In this week’s Hook, Lisa Provence writes about the apparent taking of private property by the city without ever actually taking it. They’ve taken over Steephill Street, despite that one of the owners of the private road, Louis Schultz, would like them to knock it off. From Schultz’s perspective, the city is treating it alternately as public property and private property, depending on what’s most convenient for them. It’s a strange problem.
Schultz raised this with Council last month, and sent me the full text of his comments, which I’ve included below. Disclaimer: Louis and I are old friends.
I’ve come here this evening to address City Council, but really my purpose is to bring an important matter to the attention of those of you in the audience who have elected them.
The last few years have been a dark chapter in the history of this city, and I’m here tonight to demand an end to that chapter.
Each city councilor has, as a qualification for holding elected office, taken an oath which I will paraphrase slightly for clarity. “I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge all of the duties incumbent on me ….. according to the best of my ability; (so help me God).”
The Fifth Amendment to the United States Constitution clearly mandates that no person be deprived of life, liberty, or property, without due process of law. It reads, and again I paraphrase to eliminate parts which aren’t relevant to this discussion, “No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The effect of that amendment was explicitly extended by the 14th amendment to cover actions by individual states. It reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
In the written opinion of the City Attorney, which was produced to guide city staff and which has been made available to myself and the public in general, a street like Steephill Street which adjoins my property in the Woolen Mills neighborhood is private property with no public rights of access. The memo from the city attorney goes on to state that ownership by adjoining property owners extends to the center line of the private right of way.
I have on numerous occasions contacted city staff, most notably, the Department of Neighborhood Development Services in a vain attempt to get some help in protecting the stream that runs through my property from erosion on Steephill. That erosion comes from an erosion impact area which is clearly illegal under the City’ Water Protection Ordinance. That department’s general unwillingness, and inability to handle enforcement of that ordinance is worth discussion as a separate topic, but the response that I got in particular about Steephill Street is that it is private property and for some reason outside of the scope of that ordinance. The private status of Steephill has been restated numerous time in City documents that I have obtained through Freedom of Information Act requests. The Street is marked as private on both ends by City installed street signs.
Paradoxically though, the City claims rights of ownership as it pleases. In 2001, city crews spent taxpayer money to replace the deteriorated bridge on Steephill. Claudette Grant of the Department of Neighborhood Development Services, in a letter dated October 30,2003 claimed the bridge as City property. By the summer of last year, negligence on the part of the city had caused the bridge to become unsafe. Because liability issues are still unclear, I notified the City Attorneys office that I wasn’t interested in accepting legal liability for the City’s negligence and attempted to start a discussion regarding possible legally sound decisions about the future of the bridge. I was left for months with no suitable answers to my questions and instead received a telephone call on October 12 from someone else telling me that construction had begun on a new bridge. On October 13 of 2006, in a meeting in City Attorney Craig Brown’s office, Angela Tucker told me in no uncertain terms that I had no say in the future of the bridge, again claiming that it is the City’s. The reason for rebuilding the bridge at the cost of several thousand tax dollars was to provide access from East Market St. to a single address on Steephill which already had access from Chesapeake.
If you will recall the provisions established by the two previously mentioned Constitutional Amendements, due process is a requirement of seizures of private property by the government.
None of the procedures established in section § 25.1-203 of the Code of Virginia were adhered to however.
As a first step, request for permission to inspect before seizure of property must provide the following: (i) the specific date or dates such inspection is proposed to be made; (ii) the name of the entity entering the property; (iii) the purpose for which entry is made; and (iv) the testing, appraisals, or examinations to be performed and other actions to be taken.The notice of intent to enter shall include a copy of the request for permission to inspect and shall be made not less than 15 days prior to the date of intended entry.
Section 25.1-204 of the State Code says no owner shall be required to surrender possession of real property before the state agency pays the agreed purchase price, or deposits with the state court in accordance with applicable law, for the benefit of the owner, (i) an amount not less than the agency’s approved appraisal of the fair market value of such property, if such an appraisal is required, or (ii) the amount of the award of compensation in the condemnation proceeding for such property.
A petition for condemnation must include the following
a. The authority for the taking;
b. The necessity for the work or improvements to be made;
c. The public uses for which the property is to be taken;
d. A description of the work or improvements to be made; and if (i) only a portion of the property is to be taken or (ii) any other property will or is likely to be damaged as the result of the taking, a plat, drawing or plan, in sufficient detail to disclose fairly the nature of such work or improvements, including specifications, elevations and grade changes, if any, so as to enable the owner of such property to be reasonably informed of the nature, extent and effect of such taking and the construction and operation of such works and improvements, shall be attached as an exhibit to the petition;
e. The estate, interest or rights in the property to be taken;
f. A description of the property to be taken sufficient for its identification and a plan or plat of the land to be taken shall be attached as an exhibit to the petition;
g. As to each separate piece of property to be taken or damaged, the names and residences, so far as known by petitioner, of the defendants who are joined as owners of the property, or of some interest therein, if their names have been ascertained by a reasonably diligent search of the records, considering the character and value of the property involved and the interests to be acquired, or if their names have otherwise been learned; and if the names of other persons or classes of persons to be joined as owners of the property are unknown, such persons may be made defendants under the designation of “Unknown Owners”;
I have raised the issue of Steephill Street to this council both in writing and in an appearance here several months ago. After my last address to council, Mr. Lynch proposed that the City adopt Steephill Street for maintenance by the city. There are several problems with that suggestion. The first is that no movement seems to have been taken in that direction, or if it has, no one has yet seem fit to contact me about it. The second problem is that the city, in particular it seems the Department of Neighborhood Development Services is so overburdened that it can’t find the manpower to address several violations of the Water Protection Ordinance that I have brought to its attention. The City can’t find the funds to do what it is already obliged to do without continuing to raise property taxes to astronomical levels and there is no legitimate public purpose to be served by having the City accept responsibility for Steephill Street. The strongest objection though that I have to Mr. Lynch’s proposal is that it in effect serves to sweep under the rug, and in therby sanction willfully illegal actions on the part of City officials.
What I am asking for instead of Mr. Lych’s proposal is:
- first of all, a formal public apology from the City of Charlottesville for the situation that it has caused on Steephill St.
- immediate removal of the bridge which the city has built on Steephill Street and a clear restatement that the City has no legal right of any sort to that private property until such time as proper due process as required by state law is followed to bring that street into the public road system
- immediate investigation into the practices and management of the Department of Neighborhood Development Services which allow illegal actions to be taken with impunity
Councilors, the men whose images adorn the exterior of this very building were willing to give their lives for the principles enshrined in the constitution. By comparison, your oath to support the constitution is a far easier task, yet you have collectively failed even in that. It is time to give this matter the attention that it deserves and it should immediately be moved to the top of you agenda. If you cannot fulfill the obligations of your oath to support the constitution, then your resignations should instead be at the top of your agenda. Respect for the legacies of the three presidents who we call our own demands nothing less.