Judge Upholds Parkway Construction

Judge Jay Swett has ruled against the Coalition to Preserve McIntire Park in their lawsuit to halt the Meadowcreek Parkway, Sean Tubbs reports for Charlottesville Tomorrow. He found that four of the six parties bringing the lawsuit have standing, but ruled that the state constitution’s requirement that a supermajority of City Council vote to sell any land isn’t applicable here, because use of the land is being provided via an easement and not actually sold. Therefore the 3-2 City Council vote that’s already been held is sufficient to proceed with construction.

Those who are legally inclined can read Judge Swett’s ruling.

73 thoughts on “Judge Upholds Parkway Construction”

  1. Well, hell, let’s run easements over 100% of the park for roads. Judicially, we’ll still have a park because they’re only easements, right? We can send our kids out to play in (traffic) the park and clearly not need to worry about that either. Gotta love, love, love, love, love this one.

  2. Just a quick note to all the save the parkway folks. Not that I do not support you….
    1. Jay Swett is smarter than you
    2. He is smarter than your lawyers
    3. He knows the law FAR better than your lawyers
    4. He has studied the issues at hand far more hours than your lawyers.
    5. He abused your lawyers in oral arguements.
    6. Sorry, but unless you can win on appeal, oh, wait, what is Judge Swett’s record on appeal..this avenue is closed.
    7. Do not blame Judge Swett, blame your lawyers for bringing a loser case to trial and promising you it was a winner.

    Good luck

  3. It’s time for the city to get on with it and build their portion of the parkway.
    If the city doesn’t do something pretty quick won’t they loose the $25M Senator John Warner has earmarked for the interchange design/construction at the 250 bypass?
    If everyone was so concerned about the park they would have come out against building the YMCA on park land or voiced opposition to the botanical garden building on the east side of McIntire Park.

  4. I’m not for or against the Parkway. But the argument that because there was no sale but it’s an easement is SHEISTER CITY stuff. Whoever you are Tom, I already don’t like you. See, a judge can do whatever the fukk he/she wants in civil court and there’s no metric for smarts whatsoever like you claim. As someone else said, you must be a family member or some fanatical lover.

    This case should be assessed on merit, which is a notion America seems to have left on the wayside a long time ago. And once again, how stupid are we for thinking we live in a democracy!?! Why isn’t this issue brought up in a referendum if land usage is not the problem? I don’t give a damn if Judge Sweety has an IQ of 200, that doesn’t mean anything to the rest of us.

  5. There was no sale-how hard is this for supporters to understand. You have had your day in court and it wasn’t even close. Go ahead and appeal, so you can lose there as well. This case was viewed on it’s merits- they were lacking.

    I look forward to the new park land created, the new road. The county is going to build this road no matter what now. It will open the road and dump all that traffic right next to the high school. Then what happens if the city does nothing? The city needs to finish their part before cost go up and cost it’s residents more. Perhaps they could recycle all the “save the park” signs to help pay for it.

  6. In related news: it looks like the award for civil discourse is going to the pro-Parkway side on this one…

  7. Jogger, the issue with the how the park is used park is totally seperate from the parkway issue. The truth is that most of the park is barely used. I drove past there on a Saturday at 11:00 AM and found about three cars there.

    For a piece of land that size, we should have more people using it. I think these things like the YMCA are basically filling a void because of the lack of a master plan for the park.

    In other words… you can say you don’t want the YMCA or a Botanical Garden, but it’s far more useful to argue for what you want instead (i.e. if you think the golf course is the best use then argue the merits of the golf course).

