Amended Scheduling Order filed in Route 250 Bypass Interchange at McIntire Road case in federal court

On May 13, 2011, United States District Attorney Timothy Heaphy filed a Joint Notice of Parties' Intent to Submit a Proposed Case Management Order. On May 19, 2011 that document was filed in the court and on that same day the Amended Scheduling Order given below was ordered and filed as document 17 in the case document file for case 3:11-cv-00015.

The schedule indicates two different tracks dependent on the adequacy of the Administrative Record due on June 30, 2011.

Note that it is possible that the case can actually be settled at anytime by the parties in the case.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

COALITION TO PRESERVE MC INTIRE PARK, et. al.,
Plaintiffs;
v.
VICTOR MENDEZ, ADMINISTRATOR OF THE FEDERAL HIGHWAY ADMINISTRATION
Defendant.

Civil No. 3:11-cv-00015

AMENDED SCHEDULING ORDER

UPON CONSIDERATION of the parties' Joint Proposal Case Sceduling Order, it is hereby ORDERED that the parties shall abide by the following dates and deadlines.

Defendant's Production of the Administrative Record with Index in Electronic Format - June 30, 2011

Track 1 (Agreement is Reached as the Scope of the Administrative Record)

If Plaintiffs Do Not Object toe the Scope of the Administrative Record, Plaintiffs So Notify the Defendants and the Court - August 12, 2011

Plaintiffs Motion for Summary Judgement Due - October 7, 2011

Defendants' Opposition and Cross-Motion for Summary Judgement Due - November 7, 2011

Plaintiffs' Reply and Opposition to Defendant's Cross-Motion for Summary Judgement Due - December 2, 2011

Respondent's Reply on Summary Judgement Due - December 23, 2011

Track 2 (Agreement is Not Reached as the Scope of the Administrative Record)

Plaintiffs' Motion for Modification of the Administrative Record Due - August 26, 2011

Defendants' Opposition thereto Due - September 16, 2011

Plaintiff's Reply Due - September 23, 2011

ENTERED this 19th day of May, 2011

Route 250 Bypass Interchange at McIntire Road hearing soon to be scheduled

Federal District Court Judge Norman K. Moon filed a scheduling order on April 25, 2011 directing the attorneys for the Federal Highway Administration and the Coalition to Preserve McIntire Park to schedule a date for a bench trial. Below is a summary of the order filed as document 9 for case number 3:11-cv-00015. Here is a summary of the schedule proposed by Judge Moon.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

COALITION TO PRESERVE MC INTIRE PARK, et. al.,
Plaintiffs;
v.
VICTOR MENDEZ, ADMINISTRATOR OF THE FEDERAL HIGHWAY ADMINISTRATION
Defendant.

Civil No. 3:11-cv-00015

PRETRIAL ORDER

The court proposes the following pretrial scheduling order pursuant to Federal Rule of Civil Procedures 16(b). If no party requests changes within 10 days, it will constitute the scheduling order in this case. The court may amend the order on its own motion, or the parties may amend the order's disclosure and discovery provisions by submitting an agreed written plan tat satisfies the requirements of Rule 26(f).

Summary

TRIAL DATE: Contact Heidi Wheeler, scheduling clerk at 434-296-9284 within 14 days of this order for the purpose of setting a trial date.

PLACE: UNITED STATES DISTRICT COURT, 255 West Main Street, Charlottesville Virginia.

FED.R.CIV.P.26(F) CONFERENCE: 14 days from this order.

INITIAL DISCLOSURES UNDER FED.R.CIV.P.26(A): 30 days from this order.

PLAINTIFF(S) INITIAL EXPERT DISCLSURE: 75 days from this order.

DEFENDANT(S) INITIAL EXPERT DISCLOSURE: 90 days from this order.

DEADLINE TO COMPLETE DISCOVERY: 90 days before trial.

DEADLINE TO FILE DISPOSITIVE MOTIONS: 75 days before trial.

DEADLINE FOR HEARING DISPOSITIVE MOTIONS: 45 days before trial.

Note: The order was signed by Judge Moon on April 22, 2011, but filed on April 25, 2011. I am assuming that the schedule is relative to the filing date of the order.

According to this schedule, a trial date could be set any day now and the schedule can be put into terms of calendar dates rather than relative times from the order or the yet to be scheduled trial date. I will post the dates when they are finalized.

Corps of Engineers distributes final MOA on McIntire Road Extended

The U.S. Army Corps of Engineers distributed by electronic mail on April 15, 2011 the following cover memo and text of their final draft Memorandum of Agreement for the McIntire Road Extended project. I and other consulting parties to this agreement do not believe that the level of mitigation proposed is adequate and provided comments in response to the last draft suggesting that additional mitigation - including construction of replacement holes to allow the historic golf course at McIntire Park to maintain its historic character. Is photographic documentation and a lecture series about the historic properties being destroyed by this project adequate mitigation for the impacts of this project? I welcome comments you might have on this issue and suggest you share your comments with Charlottesville City Council.

Dear Consulting Parties:

Attached is our final MOA for your signature. For those who wish to sign, please sign the appropriate signature page and email back to me, also copyingMary Ellen Hodges.

I appreciate all of your time and effort in the Section 106 process. We are sending this via email but will mail hard copies upon request.

Sincerely,
Kathy Perdue [U.S. Army Corps of Engineers, Norfolk District]

MEMORANDUM OF AGREEMENT
AMONG
THE NORFOLK DISTRICT, CORPS OF ENGINEERS, THE ADVISORY COUNCIL ON HISTORIC PRESERVATION, THE VIRGINIA STATE HISTORIC PRESERVATION OFFICER, THE VIRGINIA DEPARTMENT OF TRANSPORTATION, AND THE CITY OF CHARLOTTESVILLE
RELATIVE TO THE MCINTIRE ROAD EXTENDED PROJECT IN THE CITY OF CHARLOTTESVILLE, VIRGINIA

WHEREAS, the Virginia Department of Transportation (VDOT) proposes to construct the McIntire Road Extended Project (hereinafter “MRE”) under VDOT Project No. U000-104-102, P101 (VDOT UPC Nos. 2529, 15487; Norfolk District, Corps of Engineers Project No. 08-4060, NAO 2008-1787; DHR File No. 1993-2606); and

WHEREAS, the MRE, located in the City of Charlottesville (City), is proposed as a road on new alignment, which will run from Melbourne Road south to a point approximately 775 feet north of the Route 250 Bypass (Attachments A and B); and

WHEREAS, the MRE’s southern end will connect to the Route 250 Bypass Interchange (grade-separated), which is being developed, constructed, and administered separately by the City of Charlottesville, with the Federal Highway Administration (FHWA) as the lead Federal agency for purposes of Section 106 of the National Historic Preservation Act (NHPA); and Section 106 requirements for the Route 250 Bypass Interchange have been coordinated among the City, the Advisory Council on Historic Preservation (ACHP), the Virginia State Historic Preservation Officer (SHPO), the VDOT, the Department of the Army, Norfolk District, Corps of Engineers (Norfolk District), and other Consulting Parties, and established through a separate Memorandum of Agreement executed on May 28, 2010, the stipulations of which will be implemented by the responsible parties; and

WHEREAS, the MRE will include two 11-foot undivided travel lanes on two lanes of right of way; two 5-foot bike lanes, located on each side of the travel lanes; a 10-foot enhanced pedestrian trail, located at a distance from the travel lanes; a box culvert carrying the travel lanes, bike lanes, and pedestrian trail at the crossing of an unnamed tributary to Schenks Branch; two extended stormwater detention basins; and the upgrading and slight relocation of a section of an existing Rivanna Water and Sewer Authority (RWSA) sewer line and easement at the north end of the MRE between approximately Sta. 23 + 50.00 and Sta. 36 + 50.00; and

WHEREAS, pursuant to Section 404 of the Clean Water Act of 1973 (33 U.S.C. 1344), a permit from the Department of the Army, Norfolk District (hereinafter “Permit”) will be required for the MRE, for permanent impacts to approximately 263 linear feet of nontidal waters of the United States, for construction of a road, bike path, pedestrian trail, and utility line crossing of an unnamed tributary to Schenks Branch for the MRE; and

WHEREAS, the aforementioned Route 250 Bypass 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 it either completes its review of the Joint Permit Application for the Interchange as the terminus for the Project, or receives a recognition in writing from the appropriate official in the City that the at-grade intersection with Route 250 will be the terminus, if the grade-separated terminus is not constructed; and

WHEREAS, pursuant to 36 CFR Part 800, regulations implementing Section 106 of the National Historic Preservation Act of 1966, as amended (NHPA) (16 U.S.C. 470f), and 33 CFR 325, Appendix C, Processing of Department of the Army Permits: Procedures for the Protection of Historic Properties, the Norfolk District is required to take into account the effects of federally permitted undertakings on properties included in or eligible for inclusion in the National Register of Historic Places (NRHP) prior to the issuance of a Permit to the undertaking, and to consult with the SHPO; and

WHEREAS, the Norfolk District, in consultation with the SHPO and other consulting parties, has defined the Area of Potential Effects (APE) for the undertaking as shown in Attachment C; and

