared with the record here. Rather, the opposite is true: the City of Charlottesville has made it clear that it will not move forward with construction of McIntire Road Extended unless the grade-separated Route 250 Bypass interchange is funded and advanced by the FHWA and VDOT.

Specifically, as early as 1999, the City made the construction of a grade-separated interchange at U.S. 250 Bypass an express condition of its support for McIntire Road Extended. See, e.g., Letter to Charles Rasnick, VDOT, from J. Blake Caravati, Mayor of Charlottesville (Dec. 11, 2000) (attached). Ultimately, the City approved the design for McIntire Road Extended only after the City determined that “it now appears that adequate funding will be available to fulfill the condition stated in paragraph 4 of Exhibit A, regarding the design and construction of a separate project at the intersection of U.S. Route 250, McIntire Road, and the Meadow Creek Parkway.” Design Public Hearing Approval Resolution (Jan. 17, 2006). Paragraph 4 of that document expressly stated that: “any final design [for McIntire Road Extended] has to include a grade-separated interchange,” to which VDOT responded “We remain committed to this project [i.e. the Route 250 interchange] as a necessary improvement to both the U.S. 250 Bypass and the Meadow Creek Parkway.” Letter from David E. Brown, Mayor of Charlottesville, to Mr. Greg Whirley, VDOT, at 2 (Jan. 18, 2006) (attached).

For that reason, there is no support for the FHWA’s bald assertion that McIntire Road Extended will be constructed regardless of whether the Route 250 interchange is constructed, and therefore the “no build” scenario should assume construction of McIntire Road Extended as a “predictable consequence” of no action alternative. Letter to Peter Kleeman from Mr. Fonseca-Martinez, FHWA (Nov. 4, 2008) (citing CEQ’s “Forty Most Asked Questions Concerning CEQ’s NEPA Regulations,” Question 3a, 46 Fed. Reg. 188026 (1981). There is absolutely no evidence that McIntire Road Extended will be constructed as a result of a decision by the FHWA not to fund the Route 250 bypass interchange. Rather, as noted above, the record shows that the two projects are so interdependent that neither can proceed without the other.

The FHWA cannot have it both ways: the purpose and need for the Route 250 bypass interchange project cannot be predicated on the planned construction of McIntire Road Extended-- a design that as a result encroaches substantially within McIntire Park – and at the same time have independent utility and logical termini “even if no additional transportation improvements in the area are made.” 23 C.F.R. § 771.111(f). The reality is that the massive interchange footprints for each of the alternatives evaluated in the EA– and significantly greater impacts on Section 4(f)-protected resources -- are designed in order to accommodate McIntire Road Extended. As a result, the only way for the FHWA and VDOT to take advantage of the “efficiencies” of jointly constructing these plainly interrelated projects is to consider the Route 250 interchange and McIntire Road Extended as part of a single, inter-related federal project, which must be evaluated in a single NEPA and Section 4(f) document.

Finally, there is strong evidence that the project was deliberately segmented in order to evade federal environmental laws. Despite the fact that Meadow Creek Parkway was originally (and continues to be) planned as a single facility, the FHWA deliberately “scaled back” the scope of the project considered to be the “federal action” so that “the potential significant adverse environmental impacts identified in the EIS and associated with the proposed project were eliminated.” Letter from Mr. Fonseca-Martinez, FHWA to the Mayor of Charlottesville (Dec. 22, 1997). Evidence that a project was deliberately segmented for the express purpose of evading federal environmental laws "will weigh very heavily in support of the project splitting theory." River v. Richmond Metropolitan Authority, 350 F. Supp. 611, 635 (E.D. Va. 1973). See also, Sierra Club v. Volpe, 351 F. Supp. 1002, 1007 (N.D. Ala. 1972) ("Waiver of federal aid . . . . at the last minute . . . should not be made a ground for disclaiming the federal nature of the project where it appears that the purpose is to avoid compliance with federal statutory environmental requirements); Save Barton Creek Ass’n, 950 F.2d at 1143-44 (“We recognize that if a state has segmented for the purpose of evading federal environmental requirements and without other valid justification, a holding of evasive violation would be justified”).

