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

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

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

Charlottesville Tomorrow blog by Sean Tubbs

Daily Progress article by Rachana Dixit;

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

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

WINA - 1070 AM radio report by Rob Graham;

The HooK - article by Lisa Provence

C-ville Weekly - article by Will Goldsmith

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

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

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

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

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

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

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

Justice Delayed is Justice Denied

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

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

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

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

Charlottesville Tomorrow posts item on CPMP court filings

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

The Virginia Constitution and Meadow Creek Parkway

The local Charlottesville media have been reporting on the recent Charlottesville Circuit Court filings for a preliminary injunction and declaratory judgment regarding a part of the right-of-way acquired by VDOT from the City of Charlottesville. This blog is to clarify a bit about the bounds of the issue at hand. I hope this helps.

The only land transaction included in the filing is a portion of the land owned by the City of Charlottesville north of Melbourne Road. This land is the southernmost portion of the purple line in the map provided (from www.c-ville.com) The proposed Meadow Creek Parkway alignment runs about 600 yards north from Melbourne Road through this parcel of land and as noted in the title of the June 2, 2008 ordinance passed by a 3-2 vote by City Council. This ordinance entitled "AN ORDINANCE GRANTING PERMANENT AND TEMPORARY EASEMENTS ACROSS CITY-OWNED PROPERTY IN ALBEMARLE COUNTY (MELBOURNE ROAD AREA) TO THE COMMONWEALTH OF VIRGINIA (VDOT) FOR CONSTRUCTION OF THE MEADOW CREEK PARKWAY" clearly granted more than 4 acres of this land in permanent easements. The deed filed on January 14, 2009 shows that the city received the sum of $43,120.00 for these permanent easements and some additional temporary construction easements. Many of the local media reports stated that this issue was about easements in McIntire Park that were granted as temporary easements only. But, the easements in McIntire Park are not considered in the filings and has likely confused the nature of the circuit court filing.

As I see this matter, the Virginia Constitution section entitled "Sale of property and granting of franchises by cities and towns" requires a three-fourths vote of council (at least 4 affirmative votes of Charlottesville City Council) - but council only had three affirmative votes. The entire section 9 is provided below so you can decide for yourself if council acted in compliance with the constitution. By removing all of the words in the first paragraph of this section that do not relate to this case the paragraph simplifies to the following:

No rights of a city in and to its parks, or other public places shall be sold except by an ordinance or resolution passed by a recorded affirmative vote of three-fourths of all members elected to the governing body.

A right to use this public land (a public place) was sold (for $43,120.00 as indicated in the deed) under an ordinance of council that did not achieve a recorded affirmative vote of three-fourths of the members (five) of the governing body. Isn't this a clear indication that the transfer of rights was not done in compliance with this section of the Virginia Constitution? I believe that is the case. I believe that this paragraph applies to any sale of rights - such as right-of-way - whether as a permanent or temporary easement can be sold without a recorded affirmative vote of three-fourths of all members elected to the governing body.

A similar streamlining of the second paragraph of section 9 yields the following:

No right of any kind to use any easement of any description in a manner not permitted to the general public shall be granted for a longer period than forty years, except for air rights together with easements for columns of support, which may be granted for a period not exceeding sixty years. Before granting any such privilege for a term in excess of five years, the city shall, after due advertisement, publicly receive bids therefor.

In my opinion, this paragraph applies to the use of temporary easements only in that the term permanent indicate no time limitation. Thus the sale of a permanent easements would be controlled exclusively by the first paragraph and not at all by the second paragraph.

I am not an attorney, but this constitutional section suggests to me that three affirmative votes of council is insufficient for this transfer of a right of permanent easement to meet the constitutional requirement.

To my knowledge, no court date for a hearing of this matter in the circuit court has yet been scheduled. I do look forward to hearing the decision as soon as possible. The land is being cleared and more damage to this land can happen every day without a preliminary injunction being granted. I expect the circuit court judge will agree with the formal filings in the case and void the deed as requested by the attorney for the Coalition to Preserve McIntire Park.

