After deliberating for six weeks, Charlottesville Circuit Court Judge Jay Swett has made his decision: He ruled that the 3-2 City Council vote that granted the State easement for a parcel of recreational land was constitutional.
On May 19, John Cruickshank and other members of the Coalition to Preserve McIntire Park appeared in court as part of the latest lawsuit filed against the City of Charlottesville and the Virginia Department of Transportation (VDOT) to stop the construction of the Meadowcreek Parkway (MCP).
The group argued that City Council granted the easement without a supermajority, an illegal vote according to Article 7, Section 9 of the Virginia Constitution, which states local governments need a supermajority vote—or three-quarters—to transfer land to the state transportation agency.
The Coalition to Preserve McIntire is prepping for a possible federal case, but fundraising remains a priority.
“I am disappointed, but I think we knew it was an uphill fight,” says Cruickshank.
In his opinion, Judge Swett highlights the need to analyze both words and the intention of the framers of the Constitution while evaluating the legality of the transfer.
“The framers choice of the term ‘sold’ should be given deference and the assumption is that the framers used this term for a specific purpose,” he writes. “If the framers meant that a sale also included any lease, easement or other encumbrance, then the framers presumably would have chosen to add those works in addition to the reference to a sale.”
Yet, the plaintiffs thought otherwise. Because a deed was recorded in January and VDOT is also recorded as paying the city $43,210 for perpetual easement on the property, the coalition argued that the transfer was a sale obtained without a supermajority.
Yet, Judge Swett also argues that VDOT could have used eminent domain. “It is a logical extension of the allocation of those powers that the framers of the Constitution would not have envisioned a supermajority of a city required to convey a road easement to the Commonwealth.”
Coalition member and plaintiff Peter Kleeman finds this logic unsatisfactory. “I don’t get to look into the minds of the framers, I get to read the words of the Constitution,” he says in an interview. “I would be much happier if the decision was based on a logical analysis of the way the Constitution is written.”
Judge Swett also argued that two members of the coalition—Rich Collins and Colette Hall, also representing the North Downtown Neighborhood Association—“did not sufficiently particularized injury,” and were found to not have standing in the case, or were not found necessarily impacted by the construction of the MCP.
The construction of the two-mile road has been under discussion for 40 years and its final design has been divided into three sections, each funded separately.
All federally funded projects must go through extensive environmental reviews. “Section 4f of the Department of Transportation Act prohibits federal highways through parks, wildlife refuges and historic properties unless there are no prudent and feasible alternatives,” says Cruickshank.
In the city, McIntire Road Extended doesn’t fall under Section 4f because it is state-funded ($9.7 million), but the 250 Bypass Interchange is funded with federal money: $29.5 million in earmarks and $2 million in revenue sharing.
While the coalition considers MCP one project, VDOT argues that they are three different sections with three different project numbers and funding sources. “We feel that they are segmenting this project in order to evade those environmental laws,” said Cruickshank in a June interview. And these laws are the basis of a possible federal case the coalition is considering. The group has hired an attorney who is currently working on a feasibility study.
The National Environmental Policy Act (NEPA) requires all federal agencies to conduct environmental impacts analyses for planned projects. “NEPA also prohibits segmenting a large project into smaller pieces to avoid disclosing impacts,” says Cruickshank.
Another law the coalition might pursue is Section 106 of the National Historic Preservation Act that requires taking into account the effect the project will have on buildings and sites that are included in the National Register.
Hall says the impact of the project on the local environment will be the coalition’s strongest argument. “If we are just arguing that the park is historic, that’s not going to hold much sway, as if you are talking about how it’s affecting the environment,” she says. “The effect that the ramp is going 775 feet into the park makes a whole change.”
While the members wait for their attorney’s study, they have other material concerns.
The coalition has raised about $6,600 for legal expenses from 26 families and from people who attended the group’s first benefit picnic.
“Undoubtedly, we will need to raise much more money to take the case to federal court to ensure that our nation’s environmental laws for parkland protection are enforced,” Cruickshank writes in an e-mail.
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