WHEREAS, the Norfolk District, in consultation with the SHPO and other consulting parties, has identified three historic properties within the undertaking’s APE: McIntire Municipal Park (DHR Inventory No. 104-5139), a property determined eligible for the National Register of Historic Places (NRHP), and two of its contributing elements, the McIntire Golf Course (DHR Inventory No. 104-5102) and the Dogwood Vietnam Memorial (DHR Inventory No. 104-5139-0001); the Rock Hill Academy landscape (DHR Inventory No. 104-5137), a property determined eligible for the NRHP; and the Charlottesville and Albemarle County Courthouse Historic District (DHR Inventory No. 104-0072), a property listed on the NRHP, and two of its contributing elements, 501 Park Hill (DHR Inventory No. 104-1087) and 502 Park Hill (DHR Inventory No. 104-5129); and

WHEREAS, the Norfolk District, in consultation with the SHPO, has determined that the undertaking will have an adverse effect only on the McIntire Municipal Park and its contributing element, McIntire Golf Course, and has consulted with the SHPO and other consulting parties to resolve the adverse effect on the historic property; and

WHEREAS, the MRE design (Attachment B) reflects VDOT’s efforts to minimize the effects of the project on park land and historic properties by reducing the footprint of the proposed highway from a four-lane divided facility on four-lane right of way to a two-lane undivided facility on two-lane right of way in response to comments during the project development process from the Charlottesville City Council and the public; and

WHEREAS, as requested by Charlottesville City Council as a measure to minimize the effects of the MRE, the VDOT has engineered the MRE for a design speed of 35 miles per hour and has included signage specifying a speed limit of 35 mph in the construction plans for the project; and
WHEREAS, as requested by the Charlottesville City Council, the VDOT has engineered the MRE for non-truck traffic only; and

WHEREAS, at their March 16, 2009 meeting, the Charlottesville City Council adopted a master planning process, applicable to all City parks, which involves the preparation of a natural and cultural resources inventory of any subject park early in the planning process, as well as numerous opportunities for stakeholders and the general public to provide input on and review of a master plan as it is developed; and

WHEREAS, the City intends to develop and implement a master plan for the east side of McIntire Municipal Park, and decisions regarding the use, design, and long-term management of McIntire Municipal Park cannot be made outside of the City’s parks master planning process; and

WHEREAS, pursuant to 36 CFR 800.6(a)(1), the Norfolk District has notified the ACHP of its determination of adverse effect, and the ACHP has chosen to participate in consultation; and

WHEREAS, the VDOT has participated in this consultation pursuant to 36 CFR 800.2(c)(4), and the Norfolk District has invited the VDOT to be a signatory to this Memorandum of Agreement (Agreement) pursuant to 36 CFR 800.6(c)(2)(iii); and

WHEREAS, the City has participated in this consultation pursuant to 36 CFR 800.2(c)(3), and the Norfolk District has invited the City to be a signatory to this Agreement pursuant to 36 CFR 800.6(c)(2)(iii); and

WHEREAS, the Charlottesville Regional Chamber of Commerce, , the County of Albemarle, the Dogwood Vietnam Memorial Committee, the North Downtown Neighborhood Association, the Piedmont Group of the Sierra Club, Preservation Piedmont, Sensible Transportation Alternatives to the Meadowcreek Parkway (STAMP), the Thomas Jefferson Branch of the APVA/Preservation Virginia, and Mr. Richard Collins, have participated in consultation pursuant to 36 CFR 800.2(c)(5), and the Norfolk District has invited each of these parties to concur in this Agreement pursuant to 36 CFR 800.6(c)(3);

NOW, THEREFORE, in order to satisfy the Norfolk District’s Section 106 responsibilities to take into account the effects of permitted activities on historic properties, the Norfolk District, the ACHP, and the SHPO agree that the Norfolk District may issue a Permit to VDOT for the undertaking after the Norfolk District completes its Permit review of the MRE, and such Permit will require compliance with this Agreement as a Permit condition; thereby effectively incorporating all terms, provisions and stipulations of this Agreement as conditions to the Permit such that if any provision or stipulation herein is not fulfilled, such failure will constitute noncompliance with the Permit, and the Norfolk District may pursue enforcement and may seek all available remedies.

STIPULATIONS

I. LANDSCAPE PLANS FOR MCINTIRE ROAD EXTENDED

A. Stormwater Detention Basin Landscape Plan

The VDOT shall implement the landscape plans shown in Attachment D for the two extended stormwater detention basins included in the MRE. These landscape plans make extensive use of native plants, and the City and RWSA have determined that the design of the plan for Basin No. 3 accommodates planting requirements associated with their planned upgrade to a nearby sanitary sewer line and sewer easement. The intent of the design of these landscape plans is to integrate the detention basins visually into the existing natural features of their setting and thereby minimize the visual effects of the MRE on McIntire Municipal Park.

B. Integrated Landscape Plan

1. The VDOT shall provide the City funds to be used by the City to implement the City’s planned integrated landscape plan for the McIntire Road/McIntire Road Extended transportation corridor. The design of this landscape plan shall serve, in part, to integrate McIntire Road Extended visually into the existing natural features of its setting and thereby minimize the visual effects of the MRE on McIntire Municipal Park. In designing the landscape plan, the City shall accommodate planting requirements associated with RWSA sanitary sewer easements that run through McIntire Park. The amount of funding the VDOT shall provide the City for development and installation of the landscape plan is $30,000.

2. The City shall provide the landscape plan to the VDOT, the SHPO, the Norfolk District, and other consulting parties to this Agreement (not to include the ACHP) for review and comment for a period of thirty (30) calendar days. If any of these parties fails to respond within thirty (30) calendar days of receipt, the City may assume the non-responding party has no comment. Should the Norfolk District or the SHPO notify the City that the submitted landscape plan is not acceptable, the City shall resubmit a landscape plan to the VDOT, the Norfolk District, the SHPO, and the other consulting parties to this Agreement. The VDOT, the Norfolk District, the SHPO and the other consulting parties shall have thirty (30) calendar days after receipt of a revised landscape plan to respond to the City with any comments. If any of these parties fails to respond within thirty (30) calendar days of receipt, the City may assume the non-responding party has no comment.

3. The City shall implement the landscape plan during the construction phase of the MRE. The VDOT shall release the funds it will provide for the landscape plan to the City on a reimbursement basis after the City has completed implementation of the landscape plan.

C. RWSA Sanitary Sewer Upgrade

There is an existing sanitary sewer line running through McIntire Park near Schenks Branch that the City’s Department of Public Utilities has plans to upgrade as a separate project in conjunction with RWSA. If the City and RWSA construct this sewer upgrade after the VDOT has installed the stormwater detention basin landscape plan or after the City has installed the integrated landscape plan, the City shall replace in kind any plant materials previously installed in accordance with either of these landscape plans that are removed or damaged during implementation of the sewer upgrade.

II. TRAFFIC MANAGEMENT ON MCINTIRE ROAD EXTENDED

In accordance with the intention of Charlottesville City Council, the VDOT shall ensure that highway signage is installed indicating that truck traffic is prohibited on McIntire Road Extended, as well as signage specifying a speed limit of 35 mph. The number and location of signs necessary for these purposes shall be determined by VDOT in consultation with the City.

III. DOCUMENTATION OF MCINTIRE MUNICIPAL PARK AND MCINTIRE GOLF COURSE

A. McIntire Municipal Park

1. The VDOT shall prepare photographic documentation of the developed areas of McIntire Municipal Park, east of the Norfolk Southern Railroad and north of Route 250 Bypass, to include the McIntire Golf Course, the Dogwood Vietnam Memorial, and the wading pool and bath house. The documentation shall consist of large format black & white photographs, and 35 mm black & white and color field photographs prepared in accordance with the Secretary of the Interior’s Standards and Guidelines for Architectural and Engineering Documentation (Federal Register Vol. 48, No. 190, pp. 44730-44734; Federal Register Vol. 68, No. 139, pp. 43159-43162). The large format photographs shall conform to Level II coverage, as defined under the content standard in these guidelines. The large-format black & white photographs shall be consistent with the Historic American Landscape Survey’s (HALS) guidelines for large format photography (http://www.nps.gov/hdp/standards/HALS/HALSPhotographyGuidelines.pdf), with the exception that the numbering and labeling of negatives, negative sleeves, contact prints, and larger prints shall be coordinated by VDOT in advance with the Archivist of the Virginia Department of Historic Resources (DHR) and executed in a manner acceptable to the Archivist. The 35 mm black & white and 35 mm color field photographs shall be taken in film and digital format, respectively; depict significant aspects of the landscape and its historic setting; capture essentially the same views captured in the large format, black & white photographs, at a minimum; and be suitable for use in public presentations or exhibits.

2. The VDOT shall submit photographic documentation to the Norfolk District, the SHPO, and the City for review and approval, and to the other consulting parties to this Agreement (not to include the ACHP) for review and comment. The Norfolk District, the SHPO, the City, and the other consulting parties to this Agreement shall have thirty (30) calendar days after receipt of the photographic documentation to respond to the VDOT with any comments. If any of these parties fails to respond within thirty (30) calendar days of receipt, the VDOT may assume the non-responding party has no comment. Should the Norfolk District, the SHPO, or the City notify VDOT that the submitted photographic documentation is not acceptable, the VDOT shall resubmit documentation to the Norfolk District, the SHPO, the City and the other consulting parties to this Agreement. The Norfolk District, the SHPO, the City and the other consulting parties shall have thirty (30) calendar days after receipt of revised documentation to respond to the VDOT with any comments. If any of these parties fails to respond within thirty (30) calendar days of receipt, the VDOT may assume the non-responding party has no comment.

