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March 19, 2009

Judge denies injunction to stop Meadowcreek Parkway construction; case to continue in mid-May

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A Charlottesville Circuit Court Judge has denied an injunction that would have halted construction of the County’s portion of the Meadowcreek Parkway. Judge Jay Swett denied the request made by the Coalition to Preserve McIntire Park for a number of reasons, but agreed to consider a second motion regarding the legality of the conveyance of land from the City of Charlottesville to the Virginia Department of Transportation.

At issue is a parcel of land in Albemarle County owned by the City on which  permanent and temporary easements were granted to VDOT by a 3-2 vote by Council on June 2, 2008. Crews with Faulconer Construction are now using the land as a staging area and have cleared the area of trees. The Coalition’s attorney, Jennifer McKeever, filed a lawsuit that claims the conveyance was illegal because Article VII, Section 9 of the Virginia constitution requires a supermajority of at least 4 votes for the sale of public land. The Coalition also requested an injunction to stop all work at the site until the legal issues involving the conveyance are resolved.

The injunction was the sole subject of a three-hour hearing on March 18, 2009. Judge Swett said he would make his decision based on a few questions.

  1. Could the Coalition provide enough evidence to ultimately prevail in the supermajority case?
  2. If the Court did not grant the injunction, would the Coalition continue to be harmed by the work being done at the site?
  3. Is any harm potentially suffered by the Coalition outweighed by the harm that would be suffered by VDOT?

Both the City of Charlottesville and the Virginia Department of Transportation are defendants in the case. In his opening comments, Judge Swett said they had raised two legal arguments in their requests to have the motion denied. First, the City claims that the Coalition does not have sufficient legal standing to even act as a plaintiff. Second, does the Coalition as an entity have a personal stake in the outcome of the case?

OPENING ARGUMENTS

Logging This photograph of the site taken by Coalition member Peter Kleeman was one of several used as evidence during the hearing

During her opening argument, McKeever described the Coalition as a group that was organized in August 2008 to preserve the recreational spaces of the City. She said its members are citizens who have repeatedly spoken out against the use of McIntire Park for a roadway. McKeever said the conveyance of the easement can be classified as a “sale” because part of the easement is permanently dedicated to VDOT. She expressed her confidence that the Coalition would ultimately prevail because she would be able to demonstrate how the City violated the Virginia Constitution.

City Attorney Craig Brown used his opening statement to attack the legal standing of the Coalition. He claimed that under Virginia law, “representational standing” is only granted in cases where the group itself has a legal interest in the outcome of the case. On the question of whether the Coalition could ultimately prevail, Brown said a supermajority by Council is not required because the land in question is under the exclusive control of the City School Board. That elected body voted to grant the easement on a 4-1 vote with two abstentions in May 2008.  In addition, Brown argued that a supermajority isn’t even necessary for that body because the conveyance of land is through a permanent easement, not a sale. The City of Charlottesville will retain the deed. Additionally, Brown claimed that the ultimate use of the property will be for public benefit, and not for private use. He explained that according to his view of Virginia’s constitutional history, the supermajority requirement was placed in the Constitution to prevent the sale of public land for private gain.

In her opening statement, VDOT attorney Lori Pound focused her argument on the harm that her agency would suffer if the injunction were granted. She claimed that VDOT would lose $20,000 for each day when crews could not work. VDOT would be forced to stop using the area to store equipment being used to construct Albemarle County’s portion of the parkway.

WITNESSES FOR THE PLAINTIFF

McKeever called four witnesses to help support her argument. First, John Cruickshank of the Piedmont Group of the Sierra Club was called to establish why the Coalition was formed. Cruickshank said that he is currently unable to enjoy the Rivanna Trail because a portion of it has been closed to accommodate the construction. He called the Meadowcreek Parkway a mistake and that legal action was the only option available to his group. 

During cross-examination, City Attorney Brown used his questions to try to establish that the Coalition is only a loose organization and not an entity with legal standing. He asked Cruickshank if the Coalition held any property, paid any taxes, had any by-laws, or any official group activities. Cruickshank responded with a no to each question. Brown also asked how much of the Rivanna Trail had been affected by the temporary closure. Cruickshank acknowledged that the majority of the trail’s route is still open to the public.

Judge Swett took the opportunity to ask Cruickshank a few questions of his own. He wanted to know why the Coalition had waited so long to file its motion. Cruickshank responded that the deed to the property that showed the easement had not been filed until January of this year. In response to a question about how he would personally be affected by the Parkway, Cruickshank said the value of property he owns on Parkway Street will go down because of increased traffic.

Next, McKeever called Rich Collins to the stand, and he described the Coalition as an “ad hoc” successor to other groups that were formed to oppose the Meadowcreek Parkway, including his own Sensibile Alternatives to the Meadowcreek Parkway (STAMP). Collins said he is personally affected by the current construction because it interrupts a regular walk that he said he has been taking through McIntire Park for years.

VDOT Attorney Pound used her cross-examination to ask Collins if he was aware of the various conditions under which the easement was granted . Namely, landscaping must be planted to screen the playing fields from the Parkway and a replacement athletic field must be provided. Collins said he was unaware of the replacement athletic fields, but that he was aware a north-south multi-use trail was planned as part of the Parkway’s design.

