OFFICE TELEPHONE: 434-970-3760
FACSIMILE: 434-970-3038
Email: hogshire@charlottesville.org

June 29,2009

VIA FACSIMILE AND FIRST CLASS MAIL

Jennifer L. McKeever, Esq.
917 East Jefferson Street
Charlottesville, VA 22902

Lori L. Pound, Esq.
Assistant Attorney General
The Pocahontas Building
900 East Main Street
Richmond, VA 23219-3524

S.Craig Brown, Esq.
P. 0.Box 911
605 East Main Street
Charlottesville, VA 22902

Re: Coalition to Preserve McIntire Park, et al., vs. City of Charlottesville et al.

Case No. CL090000-84

Dear Counsel:

Enclosed is a copy of the opinion in this case. Please confer and agree upon the preparation of on Order consistent with the findings and rulings in the Opinion. Please submit the Order to the Court for my signature.

Very truly yours,

[signature: Jay Swett]

Jay T. Swett
Judge Designate

VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF CHARLOTTESVILLE

COALITION TO PRESERVE MCINTIRE PARK,
NORTH DOWNTOWN RESIDENTS ASSOCIATION,
JOHN CRUICKSHANK,
PETER KLEEMAN,
STRATTON SALIDIS,
RICHARD COLLINS,
And
ROBERT FENWICK.
Plaintiffs,

vs. CASE NO.CL9000084-00

CITY OF CHARLOTTESVILLE
And
COMMONWEALTH OF VIRGINIA DEPARTMENT OF TRANSPORTATION
Defendants.

This case arises out of the conveyance of an easement by the City of Charlottesville and the Charlottesville School Board to the Commonwealth of Virginia Department of Transportation related to the construction of a portion of what is known as the Meadow Creek Parkway. The plaintiffs are five individuals, a neighborhood association and an association formed to preserve a Charlottesville park known as McIntire Park, a portion of which will be eventually crossed by the Meadow Creek Parkway if the construction is completed. In this action, the plaintiffs contend that the conveyance of a construction easement by the City of Charlottesville (hereafter "City") to the Commonwealth of Virginia Department of Transportation (hereafter "VDOT") was an unlawful sale of city property in violation of the Virginia Constitution. More particularly, plaintiffs contend that the City's ordinance authorizing the conveyance comes within the provisions of Article 9 Section VII of the Virginia Constitution thereby requiring a three-fourths vote of the members of City Council. In this case, the ordinance authorizing the granting of the easement was passed on a 3-2 vote, which would not satisfy the constitutional requirement of a supermajority vote should Article 9 Section VII apply to this conveyance.

The defendants contend that Article 9 Section VII does not apply as the conveyance is not a sale of city property or, in the alternative, if it is a sale of city property, this particular provision has no applicability to a conveyance by a city to an agency of the Commonwealth of Virginia. Both defendants also contend that none of the plaintiffs have standing to bring this action such that this court should dismiss the case without having to address the constitutional issue. VDOT also argues that the plaintiffs should be barred from proceeding based on the doctrine of laches in that their delay in bringing the suit and the resulting prejudice to the defendants should be an independent basis to dismiss the suit.

The facts underlying the case are not in dispute. The Meadow Creek Parkway has been part of a long range transportation plan between the City of Charlottesville, the County of Albemarle and VDOT. The concept behind the parkway is to provide an alternative traffic route to downtown Charlottesville from that portion of Albemarle County that lies to the north of the City. At present, there are two main access routes to downtown Charlottesville from the north. One is south on Route 29 to its intersection with the Route 250 bypass, then eastbound on the bypass until exiting off one of the several intersecting roads to the downtown area. The other is exiting Route 29 and traveling southeast on Rio Road East, state route 631, and continuing until Rio Road becomes Park Street near where the road leaves Albernarle County and enters the City limits.

The Meadow Creek Parkway, in one form or another, has been on the drawing board for some time. It is safe to say there has been long standing opposition to the parkway from many citizens who have expressed a number of concerns over the impact of the proposed road. While not all inclusive, those concerns primariIy include the amount of increased traffic, particularly its impact on those City neighborhoods closest to the parkway's southern termination point, and the road's impact on McIntire Park, as a portion of the proposed road will run through McIntire Park.