What do you think? Post a comment and share your thoughts and analysis.

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VA Constitution
Article VII - Local Government
Section 9. Sale of property and granting of franchises by cities and towns.

No rights of a city or town in and to its waterfront, wharf property, public landings, wharves, docks, streets, avenues, parks, bridges, or other public places, or its gas, water, or electric works shall be sold except by an ordinance or resolution passed by a recorded affirmative vote of three-fourths of all members elected to the governing body.

No franchise, lease, or right of any kind to use any such public property or any other public property or easement of any description in a manner not permitted to the general public shall be granted for a longer period than forty years, except for air rights together with easements for columns of support, which may be granted for a period not exceeding sixty years. Before granting any such franchise or privilege for a term in excess of five years, except for a trunk railway, the city or town shall, after due advertisement, publicly receive bids therefor. Such grant, and any contract in pursuance thereof, may provide that upon the termination of the grant, the plant as well as the property, if any, of the grantee in the streets, avenues, and other public places shall thereupon, without compensation to the grantee, or upon the payment of a fair valuation therefor, become the property of the said city or town; but the grantee shall be entitled to no payment by reason of the value of the franchise. Any such plant or property acquired by a city or town may be sold or leased or, unless prohibited by general law, maintained, controlled, and operated by such city or town. Every such grant shall specify the mode of determining any valuation therein provided for and shall make adequate provisions by way of forfeiture of the grant, or otherwise, to secure efficiency of public service at reasonable rates and the maintenance of the property in good order throughout the term of the grant.

Motion for Preliminary Injunction and Declaratory Judgements filed in Charlottesville Circuit Court to halt Parkway Construction

Below is a press release distributed by the Coalition to Preserve McIntire Park on February 25, 2008. As of this posting, I am unaware of any scheduled date for the motions to be considered by the Charlottesville Circuit Court. It is important to note that these motions only apply to land owned by the City of Charlottesville north of Melbourne Road. Links to online versions of the two motions are provided in the text of the press release. The relevant City Ordinance and the Deed that are key to these motions are also linked in the text of the motions.

The photo was taken this morning at the Melbourne Road end of the proposed Meadow Creek Parkway alignment on the city owned property that the legal motions claim was provided to VDOT by the City of Charlottesville as a combination of temporary and permanent easements and not in compliance with Article VII, section 9 of the Virginia Constitution. I invite you to read the linked material and decide for yourself whether the transfer of right-of-way to VDOT complies with requirements of the Virginia Constitution.

I will post information as I get it regarding these motions. Stay tuned.

Press Release: Coalition to Preserve McIntire Park files an injunction to stop construction of Meadow Creek Parkway.

Coalition to Preserve McIntire Park
For immediate release
February 25, 2009

Contacts:

John Cruickshank 434 973-0373
Peter Kleeman 434 296-6208
Stratton Salidis 434 882-1069

On February 24, 2009 an attorney representing the Coalition to Preserve McIntire Park (CPMP) filed two motions in the Circuit Court of the City of Charlottesville.

- The first is a motion for declaratory judgment requesting the court to declare the conveyance of land by the City of Charlottesville to VDOT unconstitutional because the transfer of land was not approved by a 3/4 vote of the City Council as required by Article VII Section 9 of the Virginia Constitution.

- The second is a motion for preliminary injunction to halt construction-related activities on land unlawfully conveyed to VDOT.

Attached to this email are the court documents for “Coalition to Preserve McIntire Park v. City of Charlottesville and Commonwealth Department of Transportation.”

The CPMP has made many efforts to convince VDOT and elected officials to abandon plans to build this unnecessary road that would cause serious environmental damage, increase traffic in downtown Charlottesville, and is not wanted by many area residents. We are determined to use all available state and federal laws to prevent the destruction of McIntire Park and protect the rights of citizens. Among those rights is the right to the quiet enjoyment of land donated in perpetuity to our city by Paul Goodloe McIntire for use as a park.