3. The VDOT shall not commence with any ground-disturbing construction activity within McIntire Municipal Park until it has submitted photographic documentation acceptable to the SHPO and so notified the Norfolk District in writing. The VDOT shall not commence any MRE activities authorized under the Norfolk District’s’ Permit until notified in writing by the Norfolk District that the requirements for photographic documentation of McIntire Municipal Park under this stipulation have been met. The Norfolk District agrees to review and respond to VDOT’s notification within ten (10) business days of receipt.

B. McIntire Golf Course

1. The VDOT shall prepare historical documentation of the McIntire Golf Course. This documentation shall consist of a written history prepared in accordance with the Secretary of the Interior's Standards and Guidelines for Architectural and Engineering Documentation (Federal Register Vol. 48, No. 190, pp. 44730-44734; Federal Register Vol. 68, No. 139, pp. 43159-43162). The written history shall conform to Level II coverage, as defined under the documentation content standard in these guidelines and shall take into account the applicable guidance set forth in Preservation Brief 36, Protecting Cultural Landscapes: Planning, Treatment, and Management of Historic Landscapes (National Park Service 1994) and the Secretary of the Interior’s Standards for the Treatment of Historic Properties with Guidelines for the Treatment of Cultural Landscapes (National Park Service 1996). The written history shall be consistent in regard to substantive content and in grammar and punctuation to the HALS guidelines for historical reports (http://www.nps.gov/hdp/standards/HALS/HALSHistoryGuidelines.pdf) and shall be prepared by or under the direct supervision of a qualified landscape historian, landscape architect, or other pertinent landscape expert with experience working with historic designed landscapes.

2. The VDOT shall submit a draft written history to the SHPO, the Norfolk District, and the City for review and approval and to the other consulting parties to this Agreement (not to include the ACHP) for review and comment within eight (8) months of initiation of construction of the MRE. The SHPO, the Norfolk District, the City and consulting parties shall have thirty (30) calendar days after receipt of the draft to respond to the VDOT with any comments on the documentation. If any of these parties fails to respond within thirty (30) calendar days of receipt, the VDOT may assume that the non-responding party has no comment. The VDOT shall consider all comments received within the thirty (30)-day review period.

3. The VDOT shall submit a final written history for McIntire Golf Course acceptable to the SHPO, the Norfolk District, and the City prior to or concurrent with completion of the construction phase of the MRE.

4. The VDOT shall provide the Albemarle Charlottesville Historical Society and the City of Charlottesville each a copy of the photographic documentation (excluding photographic negatives) of McIntire Municipal Park (in JPEG format) and the written history of McIntire Golf Course (in Adobe PDF format) within two (2) months of completion of the construction phase of the MRE.

IV. EDUCATIONAL INITIATIVES RELATED TO MCINTIRE MUNICIPAL PARK AND MCINTIRE GOLF COURSE

A. Exhibit Module

1. The VDOT, in consultation with the City, shall design and fabricate a mobile exhibit module, comprised of one or more free-standing display panels, text, and graphics, that summarizes the history of McIntire Municipal Park, with particular focus on the McIntire Golf Course, and examines the significance of the park and golf course within the social history of Charlottesville and as a designed historic landscape within the area of landscape architecture. Upon completion of the exhibit module, the VDOT shall transfer ownership of the exhibit to the City of Charlottesville, for the purpose of displaying the exhibit at appropriate citizen meetings associated with the City’s planned master planning process for the McIntire Municipal Park. Following transfer of ownership of the exhibit from VDOT, the City’s use of the exhibit shall be unrestricted, and the City may also display the exhibit, or loan it for the purposes of display, in other suitable contexts or facilities.

2. The VDOT shall submit a draft of the design of the exhibit to the SHPO, the Norfolk District, and the City for review and approval and to the other consulting parties to this Agreement (not to include the ACHP) for review and comment within eight (8) months of initiation of construction of the MRE. The SHPO, the Norfolk District, the City and consulting parties shall have thirty (30) calendar days after receipt of the draft to respond to the VDOT with any comments on the design. If any of these parties fails to respond within thirty (30) calendar days of receipt, the VDOT may assume that the non-responding party has no comment. The VDOT shall consider all comments received within the thirty (30)-day review period.

3. The VDOT shall submit a final design of the exhibit acceptable to the SHPO, the Norfolk District, and the City, and shall provide the fabricated exhibit to the City, prior to or concurrent with completion of the construction phase of the MRE.

B. Public Lecture Series

1. The VDOT shall partner with the City of Charlottesville, through the City’s Preservation Planning staff, to co-sponsor a public lecture series on the topic of “historic designed landscapes” (as that term is defined in National Register Bulletin No. 18, How to Evaluate and Nominate Designed Historic Landscapes, published by the U. S. Department of the Interior, National Park Service) and relevant to examining the historical significance of McIntire Municipal Park, McIntire Golf Course, and other historic designed landscapes in Charlottesville or the surrounding region. The series shall be comprised of three (3) public lectures. The lectures shall be delivered at a time and location convenient to the general public.

2. The VDOT and the City jointly shall develop a budget for the lecture series. The VDOT and the City of Charlottesville, in consultation with the SHPO, jointly shall determine the speakers and topics to be included in the lecture series. The City, in consultation with the VDOT, shall be responsible for planning and implementing the logistics associated with presenting the lecture series including, but not necessarily limited to inviting the speakers; making and implementing arrangements for the speakers; identifying appropriate dates and locations for the lectures; reserving these locations; advertising the lecture series, and providing a host for introducing the speaker at each lecture. The VDOT shall reimburse the City for reasonable expenses associated with the City’s role in presenting the lecture series including, but not necessarily limited to time spent by City staff planning and implementing the lecture series, the cost of speaker’s stipends and travel expenses, room rental fees, and advertising costs.

3. The VDOT and the City shall provide a detailed plan for the public lecture series to the SHPO and the Norfolk District, and the City shall present at least the first lecture in the series, prior to or concurrent with completion of the construction phase of the MRE. The City may schedule the remaining lecture(s) for after completion of the construction phase.

V. FINANCIAL RESPONSIBILITY

The VDOT and the City agree to carry out the tasks assigned to each in this Agreement, and the VDOT shall allocate a budget sufficient to carry out the requirements of Stipulations I-IV.

VI. REPORTING REQUIREMENTS

Upon completion of Stipulations I, II, III, and IV of this Agreement, the VDOT shall provide to the Norfolk District, the SHPO, the ACHP, the City, and other consulting parties signed correspondence documenting that the requirements of these stipulations have been fulfilled.

VII. POST-REVIEW DISCOVERIES

A. Section 107.16(d) of the VDOT's Road and Bridge Specifications govern all VDOT construction contracts and require the construction contractor to act immediately to suspend work at the site of the discovery of any previously unidentified archaeological resource encountered during construction and to notify the VDOT Project Engineer.

B. Immediately upon receipt of notification of the post-review discovery by the contractor, the VDOT shall:

1. Inspect the construction site to determine the extent of the discovery and ensure that construction activities have halted;

2. Clearly mark the area of the discovery;

3. Implement additional measures, as appropriate, to protect the discovery from looting and vandalism; and

4. Have a qualified archeologist meeting the requirements of Stipulation IX of this Agreement inspect the construction site to determine the extent of the discovery and provide recommendations regarding its NRHP eligibility and treatment.

C. Within 48 hours of the discovery, the VDOT shall notify the Norfolk District, the SHPO, the ACHP, the City, and other consulting parties of the discovery, describing the measures that have been implemented to comply with this Stipulation. In the case of prehistoric or historic Native American sites, the VDOT shall also notify appropriate tribal leaders and the Virginia Council on Indians (VCI).

D. Upon receipt of the information required in Stipulation VII.B, the Norfolk District shall provide the VDOT, the SHPO, the ACHP, the City, and other consulting parties with its assessment of the NRHP eligibility of the discovery and the measures proposed to resolve any adverse effects. In making its evaluation, the Norfolk District, in consultation with the SHPO, may assume the discovery to be NRHP eligible for the purposes of Section 106 pursuant to 36 CFR § 800.13(c). The VDOT, the SHPO, the ACHP, the City, and other consulting parties shall respond to the Norfolk District’s assessment within forty-eight (48) hours of receipt.

E. The Norfolk District shall take into account the recommendations of the SHPO, the ACHP, the City, and other consulting parties on eligibility and treatment of the discovery and will notify VDOT of any appropriate required actions. VDOT must comply with the required actions and provide the Norfolk District and consulting parties with a report on the actions when implemented. Any actions that the Norfolk District deems appropriate for VDOT to take with regard to such discovery will automatically become additional stipulations to this Agreement and thereby will be incorporated in the Permit and become conditions to the Permit. If VDOT fails to comply with such actions, such failure will constitute a breach of this Agreement and noncompliance with the Permit.

F. Construction activities may proceed in the area of the discovery when the Norfolk District has determined that implementation of the actions undertaken to address the discovery pursuant to this Stipulation is complete.

VIII. HUMAN REMAINS

A. The VDOT shall make all reasonable efforts to avoid disturbing gravesites, including those gravesites containing Native American human remains and associated funerary artifacts. The VDOT shall treat all human remains in a manner consistent with the ACHP’s Policy Statement Regarding Treatment of Burial sites, Human Remains, and Funerary Objects (February 23, 2007; http://www.achp.gov/docs/hrpolicy0207.pdf).

