VDOT pushes to get McIntire Road Extended project underway.

Brent Sprinkel, VDOT's preliminary engineering manager for the McIntire Road Extended project, sent the letter below to Charlottesville Mayor Dave Norris requesting that the city help VDOT get a construction contract signed with the low bidder before the end of March, 2010. But, VDOT is apparently not recognizing that the City of Charlottesville is not willing to approve an at-grade intersection of McIntire Road Extended with U.S. Route 250 Bypass at McIntire Road. The confusion appears to me to be VDOT's confusion, not the US Army Corps of Engineers.

Mayor Norris wrote a clarification letter to VDOT dated January 4, 2010 stating clearly that an at-grade intersection at Route 250 Bypass is not approved. The letter states the following:

"To clarify, the official position of the City of Charlottesville, as stated in a letter of 1/18/06 to VDOT (attached) is to only build the McIntire Road Extended with a grade separated interchange."

That is very clear to me. But, VDOT is still asking the City of Charlottesville to state something totally different. They ask that the city agree that:

"In the event that a grade-separated interchange is not built, an appropriately designed at-grade intersection constitutes an acceptable and realistic alternative."

VDOT is not asking for a clarification of some confusion, but asking the city to change or to misrepresent its official position on the intersection so that VDOT can possibly get the US Army Corps of Engineers permit necessary before signing a construction contract for the McIntire Road Extended project. The proposed construction contract will build McIntire Road Extended from Melbourne Road to a southern terminus 775 feet north of Route 250 Bypass. The Corps of Engineers has already stated that such a facility could not get a Corps of Engineers permit as it is not a complete road. I find VDOT's request to be totally inappropriate. The letter that VDOT drafted for the Mayor's consideration is given below.

There is a possibility that city council will consider a resolution relating to this issue at the March 15, 2010 city council meeting. I look forward to attending that meeting to witness the discussion on this matter by council.

Draft

Mr. Robert J. Hume
Chief, Regulatory Office
Norfolk District, U.S. Army Corps of Engineers
803 Front Street
Norfolk, VA 23510-1096

Dear Mr. Hume:

The purpose of this letter is to clarify the City's position on the McIntire Road Extended project presently under permit review by the Corps of Engineers and supplement our letter of January 4, 2010 to the Virginia Department of Transportation (VDOT). In doing so, the City wishes to provide you with a perspective on the desired transportation outcome that we wish to achieve.

The City of Charlottesville has worked with VDOT for nearly four decades to develop the McIntire Road Extended project. As early as 1975, City Council reserved right-of-way through McIntire Park for a road. From the late 1970s through the present, the City has continued to work with VDOT to develop and implement a project that provides a transportation connection through McIntire Park with a southern terminus at Route 250. While the design of the McIntire Road extended project has changed over time, especially with regard to reducing the number of lanes and including provisions for bicyclists and pedestrians, the concept of extending McIntire Road through McIntire Park, from Rt. 250 north to the Meadowcreek Parkway (now under construction) has been supported by every vote taken on the various portions of the project since the mid 1970s.

While the original plan for the road involved an at grade intersection, the City, in an effort to improve traffic flow sought, and in 2005 was able to obtain Federal funding specifically for the construction of a grade-separated interchange to connect the McIntire Road Extended project with Route 250. A grade-separated interchange at Route 250 is the City's preferred option and we are working closely with the Federal Highway Administration to complete preliminary engineering and an Environmental Assessment. This approach merely confirms the City's consistent position for almost 40 years that a complete transportation facility is constructed to connect the Meadowcreek Parkway to Route 250 through McIntire Park. In the event that a grade-separated interchange is not built, an appropriately designed at-grade intersection constitutes an acceptable and realistic alternative.

Sincerely,

Dave Norris
Mayor

Meadowcreek Parkway opponent makes arguements to panel of VA Supreme Court justices

Check out the Charlottesville Tomorrow article to read the expanded version of the article that appeared in the Daily Progress on Tuesday March 2, 2010.

This article reports on the oral argument presented to a three-justice panel of the Virginia Supreme Court encouraging the court to hear an appeal related to Article VII - Section 9 of the Virginia Constitution and its application to transfer of right-of-way from Charlottesville to VDOT to construct the Meadow Creek Parkway.

Notice of the panel's decision is expected in late March 2010.

Image: The Supreme Court of Virginia

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

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

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

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

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

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

The argument as prepared for presentation:

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

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

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

This section requires:

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

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

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

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

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

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

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

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

End of oral presentation.

-----

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

Green Charlottesville - the theme of the February 2010 show at McGuffy Arts Center

I just carried (with the help of my friend Susan) a mosaic entitled "The Greening of Charlottesville Map" for display at the February 2010 "Charlottesville in Two Dimensions (C2D)" art show at the McGuffy Art Gallery in Charlottesville. The opening is February 5, 2010 and the show runs through the end of February. My piece (see photo) is about 36" by 36" and who knows - I just might win the $500 prize! Prize winning pieces are to be announced at 6:15 p.m. on February 5 at the opening.

You too can submit a piece by 5:00 pm today. Check out the Art in Place C2D website for details.