[Note: reformatted as online .html file. Format may differ from original]

CPMP sends letter to FHWA on McIntire Road Extended and Route 250 Bypass Environmental Concerns

The Virginia Department of Transportation (VDOT) is beginning work on the northernmost end of the Meadow Creek Parkway project. The Coalition to Preserve McIntire Park (CPMP) contends that VDOT has inappropriately segmented this project into three parts to avoid carrying-out environmental review of the project as a whole. There was a news story on this start of construction in The Hook some time ago showing the start of clearing the proposed construction area (and the source of this photo) but now VDOT is starting utility and other construction work near Rio Road.

Andrea C. Ferster, attorney for CPMP sent a letter (provided below) to the Federal Highway Administration (FHWA) identifying CPMP's concerns regarding avoiding environmental consideration and inappropriately segmenting the project. The letter contains a legal argument, but to help you understand what this all means I have reconstructed this letter with links to all of the referenced material that I could locate online. I invite you to read this letter and visit some of the court cases that make up the basis for the argument presented.

I have been involved in this project in one capacity or another since 1997 and have learned much about the way highway projects are planned in Virginia and elsewhere. As you can see some of the material referenced in the letter were responses to inquiries I made on the legalities of the project development process by FHWA. I have gotten such good exposure to the legal issues surrounding this (and other) highway projects that I am currently contemplating pursuing further formal legal education.

I invite you to explore this letter, the legal basis for the arguments made, and comment to this blog, Charlottesville City Council, Albemarle Board of Supervisors, VDOT, or FHWA as appropriate and participate in promoting a sustainable transportation future for our Charlottesville / Albemarle County community.

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ANDREA C. FERSTER
LAW OFFICES
2121 WARD COURT, N.W., 5TH FL.
WASHINGTON, D.C. 20037
__________
TEL.(202) 974-5142 FAX (202) 233-9257
AFERSTER@RAILTRAILS.ORG
WWW.ANDREAFERSTERLAW.COM

February 13, 2009

Mr. Roberto Fonseca-Martinez
Division Administrator
Federal Highway Administration -Virginia Division
400 N. Eighth Street
Richmond, VA 23240

Re: Route 250 Bypass Interchange and McIntire Road Extended

Dear Mr. Fonseca-Martinez:

These comments are submitted on behalf of the Coalition to Preserve McIntire Park concerning the Draft Environmental Assessment (“EA”)/Section 4(f) Evaluation circulated by the Federal Highway Administration (“FHWA”) and the Virginia Department of Transportation (VDOT) for the Route 250 Bypass Interchange at McIntire Road. In my opinion, the FHWA has unlawfully constrained the scope of the EA and Section 4(f) Evaluation by failing to evaluate McIntire Road Extended and the Interchange as part of a single, federalized project, in violation of both the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. and Section 4(f) of the Department of Transportation Act (“Section 4(f)).” 23 U.S.C. § 138; 49 U.S.C. § 303.

As you know, from its inception in the 1970s, the Meadow Creek Parkway has historically been developed as a single facility running from Rio Road, through the McIntire Park and golf course to the Route 250 Bypass, for which an Environmental Impact Statement (“EIS”) was contemplated. However, in 1997, VDOT decided to subdivide the Meadow Creek Parkway into separate “projects.” Funding for a new interchange at the Route 250 bypass was later earmarked by Congress as part of the 2005 transportation re-authorization funding act. As a result, the Meadow Creek Parkway is now characterized [a]s consisting of the following segments: (1) the federally-funded Route 250 Bypass Interchange at McIntire Road, including a 775-foot segment of a new highway --- McIntire Road Extended -- north of Route 250 Bypass; (2) McIntire Road Extended, a two-lane highway extending 2100 feet north from the end of the 775-foot segment of McIntire Road Extended to Melbourne Road; and the (3) Meadow Creek Parkway, from Melbourne Road to Rio Road. As segmented, only the Route 250 [Bypass] interchange, plus the 775-foot segment of McIntire Road Extended, is characterized as a major federal action, to which NEPA applies.