Accordingly, unless the FHWA takes immediate steps to ensure that the impacts of and alternatives to the Meadow Creek Parkway, including both the Route 250 Bypass interchange and McIntire Road Extended, are evaluated in a single NEPA document of an appropriate scope, the Coalition to Preserve McIntire Park intends to pursue all available legal remedies, including but not limited to litigation to enforce NEPA and Section 4(f).

Sincerely,

[Signature: Andrea C. Ferster]

Andrea C. Ferster,

Counsel for Coalition to Preserve McIntire Park

Enc.

[This is a version of the original letter formatted as an .html file including links to referenced documents and other supplemental material.]

VDOT is Pushing the Parkway Agenda

I was surprised to read the headline in Rachana Dixit's Oct. 16, 2008 Daily Progress entitled: Parkway plans pass another milestone. Apparently VDOT is eager to get this project moving in spite of the fact that the McIntire Road Extended and Route 250 Bypass Interchange at McIntire Road project are still in preliminary engineering and as I see it still wrought with potential project design problems, environmental compliance problems, funding considerations, and other potentially project delaying (or termination) requirements.

This action reminds me of the strategy National Football League teams use to avoid reconsideration of a controversial football play call. Teams will hurry to the line of scrimmage and try to get the next play in motion before the play is challenged by the opposing team. Sometimes it works - sometimes not. Unfortunately, we proponents of using our funds for better transportation alternatives can't simply throw a red flag onto the playing field to request a review.

In VDOT's action, they are hoping to maintain that the county project - Meadow Creek Parkway - is totally independent of the city project - McIntire Road Extended. I and others contend that it is essential to consider all three related projects (Meadow Creek Parkway, McIntire Road Extended, and the Route 250 Bypass at McIntire Road) together for environmental review purposes. It appears that even the United States Army Corps of Engineers (USACE) considers Meadow Creek Parkway and McIntire Road Extended to be one combined project for purposes of determining appropriateness of water quality permit applications for storm water discharge and stream impacting activities of those projects. In fact the USACE is just beginning the process of reviewing impacts of these projects on Nationally Register of Historic Places eligible properties prior to considering signing any required permits. Given that this Historic Property process (known as the Section 106 process) is supposed to be completed prior to selecting a final project design it appears that VDOT's advertisement for bids on a final project is a bit premature.

I do not know what VDOT's rationale for their most recent action is, but perhaps this is going to turn out to be our own local "October Surprise." I am ever optimistic our elected officials will realize that the financial and resource costs to construct this set of road projects is not consistent with our future needs and both Charlottesville and Albemarle will look to fund and construct better public transit solutions to meet our needs of the future - and not build these road projects that may not even have been good solutions to our problems of the past.

Note: Photo from Charlottesville Tomorrow.

I Recommend You Hike the Path of the Meadow Creek Parkway

Although I have been involved in issues surrounding the proposal to build a parkway through McIntire Park in Charlottesville and land in Albemarle County between Melbourne Road East of Charlottesville High School (CHS) athletic fields and Rio Road east of CATEC (Charlottesville Albemarle Technical Education Center) I had never explored the wooded area in Albemarle that will be the path of the roadway. So, I went on a brief hike with a friend along the Rivanna Trail from Melbourne Road to the point where the parkway would cross Meadow Creek and marveled at the size of some of the trees and beauty of the area just a short walk from the City/County line on Melbourne Road.

Here is a view across the roadway alignment. This area will be totally bulldozed to cut material (and the trees) from just behind the CHS baseball field and fill as far as 115 feet or so distance from the field to create a 2:1 slope and accommodating the Meadow Creek Parkway 10 to 20 feet above the current land elevation. It appears that every living thing in this 115 foot wide zone will be replace by grasses suitable for growing on these relatively steep slopes.