B. The VDOT shall ensure that human skeletal remains and associated funerary objects encountered during the course of actions taken as a result of this Agreement shall be treated in accordance the Regulations Governing Permits for the Archaeological Removal of Human Remains (Virginia Register 390-01-02) found in the Code of Virginia (10.1-2305, et seq., Virginia Antiquities Act). If removal is proposed, the VDOT shall apply for a permit from the SHPO for the removal of human remains in accordance with the regulations stated above.

C. The VDOT shall make a good faith effort to ensure that the general public is excluded from viewing any Native American burial site or associated funerary artifacts. The consulting parties to this Agreement shall release no photographs of any Native American burial site or associated funerary artifacts to the press or general public.

D. The Norfolk District shall notify appropriate Federally-recognized Tribe(s), the VCI, and appropriate tribal leaders when Native American burials, human skeletal remains, or funerary artifacts are encountered on the project, prior to any analysis or recovery. The VDOT shall deliver any Native American human skeletal remains and associated funerary artifacts recovered pursuant to this Agreement to the appropriate tribe to be reinterred. The disposition of any other human skeletal remains and associated funerary artifacts shall be governed as specified in any permit issued by the SHPO or any order of the local court authorizing their removal. The VDOT shall be responsible for all reasonable costs associated with treatment of human remains and associated funerary objects to resolve the effects of the MRE.

IX. PROFESSIONAL QUALIFICATIONS

All architectural, historical, or archaeological work carried out pursuant to this Agreement shall be conducted by or under the direct supervision of an individual or individuals who meet, at a minimum, the Secretary of the Interior's Professional Qualifications Standards (48 FR 44738-9, September 29, 1983) in the appropriate discipline.

X. PREPARATION AND REVIEW OF DOCUMENTS

A. Except as described under Stipulation III.A, the VDOT shall submit a draft of any technical reports, treatment plans and other documentation prepared under this Agreement to the Norfolk District (one (1) copy), the SHPO (two (2) copies), the City (two (2) copies), and other consulting parties (one (1) copy) for 30-day review and comment. The VDOT shall address all comments received within thirty (30) days of confirmed receipt in the revised technical report/documentation. Following written approval by the Norfolk District, the VDOT shall provide two (2) copies of all final reports, bound and on acid-free paper, and one electronic copy in Adobe PDF format to the SHPO, one (1) electronic copy to the Norfolk District, and one (1) electronic copy to the City.

B. Except as described under Stipulations III.A and III.B., all technical reports prepared pursuant to this Agreement shall be consistent with the federal standards entitled Archeology and Historic Preservation: Secretary of the Interior's Standards and Guidelines (48 FR 44716-44742, September 29, 1983) and the SHPO’s Guidelines for Conducting Cultural Resource Survey in Virginia (rev. 2003), or any subsequent revisions or replacements of these documents.

C. The SHPO, the Norfolk District, the City, and other consulting parties agree to provide comments on all technical reports, treatment plans, and other documentation arising from this Agreement within thirty (30) calendar days of receipt. If no comments are received from the SHPO, the City, or other consulting parties within the thirty (30) day review period, the Norfolk District and VDOT may assume the non-responding party has no comments.

XI. CURATION

The VDOT shall make a good faith effort to ensure that any archaeological materials collected as a result of archeological investigations arising from this Agreement (with the exception of human skeletal remains and associated funerary objects) are deposited by the landowner for permanent curation with either the DHR or another repository meeting the requirements of 36 CFR 79, Curation of Federally Owned and Administered Archaeological Collections.

XII. DISPUTE RESOLUTION

A. Should any party to this Agreement object in writing to the Norfolk District regarding any action carried out or proposed with respect to any undertakings covered by this agreement or to implementation of this Agreement, the Norfolk District shall notify the signatories to this Agreement and consult with the objecting party to resolve the objection.

B. If after initiating such consultation, the Norfolk District determines that the objection cannot be resolved through consultation, the Norfolk District shall forward all documentation relevant to the objection to the ACHP, including the proposed response to the objection. The Norfolk District shall provide a copy of the materials forwarded to the ACHP to the signatory parties to this Agreement.

C. Within thirty (30) days after receipt of all pertinent documentation, the ACHP shall exercise one of the following options:

1. Advise the Norfolk District that the ACHP concurs with its proposed response to the objection, whereupon the Norfolk District will respond to the objection accordingly; or

2. Provide the Norfolk District with recommendations, which it shall take into account in reaching a final decision regarding its response to the objection; or

3. Notify the Norfolk District that the objection will be referred for comment pursuant to 36 CFR 800.7(a)(4), and proceed to refer the objection and comment. The Norfolk District shall take the resulting comment into account in accordance with 36 CFR 800.7(c)(4) and Section 110(l) of the NHPA.

D. Should the ACHP not exercise one of the above options within thirty (30) days after receipt of all pertinent documentation, the Norfolk District may assume the ACHP’s concurrence in its proposed response to the objection.

E. The Norfolk District shall take into account any ACHP recommendation or comment provided in accordance with this stipulation with reference only to the subject of the objection; the Norfolk District’s responsibility to carry out all the actions under this Agreement that are not the subjects of the objections shall remain unchanged.

F. At any time during implementation of the measures stipulated in this Agreement, should a member of the public object to the Norfolk District regarding the manner in which the measures stipulated in this Agreement are being implemented, the Norfolk District shall notify the parties to this Agreement and take the objection into account, consulting with the objector and, should the objector so request, with any of the parties to this Agreement to resolve the objection.

XIII. AMENDMENTS AND TERMINATION

A. Any signatory party to this Agreement may propose to the Norfolk District that the Agreement be amended, whereupon the Norfolk District will consult with the other parties to this Agreement to consider such an amendment. All signatories to the Agreement must agree to the proposed amendment in accordance with 800.6(c)(7).

B. If the VDOT decides it will not proceed with the undertaking, it shall so notify the Norfolk District, the SHPO, the ACHP, the City, and the other consulting parties, and this Agreement shall become null and void.

C. If the VDOT determines that it cannot implement the terms of this Agreement, or if the Norfolk District, the SHPO, the City, or the ACHP determines that the Agreement is not being properly implemented, the VDOT, the City, the Norfolk District, the SHPO, or the ACHP may propose to the other parties to this Agreement that it be amended or terminated.

D. This Agreement may be terminated by any signatory to the Agreement in accordance with the procedures described in 800.6(c)(8). Termination shall include the submission of a technical report or other documentation by the VDOT on any work done up to and including the date of termination. If the Norfolk District is unable to execute another Agreement following termination, it may choose to modify, suspend, or revoke the Department of the Army Permit as provided by 33 CFR 325.7.

XIV. DURATION OF AGREEMENT

This Agreement will continue in full force and effect until five (5) years after the date of the last signatory party signature. Except as described in Stipulation IV.B.3 of this Agreement, the VDOT and the City shall fulfill the requirements of this Agreement prior to and in conjunction with the work authorized by the Permit. All obligations under this Agreement must be complete before expiration of this Agreement. If any obligation is not complete, the party responsible for such obligation is in violation of this Agreement; such violation may also constitute a violation of the Permit. Failure of the Norfolk District to pursue such violation is not a waiver. At any time in the six-month period prior to such date, the Norfolk District may request the signatory parties to consider an extension or modification of this Agreement. No extension or modification will be effective unless all signatory parties to the Agreement have agreed with it in writing.

XV. EXECUTION OF AGREEMENT

This Agreement may be executed in counterparts, with a separate page for each signatory. The Norfolk District shall ensure that each party is provided with a copy of the fully executed Agreement.

Execution of this Memorandum of Agreement by the Norfolk District, the ACHP, the SHPO, the VDOT, and the City, and implementation of its terms, evidence that the Norfolk District has afforded the ACHP an opportunity to comment on the proposed undertaking and its effects on historic properties, and that the Norfolk District has taken into account the effects of the undertaking on historic properties.

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 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

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.

FHWA publishes Finding of No Significant Impact for Route 250 Bypass Interchange at McIntire Road - CPMP considers legal action.

The Federal Highway Administration has published a Finding of No Significant Impact for the Route 250 Bypass Interchange at McIntire Road in the October 13, 2010 edition of the Federal Register.

This posting is given below with links to many of the documents, laws, etc. referenced in the posting. I added these links so that you can browse some of the documents, laws, etc. of interest to you.

The Coalition to Preserve McIntire Park (CPMP) is currently reviewing the Environmental Assessment, the Final Section 4(f) Evaluation for compliance with the National Environmental Policy Act, Section 4(f) of the Department of Transportation Act of 1966, and Section 106 of the National Historic Preservation Act. CPMP is working with its attorney to determine if legal action is desirable to preserve McIntire Park.


Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Notices, pp. 62919-20

---

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

Notice of Final Federal Agency Actions on the Route 250 Bypass Interchange at McIntire Road Project in Virginia

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of limitation on claims for judicial review of actions by FHWA.

---

SUMMARY: This notice announces actions taken by the FHWA that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to the Route 250 Bypass Interchange at McIntire Road project in the City of Charlottesville, Virginia. Those actions grant licenses, permits, and approvals for the project.

DATES: By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the project will be barred unless the claim is filed on or before April 11, 2011. Notwithstanding any other provision of law, a claim arising under Federal law seeking judicial review of a permit, license, or approval issued by a Federal agency for a highway or public transportation capital project shall be barred unless it is filed within 180 days after publication of a notice in the Federal Register announcing that the permit, license, or approval is final pursuant to the law under which the agency action is taken, unless a shorter time is specified in the Federal law pursuant to which judicial review is allowed.

