Opportunity to learn more about the controversial Meadowcreek Parkway available at Charlottesville Podcasting Network

Charlottesville Podcasting Network posted an interview with John Cruickshank and Stratton Salidis discussing issues surrounding the controversial Meadowcreek Parkway project that is proposed to provide a road connecting Route 250 at McIntire Road to Rio Road next to CATEC (Charlottesville-Albemarle Technical Education Center). You can check out the podcast at http://www.cvillepodcast.com/2009/04/13/wake-up-call-meadowcreek-parkway-a-long-and-winding-road/.

Will the Meadowcreek Parkway be a topic in the City Council Campaign?

I am hoping a community-wide discussion of the Meadowcreek Parkway Project (with two of the three components of this project currently under design for construction in Charlottesville's McIntire Park). I am hoping that this issue will be addressed and each candidate will identify a clear rationale for their support for or opposition to the parkway project as it is currently conceived. Only Kristin Szakos has posted a statement of her position on her campaign website. Dave Norris has voted not to continue funding both city components of the parkway - McIntire Road Extended and the Route 250 Bypass Interchange at McIntire Road. Julian Taliaferro has recently stated that he has an open mind about supporting construction of the City's parkway related projects, but continues to vote for all council actions necessary to continue the project. Announced independent candidate Andrew Williams has not to my knowledge made any statements yet about his thoughts regarding the Meadowcreek Parkway.

Below is an abstract of how I see each candidates position on the parkway (with my reaction to each position).

Dave Norris: Incumbent candidate Dave Norris voted against granting any permanent or temporary easements for construction of McIntire Road Extended and the Meadow Creek Parkway (portion of the Meadowcreek Parkway north of Melbourne Road - yes, the names are too similar and confusing). Dave Norris frequently states his desire to see the funding allocated to this project be reprogrammed for use in enhancing other transportation needs including transit, bicycle and pedestrian projects. Current City Council members Dave Norris and Holly Edwards routinely vote against spending funds for the parkway project, while councilors David Brown, Satyendra Huja and Julian Taliaferro routinely vote for continued funding and development of the parkway project.

Kristin Szakos: Candidate Kristin Szakos states the following on her campaing website material: "I have opposed the Meadowcreek Parkway plan for many years, not because I don’t see the need for better transportation into and around Charlottesville, but because I believe better uses could be made of McIntire Park, like making it accessible to all our residents by providing bus service and programming for kids. But I was not on the City Council when the Meadowcreek Parkway was approved in a series of votes over the past few years. On the basis of that approval, contracts have been signed and work has begun. Although I do not like the parkway’s route, I will not vote to overturn that decision and put Charlottesville in breach of those agreements. The decision has been made by a duly elected body and should stand unless a court determines that it is illegal."

Julian Taliaferro: Incumbent candidate Julian Taliaferro to my knowledge has no formally stated position on the Meadowcreek Parkway (and currently has no campaign website I can refer you to). He supported the Meadowcreek Parkway throughout most of his first term on City Council. Within the past month or so, however, Julian Taliaferro stated that he now has an "open mind" on the parkway. He has stated that it is possible that he may change his position supporting the parkway. But, at the April 6, 2009 city council meeting, Julian Taliaferro indicated that he would not consider voting against the $450,000 in the proposed Capital Improvement Program (CIP) because he feared the prospect that the city might have to repay several million dollars to VDOT if the project funding was removed implying that removing these funds is the equivalent of cancelling the project. Given that both the McIntire Road Extended project and the Route 250 Bypass Interchange at McIntire Road are both in preliminary engineering, I have argued (and continue to argue) that the "no-build" alternative is still a viable option and if chosen by council would be a logical termination of preliminary engineering - not a cancellation of the project. If Julian Taliaferro can't see past the possibility of reimbursing VDOT, it doesn't matter how much of an "open mind" he has about the design. Based on his comments on April 6, I can only assume that Julian Taliaferro remains in support of the Meadowcreek Parkway project.

