Parkway opponents try Plan B

Opponents of the Meadowcreek Parkway are moving onto their next battle, this time arguing that the 2-mile road was separated purposefully into three sections to evade federal environmental protection and historic preservation laws.

“We are not giving up,” said John Cruickshank, chairman of the Piedmont Group of the Sierra Club and a member of the Coalition to Preserve McIntire Park.

Having been in the planning process for four decades, the parkway would connect East Rio Road in Albemarle County to the U.S. 250 Bypass at McIntire Road in Charlottesville, and its terminus would be a grade-separated interchange. The interchange, a $32.5 million project, is the only part that is being funded with federal, state and local dollars. The actual roadway, whose construction began in February in the county, is being financed with state and local dollars from the city and county.

Those considering taking action in federal court agree that their strongest argument lies there. Peter Kleeman, a member of the coalition and an advocate of alternative modes of transportation, said that state law is very weak compared with federal ones when it comes to environmental protection.

Federal laws apply to projects that receive federal money, and Kleeman and others are exploring taking action based on the 1966 Department of Transportation Act, the National Historic Preservation Act and the National Environmental Policy Act.

Cruickshank said that the latter law, in particular, requires that the Federal Highway Administration consider potential negative impacts projects would have on their surrounding natural environment. Opponents say they think the localities and VDOT deliberately segmented the parkway project so that the city’s portion of the road, which would run straight through McIntire Park, would not have to comply with those regulations.

Cruickshank and Kleeman, among others, believe the parkway is one project, whose sections would not be able to exist exclusive of one another.

“How is it that these can be separate projects?” Kleeman said. “Everything about those projects is overlapping.”

VDOT spokesman Lou Hatter said the parkway has always been seen as three separate pieces. For one, he said, the two sections of the road are in different jurisdictions so funding was allocated separately. As for the interchange, he said, “It has independent utility, meaning that it serves a purpose regardless of whether or not the parkway is part of it.”

Hatter said that the construction is also being advertised as three different contracts because each section is its own undertaking. Councilor David Brown said that during elected city officials’ discussions of the project, the parkway and interchange were always seen as separate items.

“We’ve always talked about them separately,” he said. Brown is one of three councilors who support the project.

Mayor Dave Norris, an opponent to the parkway, testified in court in May that he believed the project was one item, not three separate pieces.

Cruickshank and Kleeman were among several plaintiffs who have already tried to stop construction of the parkway through McIntire Park by contending that a particular piece of land was not conveyed legally by the City Council. The injunction was filed earlier this year in Charlottesville Circuit Court, but judge Jay T. Swett ruled on June 26 that the city land located near Charlottesville High School on Melbourne Road was legally conveyed by the city to the Virginia Department of Transportation, even though councilors did not approve the resolution with a “super-majority” of votes.

The parkway’s opponents had argued that the conveyance was in fact a sale, and therefore councilors did not have enough votes to deem the transfer legitimate. Swett wrote that the super-majority — or four votes for the City Council — was not required because the land was conveyed through a construction easement and not a permanent sale. Councilors voted 3-2 on the transfer in June 2008.

Cruickshank said the legal arguments are being developed for the next case, but action cannot be taken just yet. A memorandum of agreement needs to be signed first, essentially giving permission for the city’s part of the road and the interchange to be built. Kleeman said that the FHA also needs to sign an agreement that says no significant environmental impacts were found from the project.

“The process is not yet ripe for legal determination,” he said. “You can’t sue them for what they’re thinking about, you can only sue them for actions.”