Download Download a .PDF of the June 2, 2008 ordinance

Judge Swett asked Collins if the Rivanna Trail would be prevented from re-opening, and Collins acknowledged that the trail would re-open. Given that statement, Swett followed up and asked Collins why he had a legal interest in the case. Collins said that the Coalition felt the County’s portion of the road was being rushed through to prejudice various courts from ruling against it, and that the Coalition’s lawsuits are a strategic move to stop what he called the “steam-rolling” of the Parkway construction.

McKeever’s third witness was former City Council candidate Peter Kleeman, who showed photographs documenting the “irreparable harm” that he alleged has been done on the City-owned property.  During her cross-examination, Pound asked Kleeman if he was aware of the various amenities that will come with the Parkway. Kleeman responded that he was, but that he had not seen a final design that proved the trail would be built.

Judge Swett pointed out to Kleeman that he and his colleagues were steadfast opponents of the Parkway. He asked what Kleeman ultimately wanted. Kleeman responded that he wanted the community to be presented with all possible information about the Parkway, reasoning that more people would oppose it if they knew how much of an impact it was going to have on what he called the City’s best natural area.

“This is one of my most prized places,” Kleeman said. “No replacement parkland can replace what is going to be lost.”

McKeever’s final witness was Stratton Salidis, who said early on during his testimony that membership in the Coalition was as simple as signing one of the many petitions his group has circulated. Salidis, who occasionally works as a teacher, said he would like the entire park to be available in the future to his students as well as his nephews. McKeever borrowed from Pound’s line of questioning to ask about whether he knew of the various amenities that would come with the Parkway. Salidis doubted that the bike trail would come to pass, and added that he had a right to see his elected officials stay within the law. He said if Council really wanted the road, a supermajority of Councilors should have supported the easement.

During his cross examination, City Attorney Craig Brown asked Salidis if people who signed his petitions were told upfront that they would become members of the Coalition. Salidis responded there was no “official designation” for membership in the group. After his testimony, the defense rested.

WITNESS FOR THE DEFENSE

VDOT Attorney Pound called one witness. Kenneth Shirley is the Construction Engineer for VDOT’s Culpeper District. He testified that the three projects that make up the Meadowcreek Parkway (the City’s portion, the County’s portion and the 250/Parkway Interchange) each have separate utility and stand on their own merits. Shirley said from an engineering standpoint that the County’s portion could operated independently of the others. (The ordinance granting the easement clearly states that this is against the City’s wishes.)

After giving an update on how much work has been completed on the project to date, Pound asked Shirley to tell the Court how much VDOT would suffer if the injunction were granted. Shirley responded that at least $20,000 a day would be lost, as VDOT would still have to pay the Faulconer Construction according to the terms of the contract.

During her cross-examination, McKeever asked Shirley to give a time for when the road would open. Shirley said the project was scheduled to be completed by October 14, 2011. He explained, however, that the roadway could be temporarily opened next summer to divert traffic when a portion of Rio Road will be closed for realignment. McKeever asked why VDOT was in such a hurry to build the road, given that the City has not yet moved forward with either of the two components within city limits. Shirley said he could not respond.

CLOSING ARGUMENTS

McKeever used her closing argument to establish that her client does have legal standing, and claimed the injunction should be granted to stop the harm that has been done to the property. Judge Swett asked how any more harm could be done, given that the land has already been cleared. McKeever said “irreparable harm” would occur if a road is constructed, something she said would forever change the use of the land. 

Swett said the Court was in a dilemma, because the motion requesting the injunction was filed after construction had occurred. The motions were filed on February 23, 2009. Swett asked why the Coalition had waited so long. McKeever said the Coalition could not act until the deed depicting the easement had been recorded with the City. She also said that the Coalition lacked the legal resources to respond immediately after the ordinance was approved in June 2008.

Swett pointed out that a generalized interest to save the park might not necessarily be interpreted as sufficient legal standing. McKeever responded with a question.

“If this Coalition does not have legal standing, who would?” McKeever asked.

In her closing argument, VDOT attorney Lori Pound claimed that the Coalition had not done enough to prove that they had legal standing, saying that “mere proximity” to the project by some of its members was not sufficient. Pound argued that the plaintiff had shown a “lack of diligence” by not filing the injunction before construction began.

In his closing argument, City Attorney Craig Brown said the Coalition had not done enough to show they were anything more than a loosely-organized group. He said individuals might have standing, but that representational standing did not apply.  He also argued that the transfer of land was legal because the easement was granted to a public agency by another public agency. Hence, a supermajority was not required.

JUDGE SWETT’S RULING

Judge Swett provided an oral ruling so all parties would know what to expect. He first took on the matter of standing, and said that he “assumed” that the Coalition had met all the requirements. However, he cautioned that another judge may have a different interpretation and warned that if he was incorrect, any further proceedings may be a waste of time.

Swett said the Court was dealing with a gray area as there are no Virginia Supreme Court decisions regarding the question of the supermajority. He also found that the Coalition would not be harmed by continued work at the site, and said they should have filed the injunction earlier if they had hoped to stop construction. Judge Swett said VDOT would be harmed if he granted the injunction, and so he opted to deny the request.

The legal questions surrounding the possible requirement of the supermajority will be heard at a meeting on May 19, 2009 at 9:00 AM. A location has not yet been announced.

Sean Tubbs

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