  8. Lets forget about whether the road should be built.Or whether there should be a botanical garden or a YMCA or a golf course.
    But saying that a piece of land is “underused” because there are not a lot of humans running around on it(and maybe trashing it) is the kind of argument that has produced so much environmental destruction
    I love the bumpersticker “Humans aren’t the only species on earth, we just think we are.” Maybe a lot of people don’t “use” the Ivy Creek Natural Area (or federally designated Wilderness Areas)compared to some other places but that makes it no less a treasure. There are other living creatures who need their space too. I have often thought that if no golf course, and Parkway or no Parkway,think in terms of something along the lines of Ivy Creek for that area. A wildlife sanctuary, minimal management or human impact. I once heard and saw bobwhite quail there years ago, down below the railroad tracks on the golf course side.
    There’s enough paved land in that park as it is. Lets leave something for the woodchucks, and the birds, and the snakes, and the butterflies. For then to be undisturbed by humans with their boomboxes and litter. Right now so much of the park -all you see- cars and dogs, dogs and cars.

  9. HollowBoy,

    I actually think the Ivy Creek model is a good one, but even then, that’s a highly managed landscape that is leased to a non-profit(the Ivy Creek Foundation). They also have several reasonable sized buildings on-site, including an education center.

    My point here is that any use, is still a use. McIntire currently is poorly used, even as an area for wildlife and ecosystem services. Years of mismanagement and disturbance (not mentioning that which will be caused when the road goes through) have impaired the require significant effort, funds and expertise, and most likely a non-profit to do so, be it ICF or a Botanical Garden.

    I think advocating against all use, is actually no different than advocating for the golf course (which is fine, if that’s what you want). If you want ecosystem services then that’s a use that you need to advocate for, which will require planning, funds, and staff.

  10. MAJU, you know who else hates smart people, Pres Bush, too much thinkering going on….

    No I am not related to Judge Swett, just respect smart reasoned people.

    To the save the parkway folks. You are good people, I like you just be careful when your lawyers start using words like
    1. this is only round one

  11. Tomboy – If my IQ is higher than yours, can we just agree that your opinion of the matter is inconsequential?

  12. I agree with HollowBoy’s viewpoint.
    “If you want ecosystem services then that’s a use that you need to advocate for, which will require planning, funds, and staff.” This earth has been around for a couple of billions of years and didn’t need any staff managing it’s ecosystem. The problem with the Amazon Basin is ecosystem management (adapting it to uses acceptable to the people who are paid to manage it).

  13. I’m happy that one more step toward building this road has been taken. Bring on the federal suit, which I believe has less merit then one just decided. The county road’s being built and there seems nothing you can do to stop it. When it’s finished it will be opened and that traffic will go somewhere. The city needs to honor their agreement and build their part of the road. The interchange can happen or not but it seems silly to not use the 25 million already waiting for it.

  14. C-ville Eye, I could easily argue based on the science that management is necessary for disturbed urban areas, but it’s really a non-debate since the public is never going to agree to abandon McIntire and let it “go wild”. One could advocate for a Ivy Creek like solution, but ICF spends a considerable amount of time effort and money to keep it “looking natural” (with techniques like controlled burns), and even more management would be required for McIntire to achieve a similar effect.

  15. What ICF does is minimal compared to maintaining a golf course. I personally would prefer a botanic garden/park to golf, but I don’t how the community at large feels.

    I think people want some kind of park. And legally it should have stayed a park instead of a recreational strip between two pieces of bottomland taken for a big road a big YMCA building.

    ICF is not a “park”: no dogs, no sports, etc. In case people are wondering what we are talking about.

  16. Colfer, good point.

    ICF has some pretty restrictive rules which ban a while range of things that would normally occur at a park. In addition to their posted list or rules, they also discourage groups and events from using the area.

    I think that a natural area, and/or botanical garden at McIntire should have far less rules. Specifically I’d like to see it allow:

    1) Picnics (which aren’t allowed at Lewis Ginter)

    2) Group events

    3) Running, cycling in designated areas

    4) Music (with some restrictions)

    5) Collection of fruits and mushrooms for personal use.

    (Note that few of these uses are permitted currently on the eastern side).

  17. Could someone who knows more about local history than I do tell me what the intentions of the original land donor were for this park land?
    Were those intentions part of the decision making for recent decisions regarding this land?