Below is a photograph of a particularly nice spot where the current Rivanna Trail travels along Meadow Creek a bit further north from the photo above. I definitely plan to visit this spot again on one of the hot summer days ahead where I expect the temperature will be dramatically lower than most everywhere else in Charlottesville.


And here is the double culvert that passes under the Norfolk & Southern Rail Line that accommodates Meadow Creek. A bridge is proposed to cross Meadow Creek about one hundred feet from where this photo was taken.


It was not possible to continue further north along the proposed parkway alignment without going through a working cattle farm. But, I highly recommend you find an opportunity to do the short hike along this section of the Rivanna Trail and see what will be lost if the Meadow Creek Parkway is constructed. The loss in tree cover alone will be very hard to replace in our region. I am not sure how we will ever meet our regional goal of expanding tree cover and meeting the challenges of climate change. Removing tree cover (that will sequester greenhouse gases) and replacing it with a parkway (that will increase emission of greenhouse gases) is not at all consistent with being the sustainable community we have committed to as a region.

Our transportation planners and government officials need to hear from you about this project - for or against. We will clearly be giving up significant resources to build this parkway. I don't see that the benefits (if any) that are projected from the parkway justify use of these resources and many millions of dollars in construction expenditure. Exactly what is the benefit of adding an additional 20,000 vehicles each day traveling this route and adding to the congestion already occurring where the parkway projects will meet Route 250 Bypass at McIntire Road. I am still looking for a simple cost-benefit justification of the parkway project. I do not know of one ever being provided for the public to review.

Route 250 Bypass Interchange at Route 250 designs sent back to the drawing board

Charlottesville City Council heard about three hours of public comment concerning current proposed designs for an interchange at the intersection of Route 250 Bypass and McIntire Road. The vast majority of commenters opposed approval of the designs recommended by a city council appointed project steering committee. Several of the steering committee members commented and asked council to approve their recommendation.

Opponents pointed out their assessments that the designs were too large, had too much impact on McIntire Park itself and on other nearby properties eligible for listing on the National Register of Historic Places, didn't solve traffic needs, did not adequately provide pedestrian access to the park, and a host of other concerns. Charlottesville Tomorrow posted a comprehensive summary of the interchange discussion in a blog entitled "Council defers decision on Meadowcreek Parkway Interchange" that is well worth reading. I also expect that the video of the council meeting will be broadcast on the city cable TV-10 channel over the next few weeks where you can see all the comments and discussion.

This deferral of action is another twist in the ever twisting events surrounding what is often called the Meadowcreek Parkway. As this project changed over time it evolved into three independent projects: Meadow Creek Parkway (from Melbourne Road to Rio Road in Albemarle County - a state funded secondary road system project); McIntire Road Extended (from Route 250 Bypass to Melbourne Road - a state funded urban system road project) ; and Route 250 Bypass Interchange at McIntire Road (a federally funded interchange project being administered by the City of Charlottesville). I believe these three projects are so interdependent that it makes no logical sense to develop and design each one separately. They should be one project. Of course, as one project that would use federal funding for construction the entire project would have to undergo environmental review where several federal statutes would need to be followed. I think this would be the best possible path for considering if a parkway with or without an interchange should be built. One project on one time schedule with one study team should break the ever confusing boundary and funding issues that have plagued the project development over the years.

I applaud all of our city councilors for deciding to investigate this interchange further. I urge council (as I did in my comment at the public hearing on Monday night) to combine the interchange and the McIntire Road Extended projects so that better and more environmentally sensitive solutions to our transportation needs can be considered. Only then can some truly new ideas enter the conversation. Too much money has been spent for too little value on these inappropriately segmented project studies.

One citizen suggested solution is to combine improvement of the McIntire Road/ Route 250 Bypass intersection and expand transit options in our community. This forward thinking and promising solution can't even be considered in the current multi-project environment of convoluted project assumptions. It is clearly time for a refocussing of these independent efforts. Little is to be lost and so much to be gained. I believe that city council, the city school board, the Albemarle County Board of Supervisors, VDOT and the Federal Highway Administration all need to put their minds and efforts toward a unified goal. Only then can this project get analysed and finalized - whether to build or not build should become a clear and defensible decision when addressed as a unit.

