A group called the Coalition to Preserve McIntire Park (CPMP) has filed two legal actions to stop the City’s portion of the Meadowcreek Parkway. Attorney Jennifer McKeever filed two motions in the Charlottesville Circuit Court on February 24, 2009 according to a press release from the group. The group is also preparing another battle in what could be a long legal campaign. McKeever is also the Co-Chair of the City’s Democratic Party and a former candidate for the party’s nomination to City Council in 2007.
McKeever’s first action was to file a motion asking for the court to declare that the City illegally transferred land to the Virginia Department of Transportation (VDOT). In June 2008, City Council approved permanent and temporary construction easements on 9 acres of land owned by the City in Albemarle County . The motion for declaratory judgment claims the action was unconstitutional because state law required a supermajority to convey public land to another body [4 votes on a 5 member body]. The vote on June 2, 2008 was 3-2 with Councilor Holly Edwards and Mayor Dave Norris voting no.
The second action is a request for a preliminary injunction to immediately halt all activities related to the construction of the Parkway. This request builds on the argument being made in the motion of judgment. The request claims that VDOT has caused and is causing “irreparable harm” by using the 9 acres as a staging area for the parkway’s construction.
Stratton Salidis, a member of CPMP, has frequently appeared before Council to make this argument. On September 1, 2008 he referred Council to Article 7, Section 9 of the Virginia Constitution.
“This provision is designed to give extra protection to valuable City lands to make certain they are not given away without due consideration,” Salidis said. Councilor Julian Taliaferro then asked City Attorney Craig Brown to comment.
First, Brown claimed the City did not permanently transfer the land but instead granted permanent and temporary easements on both City and County land.
“I don’t know anyone who has suggested that the supramajority requirement applies to a temporary construction easement, [in McIntire Park,]” Brown said. “That is merely the legal requirement for VDOT to come onto City property to construct the road… When the project is completed the road will all belong to the City so you are not conveying anything permanently.”
Brown acknowledged the City’s land in the County near Charlottesville High School will be a permanent easement to be held by VDOT. He said the City requested an opinion from the Attorney General about whether a supermajority was needed.
“It was the opinion of the Attorney General at that time that conveyances from a municipality to the state for the construction of a road was not within the constitutional requirement… for a supermajority,” Brown said. The April 2004 opinion from then-Attorney General Jerry Kilgore concludes that a supermajority is not needed because a public purpose is being served.
“Public highways belong entirely to the public at large,” Kilgore wrote. “I am satisfied that the parkway will be a public road.”
A hearing for the two motions has not yet been set.
CPMP is also pursuing another legal angle to stop the parkway. Andrea Ferster, an attorney from Washington D.C., sent a letter to the Federal Highway Administration which outlines their case for why the federal guidelines from both the National Environmental Protection Act (NEPA) and Section 4(f) of the Department of Transportation Act need to be applied to the entire Meadowcreek Parkway, rather than just the Interchange between the 250 Bypass and McIntire Road.
Ferster serves as the General Counsel for Rails to Trails Conservancy and has extensive experience with enforcement of federal environmental and historic preservation law. The letter ends with the proposition, “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).”
To make this case, Ferster argues that the County’s Meadowcreek Parkway, the City’s McIntire Road Extended, and the Route 250 Interchange are, in fact, dependent on each other, and that the 1997 subdivision of the Meadowcreek Parkway into three parts was intended to skirt federal regulations.
Ferster provides a few reasons for this position. Prior to 1997, the Meadowcreek Parkway had been considered a single entity, and an Environmental Impact Statement was at one time contemplated for the whole project. She also points to a 775-foot segment of the federally funded Interchange plans that juts to the north into McIntire Park and argues that this would not serve a purpose without a road to connect to it.
Furthermore, Ferster contends that the City has made it clear in writing that they would not financially support their portion of the roadway without assurance of federal funds for the Interchange. Finally, she highlights the Environmental Assessment for the Interchange, which assumes increased traffic volumes of a planned Meadowcreek Parkway in order to justify its own construction. Based on legal precedent from other similar cases around the country, the success of the lawsuit appears to hinge on how well the interdependence of these projects can be demonstrated.
Daniel Nairn & Sean Tubbs