Advisory Council on Historic Preservation provides additional comments on Route 250 Bypass Interchange at McIntire Road project

The Advisory Council on Historic Preservation provided additional comments on the Route 250 Bypass at McIntire Road project as part of the Section 106 (Historical Preservation) review. Negotiations of a Memorandum of Agreement continue and progress is being made. Check out the three page letter below.

Note: Click on a page to get a more readable image.

Wind Power - Human Power

Wind power and human power in the Netherlands: This photo is from today's online edition of the Dutch language newspaper de Telegraaf (telegraaf.nl). I am happy to leave my car at home when it is cold, windy, and ice is on the ground (sound familiar?) but I wish I could rig an iceboat or strap on my skates to get around as folks are doing in the Netherlands. After a skate I too would go for a traditional borrelje of jenever (a shot of Dutch gin) to warm up. If it is going to be cold, why not enjoy it and let the windmills do the work.

Required steps prior to granting a Corps of Engineers permit for McIntire Road Extended

City Council's letter providing the official position of council on construction of an at-grade intersection at Route 250 as the southern terminus of the proposed McIntire Road Extended project may lead to changes in how the parkway is planned, and if it will be granted a necessary U.S. Corps of Engineers permit to allow construction. For those curious about the role of the U.S. Army Corps of Engineers in this project I have provided below an exchange of emails that may help clarify the Corps' role. First is an inquiry I sent to Ms. Kathy Perdue, the Corps' project manager. Following is Ms. Perdue's reply. The letters referred to are available in my recent blog posts.

Dear Ms Perdue, (Emailed on December 29, 2009)

Issues surrounding the status of an at-grade intersection alternative for the McIntire Road Extended project in Charlottesville VA have become somewhat confused by statements in the letter (Nov. 23, 2009 from Ms Angela Tucker of Charlottesville to Mr. Brent Sprinkel of VDOT) you distributed concerning the McIntire Road Extended project's southern terminus. Statements in that letter appear to contradict Charlottesville City Council resolutions and anticipate how city council might vote on future transportation proposals. I do not believe that this letter should be considered an authoritative source of councils position now or in the future regarding McIntire Road Extended.

I find no funding allocations of any sort that would cover construction of an at-grade intersection at Route 250 Bypass, or for the 775 feet of road that would be necessary to connect the current VDOT end of project for McIntire Road Extended to the Route 250 Bypass. Thus, I do not see how VDOT can expect that the Corps of Engineers grant a permit to construct the McIntire Road Extended project all the way from Melbourne Road to Route 250 Bypass ending in an at-grade intersection.

I assume that there are Corps guidelines on what funding, design, approval or other phases of a project must be reached prior to the Corps granting a permit. Please send me a link or document that outlines these thresholds and how the Corps approves that a project meets these threshold requirements. Frankly, I find it inappropriate for VDOT to submit for permitting a project that is not currently or anticipated to be fully funded in VDOT's Six-Year Improvement Program.

Any information you can provide me on this issue would be greatly appreciated.

Sincerely,

Peter Kleeman

Dear Mr. Kleeman, (Emailed on December 29, 2009)

The letter to which you refer was written by a City employee on City letterhead; as such, the Corps recognizes it at the City's position, unless of course, the City submits a correction to the letter.

Also, Corps regulations have no requirements for projects to have funding in place prior to receiving Corps permits. Likewise, we cannot deny someone's project based on the fact that he does not have funding upfront to construct it. (Otherwise, we'd have to deny a lot of mom and pop operations! And in the case of VDOT in particular, funding gets moved around all that
time. Sometimes it gets taken away from one project and put on another, or taken away and then put back on the same project again. Some authorized projects as a result never get built, or are built later than anticipated). In short, it isn't our business whether or not someone has the money to construct what he applied to construct, or received a permit to construct. And of course there is no requirement that he even construct his project at all. If the project is constructed, then of course it is our business that permittees adhere to the specific Corps conditions for the permitted activity.

In short, we are charged with environmental review under Section 404 and its associated laws, such as NEPA, Section 106, Section 7 of the Endangered Species Act, the Magnusan-Stevenson Act (Essential Fish Habitat), etc. (You may recall that in the case of McIntire Road Extended, the activity that necessitates a Corps permit for the project is the road crossing). An applicant must fill out an application to apply for most Corps permits (which VDOT has done). The applicant's project also need not be at 100% design to obtain a permit, but the water or wetland impact being authorized must be quantified and accurate. And, if anything changes with regard to the
applicant's water/wetland impacts after he receives his permit, in most cases he must apply for a permit modification.

And finally, an applicant need not have other approvals already in hand (such as State or local), prior to obtaining a Corps permit, because our authority is independent of theirs. Applicants must still comply with all applicable laws and regs of course, but in most cases our permit is only a small piece of that, and it's the only part we can enforce.

Attached is the link to the permit for which VDOT is applying (07-SPGP-01, Part B):

http://www.nao.usace.army.mil/technical%20services/Regulatory%20branch/spgp_2
007/07-SPGP-01.pdf

I hope this helps.

Kathy Perdue