Photo is from Charlottesville Tomorrow weblog.

Charlottesville School Board Tables Easement Decision

The Charlottesville School Board met on April 17, 2008. After about 90 minutes of presentations, discussion, and questions to which only some answers were available from VDOT, Albemarle County, and the City staff the board voted 4-2 to table the issue until the next school board meeting. Apparently the school board only got involved in this issue - "A Resolution of the Charlottesville City School Board Consenting to the Conveyance of Certain Real Property Interests by the City of Charlottesville to the Commonwealth of Virginia for the Construction of the Meadow Creek Parkway" - about three weeks ago. Although this property was purchased for school division use in 1982, and use of this property for a roadway has been considered in some form since well before that date, this is a new item on the school board's agenda. A work session included discussion of this issue occurred on April 3, 2008.

Kathleen Galvin lead the questioning of VDOT, county and city staff asking how this project will benefit the school, and about the safety issues associated with the parkway design and plans for the at-grade intersection where the proposed Meadow Creek Parkway and McIntire Road Extended projects meet at Melbourne Road. Galvin said she made a list of the 'pros' and 'cons' associated with this project, but the discussion clearly was dominated by exploring the 'cons'. I am curious what she had listed in the 'pro' column. My own personal listing of benefits to the school division from this project is void. Other board members also expressed concerns about safety issues and limitation on access to the natural area blocked from both Charlottesville High School and CATEC by the proposed roadway.

Kathleen Galvin lived up to her campaign slogan in the November 2007 election. She clearly did her homework on this issue. The issues she raised included troubling safety concerns and loss of needed athletic fields by the high school and appear to have convinced four of the six members who will be voting on a resolution (Juandiego Wade recused himself from this matter due to his being a transportation planning staff member employed by Albemarle County and involved in the parkway project in that capacity). The school board and city council have a luncheon meeting today (April 18 - 12:00 at city hall basement conference room) and I expect this resolution and its ramifications will be a topic of discussion. This meeting is open to the public. I plan to attend and see if any positive features of this proposal emerge.

This proposed resolution is what I consider to be a lose-lose situation - unfortunately if city councilors and school board members all don't do their homework it just might be approved. I will continue to encourage all of our elected officials to identify what benefits - if any - this project provides, and weigh the environmental, safety, athletic, educational and other costs against those benefits to make whatever decision is best for the school division and our community at large. These are the tough decisions we elect our local officials to make. I hope the board doesn't default to what appears to be the lose-lose decision as the material presented to the school board at yesterday's board meeting suggests to me.

Sean Tubbs at Charlottesville Tomorrow posted a summary and the audio podcast of the April 3, 2008 Charlottesville School Board work session discussion on granting an easement for construction of the controversial Meadow Creek Parkway. The proposed easement to VDOT would affect nine acres of school property. Check out this material and find a link to a color plan of the parkway location and design at the Charlottesville Tomorrow Blog item entitled City School Board to consider easement for Meadowcreek Parkway.

Graphic Source: Charlottesville Tomorrow website

Does Earmark Indicate Congressional Mandate for Route 250 Bypass Interchange at McIntire Road?

On March 3, 2008 my blog posting questioned if the earmark of $25 million for funding to "Construct Meadowcreek Parkway Interchange" constituted a mandate for building this interchange. Since that posting I reread a July 28, 2005 headline article in The Daily Progress that indicates Senator John H. Warner, R-Alexandria, was providing the funding for reasons that don't rise to the level of mandate for construction. I have included the text of this article below and I believe you will agree that this earmark is not suitable as being one of the purposes for building this proposed interchange as stated in the projects statement of "Purpose and Need" in the draft Environmental Assessment. As I read the Bob Gibson article below, I am reminded of the Alaska Bridge to Nowhere earmark discussion more than being convinced that our senator believes there is a compelling federal interest in this interchange being constructed. The interchange consultants continue to argue that transportation alternatives that avoid having significant impacts on historic properties and parkland are not acceptable in that they don't meet the project Purpose and Need, I find it essential that this earmark be removed from the itemized elements in the Purpose and Need statement.