  18. So I guess Jackson and Lee Parks have been misnamed.
    I for one am not interested in a botanical garden near the MCP and its massive interchange.

  19. Agreed,disturbed urban areas do need some sort of management, removal of invasives,etc. But managing for wildlife, for a healthy thriving ecosystem, which is what ICF does, is not the striving for a manicured-lawn look like the city does in its parks.
    For example, measures like controlled burns and bushhogging once or twice a year(after ground-nesting wildlife has finished) is necessary to maintain certain areas as valuable field and meadow habitat.
    I have no problem with ICF rules.There are plenty of places for people to run, cycle,play music, and amuse themselves in ways of that sorts.
    I am with Thoreau who wrote “We need the tonic of wildness… We can never have enough of Nature.” As Edward Abbey wrote, “we have a right to be here but not everywhere all at once.” If I wish to be where there are large groups of people I would go to Fashion Square Mall or Fridays After Five.
    A book I highly recommend that deals with some of tehse issues and with our relationship with Nature in general is The Nature-Friendly Garden by local author Marlene Condon. I heard her speak recently and she said we needed to have more fields,so many species depend on them for survival. I have long thought the same thing when I go around the county and see these houses out in the country,or or closer by like some of the land on Pantops. Huge lawns kept mowed short week after week. More fossil fuel used, more hydrocarbons spewed into the atmosphere.
    I would love to see environmental policies that made having huge lawns drenched in chemicals that are ecological wastelands impractical or unfeasible. Escalating gas prices may play a part, only I would not wish that hardship on people who depend on their automobiles to get to work and so forth or for farmers. But farmers don’t harvest a hay crop every week.
    So many species depend upom grasses,preferably natural grasses, and other herbaceous vegetation that is allowed to grow. Even our common garden weeds like dandelions,plaintain, and violets have value, as food for rabbits and butterfly larvae,or for pollinators.Lay off the herbicides
    I realize this has gotten astray from the issue of the Parkway but the attitude I see expressed all too often of humans thinking its all about them,with no regard for other life forms, is one I do not hesitate to challenge.

  20. Could someone who knows more about local history than I do tell me what the intentions of the original land donor were for this park land?

    Were those intentions part of the decision making for recent decisions regarding this land?

    Paul Goodloe McIntire gave this land “to be held and used in perpetuity by the said City for a public park and playground for the…people of the City of Charlottesville.” (One of many gifts he gave to the city.) Though it’s not actually that simple. He gave the money that the city used to acquire much of the land (which took a decade and a half to do), while just part of it was provided directly to the city by him, and it was that land to which that quote applies. We’ve hacked stuff out of the park before. The bypass, for instance—much of that used to be part of McIntire Park.

    If I donated land to the city to be a park, and they turned it into a bypass, I know I’d be pissed off.

  21. HollowBoy, there’s a lot in your sentiments I agree with.

    First of all, I think you’ll really like Byrom, one of Albemarle Counties new parks (not opened yet). I was allowed a sneek peek and I have to say that it really does provide much more of a rugged wilderness experience.

    As a subtle point, I think in terms of fields, we have more than enough (perhaps too much), but in terms of meadows we barely have any, and do need more. I totally agree about manacured lawns, pesticides and such. I’m familiar with Marlene Condon’s work, and will be working with her and the city on a related project in the very near future.

    I’m certainly not for another big mown area, or huge formal victorian style gardens in nice orderly rows and geometric shapes. I am in favor of taking the existing mown golf course and use it as place to recreate habitat. Either a botanical garden or a natural area could fill that role (i.e. not all are formal gardens), and either would result in radically more natural habitat than exists currently.

    One benefit of a botanical garden over natural area is that it could be direct involved in promoting conservation outside the park boundaries as well, and serve as the kind of catalyst for change that you talk about. Of course ICF has also performed that role too in some degree (and also has educational gardens) so there’s kind of a continuum there.

