By Brian Wheeler
Tuesday, March 2, 2010
In a six-minute conference call Friday, the opponents of the
opened a new chapter in their ongoing battle against the controversial road, which is now
well under construction
in Albemarle County.
Coalition to Preserve McIntire Park
is opposed to the road’s construction, particularly on park land owned by Charlottesville.
made oral arguments over the telephone with a three-judge panel of the Virginia Supreme Court, which is weighing whether to hear his legal appeal. An engineer by training, Kleeman was not represented by an attorney and he spoke on behalf of the coalition and the individuals named in the lawsuit.
According to a letter of invitation from the court’s chief attorney to the coalition’s representatives, Kleeman and Stratton Salidis, the call was scheduled to last up to 10 minutes. Kleeman said it began with one judge introducing himself along with the panel of two additional judges.
“They began by saying, ‘You now have an opportunity to tell us your story,’” said Kleeman in an interview shortly after the call. After Kleeman spoke for six minutes, he said the justices concluded the call without asking questions.
“We are not interested in asking any questions. We think you gave a fair presentation of your case,” said Kleeman, recounting the conversation.
“We have a shortage of funds and no attorney currently on retainer,” said Kleeman. “We will have to consider hiring an attorney for the actual argument [before the Supreme Court], if that comes to pass. For this call, we felt confident we could explain the case about the merits of our appeal without an attorney.”
Doug Robelen, chief deputy clerk of the Virginia Supreme Court, said in an interview that while the majority of parties are represented by an attorney, one is not required to have an appeal heard by the justices.
In a May 19 court hearing, Kleeman’s group was represented by local attorney Jennifer McKeever. A little more than a month later,
Charlottesville Circuit Court Judge Jay Swett ruled against the coalition
after it sued to stop the use of city-owned land in Albemarle for the County’s portion of the parkway. The case, now called “Peter Kleeman, et al. v. City of Charlottesville,” was subsequently appealed to the Virginia Supreme Court.
Swett denied the coalition’s claim that a City Council vote to convey property to the Virginia Department of Transportation was unconstitutional. Swett ruled the Virginia Constitution does not require four out of five councilors, a supermajority or three-fourths of all elected members, to have approved the granting of temporary and permanent easements to VDOT.
City Council voted 3-2 in June 2008
to grant nearly 8.6 acres of land the city owns in Albemarle County to VDOT for construction, equipment storage and utility and drainage easements.
Kleeman and the coalition argue that the City Council’s granting of a permanent easement allowing construction of the road was inconsistent with the Virginia Constitution and should be voided.
“We contend it was not legal under either a gift or a sale,” said Kleeman.
The coalition has argued that a gift of the land to VDOT would only be good for up to 40 years, as specified in Article VII, Section 9 of the Virginia Constitution, and could not be granted in perpetuity for a road. Further, they also contend that a sale of public land would require a supermajority vote, a test not met by the 3-2 vote of City Council in 2008.
In Judge Swett’s opinion, he cited arguments that the constitution’s framers intended for Section 9 to protect the public from elected officials who sold public land to private interests at lower than market value. Swett noted that the city will benefit by having a public road built and paid for by the Commonwealth of Virginia.
“It is difficult to see how this conveyance to VDOT by the city is within the category of evils which the framers of the Virginia Constitution had in mind when Section 9 of Article VII was considered,” Swett wrote.
Meanwhile, the city of Charlottesville has moved forward with
the bidding process for construction
of its portion of the parkway while it awaits final permitting by the U.S. Army Corps of Engineers. A low bid of $3.37 million was submitted last month by Key Construction Co. Inc., based in Clarksville. The city has also filed legal briefs in the ongoing lawsuit.
“We filed a brief in opposition in early November about why we thought the Supreme Court should not hear the case,” said Craig Brown, the Charlottesville City Attorney. “Now we are just waiting to hear their decision.”
Kleeman said he expects to receive a decision from the Supreme Court as to whether they will hear the coalition’s appeal before the end of March.
In the event the case is not heard, the coalition has also indicated it is weighing a federal lawsuit related to the segmentation of the road project into three parts: the City’s portion; the County’s portion; and
a grade separated interchange at the US 250 bypass and McIntire Road
The coalition has long insisted that the project should be viewed as one federal project and that its segmentation is designed to avoid a more extensive environmental review required under federal law.