Bob Gibson's article includes Sen. Warner saying "It doesn't have a damn thing to do with politics or anything like that. It's just an old [former University of Virginia law] student's expression of gratefulness to the community." It is hard to argue that this is a statement of the earmark being a way of meeting a clear transportation interest of the federal government or any sort of congressional mandate. I think this earmark is all about politics and not about transportation at all.

Here is the July 28, 2005 article for your consideration.

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Warner secures parkway funds: Senator's fondness for city earned Meadowcreek monies

By Bob Gibson, Daily Progress staff writer
Published in The Daily Progress
Thursday July 28, 2005, page 1

Citing his affection for Charlottesville, U.S. Sen. John W. Warner, R-Alexandria, said Wednesday that he has secured $25 million fo fully fund the final piece of the long-stalled Meadowcreek Parkway.

Warner said he decided to earmark the federal transportation dollars available to him as a senior senator to pay for a grade-separated interchange at the U.S. 250 Bypass, McIntire Road and the southern end of the parkway that has been planned for more than 30 years. The 2-mile parkway would extend from East Rio Road to Melbourne Road, wind through the east edge of McIntire Park and end at the U.S. 250 Bypass.

"It doesn't have a damn thing to do with politics or anything like that. It's just an old [former University of Virginia law] student's expression of gratefulness to the community," Warner said in a telephone interview.

"I started in 1949 in the law school," said Warner, who described leaving to fight in the Korean War and returning to Charlottesville in 1951. "Charlottesville opened its arms to us, the veterans coming back from the war. I have to look back now at 78 years old and say those were some of the happiest years of my life."

Warner said he decided to earmark the full $25 million for the interchange to complete the parkway's funding after longtime friend Forrest Marshall, a city pharmacist and former county supervisor, led a delegation to Washington to appeal for the funds.

A local's nudge

"Forrest had a lot to do with it," Warner said. He said he was impressed with the unanimity voiced by Charlottesville Mayor David Brown, county Supervisor Ken Boyd, 5th District Rep. Virgil H. Goode Jr., R-Rocky Mount, and others who met with him on April 7.

Brown said the 30-minute meeting with Warner was fruitful beyond anyone's hopes or dreams, although Warner was careful at the time not to promise any funding for the parkway project.

"What's the saying in politics? It's better to under-promise and over-deliver," Brown said. "The mood of the meeting was very positive. I felt growing cooperation was evident between the city and the county."

John J. "Butch" Davies III, a former Culpeper delegate who represents the Charlottesville-Culpeper region on the Commonwealth Transportation Board, said the full funding would not have been possible without Warner earmarking the $25 million after the federal highway funding bill had been largely agreed upon.

"That really is a victory for the community," Davies said. "The state was on board and the money was there for the Meadowcreek Parkway."

With funding secured for the $25 million interchange needed for the $31 million parkway, the project can be built within five to six years, Davies said.

"It will actually improve conditions on [the U.S. 250 Bypass] from what they are today" by eliminating a traffic light and having one highway built over the other, said Harrison B. Rue, executive director of the Thomas Jefferson Planning District Commission, who also attended the meeting in Warner's Senate office.

Rue said the city portion of the parkway across the eastern fringe of McIntire Park will cost about $11.6 million. He said the parkway's county portion from a Melbourne Road intersection just east of Charlottesville High School's football stadium north to East Rio Road will cost an estimated $19.4 million.

Rue and Davies said the parkway may include a roundabout at Melbourne Road with no traffic lights, although the Virginia Department of Transportation does not favor that design.

Boyd, the county supervisor at the meeting, said Warner "was very impressed that the city and county were coming and asking for something in agreement. That has not always been the case."

Opening Parkland

He said the parkway will increase the amount of parkland, not decrease it, and will "actually be a linear park with the ability to walk and bike downtown. There are bike paths and walking paths that are off the road."

