Can VDOT really open the Meadow Creek Parkway?

The Virginia Department of Transportation is planning to open a portion of a road project in the very near future. I contacted the City Attorney to inquire about the legality of VDOT doing this. Below is my note to Attorney Craig Brown on the subject. I like to think that the city will follow its own ordinances. We shall see.


Date: September 14, 2010
To: Mr. Craig Brown, Charlottesville City Attorney
From: Peter Kleeman
RE: Opening of Meadow Creek Parkway on a temporary basis north of Melbourne Road

Dear Mr. Brown

I was recently informed by VDOT that VDOT intends to open the Meadow Creek Parkway facility on a temporary basis starting in the next few week to facilitate construction activities on Rio Road in Albemarle County. As I read the June 2, 2008 ordinance passed by City Council entitled "AN ORDINANCE GRANTING PERMANENT AND TEMPORARY EASEMENTS ACROSS CITY-OWNED PROPERTY IN ALBEMARLE COUNTY (MELBOURNE ROAD AREA) TO THE COMMONWEALTH OF VIRGINIA (VDOT) FOR CONSTRUCTION OF THE MEADOW CREEK PARKWAY", no opening of a portion of the highway improvement project(s) connecting Rio Road to the Route 250 Bypass at McIntire Road is allowed until all of the projects are complete. VDOT’s proposed temporary opening of the Meadow Creek Parkway north of Melbourne Road even on a temporary basis appears to be a direct violation of the June 2, 2008 ordinance

The specific wording stating this condition in the resolution portion of the June 2, 2008 ordinance is as follows:

“BE IT FURTHER ORDAINED that the Council’s consent to the conveyances of easements as described herein is contingent on the following conditions:

(1) that no part of the Meadow Creek Parkway project (i.e., the Albemarle County Meadow Creek Parkway section, the City McIntire Road Extended section, or the Interchange/Intersection project at the 250 Bypass and McIntire) will be open for public use until the entire project is complete and ready for opening;”

I explored the City Code to determine what would be necessary to amend this ordinance if council wished to allow opening of the Meadow Creek Parkway facility on a temporary basis. The process necessary for council to follow is stated in Article II, Division 1, Section 2-100 of the City Code (given below) where the issue of amending an ordinance is addressed.

"Sec. 2-100. Repealing and amending ordinances generally.

No ordinance shall be amended or repealed except by an ordinance regularly introduced and adopted.

(Code 1976, § 2-34)"

I believe it is unlawful for VDOT to open the Meadow Creek Parkway unless and until City Council formally amends or otherwise supersedes the explicit prohibition of such an opening as provided in the June 2, 2008 ordinance. It is my recollection that the Charlottesville School Board originally requested that this condition be included in any ordinance granting construction easements to VDOT for the Meadow Creek Parkway because of their concern for safety of students traveling to and from Charlottesville High School on Melbourne Road. I believe that an investigation into the safety concerns expressed by the Charlottesville School Board must be done that shows the opening not to result in significant risks to Charlottesville High School students, teachers, and staff prior to amending the June 2, 2008 ordinance to allow opening of the Meadow Creek Parkway.

I am copying this email to council and the Charlottesville School Board for their consideration of this matter.

If there is some legal agreement that is in place that supersedes this ordinance, and explicitly allows opening of the Meadow Creek Parkway as proposed by VDOT, I would appreciate your providing me a copy of that agreement.

Sincerely,
Peter Kleeman

Back from fun in the sun at Virginia Beach

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

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

Tom Perriello speaks at Jefferson Area Tea Party meeting

photo: Daily Progress

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

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


photo: Daily Progress

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

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

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

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

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

My Week on the Clearwater

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


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



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



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



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


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


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



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



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


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


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



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


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


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


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



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



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



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



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


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

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

Political Monday clips available online

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

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

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

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

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

Image: Supreme Court of Virginia
Source: http://valawyersweekly.com/files/2010/02/va-supreme-court.jpg

In a letter dated April 22, 2010, the Supreme Court of Virginia dismissed the appeal (Record No. 092113 - Peter Kleeman et al. v City of Charlottesville, et al.) of the case (Circuit Court No. CL09000084-00) heard by Charlottesville Circuit Court Judge Jay Swett. Below is a digital version of the letter from the Supreme Court.

I am disappointed that the case was dismissed on a technicality rather than on the merits of the case. A request to reconsider the issue may be filed within fourteen days if a basis for such a request exists. I am awaiting information from the Chief Clerk of the Court regarding this possibility to decide if any request will be made.