FOR FURTHER INFORMATION CONTACT: Mr. John Simkins, Senior Environmental Specialist, Federal Highway Administration, 400 North 8th Street, Richmond, Virginia 23219; telephone: (804) 775–3342; e-mail: John.Simkins@dot.gov. The FHWA Virginia Division Office’s normal business hours are 7 a.m. to 5 p.m. (eastern time). For the City of Charlottesville (the project sponsor): Ms. Angela Tucker, Development Services Manager, P.O. Box 911, Charlottesville, Virginia 22902; telephone: (434) 970–3993; e-mail: tuckera@charlottesville.org. The City of Charlottesville’s normal business hours are 8 a.m. to 5 p.m. (eastern time).

SUPPLEMENTARY INFORMATION: Notice is hereby given that FHWA has taken final agency actions subject to 23 U.S.C. 139(l)(1) by issuing licenses, permits, and approvals for the following project in the State of Virginia: Route 250 Bypass Interchange at McIntire Road. The project would involve construction of a grade-separated interchange at the existing intersection of Route 250 Bypass and McIntire Road. The project would reduce traffic congestion and improve community mobility. The actions taken by FHWA, and the laws under which such actions were taken, are described in the Revised Environmental Assessment, the letter finalizing the Environmental Assessment process and requesting a Finding of No Significant Impact (FONSI), the FONSI that was issued on September 29, 2010, the Final Section 4(f) Evaluation that was approved on September 29, 2010, and in other documents in the FHWA project records. The Revised Environmental Assessment, the letter finalizing the Environmental Assessment process and requesting a FONSI, the FONSI, and the Final Section 4(f) Evaluation can be viewed on the project’s internet Web site at http://www.250interchange.org. These documents and other project records are also available by contacting FHWA or the City of Charlottesville at the phone numbers and addresses provided above.

This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:

1. General: National Environmental Policy Act (NEPA) [42 U.S.C. 4321–4351]; Federal-Aid Highway Act (FAHA) [23 U.S.C. 109 and 23 U.S.C. 128].

2. Air: Clean Air Act [42 U.S.C. 7401–7671(q)].

3. Land: Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303].

4. Wildlife: Endangered Species Act [16 U.S.C. 1531–1544 and Section 1536].

5. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended [16 U.S.C. 470(f) et seq.].

6. Social and Economic: Farmland Protection Policy Act [7 U.S.C. 4201–4209].

(Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.)

Authority: 23 U.S.C 139(l)(1).
Issued on: October 6, 2010.
John Simkins,

Senior Environmental Specialist.

[FR Doc. 2010–25697 Filed 10–12–10; 8:45 am]
BILLING CODE 4910–RY–P

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

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

Charlottesville Regional Chamber of Commerce advocates for building McIntire Road Extended - Again

The Charlottesville Regional Chamber of Commerce distributed this press release on April 9, 2009 announcing the extension of a construction bid for the McIntire Road Extended project for 60 days. The chamber leadership has enthusiastically supported construction of the proposed Meadowcreek Parkway (of which the McIntire Road Extended is a part) for many years.

The Coalition to Preserve McIntire Park (CPMP) believes that the original advertisement for construction bids for this project was premature and the extension of the contract by 60 days will have little bearing on moving this project forward. CPMP continues to claim that this project is not independent of the proposed Route 250 Bypass Intersection at McIntire Road, and that the Corps of Engineers is justifiably reluctant to grant a necessary water quality permit for construction of the McIntire Road Extended until VDOT submits a suitable southern terminus for McIntire Road Extended. In the current VDOT plan, the road terminates 775 feet north of the Route 250 Bypass in the McIntire Golf Course. As I understand the Corps' concern, no permit can be issued for a project without the project having logical termini. The only currently planned logical southern terminus for the road would be the interchange proposed at the Route 250 Bypass.

If the Chamber wishes to see this project move forward, I encourage the Chamber to encourage VDOT to submit a complete road project plan to the Corps of Engineers that includes both the McIntire Road Extended and Route 250 Bypass Interchange at McIntire Road - containing a southern terminus at Route 250 Bypass and a northern terminus at Melbourne Road - so that the Corps of Engineers can legitimately consider their permit application.

The Chamber included the following statement in the email cover memo for the distribution of the press release below. Clearly the Chamber thinks of these multiple projects as on road project, yet appears comfortable supporting VDOT's current strategy of artificially segmentation to avoid a comprehensive review of the environmental, historic, and community impacts of this single project.

"Expeditious construction of the Meadowcreek Parkway & McIntire Road Extended projects -- from Rio Road in Albemarle County to a new federal intersection project at US 250 & McIntire Road in the City of Charlottesville -- providing a safe, attractive, accessible gateway to a vibrant, sustained downtown residential, shopping, entertainment and employment center, remain our Chamber's highest transportation priority projects. "

“… dedicated to representing private enterprise, promoting business
and enhancing the quality of life in our Greater Charlottesville communities.”

cvillechamber.com
PO Box 1564 • Fifth & Market Streets • Charlottesville, Virginia 22902

RELEASE: IMMEDIATE
CONTACT: Timothy Hulbert
434.295.3141
434.973.3396

CHAMBER STATEMENT REGARDING EXTENSION OF FAVORABLE CONSTRUCTION BID FOR MCINTIRE ROAD EXTENDED PROJECT

(Charlottesville, Virginia – April 9) The following is a statement from Timothy Hulbert, President and chief executive of the Charlottesville Regional Chamber of Commerce regarding the announcement late yesterday that the Virginia Department of Transportation has successfully negotiated an extension of a favorable construction bid for construction of the $3 million McIntire Road Extension Project.

“Our Chamber, and the many supporters of improved, safe vehicular access into our vibrant Downtown Charlottesville, thank officials at the Virginia Department of Transportation for their successful effort to get the highly favorable construction bid for the $3 million McIntire Road Extended Project – extended 60 additional days.

“This additional time provides the City of Charlottesville and the US Army Corps of Engineers the opportunity to resolve the remaining technical issues regarding the project and thus allow VDOT to award the bid. Furthermore, once the final technical permit is issued, opponents of the project will have the action needed to bring their anticipated court case against the project. Thus, for very differing purposes, both project supporters and opponents can applaud this action and move forward.”

The Charlottesville Regional Chamber of Commerce is dedicated to representing private enterprise, promoting business and enhancing the quality of life in the greater Charlottesville communities. Founded in 1913, the Chamber has 1,000 member enterprises which employ more than 45,000 people in Greater Charlottesville, representing an estimated total payroll of more than $1.3 billion a year. ####

FHWA distributes new draft Memorandum of Understanding for consideration in historic review of Route 250 Bypass Interchange at McIntire Road

A new draft Memorandum of Agreement (MOA) for the Route 250 Bypass Interchange at McIntire Road project was distributed by John Simkins of the FHWA Virginia Division. In the distribution email Mr. Simkins states: "The MOA has been revised based on comments received on the version that was circulated in December 2009 as well as comments received at a meeting among the signatories."

If this agreement is approved, then the Historic Preservation Review Process that is commonly known at the Section 106 review (from Section 106 of the National Historic Preservation Act of 1966) will have been completed - one of the required steps in environmental review of the interchange project.

The Coalition to Preserve McIntire Park continues to request that the interchange and the McIntire Road Extended project be combined into one project and that only one Section 106 agreement covering both interchange and roadway be considered. The Coalition to Preserve McIntire Park will be studying this most recent draft MOA and commenting formally to all of the signatories by April 23, 2010.

This draft is given provided below and is open for comments through April 23, 2010 by all of the signatories and consulting parties in the process.

DRAFT, April 8, 2010

MEMORANDUM OF AGREEMENT

Among the
FEDERAL HIGHWAY ADMINISTRATION,
CITY OF CHARLOTTESVILLE,
VIRGINIA DEPARTMENT OF TRANSPORTATION,
VIRGINIA STATE HISTORIC PRESERVATION OFFICER, and the
ADVISORY COUNCIL ON HISTORIC PRESERVATION

Regarding the
ROUTE 250 BYPASS INTERCHANGE AT MCINTIRE ROAD in the
CITY OF CHARLOTTESVILLE, VIRGINIA

WHEREAS, the City of Charlottesville (the City), in cooperation with the Federal Highway Administration (FHWA), proposes to construct a grade-separated interchange at the existing intersection of the Route 250 Bypass and McIntire Road in the City of Charlottesville (State Project No. 0250-104-103, PE-101, UPC 60234; Federal Project No. STP-5104 (156); VDHR File No. 2006-1589); and

WHEREAS, FHWA has determined that the provision of financial assistance for the project is an undertaking as defined in 36 CFR 800.16(y); and

WHEREAS, the undertaking is being administered by the City using funds allocated by the Commonwealth Transportation Board pursuant to an agreement executed between the City and the Virginia Department of Transportation (VDOT) governing the City’s participation in the VDOT’s Urban Construction Initiative (also known as the First Cities Initiative); and

WHEREAS, the City anticipates receiving federal financial assistance for the project through VDOT from FHWA; and

WHEREAS, the City Council has identified Alternative G1, a signalized urban diamond interchange, as the preferred alternative for the undertaking as shown on Attachment A; and