  22. “One benefit of a botanical garden over natural area is that it could be direct involved in promoting conservation outside the park boundaries as well…” What does this mean?

  23. Sorry about my poor editing. It means that botanical gardens are not just pretty gardens, but they are actively involved in propagation of rare and endangered plants and conservation of habitat. For example, the Atlanta botanical garden is actively involved in conservation of habitat for rare plants and amphibians. The North Carolina Botanical Garden is propagates rare species, does controlled burns of conservation sites, and has written guidelines for developers to protect habitat. In fact, almost all botanical gardens have a conservation mission. Lewis Ginter is one of the few I’m aware of that doesn’t really do much in terms of conservation.

  24. …and speaking of my generally poor editing, only “all” was supposed to be bold above (and there’s an “is” I missed when changing a line).

    Waldo, when are you going to get me a “preview” option before I post? ;-)

  25. Why don’t we stop thinking about disturbing McIntire Park with a botanical garden i.e. building. If a building is really necessary why not put it at the ICF natural area? I’m sure you can promote conservation and educate all the people you want from the botanical garden building at the ICF natural area and McIntire Park east can remain a beautiful open space without a massive building.

  26. It sounds like something like that belongs in the land-rich county, maybe at the soon-to-be reconfigured Ragged Mountain Natural Area. Then, the botanical garden can avail itself of the myriad resources of The Nature Conservancy which will most likely be the natural area’s steward. Besides, the city has laws prohibiting controlled burns because of urban density.

  27. As far as I’ve heard no one is proposing a “massive building”, at McIntire. I don’t know why some people hear the term garden and think “building”. As far as I know, “gardens” are generally planted in dirt, not concrete…

    If you want to keep the golf course, then just say that. It would be more honest. Saying that you are against all uses so that you can “save McIntire” (when really you just want to protect the golf course) is disingenuous. The park can still be “saved” and yet used for something else that will benefit more people. That something doesn’t have to be a botanical garden, but it does have to be something even if that something is “habitat” or ecosystem services.

    Besides, as I recall, if the golf course is kept, then there was a plan to expand the facilities there for the golfers (i.e. build more buildings)

  28. Perhpas jogger is referring to the plans to mimic the botanical garden in Richmond which has buildings.

  29. The presentation from the botanical garden group included several buildings and they want to charge the residents to visit.

  30. The McIntire Botanical Garden folks have drawn a comparison to Lewis Ginter (which I’ve already said is entirely inappropriate), but they aren’t the only players by far. Even so, I’ve never seen anything from them suggesting huge buildings, but I did miss their presentation. If they did, I suppose it would explain some of the misinformation out there…

    I do think some buildings would be necessary (i.e. a visitor’s center and eventually a conservatory), but neither need to be huge. Plus there’s already a foundation for a building that could be reused, meaning essentially no impact for any building built in that particular space unless it expands the footprint. I can point you to several botanical gardens with the size of facilities I’m talking about. Plus, as I said, there are plans to add buildings for the golfers if something else isn’t done with the site.

    For a more educated review of the environmental impacts of a botanical garden in that space, see the research paper already done on the subject.

  31. I’d suspect the property would be leased, just as ICF leases Ivy Creek and Ragged Mountain.

    As to who would actually have the lease… no one knows just yet. It could be UVa, the Charlottesville Botanical Garden, the McIntire Botanical Garden, or none of the above. For that matter, it could be completely under parks and recreation with no lease whatsoever.

    It’s not even decided if the botanical garden would actually go at McIntire. There are some folks that would like to see it at UVa instead, and even the possibility of it being on Monticello’s property.

    As to fees, it’s possible. People pay fees to use golf courses and pools, so it’s really no different. There are other models though that could be used that wouldn’t require fees, or only require fees for certain parts.

  32. It was proposed as a lease agreement like the YMCA. If UVA wanted to get involved, I think the Blue Ridge Hospital land would be ideal and just about as close to downtown. With the backtracking of replacing the softball fields at McIntire, perhaps the rectangular turf field could into the east side. The youth football and field hockey really need a field and CHS needs more practice field space for spring sports.

