Too late: Judge denies bid to stop Parkway
Plaintiff John Cruickshank foresees another day in court to stop the Meadowcreek Parkway.PHOTO BY LISA PROVENCE
Judge Jay Swett denied a preliminary injunction to halt construction on the Meadowcreek Parkway, ruling that the plaintiffs waited until ground had already been broken and damage done before filing their injunction, and that the Virginia Department of Transportation would suffer "substantial harm" from stopping work, to the tune of $20,000 a day.
The Coalition to Preserve McIntire Park, represented by former City Council candidate Jennifer McKeever, is made up of longtime parkway opponents like Rich Collins, Stratton Salidis, and Peter Kleeman (the latter two also Council candidates), and they contend the city illegally gave land to VDOT in June 2008 when it did so with a 3-2 vote by City Council, rather than a super-majority vote required by the Constitution of Virginia when selling public land.
City Attorney Craig Brown argued that the Coalition had no standing for requesting the injunction, that they were unlikely to prevail in a lawsuit, and that the attorney general had issued an opinion that a super-majority vote was not necessary when granting a permanent easement. And VDOT attorney Lori Pound noted that taxpayers would be stuck with that $20K-a-day bill if work stopped.
Throughout the two-and-a-half-hour hearing, Swett questioned the injunction's timing, coming nine months after the city approved the land transfer. "Why not seek it before the first tree came down?" he asked. "The damage has been done."
In his ruling, Judge Swett found that the Coalition did have standing to file the injunction, but he cautioned that if he's wrong, the case could be thrown out on appeal solely on that issue.
Another point for issuing an injunction is the likelihood the plaintiff will prevail in a lawsuit over the land transfer. "I cannot find as of today the Coalition will prevail," said Swett. "I do not find the Coalition will be irreparably harmed if I do not grant an injunction."
Pointing out once again that the group could have filed before the first shovelful of dirt was dug, Swett added, "The plaintiff has to bear some of that responsibility."
The judge did allow an expedited trial in the Coalition's suit, so the parties will be back in court in May. By that time, Faulconer Construction, which began building a 1.4-mile stretch of the Parkway in February, may have felled hundreds of trees and moved thousands of feet of earth.
Coalition member and witness John Cruickshank seemed undismayed.
"It was very clear the judge took our case very seriously," he said, after the hearing. "He was very fair, and he said we're on some new legal ground."
And the Coalition may have more lawsuits up its sleeve. According to Cruickshank, it's hired a Washington lawyer to represent its contention that the Parkway violates federal law that protects parks and historic sites.
8 comments
Time for some proverbial heads to roll on City Council!! This city deserves much better than it has gotten in the past few decades. The Parkway is an incredibly stupid non-solution to a real problem.
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I attended the hearing. The main question--whether City Council can grant a permanent easement for road construction without a super-majority vote, remains unresolved. The Judge decided only not to halt the bulldozers, before that question is answered.
Judge Swett came thoroughly prepared. He did an outstanding job grilling lawyers and witnesses. He poked and prodded; under his probing questions lawyers for each side, by turns, were left gasping and wordless and groping for answers.
Then at the end Judge Swett reached a considered result. Equally important, he was seen to reach a considered result. Witnesses had said their say and lawyers had argued their arguments, and nobody went away thinking they were not heard. A Supreme Court-level judicial performance.
A ruling on a preliminary issue perhaps (to this observer) may have erred on the side of mercy, rather than crisply dispatch the Plaintiff's case. No matter. Lingering uncertainty on the main legal issue will be resolved soon enough--in May.
My time having been consumed trying to save another city park at Ragged Mt and convince the elected officials to get accurate information about dredging our main water supply, I was surprised to hear at today's court proceeding that the County portion of this road cannot be opened until the city portion thru McIntire Park and the interchange at 250 have been completed. When the construction representative was questioned about this by the judge he answered that the economy being what it is there is a possibility the other 2 sections may not be completed. He then went on to contradict himself and say that the county portion would open as a stand alone road.
Another question I have is I heard the VDOT lawyer claim that anyone could use this road. I had understood this would not be open to trucks, but she seemed to imply it would be open to all vehicles
Would someone who has followed this closely clarify these points. Thank you
Well since the County has begun construction with the good faith belief that the City intends to take care of their part, it would seem to me that if the City backs out (through whatever means, be it changing their collective mind for the upteenth time or be it a court decision) then the City would be on the hook for every penny the County has spent. Perhaps the laws governing transactions and agreements between jurisdictions are different, but if this were two people or two businesses the City would be liable for a lot.
I write this in response to the queries related to the Parkway use. First, the City has said that no single semgne of this one road would be opened for use until all segments of the road are open for use. Secondly, the City indicated that the road would not be open to trucks. .
More importantly, I think, is that the public knows that although the Coalition was unable to enjoin the tree-cutting on the portion of road at issue, the question of the legality of this road does not depend just on the city transfer of land. Leaving economic and cost issues aside there are at least two outstanding environmental issues that have not been resolved: the Corp of Engineers must issue a permit, and this permit will not be granted until issues of water quality and road design are resolved in meetings in the next few months. These meetings will include "consulting parties" like Rich Collins, Dan Bluestone Peter Kleeman and Colette Hall as well as the state Department of Historic Resources.
The Coalition has retained a respected attorney known nationally for her work on environmental and historic preservation. She has already sent a letter to public officials alerting them that the Coalition believes that the road violates federal park protection and for properties eligible for the National Register of Historic Places, McIntire Park's golf course has this status. We reserve the right to challenge the road in federal court if attempts at resolution of these issues by VDOT are unacceptable.
If a federal court accepts the proposition that the MCP including the Interhchange is one road with a purpose and need that includes the federally funded interchange, McIntire Park will become what Mr. Mcintire intended: Charlotteville's Central Park now enhanced by the Rivanna Trail and the Schenck's Branch Greenway.
Finally, the opponents of the MCP have been joined by groups concerned with keeping McIntire Park green, such as those who play ssoftball, golfers, arborists,etc. On this note I urge everyone to visit the website for The First Tee Charlottesville and learn more about the City's contract with this group that uses golf as a wtool for youth and community development. It appears to me that the City isn't fulfilling its commitments on this matter. Check it out.
Rich Collins
Dear Mr. Collins, why were you so late to file? Why are you more qualified then my elected officials and consulted at all? I didn't elect you or your cohorts to do anything. You continue to pop up like mushroom after the rain, rant about some government malfeasances, go to court, and then get beaten. You waste time, taxpayer money and your legal assertions have yet to ever be proven correct. It is your right to do so but please don't act like you are doing me a favor.
Getting a letter from an attorney is as easy as writing a check- I'm not impressed. Your assertions of Paul Goodloe McIntire's wishes ignore his history. He would have wanted a road that allows his park gift to be better used by the public, make Park Street more livable, and requires the city/county to create MORE parkland. The parkway is exactly what he would have approved.
When Meadowcreek was expand to 18 holes (taking away riverside parkland) the city stated this was being done to replace the sub standard sand green park you now defend. Has everyone forgotten that?
Its ridiculous to not open the road to trucks. Why make the vehicles that get 4 MPG and spew soot drive more miles? Where's the vote for air quality?