The scope of the Draft EA/Section 4(f) Evaluation for the Route 250 bypass interchange is confined to the impacts of the interchange itself. This document does not evaluate the impacts of or alternatives to the full McIntire Road Extended under either NEPA or Section 4(f). This is particularly troubling, since McIntire Road Extended will use 13 acres of land from McIntire Park and the golf course, both of which are resources protected by Section 4(f). As the EA for the Route 250 [Bypass] interchange itself acknowledges, “McIntire Road Extended will introduce features into the park that are incompatible with the qualities that make the resource historic, including one of McIntire Park’s contributing historic elements, the McIntire Park Golf Course, which will be altered by both projects. These two projects will result in a larger incremental impact on the historic resource than what has occurred from past development, and is thus considered a cumulative effect.” Route 250 Bypass Interchange at McIntire Road, EA, § 3.11.3, at 42. While the EA further acknowledges that cumulative impacts include “conversion of park recreational land to transportation uses, increased traffic and noise through the park, and impacts to habitat and wildlife in the park,” (id. § 3.11.3, at 45), the EA fails to evaluate whether or not there are any prudent and feasible alternatives to the construction of McIntire Road Extended under Section 4(f)’s stringent standard. [Note 1: Section 4(f) states that the Secretary of Transportation “shall not approve any program or project” which requires the “use” of land from a park, wildlife or waterfowl refuge, recreation area, or historic site, unless (1) there is no feasible and prudent alternative to the use of the site, and (2) the project incorporates all possible planning to minimize harm to the protected site. 23 U.S.C. § 138; 49 U.S.C. § 303.] Instead, the EA considers only a series of alternative design options for the interchange itself.

While NEPA and Section 4(f) are triggered only by major federal actions, such as funding, “[t]he absence of federal funding is not necessarily dispositive in determining whether a [transportation] project is imbued with a federal character.” Historic Preservation Guild of Bay View v. Burnley, 896 F.2d 985, 990 (6th Cir. 1989). Rather, “[i]n order to determine when a group of segments should be classified as a single project for purposes of federal law, a court must look to a multitude of factors, including the manner in which the roads were planned, their geographic locations, and the utility of each in the absence of the other.” Id. at 991 (citing River v. Richmond Metropolitan Authority, 359 F. Supp. 611, 635 (E.D. Va. 1973)). The FHWA’s regulations codify this standard by requiring that the action evaluated in any NEPA document “shall: (1) Connect logical termini and be of sufficient length to address environmental matters on a broad scope; (2) Have independent utility or independent significance, i.e. be usable and be a reasonable expenditure even if no additional transportation improvements in the area are made.” 23 C.F.R. § 771.111(f) (emphasis added)

In general, “courts should look to the nature and purpose of the project in determining which termini are logical.” Indian Lookout Alliance v. Volpe, 484 F.2d 11, 18-19 (8th Cir. 1973)). In the highway context, the courts have looked at whether the segments terminated at “crossroads, population centers, major traffic generators, or similar highway control elements.” Id. at 18. At a minimum, in order for a segment to possess logical termini, the terminus must be at a point where there is an opportunity for traffic to enter or exit. See, e.g., Patterson v. Exon, 415 F. Supp. 1276, 1283 (D. Neb. 1976).

Here, the preferred alternative for the proposed Route 250 Bypass interchange clearly does not have logical termini. The northern ramp of the interchange extends 775 feet north of the Route 250 bypass, and terminates in the middle of McIntire Park, without connecting to any existing roadway, crossroad, or traffic generators. Absent the planned construction of McIntire Road Extended in its entirety, there would be no need for the 775-foot piece of McIntire Road Extended, since this highway stub would end “literally in the middle of the woods.” Patterson v. Exon, 415 F. Supp. at 1283; see also Swain v. Brinegar, 542 F.2d 364, 270 (7th Cir. 1976) (Court held that a highway had been improperly segmented where “[t]he northern terminus ends in the country at no logical or major terminus.”).