Andrew Williams: I have no knowledge of candidate Andrew Williams position on the Meadowcreek Parkway and am unaware of any campaign website indicating his positions.

Driving the Conversation

I hope you will participate in some of the upcoming candidate forums and will question all of the candidates on their ideas for meeting the transportation challenges facing Charlottesville in the near- and long-term future. I believe further investment in any of the components of the Meadowcreek Parkway will keep us from working toward a truly sustainable transporttion future. Perhaps the Meadowcreek Parkway will be known as the last major road project in our region and it will be highlighted as the project that was all about politics (and not about meeting transportation needs) for which we sacrificed a major piece of McIntire Park and had significant impact on the historic properties in and in the vicinity of McIntire Park.

I don't recommend that you be a single issue voter on the Meadowcreek Parkway, but in this campaign, a candidate's position on the parkway will provide good insight into that candidate's support for sustainable development, protection of the historic fabric of our community, valuation of parkland and tree-cover, and their willingness to make decisions about Charlottesville's future based on current information, goals, and vision rather than follow the lead of previous council decisions to move forward a project that may once have appeared necessary, but no longer meets our future transportation needs. Times do change, and we need city councilors who will lead Charlottesville rather than councilors who will follow the decisions - good or bad - of previous leaders.

Judge Swett denies request for injunction - declaratory judgement to be heard in May

The local media were out in force to cover the hearing on the Coalition to Preserve McIntire Park (CPMP) request for a preliminary injunction to protect further damage to the land that CPMP claim was illegaly transferred to VDOT for Meadow Creek Parkway construction. Althought the injunction was not granted, Judge Jay Swett of the Charlottesville Circuit Court offered to find an early court date for the hearing on the legality of the land transfer.

Here are several links to local media stories on the Wednesday March 18, 2009 hearing.

Charlottesville Tomorrow blog by Sean Tubbs

Daily Progress article by Rachana Dixit;

WVIR TV - NBC29 news report by Henry Graff (with video);

Charlottesville Newsplex - TV news story by Cheryn Stone (with video)

WINA - 1070 AM radio report by Rob Graham;

The HooK - article by Lisa Provence

C-ville Weekly - article by Will Goldsmith

The trees may be gone, but perhaps we can replant them.

Here is a photo of the trees that are or will soon be removed from the path of the Meadow Creek Parkway. The Coalition to Preserve McIntire Park (CPMP) had its first day in court today in an effort to save the Charlottesville owned land that CPMP believes was provided to VDOT for construction of the parkway but the ordinance of council failed to meet the number of council votes to legally transfer the right of way. Circuit Court Judge J. C. Sweat heard the case at 2:00 pm today on CPMP's filing for a preliminary injunction to preserve the trees and land not yet destroyed on this land. After two and one-half hours of presentations, testimony, and discussion Judge Sweat commented that the significant damages to the trees and land were already done, and that VDOT would lose $20,000 per day if construction was stopped and opted not to grant the request for preliminary injunction. Judge Sweat also stated that our claim had sufficient merit to schedule a hearing on the CPMP request for declaratory judgement on an expedited schedule. A hearing on that issue will be scheduled in late May of 2009.

There is virtually no case law upon which the court could base a decision. I believe that this lack of case law is because this Meadow Creek Parkway project is apparently the first time VDOT is attempting to build a state funded roadway on easements from a local jurisdiction. Typically VDOT purchase right of way, negotiates utility and other easements as necessary on the land they own, build the road, and then grant the land to the local jurisdiction once construction is completed. Being the first project of this type, I believe there are a host of problems that have not yet been brought before the courts - and thus no case law.

I was encouraged that Judge Sweat carefully considered the input from CPMP's Attorney, Ms. McKeever, City Attorney Mr. Brown, and VDOT Attorney Ms. Pound, and had lively interactions with all three attorneys on the merits of their arguments in the limited case before the court.