WHEREAS, pursuant to Section 404 of the Clean Water Act, a Department of the Army permit will likely be required from the U.S. Army Corps of Engineers (Corps) for this project, and the Corps has designated FHWA as the lead federal agency to fulfill federal responsibilities under Section 106; and

WHEREAS, FHWA has consulted with the Virginia State Historic Preservation Officer (SHPO) pursuant to 36 CFR 800, the regulations implementing Section 106 of the National Historic Preservation Act (16 U.S.C. 470f); and

WHEREAS, the FHWA in consultation with the SHPO and with the cooperation of the City, has defined the undertaking's area of potential effects (APE) as shown on Attachment B pursuant to 36 CFR 800.16(d); and

WHEREAS, the FHWA, in consultation with the SHPO and with the cooperation of the City, has determined that within the APE two properties are listed on the National Register of Historic Places (NRHP): Hard Bargain (VDHR No. 104-0210) and the Charlottesville and Albemarle County Courthouse Historic District (104-0072) as shown in Attachment B; and

WHEREAS, the FHWA in consultation with the SHPO and with the cooperation of the City, has determined that three properties located within the APE are eligible for listing on the NRHP: McIntire School/Covenant School (104-0120), Rock Hill Landscape (104-5237, 44AB0215), and McIntire Park (104-5139), including as contributing resources, the Dogwood Vietnam Memorial, wading pool, bath house, and the McIntire Golf Course, as shown in Attachment B; and

WHEREAS, the FHWA, in consultation with the SHPO and with the cooperation of the City, has determined that the undertaking will have an adverse effect on the Rock Hill Landscape and McIntire Park pursuant to 36 CFR 800.5(a); and

WHEREAS, in accordance with 36 CFR 800.6(a)(1), FHWA has notified the Advisory Council on Historic Preservation (ACHP) of its adverse effect determination with specified documentation and the ACHP has chosen to participate in the consultation pursuant to 36 CFR 800.6(a)(1)(iii); and

WHEREAS, the City, participating in the consultation pursuant to 36 CFR 800.2(c)(4), has responsibility for implementing stipulations under this Memorandum of Agreement (MOA), and pursuant to 36 CFR 800.6(c)(2)(iii), FHWA has invited the City to be a signatory to this MOA; and

WHEREAS, the VDOT has participated in this consultation pursuant to 36 CFR 800.2(c)(4), and FHWA has invited the VDOT to be a signatory to this MOA pursuant to 36 CFR 800.6(c)(2)(iii); and

WHEREAS, FHWA and the City have consulted extensively with the Association for the Preservation of Virginia Antiquities (APVA), the North Downtown Residents Association (NDRA), Piedmont Preservation, Sensible Transportation Alternatives to the Meadowcreek Parkway-2025 (STAMP-2025), the Monticello Area Community Action Agency (MACAA), and the Dogwood Vietnam Memorial Committee regarding the effects of the undertaking on historic properties and have invited these other consulting parties to concur with this MOA pursuant to 36 CFR 800.6(c)(3); and

WHEREAS, the City, in cooperation with FHWA, has afforded the public an opportunity to comment on the effect of the undertaking on historic properties; and

WHEREAS, throughout the design and consultation process the FHWA and the City, in consultation with the SHPO and other consulting parties, have considered alternatives that avoid or minimize the adverse effects that the undertaking will have on historic properties; and

WHEREAS, the City has performed a topographic survey of stone walls and terraces that contribute to the historic character of the Rock Hill Landscape; and

WHEREAS, separate from this undertaking, the City will be developing a final McIntire Park master plan. This master planning process involves the preparation of a natural and cultural resources inventory of any subject park early in the planning process, and numerous opportunities for stakeholders and the general public to provide input on and review of the master plan as it is developed; and

WHEREAS, the McIntire Road Extended project (MRE) is a separate project in the same area as the FHWA undertaking that is the subject of this MOA, and while the MRE is not funded by the FHWA or under its jurisdiction, the FHWA has, in consultation with the parties to this MOA, considered the contribution of FHWA’s undertaking to the cumulative effects of transportation improvements on McIntire Park as a historic property; and

NOW, THEREFORE, FHWA, the City, VDOT, SHPO, and ACHP agree that the undertaking shall be implemented in accordance with the following stipulations in order to take into account the effect of the undertaking on historic properties.

STIPULATIONS

FHWA shall ensure that the following measures are carried out:

I. Documentation and Photographic Recordation

A. The City shall develop a plan to document and photograph the Rock Hill Landscape and the eligible portion of McIntire Park (east of the railroad alignment and north of the Route 250 Bypass) including its contributing resources (Dogwood Vietnam Memorial, wading pool, bath house, and golf course). The plan for recordation shall be implemented in accordance with the standards of the Historic American Landscape Survey (HALS). This documentation shall consist of a written history, large format black and white photographs, and color field photographs prepared in accordance with the following standards and guidelines.

B. The City shall document the Rock Hill Landscape and the eligible portion of McIntire Park in accordance with the Secretary of the Interior’s Standards and Guidelines for Architectural and Engineering Documentation (Federal Register Vol. 48, No. 190, pp. 44730-44734; Federal Register Vol. 68, No. 139, pp. 43159-43162). The written history and large format photographs shall conform to Level II coverage, as defined under the documentation content standard in these guidelines. The written history shall be consistent in regard to substantive content and in grammar and punctuation to HALS guidelines for historical reports (www.nps.gov/history/hdp/standards/halsguidelines.htm). The large-format black and white photographs shall be consistent with HALS guidelines for large format photography (http://www.nps.gov/history/hdp/standards/halsguidelines.htm), with the exception that the numbering and labeling of negatives, negative sleeves, contact prints, and larger prints shall be coordinated by the City in advance with the SHPO and executed in a manner consistent with the latest SHPO guidelines for conducting cultural resources survey in Virginia and “Photographic Documentation for National Park Service (NPS) Register Nominations and Virginia Department of Historic Resources (VDHR) Basic Survey” (Updated September 13, 2006). Color field photographs shall be taken in digital format; depict significant aspects of Rock Hill Landscape and the eligible portion of McIntire Park, as well as their historic settings; and capture essentially the same views as the large format, black and white photographs, at a minimum. The images should be suitable for use in public presentations or exhibits.

C. In developing the documentation and photo recordation, the City shall make a comprehensive effort to research both Rock Hill Landscape and McIntire Park at repositories such as the Albemarle Charlottesville Historical Society, VDHR Archives & Library, property records, University of Virginia libraries, and local libraries. The City shall also use past and ongoing studies such as historic and current McIntire Park master plans and MRE cultural resources investigations.

D. The City shall develop a draft of the recordation materials required in Stipulation I.B and submit it for comment to the SHPO and other consulting parties. The recordation shall be supported by the topographic survey which was completed for the Rock Hill Landscape. The City shall consider all comments on the draft before implementing the final recordation. If after thirty (30) calendar days following submittal of the draft documentation no comments are received, the City may assume the non-responding party has no comments. Upon receiving approval in writing from the FHWA, the City may proceed with the final version of the recordation.

E. The City shall not commence with any demolition or construction activity concerning the affected properties until it has submitted photographic documentation acceptable to the SHPO. The City shall also provide the VDHR Archives & Library a copy of the final written history and photographic documentation (including the negatives) within six (6) months of completion of the project. The City shall provide five additional copies of the recordation package to appropriate local repositories designated in consultation with the FHWA, VDOT, SHPO, and other consulting parties. These materials will be easily accessible to the greater community – in both format and reference location. Possible repositories include the City’s website, local libraries, and the Piedmont Area Preservation Alliance (PAPA).

II. Interpretive Signs

A. Using the information obtained in Stipulation I.C, the City shall provide two interpretive signs: one on the McIntire Park property and another on the public right-of-way adjacent to the Rock Hill Landscape property. The two interpretive signs will provide historical overviews of the two properties.

B. The interpretive sign at McIntire Park will place the Park in the context of the history of Charlottesville and Park design, point out significant features of the Park, and describe the location and significance of nearby contributing resources such as the Dogwood Vietnam Memorial, bath house, wading pool, and golf course. The interpretive sign near the Rock Hill Landscape within the public right-of-way will place the landscape in the context of Charlottesville’s history, articulate the landscape’s significance, and direct the visitor’s gaze to significant features of the garden landscape.

C. The City shall coordinate sign content, appearance and location to ensure compatibility with other signs within McIntire Park and the City, as appropriate. The SHPO and other consulting parties shall then have thirty (30) calendar days after the receipt of adequate documentation to review and comment on content, layout, appearance, and placement of both signs. If no comments are received, the City may assume the non-responding party has no comments. The City shall ensure that all comments received within thirty (30) calendar days of receipt are considered as appropriate into the final sign design. The signs shall be erected within one year of completion of construction of the undertaking.

III. Landscape Design

As described in the following paragraphs, the City shall prepare a landscape plan for the undertaking which includes specific landscape plans for affected areas of McIntire Park, Rock Hill Landscape, and the Charlottesville and Albemarle County Courthouse Historic District. The plans shall be prepared by the City in consultation with a professional who meets the Secretary of Interior’s Professional Qualifications Standards for Historic Architecture (48 FR 44739) and has expertise in preservation landscape design. For each plan, the City shall provide thirty (30) calendar days for the SHPO and the other consulting parties to review and comment on the concept plan. If no comments are received, the City may assume that the non-responding party has no comments. The City shall ensure that all comments received within thirty (30) calendar days of receipt are considered as appropriate in the final plans. The City shall implement all landscape plans during construction of the undertaking.

