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

Here is my oral argument before the VA Supreme Court on February 26, 2010

Peter Kleeman presented (Feb. 26, 2010) an oral argument (by telephone conference) supporting the Appeal of the Circuit Court Decision regarding granting of right of way by City of Charlottesville to VDOT. Argument (as drafted) is given below. It was a terrific experience to present our basis of appeal to the three-justice panel. I look forward to hearing the panel's recommendation in a few weeks. Not everyone has their day in court at the Supreme Court of Virginia!

Also - click on the "Meadow Creek Parkway" or "Charlottesville Circuit Court" labels below to see the history of this project and the case that started in February, 2009.

Case: Peter Kleeman, et al. v. City of Charlottesville, et al. (Record No. 092113)

Justices of the Supreme Court of Virginia on the three-justice panel hearing the oral argument:

.... Justices Barbara Milano Keenan (panel chair); Donald W. Lemons; S. Bernard Goodwyn

The argument as prepared for presentation:

It is our belief that the two paragraphs of Article VII – Section 9 of the Virginia Constitution state clearly how rights in and to city or town owned public places can be sold or the right to use public land can be granted and a plain language reading of this section is the basis of our appeal before this court.

The City of Charlottesville passed an ordinance on June 2, 2008 by 3/5 affirmative vote of council granting a permanent easement to VDOT for a road right-of-way on city owned land used by the city school system and the public.

We claim that the transfer of right to use this public place by deed of permanent easement was not carried out in compliance with Article VII – Section 9.

This section requires:

.... If right-of-way was sold to VDOT, then a 4/5 affirmative vote of council is required to pass the ordinance or resolution (as provided in paragraph 1 of Section 9);

.... If the right-of-way is granted other than by sale, then it can only be granted for a period not to exceed 40 years (as provided in paragraph 2 of Section 9).

The deed of easement filed in the Albemarle County Courthouse specified that the right-of-way) is granted permanently. Given that the enabling ordinance was only passed with a 3/5 affirmative vote of council, the deed filed is neither in compliance with paragraph 1 or paragraph 2 of Article VII – Section 9.

The deed itself doesn’t state if this right-of-way is provided as a sale but rather states that the perpetual right and easement is granted “in consideration of the sum of $43,120.00 paid by the Grantee to the Grantor” (by VDOT to City of Charlottesville). Neither does the deed state the right of way was granted by other than a sale. Circuit Court Judge Jay Swett accepted VDOT’s claim that the right-of-way was a gift from the City of Charlottesville to VDOT with the transferred funds paying “costs to cure” associated with the gift. There is no mention of a gift in the deed, and we contend that even granting the right-of-way as a gift is subject to a maximum period of 40-years as provided in paragraph 2 of section 9.

Transferring of right-of-way by deed of easement is not the typical means VDOT has acquired right-of-way. VDOT in the past has typically purchased right-of-way and this case is the first time I am aware of that this method of right-of-way acquisition was attempted by VDOT.

This being a case without precedent in case law, this is the first opportunity for the Supreme Court of Virginia to clarify how Article VII – Section 9 should be interpreted in transferring right-of-way to city over town owned property for use as road right of way.

We believe the City of Charlottesville has gone beyond its authority given in Article VII –Section 9 in granting right-of-way over a city owned public place and request that you consider our appeal.

We ask that the deed of easement be voided and we add that VDOT has other alternatives it can pursue to acquire right-of-way that will comply with the Virginia Constitution.

End of oral presentation.

-----

The conference call lasted about 6 minutes. At the conclusion of my presentation, the justices opted not to ask questions. Justice Keenan concluded the conversation stating that the panel would consider the argument presented and provide a written result of the panel’s action in 2-3 weeks.

Is Meadowcreek Parkway one road?

The map (source: Daily Progress, May 20,2009) shows the Meadowcreek Parkway as a single facility connecting Route 250 Bypass at McIntire Road and Rio Road. The Coalition to Preserve McIntire Park (of which I am a member) has long contended that the parkway is one facility and should be planned, analysed and constructed as one facility. In the court opinion described in the previous blog posting, Carlottesville Circuit Court Judge Jay Swett also considers this to be the case. Judge Swett wrote in the opening line of his June 26, 2009 opinion: "This case arises out of the conveyance of an easement by the City of Charlottesville and the Charlottesville School Board to the Commonwealth of Virginia Department of Transportation related to the construction of a portion of what is known as the Meadow Creek Parkway." Many argue that because of differences in funding source for the three segments of this facility, that each is a separate project. This separation (or what in federal law would be called segmentation) is the heart of the case about building a portion of a project (the roadway and bridge north of Melbourne Road) before the other portions of the project have finished preliminary engineering. The Coalition to Preserve McIntire Park would prefer to address what they consider illegal segmentation of the parkway project to avoid complying with federal environmental regulations. But, until the preliminary engineering for the federally funded portion of the project is completed no action is possible. The timing of construction is being carried out by VDOT so that the non-federal portions of the project will be constructed prior to the federal portion. Whether by design or not, this sequencing keeps the issue of segmentation from being brought before a federal court. It appears that a timely hearing on the illegal segmentation issue may not occur and an environmentally damaging project gets built.

The Coalition to Preserve McIntire Park is pursuing this matter to the extent possible under the prevailing conditions. Do consider asking Charlottesville City Council to consider the legality of this project as well as its consistency with Charlottesville becoming a sustainable city. Your letters or comments to council can make a difference.