McIntire Park is located off the Route 250 bypass and is a portion of land donated in 1926 by Paul Goodloe McIntire, a philanthropist who over the years made significant gifts to the Charlottesville community. Presently, McIntire Park is approximately 22 acres and contains a nine hole golf course, several athletic fields, picnic shelters, a wading pool and numerous nature trails and streams. The park is roughly divided in half by the CSX railroad tracks, The west portion contains the athletic fields, picnic areas and shelters, and most of the nature trails and streams. The east portion contains the golf course, wading pool and additional nature trails.

As previously stated, the Meadow Creek Parkway has been a work in progress over many years. In its final configuration, it is approximately two miles in length beginning at its northern end in Albemarle County at an intersection with Rio Road East running southeast for approximately 1.4 miles to an intersection with Melbourne Road. The road continues past the Melbourne road exchange entering McIntire Park at its eastern edge and continuing to a planned intersection with the Route 250 bypass and McIntire Road. The City, the County of Albemarle and VDOT have divided the parkway into three segments. The first segment is the northern portion running from Rio Road East to Melbourne Road. The second is the portion from Melbourne Road through McIntire Park to the Route 250 bypass. The third is the interchange at the 250 bypass and McIntire Road. The three phases or segments of the parkway have separate construction schedules and funding sources. Only the first phase, the one running from Rio Road East to Melbourne Road, is at issue here.

The portion of the parkway in the fist phase crosses land located exclusively in Albemarle County. However, as the road nears Melbourne Road, the path of the road comes onto property owned by the city, but which is located in Albemarle County. Melbourne Road, in the area of the parkway, is the boundary between the City and Albemarle County. The Charlottesville High School and related fields and facilities are in the immediate area of the proposed intersection of Melbourne road and the parkway. The land on which the high school and its related facilities are located is a portion of a larger tract given to the City in 1982. Along Melbourne Road, traveling in a northerly direction, to the west are the buildings and related facilities and fields comprising the high school. To the east of Melbourne Road are the high school football stadium and a small athletic field. This is the portion that is owned by the City, but which is located in Albemarle County. It is also the land that is at issue in this case.

The course of action chosen by the City and VDOT to accommodate the construction of the relatively small portion of the parkway to the east of Melbourne Road near the high school football stadium located on City owned property was to convey an easement to VDOT for the construction of that portion of the parkway on City land east of Melbourne Road. On June 2, 2008, the Charlottesville City Council, by a vote of 3 to 2, passed an ordinance approving the granting of permanent and temporary construction easements to VDOT across the city owned property near Melbourne Road. The ordinance granted VDOT a permanent easement of 1.796 acres for a road right-of-way, a permanent easement of 2.561 acres for drainage, stormwater and slope management, 0.504 acres for utility easements and a temporary construction easement of 3.722 acres.

Prior to voting on the ordinance, City officials met with the Charlottesville School Board to obtain its approval for the construction easement. At a meeting on May 1, 2008, the Charlottesville School Board approved a request from the City and passed a resolution consenting to the conveyance of the construction easements by the City to VDOT. In its resolution, the School Board noted that, although the City was the record title holder of the property over which the easements would run, the property in question was used for public schools and, therefore, the Board's consent was required.

