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......
Saturday, March 19, 2011
Friday, March 11, 2011
US Army Corps of Engineers distributes new draft MOA for McIntire Road Extended
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).
Wednesday, February 23, 2011
CPMP Press Conference Images
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 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
Tuesday, February 22, 2011
Coalition to Preserve McIntire Park initiatiating legal action
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.
----------
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
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.
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.
__________________________
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.
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.
5. Venue is proper in this District pursuant to 16 U.S.C. § 1540(g)(3)(A) and 28 U.S.C. § 1391(e).
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.
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:
- “In order to ensure meaningful evaluation of alternatives and to avoid commitments to transportation improvements before they are fully evaluated, the action evaluated in each EIS or finding of no significant impact (FONSI) 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; and
(3) Not restrict consideration of alternatives for other reasonably foreseeable transportation improvements.”
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.”)
Fifty-Two Years in the Making: A 2.1-mile North-South Highway Through the 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.
(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.
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.
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.
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
Wednesday, February 16, 2011
Will the Charlottesville Downtown Mall get more security cameras?
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.
Thursday, November 18, 2010
Daily Progress editorial on McIntire Road Extended wrong on the facts.
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.
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.
Subscribe to:
Posts (Atom)