I am exhausted after being in the courthouse much of the afternoon, and being a witness on behalf of CPMP during the hearing. Much can happen in two and one-half hours of courtroom action. I will have to let my mind rest a bit and then help Ms. McKeever develop the strongest case possible for the upcoming hearing on the land transfer issue in May.

Many members of the media were on hand to cover the hearing. Henry Graff of TV-29 manned a camera in the court room for the entire hearing. I look forward to seeing his coverage of the hearing on tonight's TV-29 news.

This was the first of at least two hearings on this matter. I invite you to learn more about the case by reading my last several postings to this blog. Your comments are always welcome.

Justice Delayed is Justice Denied

When I arrived at the Melbourne Road site where last week a large pile of cut trees were being cut into logs I saw a lone workman with chain saw in hand cutting limbs off one of a few cut trees at the edge of the open area. A few minutes later a few more few other trees (see photo) were dragged to the cutting area from land likely north of the city-owned parcel that is the subject of the Coalition to Preserve McIntire Park (CPMP) filing in the Charlottesville Circuit Court. I could hear the towing vehicle for a while before it came into view from the dirt road running behind the Charlottesville High School athletic fields. I don't believe the Coalition to Preserve McIntire Park's day in court on the request for a preliminary injunction will be in time to save even one tree. The earliest possible date for a hearing appears to be March 18 - two weeks from now. I expect the tree cutting and hauling of this initial phase of the project will be over by then and Old Dominion Lumber (the company name on the door of the truck hauling a load of fresh-cut logs) will have processed the trees into products by then. In this case the phrase "justice delayed is justice denied" come to mind. As I understand it, one can't file for an injunction until some action deemed to be illegal has occurred. But if the request for injunction isn't heard until all of the damage is done this legal option is of little use in protecting resources. Is this a defensible public policy?

I also visited the Rio Road end of the proposed Meadow Creek Parkway alignment and saw no tree cutting activity at all further indicating to me that the access roads from the south (Melbourne Road) and the north (Rio Road) are virtually cleared.

Of course, CPMP plans to question the legality of the transfer of the right-of-way across the city-owned land adjacent to Melbourne Road whenever our hearing date arrives.

On Saturday March 7 at 10:00 am, folks opposed to a variety of threats to McIntire Park will be gathering near the intersection of Route 250 Bypass and McIntire Road to express their concerns in a peaceful and positive manner. You are invited to share your thoughts in a peaceful and positive manner there too.

Charlottesville Tomorrow posts item on CPMP court filings

Charlottesville Tomorrow posted a blog item on March 2, 2009 that provides a very good description of the various legal opportunities currently being pursued by the Coalition to Preserve McIntire Park (CPMP). If you read that material and the background links provided in the blog and in the comments you should be able to understand what is being asked in the Circuit Court filings, and why. The filing for a preliminary injunction against construction activity on the city owned land on which the Meadow Creek Parkway is proposed was submitted on February 24, but no court date has yet been set. Irreparable damage can continue until at least the hearing on the preliminary injunction is held. I visited the Circuit Court today to see if I could find out if there is a statutory limit on time between filing for a preliminary injunction and when the hearing occurs, but was informed there is no upper time limit. I suppose it is possible that there won't be a tree standing or deer or beaver or squirrel to be found when the hearing finally occurs. The technology being used on the site can reduce a tree to logs stacked and ready to haul in a matter of minutes. At two minutes each, one machine group (as in a photo taken several days ago) can reduce 1200 large trees to logs in a 40 hour work week. In the time I watched this machinery at work, a tree was lifted, had its branches stripped, and sawed into logs (perhaps for lumber) and to long thin tops (perhaps for paper) in just over one minute each. Even this one machine group could have that entire wooded area cut, stacked and hauled before court day. Somehow this doesn't seem like justice is even possible if one can't be heard in a timely manner by a circuit court judge.

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.