Charlottesville Circuit Court Judge Jay Swett decision released on June 29, 2009

Circuit Court Judge Jay Swett sent his decision in Coalition to Preserve McIntire Park et a. vs. City of Charlottesville, et al. regarding transfer of temporary and permanent easements over city owned land to VDOT for construction of the Meadow Creek Parkway project in Albemarle County. You can see all of the relevant material in this case (Case number CL09000-84) at the Charlottesville Circuit Court. I produced a digital copy of the cover letter and the opinion for ease in distribution and comment. I corrected a few obvious typographical errors in the text and formatted the material as a web readable file. I plan to provide additional links within this copy of the material to reference other useful material refered to in the text.

I am disappointed that Judge Swett found for the defendants in this case. The Coalition to Preserve McIntire Park will be analyzing this opinion and determine if any further legal action will be taken.

Awaiting Judge Swett's Decision on Meadow Creek Parkway land transfer

The Coalition to Preserve McIntire Park and several named plaintiffs had their day in court on the constitutionality of the transfer of Charlottesville right of way to the Virginia Department of Transfer for construction of the Meadow Creek Parkway. The primary issues explored in the six and one-half hour hearing included whether or not the plaintiffs had legal standing to bring this case, and if the land transfer was a sale of rights to city owned land that required a three-fourths (super-majority) vote to comply with Article VII, Section 9 of the Virginia Constitution. The first several hours of the trial focussed on the issue of legal standing and it wasn't until after the break (of only ten minutes) that the issues of the land transfer were considered.

I was impressed with Judge Jay Swett's handling of the case and how he on several occassions guided the three attorneys into providing him a clear understanding of their facts, resources, and points so that he would have as comprehensive a record on which to base his decision.

The facts in the case are too numerous to provide here, but Judge Swett will weigh testimony of about one dozen witnesses, and the briefs and arguments provided by the attorneys for the plaintiff, the City of Charlottesville, and the Virginia Department of Transportation. I am interested to hear the decision on the legal standing of the plaintiffs - in particular, if there are only three individuals that would have legal standing in this action as suggested by the VDOT attorney: two dissenting city councilors and one dissenting school board member voting against the transfer of the right of way. If the plaintiffs are granted legal standing for this case, then it will be of great interest to me to hear if the plain language of the VA Constitution is the basis for the decision on the number of votes necessary to sell rights to city owned property as argued by the plaintiffs.

Certainly there are a host of other issues to be considered by Judge Swett including who really owned the property - the city, the school board, both? If the property transfer was in fact a sale of rights (as argued by the plaintiffs) or a donation of rights (as argued by the city and VDOT)? If the plaintiffs should have filed suit months earlier when the ordinance was passed by council with only three affirmative votes (as argued by VDOT) or if the suit was timely being filed within a few weeks of the recording of the deed to the right of way (as argued by the plaintiffs).

As a plaintiff in this case, I believe a strong case was made that the right of way was sold to VDOT and thus four affirmative votes of council were necessary - not the three affirmative votes recorded in the June 2 council ordinance - to comply with Article VII, Section 9 of the VA Constitution. But clearly, the decision that counts here is the decision of Judge Swett. I look forward to learning his decision and what the basis of that decision is. This appears to be the first case in Virginia of this type and I am confident that Judge Swett will outline his rationale for whatever decision he makes to ensure that this precedent setting case will be a solid basis for all future cases of this type.

Meadow Creek Parkway Hearing May 19 at Charlottesville Circuit Court

The Coalition to Preserve McIntire Park and other named plaintiffs case in the Charlottesville Circuit Court will be heard Tuesday May 19, 2009 in the main courtroom at the Charlottesville Circuit Court - 315 East High Street - at 9:00 a.m. Judge Swett will hear arguments on the conveyance of city land to VDOT for construction of the Meadow Creek Parkway. The Coalition to Preserve McIntire Park has asked the judge to declare this land transfer unconstitutional because it is a violation of Article VII, Section 9 of the Virginia Constitution. The constitution requires the city council to approve all public land transfers with a 3/4 majority vote.

This hearing is open to the public and I believe will be well worth your time if you are at all interested in the ongoing discussions about the future of the Meadow Creek Parkway, McIntire Road Extended, and the Route 250 Bypass Interchange at McIntire Road - all elements of the project know as the Meadowcreek Parkway.

Members of the local media will be there, so check tomorrow's Daily Progress and other information sources for stories. I don't know when a decision will be reached on the case, but some issues may well be decided in the courtroom tomorrow.

Still awaiting notice of location for hearing on Meadow Creek Parkway case in Charlottesville Circuit Court

On May 19 at 2:00 pm, Judge Jay Swett will preside in considering the claim by the Coalition to Preserve McIntire Park and several individually named plaintiffs that right of way for the Meadow Creek Parkway north of Melbourne Road land owned by the City of Charlottesville was illegally transferred to the Virginia Department of Transportation. I have no knowledge of where this case is to be heard and it is now but three days away. When I know where this hearing is to take place I will post it here. The Charlottesville Circuit Court was not available when the trial date was set and a court room was to be found for this hearing. I hope one is identified soon and interested members of the community will be able to attend the hearing. If you do not see any announcements as to where the hearing will occur, check with the circuit court by telephone at 434/970-3766.

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.