Moreover, it is clear that the interchange as a whole, and most particularly the 775-foot stub of McIntire Road Extended, would not “be a reasonable expenditure even if no additional transportation improvements in the area are made.” 23 C.F.R. § 771.111(f). To the contrary, as the EA concedes, the current signalized, at-grade intersection at McIntire Road and the Route 250 Bypass currently operates at a satisfactory level of service for most traffic movements. EA, at 2. The EA makes no attempt to determine whether or not a grade-separated interchange would be needed at McIntire Road and the Route 250 Bypass purpose “even if no additional transportation improvements in the area are made.” 23 C.F.R. § 771.111(f). Instead, the need for the massively over-designed interchange depends almost entirely on the traffic volumes generated under “Future Conditions,” which are based on 2030 traffic projection for “the future intersection of the Route 250 Bypass, McIntire Road, and McIntire Road Extended.” EA, at 2. Clearly, there would be no need for the interchange --- and certainly no need for the massive interchange proposed here – but for the construction of McIntire Road Extended.

In determining whether a highway has been unlawfully segmented, the courts have looked at whether the segments were planned as a single project or whether the segments were "planned to be constructed if at all at different times in the future over a period of years." Save Barton Creek Ass'n, 950 F.2d at 1141; see Village of Los Ranchos de Albuquerque v. Barnhard (finding no segmentation where "the [federal and statefunded] projects are, at best, only peripherally related"); Historic Preservation Guild of Bay View v. Burnley, 896 F.2d at 990 (finding no unlawful segmentation where federally funded segment was built 25 years before state-funded segment). In determining whether such segmentation is unlawful, courts have also looked at whether the state and federal segments served different or similar purposes. See River v. Richmond Metropolitan Auth., 359 F. Supp. at 992 (federally funded road provided commuter access between residential areas west of Richmond, while the state-funded segment connected two highways and provided access to residential area north of the city); Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d at 441 ("projects were separately proposed to accomplish independent purposes").

Here, as noted above, the Route 250 Bypass interchange and McIntire Road Extended were and continue to be planned as a single facility. The EA’s insistence that “[t]he purpose and need of the proposed interchange project is independent of the purpose and need for the McIntire Road Extended” (EA, at 4) is completely belied by the EA itself, which demonstrates that the need for the interchange is predicated on the future traffic volumes that will be generated by construction of McIntire Road Extended. Indeed, the two projects are so wholly intertwined that, as the FHWA acknowledges, “VDOT and the City [of Charlottesville] intended to issue construction contracts for the McIntire Road Extension project and the Route 250 Bypass interchange project as closely together as project development activities.” Letter to Peter Kleeman from Mr. Fonseca-Martinez, FHWA (Sept. 4, 2008).

The FHWA’s claim that the Route 250 interchange is “independent” of McIntire Road Extended, and that the two projects are being simply constructed jointly “in order to minimize disruption to the environment, adjacent communities and the traveling public” (id.) cannot be squared with the record here. Rather, the opposite is true: the City of Charlottesville has made it clear that it will not move forward with construction of McIntire Road Extended unless the grade-separated Route 250 Bypass interchange is funded and advanced by the FHWA and VDOT.

Specifically, as early as 1999, the City made the construction of a grade-separated interchange at U.S. 250 Bypass an express condition of its support for McIntire Road Extended. See, e.g., Letter to Charles Rasnick, VDOT, from J. Blake Caravati, Mayor of Charlottesville (Dec. 11, 2000) (attached). Ultimately, the City approved the design for McIntire Road Extended only after the City determined that “it now appears that adequate funding will be available to fulfill the condition stated in paragraph 4 of Exhibit A, regarding the design and construction of a separate project at the intersection of U.S. Route 250, McIntire Road, and the Meadow Creek Parkway.” Design Public Hearing Approval Resolution (Jan. 17, 2006). Paragraph 4 of that document expressly stated that: “any final design [for McIntire Road Extended] has to include a grade-separated interchange,” to which VDOT responded “We remain committed to this project [i.e. the Route 250 interchange] as a necessary improvement to both the U.S. 250 Bypass and the Meadow Creek Parkway.” Letter from David E. Brown, Mayor of Charlottesville, to Mr. Greg Whirley, VDOT, at 2 (Jan. 18, 2006) (attached).