Boyd said county officials were excited at the news from Warner "because we had thought we would not get all the money we asked for."

Marshall, the former supervisor who arranged the meeting with Warner, said the senator found the full amount "because he loves the community. He said you tell those guys he did it because he was in school here and fell in love with the area. This man has done an awful lot for this community."

Davies said the parkway and the extension of Hillsdale Drive as another parallel road on the east side of U.S. 29 will ease congestion on the portion of U.S. 29 just north of Charlottesville.

"Both of these roads will divert significant local traffic," Davies said. "They divert the local traffic to alternate routes at affordable dollars."

The interchange secured by Warner "helps enormously with the viability of this [U.S. 29] corridor and it makes the 250 Bypass work," Davies said. "The city is a big winner in this project."

Photo Source: Associated Press from online source.

Eastern Connector - Transportation Need or Political Issue

I was interested to hear the discussion at the March 3, 2008 city council meeting about the current status of the Eastern Connector study and read Seth Rosen's article about that discussion "Is end near for Eastern Connector?" in today's daily progress. Rosen suggests that regional cooperation on exploring an Eastern Connector may be near an end. For many years, construction of an Eastern Connector for vehicular traffic between Albemarle County north of Charlottesville and the Pantops Mountain area east of Charlottesville was a condition for moving forward the proposed McIntire Road Extended through McIntire Park. It appeared to me that the recent expending of $250,000 each by Albemarle County and Charlottesville to explore alignments for an Eastern Connector was an effort to ensure that action on the connector was happening and that the McIntire Road Extended could be advanced in compliance with this longstanding condition. But, if the Eastern Connector is not going to happen (a project I thought might even be a preferrable alternative to building the costly and destructive McIntire Road Extended project and the even more costly Route 250 Bypass Interchange at McIntire Road), is Charlottesville's city council willing to move forward with the McIntire Road Extended project and bring that anticipated traffic through an already congested part of our Charlottesville road network?

Charlottesville City Council approved "A Resolution Authorizing the Conveyanace of a Temporary Construction Easement in McIntire Park to the Commonwealth of Virginia upon the Completed Acquisition of Replacement Park Land" on October 1, 2007 that included as one of several conditions prior to actually granting this easement for road construction is that Albemarle County will "commit to continued development of alignment and funding scenarios for the Eastern Connector."

Without an Eastern Connector, it appears that the October 1 Council Resolution becomes moot, and Council must reconsider its position on building a road through McIntire Park - be it called the Meadow Creek Parkway as it is in the council resolution (a name that currently refers officially to a road connecting Melbourne Road and Rio Road that is totally in Albemarle County), or McIntire Road Extended as appears to be the current official name for this road project.

I and others have argued for many years that the interrelationship among the Eastern Connector, McIntire Road Extended, Meadow Creek Parkway, and the Route 250 Bypass Interchange at McIntire Road should recognized and the projects be combined into one project to study the broad range of transportation investment choices that are available to address the current and future transportation needs of both Charlottesville and Albemarle County. Treating these projects all as independent projects, many believe, is a way of avoiding protection of our parks (McIntire Park, Bailey Park, Pen Park), and cultural and historic resources that would be required under the National Environmental Protection Act, the National Historic Preservation Act, and Section 4(f) of the US Department of Transportation Act in a combined, federally funded project.

Only through a comprehensive evaluation of available transportation choices for meeting the transportation needs among Charlottesville, and the areas in Albemarle County north and east of Charlottesville can we truly identify solutions that meet our long-term transportation needs while being sensitive to the natural, cultural, and historic resources that are such a big part of our local quality of life. I hope Charlottesville city council and the Albemarle County board of supervisors will explore combining these now separate projects into one combined project and work together rather than in opposition in this effort. Hope is a theme in local politics today, but to keep this hope alive I suggest you share your thoughts with councilors and supervisors.

NOTE: Photo from the Eastern Connector Corridor Study website.