  33. @webster52 you and C-ville Eye are both talking about the McIntire Botanical Garden folks, who I believe did make a rather ill-considered comparison to Lewis Ginter. Even so, I’d be surprised to hear that they were proposing “massive” buildings. I didn’t attend their meeting though, so you’d know better than I.

    A few buildings would be required (visitors center, and conservatory) but they need not be huge, and at least one could use a preexisting foundation. In other words, there could be rather minimal impact compared with the existing golf course.

    I’m glad to hear someone suggesting athletic fields for the east side. I always hear that there is a need for more of them, and personally I’d rather see a field kids could play soccer or field hockey on than a golf course. Might require significant regrading though… the whole site is kind of a big dome. Athletic fields wouldn’t be the most sustainable use, but it would probably be a better use than the current one.

  34. When and where are these meetings being held between the City, UVA, Charlottesville Botanical Garden and Monticello Botanical Garden? Are they public and are they advertised publicly?

  35. It’s the master planning process, and it hasn’t begun yet due to the Meadowcreek Parkway situation. Now that that is somewhat resolved, I suspect it could begin relatively soon.

    So, yes, the process will be quite public, and won’t be seperate from any other decisions made in regards to the park as a whole.

  36. Then why are the botanical garden people getting an ear now? Why aren’t they made to wait to give input as the rest of the public and who are they talking to?

  37. That’s the nature of public politics. Do you think the golfers are waiting for the master planning process? No, they’re lobbying right now to keep the golf course. Did the advocates for the wading pool wait? Of course not. Any citizen is allowed to contact elected leaders and share their point of view. In fact, I think that’s exactly what should be happening right now. Citizens should be talking about what they want for that side of the park and voicing their opinions. If people want a natural area, hockey field, botanical garden or whatever else, then now is the time to speak up and let elected officials know.

    If you are suggesting that there are clandestine meetings between city council and some special interest group then I’d seriously doubt that’s the case (of course, if they were secret then I wouldn’t know either!)

  38. Incidentally, the park plans indicated that we were going to get a new spray-ground and other upgraded water features at McIntire. Unfortunately, due to the newly established “historic” status of the existing pool, that’s now virtually impossible. Instead, we’ll have an outdated leaking pool immediately adjacent to a freeway… That’s politics I suppose, but it makes my point that if you have opinions about the park, then now is the time to let them be known.

  39. All very innocent sounding, and we won’t build this and that or do this and that and in the end that is exactly what will be done. The park needs to be left as it is with the golf course as the main feature of the east side of McIntire Park and the west side needs to be left as it presently is.
    No YMCA, no botanical garden buildings of any size or shape in McIntire Park. Period.
    Is this plain enough for you dirt worshiper? Take your silly plans for the distruction of McIntire Park and move on to the county.

  40. Jogger, that’s not for you or I to decide. The public will decide that, and if the public wants a golf course there then I’m actually fine with that.

    I also suspect though that the Golf Course will have have more to contend with then just the idea of a botanical garden… As I said, that’s only one of many potential uses for the site. Given the relatively few number of people that actually use it now, I’d be pretty surprised though if the majority of the public wished to keep it. I suspect it’s really just a highly vocal minority intent on keeping their exclusive use of the entire 40 acres (for reference that’s around 20 soccer fields…)

    Besides, even if the Golfers establish the course as “historic” then they may just have shot themselves in the foot, since it will also be an effective argument against any future improvements to the golf course.

  41. “Any citizen is allowed to contact elected leaders and share their point of view.” I have no problem with citizens contacting elected leaders, but I’m assuming that you are not an elected leader. If so, then they must be contacting non-elected leaders, probably the parks and recreation advisory committee or some other tax payer-sponsored city committee whose meetings are supposed to be public and who must keep minutes of these meetings. I wonder why you just don’t say in forum are you getting this information? That way ALL of the citizens will have access to this forum. If they don’t, then I consider these meetings restricted AND, according to Virginia’s FOIA, illegal.