For that reason, there is no support for the FHWA’s bald assertion that McIntire Road Extended will be constructed regardless of whether the Route 250 interchange is constructed, and therefore the “no build” scenario should assume construction of McIntire Road Extended as a “predictable consequence” of no action alternative. Letter to Peter Kleeman from Mr. Fonseca-Martinez, FHWA (Nov. 4, 2008) (citing CEQ’s “Forty Most Asked Questions Concerning CEQ’s NEPA Regulations,” Question 3a, 46 Fed. Reg. 188026 (1981). There is absolutely no evidence that McIntire Road Extended will be constructed as a result of a decision by the FHWA not to fund the Route 250 bypass interchange. Rather, as noted above, the record shows that the two projects are so interdependent that neither can proceed without the other.

The FHWA cannot have it both ways: the purpose and need for the Route 250 bypass interchange project cannot be predicated on the planned construction of McIntire Road Extended-- a design that as a result encroaches substantially within McIntire Park – and at the same time have independent utility and logical termini “even if no additional transportation improvements in the area are made.” 23 C.F.R. § 771.111(f). The reality is that the massive interchange footprints for each of the alternatives evaluated in the EA– and significantly greater impacts on Section 4(f)-protected resources -- are designed in order to accommodate McIntire Road Extended. As a result, the only way for the FHWA and VDOT to take advantage of the “efficiencies” of jointly constructing these plainly interrelated projects is to consider the Route 250 interchange and McIntire Road Extended as part of a single, inter-related federal project, which must be evaluated in a single NEPA and Section 4(f) document.

Finally, there is strong evidence that the project was deliberately segmented in order to evade federal environmental laws. Despite the fact that Meadow Creek Parkway was originally (and continues to be) planned as a single facility, the FHWA deliberately “scaled back” the scope of the project considered to be the “federal action” so that “the potential significant adverse environmental impacts identified in the EIS and associated with the proposed project were eliminated.” Letter from Mr. Fonseca-Martinez, FHWA to the Mayor of Charlottesville (Dec. 22, 1997). Evidence that a project was deliberately segmented for the express purpose of evading federal environmental laws "will weigh very heavily in support of the project splitting theory." River v. Richmond Metropolitan Authority, 350 F. Supp. 611, 635 (E.D. Va. 1973). See also, Sierra Club v. Volpe, 351 F. Supp. 1002, 1007 (N.D. Ala. 1972) ("Waiver of federal aid . . . . at the last minute . . . should not be made a ground for disclaiming the federal nature of the project where it appears that the purpose is to avoid compliance with federal statutory environmental requirements); Save Barton Creek Ass’n, 950 F.2d at 1143-44 (“We recognize that if a state has segmented for the purpose of evading federal environmental requirements and without other valid justification, a holding of evasive violation would be justified”).

Accordingly, unless the FHWA takes immediate steps to ensure that the impacts of and alternatives to the Meadow Creek Parkway, including both the Route 250 Bypass interchange and McIntire Road Extended, are evaluated in a single NEPA document of an appropriate scope, the Coalition to Preserve McIntire Park intends to pursue all available legal remedies, including but not limited to litigation to enforce NEPA and Section 4(f).

Sincerely,

[Signature: Andrea C. Ferster]

Andrea C. Ferster,

Counsel for Coalition to Preserve McIntire Park

Enc.

[This is a version of the original letter formatted as an .html file including links to referenced documents and other supplemental material.]