On October 1, 2008, a deed was signed by the City's mayor and the chair of the Charlottesville School Board conveying the various temporary and permanent easements to VDOT to construct that portion of the Meadow Creek Parkway that ran over the City's land located in Albemarle County. Construction of the portion of the parkway between Rio Road and Melbourne Road began in late January or early February of 2009. In early March of 2009, the Coalition to Preserve McIntire Park filed this action against the City and VDOT requesting a preliminary injunction to prohibit any further construction of the parkway over the City's land contending the City's ordinance approving the conveyance was unconstitutional. The Coalition argues the City's vote to approve the conveyance was not a three fourth's vote and therefore the vote was in violation of Section 9 of Article VII of the Virginia Constitution. A hearing on the request for the temporary injunction was heard on March 18, 2009. This court denied the request for the preliminary injunction finding (1) that the plaintiff did not demonstrate a substantial likelihood that it would ultimately prevail on the merits, (2) that the plaintiff did not make an adequate showing of irreparable harm if the injunction were not granted, and (3) that the delay in bringing the request for the injunctive relief created a situation where defendant VDOT would experience considerable damage should the injunction be granted as compared to the threatened injury to the plaintiff, An expedited hearing was held on May 19, 2009. Prior to the hearing, with the consent of the defendants, six plaintiffs were added to the suit, namely the North Downtown Residents Association, John Cruickshank, Peter Kleeman, Stratton Salidis, Richard Collins and Robert Fenwick.

The City and VDOT contend that none of the plaintiffs have demonstrated sufficient standing to bring this suit. To address this contention, a brief review of the legal requirements for standing is appropriate.

The concept of standing in the law is founded upon the principle that the parties to a lawsuit must have a sufficient interest in a particular matter to ensure the parties will be actual adversaries and that the issues in the case will be fully and faithfully developed. Andrews v. American Health & Life Ins. Co., 236 Va. 226 (1988). The inquiry has no relation to the substantive merits of the controversy, but is a preliminary jurisdictional matter that focuses solely on the status of the plaintiff or plaintiffs and whether they are the proper parties to proceed with the suit. Cupp v. Board of Supervisors of Fairfax County, 227 Va. 580, 589 (1984). In order to have standing, a party must "show an immediate, pecuniary, and substantial interest in the litigation, and not a remote or indirect interest." Harbor Cruises, Inc. v. State Corp. Comm., 219 Va. 675, 676 (1979). The type of interest or injury necessary to have standing must be a one directly affecting the plaintiff. "[I]t is not sufficient that the sole interest of the [plaintiff] is to advance some perceived public right or to redress some anticipated public injury where the only wrong [the plaintiff] has suffered is in common with other persons similarly situated." Virginia Beach Beautification Commission v. Board of Zoning Appeals of the City of Virginia Beach, 231 Va. 415, 419 (1986).

Where the plaintiff is an organization as opposed to an individual, the organization may sue in its individual capacity or in a representative capacity. For an organization to have individual standing, it must show that it has been damaged by the actions of the defendant or that its rights were adversely affected by the defendant's conduct. For an organization to have representational standing, it must be shown that at least one member of the organization has standing to go forward with the claim in his or her own right. Philip Morris USA Inc. v. Chesapeake Bay Foundation, 273 Va. 564 (2007). Further, in a case where the claimed injury is one to the environment, it is not sufficient for the organization to allege that the defendant's conduct will harm the environment. Rather, the plaintiff must allege and prove that the government's actions directly impact on the plaintiff's use or enjoyment of the land or area at issue and are persons "for whom the aesthetic and recreational values of the area will be lessened by the challenged activity." Philip Morris, supra, p.578, quoting Friends of the Earth Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000). It is under these and other principles that this court must measure whether some of all the plaintiffs have standing in the context of this suit.

The Coalition to Preserve McIntire Park is an unincorporated association whose members include individuals and other organizations which seek to preserve "the historic, aesthetic, recreational, educational and natural attributes of open space in Charlottesville and the surrounding area." [Footnote 1: Amended Complaint, p.2.] The individual plaintiffs are members of the Coalition. The Coalition has actively been involved in various preservation and transportation matters impacting Charlottesville and opposes the Meadow Creek Parkway because its eventual path will run through a portion of McIntire Park.

Plaintiff John Cruikshank is the organizer and coordinator of the Coalition to Preserve McIntire Park. Mr. Cruikshank testified that the purpose of the Coalition is, as its title suggests, to preserve McIntire Park and to see the park improved and enhanced. The organization was formed after the City passed the June 2008 ordinance to grant VDOT the construction easement. He also owns two rental properties in the City. Neither rental property is located in close proximity to the land at issue in this case. [Footnote 2: Mr. Cruickshank testified that one of his rental properties had over the years decreased in value in the amount of $13,000, but offered no evidence that the decrease was attributable to any action by the City in passing the Ordinance to convey the construction easement to VDOT.] With regard to the land near Melbourne Road at issue here, Mr. Cruickshank testified he may have walked on the land sometime in the past.