A. McIntire Park (and the Dogwood Vietnam Memorial)

1. The City shall develop a conceptual landscape plan to improve the portion of McIntire Park within the vicinity of the interchange, including the setting of the Dogwood Vietnam Memorial. The landscape plan area shall encompass the interchange, and shall be completed through coordination with the Department of Parks and Recreation and the Memorial’s caretakers, the Dogwood Vietnam Memorial Committee (DVMC).

2. The landscape plan shall accommodate the change in existing ground elevations caused by construction of the undertaking, and shall include treatment of surrounding slopes and enhancement and/or replacement of existing landscape features. The City shall also construct new public multi-purpose trails within McIntire Park that would provide access from existing and proposed trails to the Dogwood Vietnam Memorial.
The landscape plan shall maintain the Memorial at its existing position within the Park and provide a gathering space for the annual Memorial rededication ceremony.

3. The landscape plan shall be in keeping with the historic character of McIntire Park and the original theme for the Memorial. Therefore, the plan will propose plantings that properly balance the historic open landscape of McIntire Park and visibility of the Dogwood Vietnam Memorial with the desired screening of other park features. The landscape plan shall not preclude the use of McIntire Park for golf outside of areas directly affected by the undertaking. Plantings proposed in the McIntire Park landscape plan will also have the intent to provide screening between the new interchange and the adjacent Rock Hill Landscape. The landscape plan shall also ensure that desired vegetative screening would not be affected by the potential upgrade of the existing Schenk’s Branch Interceptor sewer line by the Rivanna Water and Sewer Authority in the interchange area.

B. Rock Hill Landscape

1. The City shall develop a landscape plan for the Rock Hill Landscape property. The landscape plan shall be completed according to the guidelines of The Secretary of the Interior’s Standards for the Treatment of Historic Properties for Restoration and Guidelines for Restoring Historic Buildings (U.S. Department of the Interior, National Park Service, 1992) and Preservation Brief 36: Protecting Cultural Landscapes (U.S. Department of the Interior, National Park Service, 1994). The landscape plan shall consist of three major elements:

a. Rehabilitation plan: The City shall prepare a rehabilitation plan for Rock Hill Landscape, using information from the research and written history under Stipulation I. The plan shall provide an accurate restoration planting plan for the gardens as well as recommendations for rehabilitating the garden terraces, stairs, walls, and other landscape features. The plans shall be prepared by a professional who meets the Secretary of Interior’s Professional Qualifications Standards for Historic Architecture (48 FR 44739) and has expertise in preservation landscape design. MACAA shall be consulted during development of the Rock Hill landscape plan.

b. Reconstruct outer rock wall: The City shall reconstruct the portion of the outermost rock wall that would be disassembled by the undertaking. The wall would be reconstructed along a revised Rock Hill Landscape property boundary, northeast of the bicycle/pedestrian path and Route 250 westbound off-ramp proposed by the undertaking. The wall shall be reconstructed using the rock material from the existing wall, and to a similar height and depth of the existing wall. The wall reconstruction shall be overseen by a professional who meets the Secretary of Interior’s Professional Qualifications Standards for Historic Architecture and has expertise working with historic masonry.

c. Screening vegetation: The City shall install vegetation in areas disturbed by the undertaking with the intent to screen the interchange from Rock Hill Landscape. The screening shall consider replanting vegetation along the Route 250 Bypass adjacent to the Landscape and adjacent to the reconstructed outer rock wall.

3. The City shall continue its efforts to seek a partnership arrangement with MACAA to establish a property interest for the Rock Hill Landscape gardens. The following items shall be considered to determine the nature of a partnership and whether a partnership is reasonable:

a. Ownership: The City shall pursue the property interest of the Rock Hill Landscape gardens through fee simple ownership or through permanent easement. Both the entire gardens and a portion of the gardens shall be pursued.

b. Public access: The City shall consider requirements for providing public access to the gardens, including American with Disabilities Act guidelines, liability, site security, and potential effects on the garden’s historic integrity.

c. Cost: The City and FHWA shall determine if the cost to establish a property interest on the property is a reasonable public expenditure in consideration of the undertaking’s effects to historic properties. The cost shall not exceed the fair market value of owning the gardens or establishing an easement.

d. Maintenance: The City shall consider the long-term maintenance costs and needs (including staffing) associated with the gardens.

e. Use of remaining property: The City shall consider the foreseeable land use of the remaining Rock Hill Landscape property and whether the land use would be compatible with garden rehabilitation.

The City shall conduct negotiations for the partnership arrangement before and during the undertaking’s right-of-way acquisition phase. The effort shall be considered complete if, after nine (9) months following initiation of the right-of-way phase, a viable and legally-acceptable arrangement cannot be negotiated. In the event negotiations are successful, and a partnership or title transfer is agreed on, the City shall obtain a property interest in the gardens (or portion of the gardens). The City shall notify FHWA, SHPO and other consulting parties of the result of seeking a partnership arrangement.

4. If a partnership arrangement or acquisition of title is not accomplished per Stipulation III.B.3, the City shall provide the final rehabilitation plan to MACAA for its use. In lieu of the partnership arrangement, the City shall establish a website which describes the history of Rock Hill Landscape and McIntire Park. The website would provide public access to material such as historic and current photographs and maps; written and photographic material resulting from documentation under Stipulation I; links to other resource websites and source data; and, as appropriate, audio interviews and still-photo video presentation(s). The website would be created and maintained by the City and made available in a conspicuous location at an appropriate City of Charlottesville webpage.

The City shall provide the FHWA, SHPO, and other consulting parties an opportunity to review and provide comments on the website prior to public availability. If after thirty (30) calendar days following submittal of the website no comments are received, the City may assume the non-responding party has no comments. The City shall ensure that all comments received within thirty (30) calendar days of receipt are considered, as appropriate, within the website.

C. Charlottesville and Albemarle County Courthouse Historic District
The City shall develop a plan for planting vegetation with the intent to screen the interchange from the Charlottesville and Albemarle County Courthouse Historic District. The planting plan shall include consideration of replanting vegetation along Route 250 next to the north side of 502 Park Hill (if vegetation is removed as part of the undertaking), and planting new vegetation on City-owned property between the Charlottesville Albemarle Rescue Squad, existing McIntire Skate Park, and 501/502 Park Hill. Landowners of the 501/502 Park Hill properties shall be consulted during development of the planting plan.

IV. Financial Responsibility

The City agrees to carry out the tasks assigned in this Agreement and will allocate a budget sufficient to carry out the requirements of Stipulations I–III based on the below estimated costs. The costs associated with Stipulations I-III are eligible for federal reimbursement from FHWA as project costs.

A. $60,000 for documentation and recordation of the Rock Hill Landscape and eligible portion of McIntire Park (Stipulation I);

B. $12,000 for the design, fabrication and installation of interpretive signs (Stipulation II);

C. $175,000 for development and construction of the McIntire Park landscape plan (Stipulation III.A)

D. $45,000 for completing a rehabilitation plan and providing screening vegetation for the Rock Hill Landscape (Stipulations III.B.1.a and III.B.1.c);

E. $250,000 for reconstruction of the outer rock wall of the Rock Hill Landscape (Stipulation III.B.1.b); and

F. $15,000 to prepare and implement the planting plan for the Charlottesville and Albemarle County Courthouse Historic District (Stipulation III.C). If there is a property interest required for a Rock Hill Landscape partnership (Stipulation III.B.3), the cost of this interest shall not exceed fair market value. If for any reason, the City determines that the requirements of Stipulations I, II, and III cannot be completed for the estimated costs, the City may initiate consultation with FHWA, VDOT, SHPO, and the ACHP to consider alternatives. If, after consultation, the signatories to this Agreement concur, in writing, to changes to the items in the budget, the City may proceed on that basis without formally amending this Agreement pursuant to Stipulation XI.C.
V. Coordination with the McIntire Park Master Plan

Decisions regarding the long-term management of McIntire Park (including the golf course) cannot be made outside of the City’s McIntire Park master planning process. However, using the research and the coordination completed for this undertaking as a source of information, the City’s Department of Parks and Recreation will ensure that the public participation process considers the historic character of McIntire Park during master plan development. Furthermore, the City shall ensure that historic features contributing to McIntire Park’s eligibility for inclusion in the NRHP will be highlighted in the McIntire Park master plan.

VI. Design Minimization Measures

The City shall incorporate the following measures into the undertaking design to minimize direct and indirect effects to historic properties:

A. place the north-south multi-use paths (located east and west of McIntire Road) closer to McIntire Road to shorten the proposed Route 250 Bypass bridge over McIntire Road;

B. lower the profile and/or visual impact of the Route 250 Bypass bridge;

C. construct a retaining wall adjacent to Route 250 Bypass near the bath house to reduce the area of impact to McIntire Park and preserve the building;

D. place the proposed westbound Route 250 Bypass off-ramp as close as practicable to the Route 250 Bypass mainline roadway so that the undertaking’s direct impacts to the Rock Hill Landscape inner stone wall and terraced gardens are avoided;

E. minimize ground disturbance to the Rock Hill Landscape, and ensure that the boundaries of the project right of way and temporary construction easements are respected, by installing temporary orange construction fencing around the limit of construction and educating the construction contractor about the sensitivity of this resource;

F. post signage on the Route 250 Bypass exit ramps of the interchange prohibiting trucks from traveling through McIntire Park;

G. post a speed limit of no higher than 35 miles per hour within the interchange; and

H. minimize delays for emergency response vehicles exiting from the Charlottesville-
Albemarle Rescue Squad (CARS) through signal optimization and/or other appropriate technology.