It should be noted that this case is totally independent of the Coalition to Preserve McIntire Park's primary concern about federal environmental and historic preservation issues that are only addressable in federal court after a final federal action by the Federal Highway Administration (FHWA) is taken. An action of this type may be taken by the FHWA in the next few months. The coalition may file a federal lawsuit once it has had an opportunity to analyze the FHWA action.

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court Building in the City of Richmond on Thursday the 22nd day of April, 2010.

Peter Kleeman, et al., Appellants,

against Record No. 092113
Circuit Court No. CL09000084-00

City of Charlottesville, et al., Appellees.

From the Circuit Court of the City of Charlottesville

Finding that the appeal was not perfected in the manner provided by law because the appellant failed to timely file the petition for appeal, the Court grants appellee City of Charlottesville's motion and dismisses the petition filed in the above-styled case. Rue 5:17(a)(1).
Justice Mims took no part in the consideration of this case.

A Copy,

Teste:

Patricia L. Harrington, Clerk

By: Lesley David>

Deputy Clerk

Coalition to Preserve McIntire Park asks City Council to Consider McIntire Road Extended Resolution

The Coalition to Preserve McIntire Park (CPMP) distributed the text of a proposed resolution concerning future council actions associated with the proposed McIntire Road Extended project that would significantly impact McIntire Park. An article in today's Daily Progress entitled "Group offers new appeal on parkway" by Rachana Dixit discusses how CPMP worked with the City Attorney to get the language of the proposed resolution in a form suitable for council consideration, but it is not clear if council has yet discussed the proposed resolution in the closed session of council held on Monday April 19, 2010. The Daily Progress Headline is a bit misleading in that this is not a new appeal on the Meadowcreek Parkway project. CPMP submitted a similar proposal to council several weeks ago. The new text is the result of discussions on the wording of the resolution between CPMP and the City Attorney carried out at the request of council.

The Daily Progress article suggests that some council members are hoping what the resolution calls for will occur, but that council may not act to ensure that CPMP is afforded a fair opportunity for judicial review of the project segmentation claim.

I certainly encourage council to pass this resolution so that CPMP members and other area residents can be assured that their concerns are fairly addressed in Federal court if that turns out to be necessary. Approving this proposed resolution will be consistent with Charlottesville City Council's vision statement where they strive to be "A leader in innovation, environmental sustainability, and social and economic justice." In the vision statement council states the following:

"The delivery of quality services is at the heart of Charlottesville’s social compact with its citizens. Charlottesville’s approach to customer service ensures that we have safe neighborhoods, strong schools, and a clean environment. We continually work to employ the optimal means of delivering services, and our decisions are informed at every stage by effective communication and active citizen involvement."

CPMP believes that the proposed resolution is necessary to ensure that our opportunity to exercise active citizen involvement may be prempted by actions by the Virginia Department of Transportation or the City of Charlottesville. Passing the proposed resolution or some variant of the resolution agreed upon by CPMP and City Council would clearly demonstrate that council acts in concert with its own vision statement.

Below is the draft resolution submitted to city council for its consideration.

Dear Councilors, The Coalition to Preserve McIntire Park believes the proposed McIntire Road Extended and Rt. 250 Bypass Interchange are not in full compliance with federal project development, historic preservation, and environmental laws. It is our belief that no damage should occur in McIntire Park until the legal question has been resolved. We request that you act in the best interests of the citizens of Charlottesville by passing a resolution to protect McIntire Park from premature and unnecessary disturbance. The people have a right to know that if a large section of McIntire Park is threatened with loss, there would first be full compliance with our nation’s laws. If construction begins in McIntire Park before a judicial review of the Interchange has occurred, citizens will lose a significant resource that is protected by federal law. It could also lead to the significant expense of undoing the damage done. We respectfully ask that you pass a resolution to prevent any ground disturbing activity south of Melbourne Road before the Federal Highway Administration has made a final determination on the Interchange and there has been an opportunity for an expeditious review of the FHWA decision. Here is possible wording for such a resolution: “The Charlottesville City Council hereby states that it is the will of Council that no contract for the construction of a McIntire Road Extended is to be signed, that no ground disturbing activity is to take place south of Melbourne Road, and that no agreements will be signed with the Virginia Department of Transportation for project construction, operation,and maintenance before the Federal Highway Administration has made its final determination on the proposed Route 250 Bypass Interchange at McIntire Road and there has been an opportunity for an expeditious judicial review of the merits of the legal claim on the FHWA decision on the Interchange.” Please feel free to contact me if you have any questions regarding this request. John A. Cruickshank Coalition to Preserve McIntire Park 973-0373