  42. Sorry, I meant to say “I wonder why you just don’t say in what forum are you getting this information.”

  43. “Besides, even if the Golfers establish the course as “historic” then they may just have shot themselves in the foot, since it will also be an effective argument against any future improvements to the golf course.” Not quite, it just means it will need Board of Architectual Review support, which is dependent upon who’s on the board at the time of the hearing, since the city hasn’t established any guidelines for the preservation of golf courses. That’s how Live Arts on Water Street was approved, they liked it! There are no guidelines for water street.

  44. C-ville Eye, I haven’t said anything that isn’t already public knowledge already, except perhaps information about the organizations involved which are themselves not subject to FOIA. (Even so most of that information is also available online). As I said, if there are any secret meetings, then I don’t know anything about them, as I certainly wasn’t invited.

    FOIA is a good law. If you do choose to use it then please post your findings here so I can find out about all these secret meetings too.

  45. For starters, one good set of documents to read are the City Parks Needs Assessments.

    McIntire Botanical Gardens plans, as I understand them, are the same as in this document.

    The charlottesville Botanical Garden’s proposal is also online.

    Plus, a bunch of stories have been written about this topic over the year, starting with this one in C-ville Weekly, and then this follow up.

    Then, then Daily progress got in on the action covering the McIntire Botanical Garden folks. Then another story on how it would affect the golf course. After that, one more on Dave Norris’ reported support for the idea.

    Shall I go on?

  46. Found this in the background information in the May 19, 2008 City Council agenda:

    The McIntire Park Advisory Review Team Roster – May 19, 2008

    Juandiego Wade: Member of Parks and Recreation Advisory Review Team
    Karen Waters: Executive Director of the Quality Community Council
    Kristen Suokko: Member of Environmental Sustainability Committee
    James Henderson: Assistant Superintendent – Charlottesville City Schools
    Richard Lilly: Athletic Director – Charlottesville City Schools
    Todd Bullard: Piedmont Family YMCA – Architect of Record
    Kurt Krueger: Piedmont Family YMCA Board of Directors
    Ken Ballard: Parks and Recreation Advisory Board – Vice-Chair
    Sallie Brown: Parks and Recreation Advisory Board – Member
    John Kammauff: Parks and Recreation Advisory Board – Member
    Kristel Riddervold: Environmental Administrator
    Mike Farruggio: Planning Commission
    Nicholas Rogers: Neighborhood Development Services Planner
    Brian Daly: Assistant Parks and Recreation Director
    Bernie Garrison Athletic Recreation Supervisor
    Susan Pleiss: Park Outreach Coordinator and Master Gardener

    This group was charged with setting up the boundaries for the property that the YMCA would be renting to fulfill a contractual requirement between the City and YMCA to have the master plan finished by May 20, 2008.
    I noticed that this body contains no representatives of groups that currently use McIntire Park, softballers and golfers, etc. However it does contain the names of TWO representatives from a group that PLANS to use the park:
    Todd Bullard: Piedmont Family YMCA – Architect of Record
    Kurt Krueger: Piedmont Family YMCA Board of Directors
    .
    Am I the only one that thinks this is strange?

  47. If plans for the build out of McIntire Park continue as they now appear to be YMCA/botanial gardens multiple buildings then my back yard will be one of the biggest vacant pieces of open space left in the city.
    It absolutely appears that a small group of people will not be satisfied until every piece of open space, i.e. parkland, has a building on it.
    It should be the other way around. We should be trying to create more open spaces for our enjoyment, without the clutter of buildings.

  48. Jogger, I can definitely respect your desire for open space; however, the golf course hardly qualifies as an “open [space] for our enjoyment” (unless by “our”, you mean a small number of golfers).