I. not preclude the use of McIntire Park for golf outside of areas directly affected by the undertaking.

VII. Review of Project Plans

The City shall provide the FHWA, SHPO, and other consulting parties an opportunity to review and provide comments on relevant sections of the 65% project plans. If after thirty (30) calendar days following submittal of the 65% plan no comments are received, the City may assume the non-responding party has no comments. The City may proceed with implementation of the plans upon receipt of written approval by the FHWA. The City shall ensure that all comments received within thirty (30) calendar days of receipt are considered as appropriate in the plans.

VIII. Subsequent Changes to the Project

If, subsequent to the implementation of Stipulation VII, the City proposes any significant changes to the undertaking affecting design or disturbance area of the undertaking, the City shall provide the SHPO and other consulting parties with information concerning the proposed changes. If after thirty (30) calendar days following submittal of project changes no comments are received by the City, the City may assume the non-responding party has no comments. The City shall ensure that all comments received within thirty (30) calendar days of receipt are considered as appropriate in the changes.

IX. Post-Review Discoveries

A. In the event that previously unidentified historic properties are discovered or if unanticipated effects on historic properties occur during construction activities, the City shall require the construction contractor to halt all construction work in the area of the resource. In addition, for any discovered archaeological resources, work shall also halt in surrounding areas where additional subsurface remains can reasonably be expected to occur. Work in all other areas of the project may continue.

B. The City shall notify the FHWA and SHPO within two (2) working days of the discovery (36 CFR 800.13). In the case of prehistoric or historic Native American sites, the City shall also notify appropriate state and federally recognized tribal leaders, and the Virginia Council on Indians (VCI) within two (2) working days of the discovery.

C. The City shall ensure that an archaeologist or architectural historian meeting the Secretary of the Interior’s Professional Qualifications Standards shall investigate the work site and the resource, and then the City shall forward to the FHWA and SHPO (and state and federally recognized tribal leaders, and VCI in the case of Native American sites), an assessment of the NRHP eligibility of the resource (36 CFR 60.4) and/or proposed treatment actions to resolve any adverse effects on the resource. The SHPO, tribal leaders, and VCI shall respond within five (5) working days of receipt of the City’s assessment of NRHP eligibility of the resource and proposed action plan. The City, in consultation with FHWA, shall take into account the recommendations of the SHPO, tribal leaders, and VCI regarding NRHP eligibility of the resource and/or the proposed action plan to resolve adverse effects, and then carry out appropriate actions.

D. The City shall ensure that construction work within the affected area does not proceed until appropriate treatment measures are developed and implemented, or the determination is made that the located resource is not eligible for inclusion on the NRHP.
X. Human Remains

A. The City shall treat all human remains in a manner consistent with the ACHP “Policy Statement Regarding Treatment of Burial Sites, Human Remains and Funerary Objects”
(February 23, 2007; http://www.achp.gov/docs/hrpolicy0207.pdf).

B. Human remains and associated funerary objects encountered during the course of actions taken as a result of this MOA shall be treated in a manner consistent with the provisions of the Virginia Antiquities Act, Section 10.1-2305 of the Code of Virginia, and its implementing regulations, 17 VAC5-20, adopted by the Virginia Board of Historic Resources and published in the Virginia Register on July 15, 1991.

C. In the event that human remains encountered are likely to be of Native American origin, whether prehistoric or historic, the FHWA, with the cooperation of the City, shall immediately notify appropriate state and federally recognized tribal leaders, and the VCI. The FHWA and the City shall determine the treatment of Native American human remains and associated funerary objects in consultation with the appropriate tribal leaders and the VCI. The City shall make all reasonable efforts to ensure that the general public is excluded from viewing any Native American gravesites and associated funerary objects. The signatories to this MOA shall release no photographs of any Native American gravesites or associated funerary objects to the press or to the general public.

D. The City may obtain a permit from the SHPO for the removal of human remains in accordance with the Commonwealth of Virginia's regulations cited above, should removal be necessary.

XI. Administrative Stipulations

A. Personnel Qualifications

The City shall ensure that all cultural resources work required by this MOA is carried out by or under the direct supervision of a person or persons meeting at a minimum the Secretary of Interior’s Standards and Guidelines as amended and annotated, located at www.nps.gov/history/local-law/arch_stnds_9.htm (formerly located at 36 CFR 61, Appendix A).

B. Resolving Objections

1. FHWA, the City, VDOT, SHPO, and ACHP (the signatories) shall notify all other signatories in writing of any instance where a signatory to this MOA objects to the implementation of any of the stipulations set forth above. FHWA, the City, VDOT, and SHPO shall consult to resolve the objection. If FHWA determines that the objection cannot be resolved, FHWA shall forward all documentation relevant to the dispute to the ACHP as well as a proposed response to the objection. Within fifteen (15) days after receipt of such documentation, the ACHP shall:

a. advise FHWA that the ACHP concurs with FHWA’s proposed response to the objection, whereupon FHWA shall respond to the objection accordingly;

b. provide FHWA with recommendations, which the FHWA shall take into account in reaching a final decision regarding its response to the objection; or

c. notify FHWA that it shall comment in accordance with 36 CFR 800.7(c) and proceed to comment. Any comment provided in response to such a request shall be taken into account by FHWA in accordance with 36 CFR 800.7(c)(4).

2. Should the ACHP not exercise one of the above options within fifteen (15) days after receipt of all pertinent documentation, FHWA may assume the ACHP’s concurrence in its proposed response to the objection.

3. Any recommendations or comments provided by the ACHP shall be understood to pertain to the subject of the dispute. The City’s responsibility to carry out all actions under this MOA that are not the subject of the dispute shall remain unchanged.

C. Amendments

This MOA may be amended only upon agreement of the FHWA, City, VDOT, SHPO, and ACHP (the signatories). Any signatory party may request an amendment, whereupon the other signatory parties must respond with any comments within thirty (30) days. This MOA may be amended only upon the written agreement of the signatory parties.

D. Duration

This MOA shall remain in force for five (5) years from the date of its execution. Prior to five (5) years following the date of execution of the MOA, the City may consult with the other signatories to consider an extension to the MOA. If construction does not begin within five years following the date of execution of the MOA, the signatories will revisit the MOA and determine if its terms still apply, and the MOA may be extended. An extension shall be treated as an amendment in accordance with Stipulation XI.C.

E. Review of Implementation

The City shall review the project annually to monitor progress of the implementation of the terms of this MOA. Upon completion of the each review, the City shall submit a memorandum summarizing the status of MOA implementation to the ACHP, FHWA, VDOT, and SHPO. The review should occur in January each year following implementation of the MOA until all stipulations have been executed.

F. Termination

If any signatory to this MOA determines that its terms will not or cannot be carried out, that party may immediately consult with the other parties to attempt to develop an amendment per Stipulation XI.C. If within thirty (30) calendar days an amendment cannot be reached, any signatory may terminate the MOA upon written notification to the other signatories. Once the MOA is terminated, and prior to work continuing on the undertaking, FHWA must either (a) execute an MOA pursuant to 36 CFR § 800.6 or (b) request, take into account, and respond to the comments of the ACHP under 36 CFR § 800.7. FHWA shall notify the signatories as to the course of action it shall pursue.

Execution of this MOA by FHWA, the City, VDOT, SHPO, and ACHP, and implementation of its terms, evidence that FHWA has taken into account the effects of this undertaking on historic properties and afforded the ACHP an opportunity to comment.

SIGNATORIES

FEDERAL HIGHWAY ADMINISTRATION

By: _______________________________________ Date: _________________
Irene Rico
Division Administrator

CITY OF CHARLOTTESVILLE

By: _______________________________________ Date: _________________
City Manager

VIRGINIA DEPARTMENT OF TRANSPORTATION

By: _______________________________________ Date: _________________
Stephen J. Long
Environmental Division Administrator

VIRGINIA DEPARTMENT OF HISTORIC RESOURCES

By: _______________________________________ Date: _________________
Kathleen S. Kilpatrick
Director, Virginia Department of Historic Resources

ADVISORY COUNCIL ON HISTORIC PRESERVATION

By: _______________________________________ Date: _________________
John M. Fowler
Executive Director

CONCURRING PARTIES

ASSOCIATION FOR THE PRESERVATION OF VIRGINIA ANTIQUITIES,
THOMAS JEFFERSON CHAPTER

By: _______________________________________ Date: _________________
Mary O. R. Howard

PIEDMONT PRESERVATION

By: _______________________________________ Date: _________________
Daniel Bluestone

SENSIBLE TRANSPORTATION ALTERNATIVES TO THE MEADOWCREEK
PARKWAY-2025

By: _______________________________________ Date: _________________
Peter Kleeman

By: _______________________________________ Date: _________________
Richard Collins

NORTH DOWNTOWN RESIDENTS ASSOCIATION

By: _______________________________________ Date: _________________
Colette Hall

MONTICELLO AREA COMMUNITY ACTION AGENCY

By: _______________________________________ Date: _________________
Karen Shepard

DOGWOOD VIETNAM MEMORIAL COMMITTEE

By: _______________________________________ Date: _________________
James Shisler