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May 18, 2012

Judges rules against citizen lawsuit seeking to stop water plan

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DailyProgressBy Brian Wheeler
Charlottesville Tomorrow
Friday, May 18, 2012

Judge Cheryl V. Higgins has ruled against a citizen lawsuit seeking to stop the community water supply plan and validated the project’s current bond financing arrangement.

In Albemarle County Circuit Court Friday, Higgins ruled that the water supply plan’s permits and cost sharing agreement constituted a legal lease agreement between the city of Charlottesville, Albemarle County, the Albemarle County Service Authority and the Rivanna Water & Sewer Authority.

Raggedhome_photo3
Rendering of earthen dam now under construction at the Ragged Mountain Reservoir. Source: RWSA

Stanton Braverman, a retired immigration attorney from Madison who owns property in the city of Charlottesville and who opposes the water plan, filed his lawsuit in March. He argued that the Charlottesville City Council had illegally sold land to the other parties to build the new Ragged Mountain Dam and that his due process rights had been violated.

“The court cannot find that there is a sale,” Higgins said. “For there to be a sale there has to be a transfer of title or ownership interest, and I cannot find that in these documents.”

“It is clear that the intent of the parties is to treat this as a lease and the term ‘lease’ is used consistently [in the documents],” Higgins said. “With respect to the 40-year [duration], it is clear and expressed. These are leases and not in excess of 40 years.”

Outside the courthouse, RWSA executive director Thomas L. Frederick Jr. said he was pleased with the outcome and that a positive message is being sent to prospective bond purchasers.

“We are pleased with the ruling,” Frederick said. “It allows the project that our board of directors has directed us to [complete] to proceed.”

Braverman said afterwards that he was pleased he was able to at least negotiate a change in the bond validation order that eliminated city water assets from being used as collateral.

“I might have enough of a win in there,” Braverman said. “I got the collateral out.”

Robert Hodges, an attorney from the Richmond office of McGuire Woods, told Higgins that only revenues paid to the authority would be used as collateral for the bonds.

In court, Braverman argued that Article VII Section 9 of the Virginia Constitution requires a supramajority vote for the sale of public land. The City Council voted 3-2 in January in favor of the water plan and a supramajority would have required 4 votes.

“We claim that there is a sale of land at Ragged Mountain by the city,” Braverman argued. “They have to go through a supramajority of City Council and they haven’t done that.”

The January cost sharing agreement identifies $765,000 as “the value of the City property required for construction of the New Ragged Mountain Dam and which will be inundated by the expansion of the Ragged Mountain Reservoir.”

20120124-water-plan-signed

The January 24 meeting where the documents were signed approving the community water supply plan.  Front row (L to R), Charlottesville Mayor Satyendra Huja, Mike Gaffney (RWSA Chairman), Clarence Roberts (ACSA Chairman), and back row, City Councilor Kathleen M. Galvin, Thomas L. Frederick, Jr. (RWSA Executive Director), Liz Palmer (ACSA Board), Albemarle Supervisor Kenneth C. Boyd, and Albemarle County Executive Thomas Foley (who signed on behalf of Albemarle).

Craig Wood, an attorney from the Charlottesville office of McGuire Woods, countered that the lease of land at Ragged Mountain was different because the arrangement was between two public entities.

“The property at all times remains with the people of the commonwealth,” Wood said. It is just wrong to suggest that a supramajority [vote] applies here.”

Higgins agreed and ruled a sale of land had not taken place. She also ruled Braverman’s due process rights had not been violated.

“The court finds that there is a rational basis for what has been decided in terms of having a dependable water supply for the citizens,” Higgins said. “Nor do I find that there was a violation of due process.”

Braverman said that he would have to review the case further before deciding if he would appeal the ruling to the Virginia Supreme Court.

Frederick said Thalle Construction, which is building the new earthen dam, has already established the marshaling areas and made improvements along Reservoir Road to support the next phase of construction activities.

“We are in construction now, and that construction will continue,” Frederick said. “We also will proceed forward with the issuance of the bonds which will enable the project to be built which provides for the water supply needs of this community for the long term.”

Higgins also allowed three other citizens to be heard who had filed pleadings in support of Braverman’s opposition to the bond validation, including former City Council candidate Bob Fenwick.

“Well we knew from the beginning it would be a David vs. Goliath kind of thing, and we were trying to protect the interests of the city,” said Fenwick after the hearing. “We had an important victory in that the RWSA can no longer pledge the leases on the water supply system for the bonds.”

“I would be seriously surprised if it was an end to the great water debate,” Fenwick added. “There was a lot of talk in the court made by the pro-dammers that everything is clear, but everything is not clear and it wasn’t clear in City Council, the city attorney didn’t make it clear and the confusion still reigns.”

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