    I’ve already pointed out above that a botanical garden need not have lots of buildings (and that there are other potential uses) but it’s clear to me that’s a red herring. If that was really the issue, then we could debate that and talk specifically about footprints and environmental impacts. I think if we’re honest here, you’d oppose anything at that site that isn’t golf. That’s fine, but your case would be better served if you were honest about that. In fact, if the discussion were about new buildings for the golf course (which it may be at some point) then I bet we’d hear nary a peep about preservation of “open-space”.

    As I’ve said several times before, I support any use of that site that benefits the larger community as a park. If golfers can make the case that the current use does that, then I’m fine with it staying. Instead of arguing their case though, they seem to want to stop the debate entirely, and that’s unfortunate.

  49. Dirtworshipper where in your statistical documentation is there anything indicating that a botanical garden would benefit the greatest number of people if it were located in McIntire Park.
    Why do golfers have to make a case that a golf course is the best use for McIntire Park east? It is already a golf course and has been for these many past years. That indicates to me that this is the best of all possible uses for the east side of the park. Don’t you agree?
    I do prefer leaving the golf course and having the botanical garden crowd move on out to the Ivy Creek Natural area. Seems more logical to me. Don’t you agree, dirtworshipper?

  50. Waldo: “If I donated land to the city to be a park, and they turned it into a bypass, I know I’d be pissed off.”

    Given that McIntire died more than fifty ago, he’s not likely to be pissed off about the bypass, the parkway, or anything else in the realm of the living.

    How long should a dead hand be allowed to control a bequest, in your opinion? A hundred years? A thousand?

    The real problem for the anti-road crowd is that they know their purpose – preventing the building of any new roads, anywhere, forcing people to turn to public transportation against their wishes by creating traffic gridlock, and controlling growth by making life in the area so miserable that no one would want to move here – has little popular support and no chance of succeeding in the marketplace of ideas, so they have to continually come up with bogus excuses to pretend their perpetual opposition is just to whatever specific road happens to be under discussion at the moment.

  51. Wow, talk about painting a large number of people with a thin brush.
    “If I donated land to the city to be a park, and they turned it into a bypass, I know I’d be pissed off.” So would I. That’s why I don’t plan to give the government anything. It’s obvious that the people the gift is for do not appreciate it. Let them eat cake, mud cake that is.

  52. How long should a dead hand be allowed to control a bequest, in your opinion? A hundred years? A thousand?

    Infinitely. A gift accepted with permanent conditions must be accepted with those conditions or declined entirely. If I sell you my land, but retain the mineral rights, you don’t get to start mining for gold just because it’s been a while. Those rights are never yours. Likewise, if land is given to the city—and accepted—with the condition that the land remain a park, then it’s a park permanently. I can’t see complaining about it—the alternative is that the land wouldn’t be the city’s at all. Better to own parkland than no land.

  53. Jogger, the reason use is now and issue and wasn’t before has to do with accessibility. I think much of the current space had limited accessibility, and that, combined with the proposed parkway, removed any desire to do something else with that part of the park.

    Even so, people have discussed getting rid of the golf course for years. Back when I was in high school, they destroyed a huge number of trails out at Pen Park that were used widely by local cross country teams, birders, and all kinds of people. There was this huge outcry against the new golf course there, but the excuse provided at the time was that the Meadowcreek course was necessary as a replacement for McIntire, and that McIntire East would become open space with trails and such. I wish now that I’d saved the letter I’d gotten from the BOS at that time saying just that…

    Of course, what happened was that the Golfers protested then, and the City decided to hold off doing anything until the meadowcreek parkway was built which, of course, would be built in a few years, right? Now it’s pretty clear that the parkway is getting built, so now it’s basically decision time.

    In terms of use, sure, i could easily prove more people would use a botanical garden, but i could also prove that more people would use other uses as well. You’re really focused on this whole botanical garden thing, but as I said, there’s all kinds of uses that could occur there so it’s not an issue of the golf course versus the botanical garden it’s an issue of the Golf Course versus a new plan for the east side.