Plaintiff Stratton Salidis is a member of the Coalition. He testified that in the past 10 years, he has hiked on the City's land near the Charlottesville High School and football field approximately nine times. He indicated he has taken his nephews to visit the area to enjoy the natural setting and wildlife in the area.

Plaintiff Peter Kleeman is a member of the Coalition and lives approximately a mile from the location where the Meadow Creek Parkway will intersect with Melbourne Road. He has walked or visited the land impacted by the construction easement on a number of occasions. He has seen deer, beaver, and a variety of birds and considers the area as having abundant wildlife. Dr. Kleeman has a doctoral degree in environmental science and engineering. He has been an active opponent of the City's decision to convey the construction easement having run for Charlottesville City Council unsuccessfully twice in an effort to vote against the easement.

Plaintiff Richard Collins is a member of the Coalition. He has been active in transportation issues in the local area for a long period. This interest in transportation has led to a designation of him as special consultant under the Natural Preservation Act [Note: should be with a special emphasis as a consultant regarding the Meadow Creek parkway. Dr. Collins testified that since he has opposed the Meadow Creek Parkway for a long time, that if the parkway is constructed, it would diminish and harm his role as a consultant and that his opinions would be "irrelevant" in the future. He also testified that the Rivanna Trail which runs near the area of the Charlottesville football field will be adversely affected by the parkway. [Footnote 3: The Rivanna Trail is a walking and biking trail that runs near Meadow Creek and near the proposed location of the parkway. The path of the Meadow Creek Parkway is such that it crosses Meadow Creek. Under the arrangement between the City and VDOT, the Rivanna Trail will be rebuilt for use by hikers and bicycle riders.]

Plaintiff Bob Fenwick is a member of the Coalition. Mr. Fenwick testified that several years ago, he used the athletic field next to the Charlottesville High School football field. That field will be lost when the parkway crosses the school property. [Footnote 4: Under the agreement between the City and VDOT, any fields lost will be replaced.] His last use of the field was 5 years ago. He testified he frequently uses McIntire Park and believes his use of the Park will be adversely affected if the road is permitted to cross McIntire Park.

Ms. Colette Hall is the President of the North Downtown Residents Association. The Association represents residents who live in the downtown area of Charlottesville in the vicinity where the Meadow Creek parkway will intersect with McIntire Road. She testified that the Association opposes the Meadow Creek parkway because of the anticipated increase in traffic in the neighborhoods close to the proposed interchange. As do all the plaintiffs, Ms. Hall views the road as a single project. Thus, her Association opposes this portion of the parkway even though it alone will have no immediate impact on traffic in the north downtown area. [Footnote 5: As previously noted, the construction of the parkway is in three separate phases. The land that is the subject of this suit is part of the first phase which terminates at Melbourne Road. The second phase will run from Melbourne Road through McIntire Park to the 250 bypass. The third phase is the interchange of the parkway where it will intersect McIntire Road at the bypass. Thus any increase in traffic caused by the Meadow Creek parkway would not occur until the third phase is completed.]

In evaluating the evidence presented, it is my conclusion that some, but not all the plaintiffs have met the applicable standards of standing to continue as plaintiffs in this case. The case law suggests that the analysis of the principles applicable to standing have different areas of focus depending on the nature of the interests asserted. Thus, in the situation where the case comes to a circuit court on a writ of certiorari from a board of zoning appeals, the applicable statute requires that the party seeking review is a "person" who is "aggrieved" by a decision of the board of zoning appeals. [Footnote 6: Virginia Code Sec. 15.1-497.] In Virginia Beach Beautification Commission, supra, a commission whose purpose was to keep the city of Virginia Beach "beautiful" lacked standing to challenge on appeal a zoning board decision to grant a hotel a setback variance for a sign along the Virginia Beach expressway. 231 Va. at 419. The Supreme Court found that the Commission did not own property in proximity to where the sign would be erected nor did the Commission demonstrate a substantial interest in the board decision to grant the variance. Id. at 420.

In a suit for declaratory judgment, to have standing a plaintiff must show a "justifiable interest" in the subject matter of the suit such that its rights would be affected by the outcome of the case. W. S. Carnes, Inc. v. Board of Supervisors of Chesterfield County, 252 Va. 377, 383 (1996). In W. S. Carnes, Inc., supra, an association of home builders had no standing to challenge a decision by the Chesterfield Board of Supervisors which passed an ordinance to impose a $125 increase in the permit fee charged for new residential construction since the association did not build houses in Chesterfield County nor had it paid for any residential building permits for new construction. Id. at 383. [Footnote 7: The Supreme Court in W. S. Carnes, Inc., also found that the home builders association could not sue in a representative capacity, i.e., on behalf of its members because there was no statute authorizing it to do so. 252 Va. at 383.]

In Philip Morris USA Inc., v. The Chesapeake Bay Foundation Inc., 273. Va. 564 (2007), the Chesapeake Bay Foundation appealed to the Circuit Court of Chesterfield County a decision of the State Water Control Board granting the renewal of a discharge permit to Philip Morris to discharge waste water into the James River. The circuit court found that the Foundation lacked standing to challenge the Board's decision on the grounds it lacked individual, and representational standing because there was no allegation of a "particularized injury" to the Foundation or to its members. [Footnote 8: 273 Va. at 571.] The Virginia Supreme Court reversed the circuit court on the issue of standing, The Supreme Court found that the Foundation's petition included allegations that the discharge permit would result in excessively high levels of nitrogen and phosphorus discharged into the James River causing injury to the Foundation and its members who use the James River for swimming, boating, and other recreational and educational pursuits. The Supreme Court further found that the Foundation alleged that the discharge permit failed to comply with federal and state regulations that protected uses of waterways such as the James River. [Footnote 9. 273 Va at 579] The Supreme Court found these allegations sufficient to give the Foundation representational and individual standing to challenge the State Water Control Board's decision to renew the discharge permit. [Footnote 10: The Court's analysis of the standing question was in the context of Article III of the United States Constitution because of the language of Va. Code Sec. 62.1-44.29 incorporating the Article III standard as was required [by the] federal Clean Air Act. Thus, the Court's analysis of the standing question is applicable here.] In its discussion of the applicable principles, the Court referred to several federal decisions noting that a general allegation of an injury to the environment is not sufficient to have standing because it is not a legally protected interest. On the other hand, where plaintiffs "aver that they use the affected area and are persons 'for whom the aesthetic and recreational values of the area will be lessened' by the challenged activity", then there is an adequate claim of injury for purposes of standing. Philip Morris USA Inc., supra, quoting Laidlaw and Sierra Club v. Morton, 405 U.S. 727 (1972).

Guided by these decisions, my conclusion is that an objection to the City's decision to pass the June 2008 ordinance granting VDOT a construction easement because it is part of the Meadow Creek parkway where the objection is based on a belief, however strongly held, that the parkway may increase traffic in the downtown area or is contrary to the views held by persons with significant expertise in transportation issues is not a sufficiently particularized injury to have standing in this case. On the other hand, a claim that the use of the land at issue here will directly impact the future use and enjoyment of the land or that the path of the parkway will be detrimental to McIntire Park when the planned construction continues through a portion of McIntire Park is a sufficient claim of an injury and one that may or will be impacted or affected by the issues in this case. Thus this court concludes that plaintiffs Stratton Salidis, Peter Kleeman, Robert Fenwick, John Cruickshank and the Coalition to Preserve McIntire Park have standing to proceed as plaintiffs in this action. For the reasons stated, it is my conclusion that plaintiffs Richard Collins, and the North Downtown Residents Association have not alleged a sufficiently particularized injury and, therefore, do not have standing to continue as plaintiffs in this suit.