  54. Oh, and I above meant City Council (not BOS). Incidentally, I’ve just always thought it weird that Pen Park is in the city since it’s so far up park street.

  55. “How long should a dead hand be allowed to control a bequest, in your opinion? A hundred years? A thousand?”

    [i]Infinitely. A gift accepted with permanent conditions must be accepted with those conditions or declined entirely. If I sell you my land, but retain the mineral rights, you don’t get to start mining for gold just because it’s been a while. Those rights are never yours. Likewise, if land is given to the city—and accepted—with the condition that the land remain a park, then it’s a park permanently. I can’t see complaining about it—the alternative is that the land wouldn’t be the city’s at all. Better to own parkland than no land.[\i]

    So I guess American “Indians” should have a say at all this!? How’bout the families of pre-historic men? There’s just a slight problem with this reasoning here…

  56. That’s bad policy, Waldo, and that’s why the law doesn’t follow it. It’s not only absurd to have the use of today’s resources determined by the wishes of people who died decades or centuries ago, it effectively takes land off the market for all eternity, which is not something the law allows anyone to do (just like you can no longer have entailed estates, meaning lands your heirs cannot alienate). The law disfavors perpetual executory interests, partly for the reason just mentioned, partly to keep the chain of title comprehensible (it can be determined by recorded deeds, not by the occurrence or not of some event in the distant past or future), and partly because nobody wants to litigate a will from 1724.

    Mineral rights are a separate issue – legally, that’s not a condition on the sale or a use to which the property may or may not be put, it’s a separate piece of property from the surface – like selling the movie rights but keeping the print rights to your novel. McIntire did not retain any vested interest in the property the way a landowner does who sells the mineral rights but retains the surface rights. Had he wished to do so, he could have retained title but granted the city an easement to use it as a park.

  57. So I guess American “Indians” should have a say at all this!? How’bout the families of pre-historic men? There’s just a slight problem with this reasoning here…

    Unless you can find a deed from American Indians, specifying the terms of their “gift” to the United States, that’s hardly relevant.

    McIntire did not retain any vested interest in the property the way a landowner does who sells the mineral rights but retains the surface rights. Had he wished to do so, he could have retained title but granted the city an easement to use it as a park.

    By your logic, no contingencies can be placed in the deed for land for subsequent sale. For instance, I am free to place a prohibition on any construction on my land. And I can sell it with those conditions attached. All future sales of that land must retain that condition. That is the law as it stands, not just in Virginia, but in the whole of the country (to the best of my knowledge). This is how subdivisions exist, for instance; if I buy a house in Forest Lakes, I have to agree to the conditions attached the the land that its original buyer did.

    Simply because the land is given as a gift, rather than sold for a penny or more, does not destroy this standard.

    Again, I’ll state this clearly: If the city does not want to see land become a park for eternity, it should not accept contributions of parkland with the contingency that it forever remain parkland. If this permanent parkland status is bad public policy, then a wise city would not accept that land.

  58. I guess Bruce this promise isn’t worth the paper it’s printed on: “Norris also asked if the proffers being made by the applicant would be in place if the property changes hands. Haluska said future owners are bound by the proffers, which are to maintain a vegetated buffer, not to expand past the building’s existing footprint, and not to offer amplified music.” http://cvilletomorrow.typepad.com/charlottesville_tomorrow_/2009/07/814_hinton_rezoned.html

  59. Permanent is permanent. End of sentence.

    Numbers are infinite. Odd numbers are equally infinite.

    McIntire PARK is a park. Not a sublease, easement, fill in the blank space something-else. Neither the Meadowcreek Parkway nor the YMCA should get to hang out for some ostensibly finite number of years.

    Smoke and mirrors do not reality make.

  60. I’m with Waldo on this one. I think parkland should stay parkland. I might argue about one use versus another, but at the end of the day I think it should remain a park.

    One idea pushed by parkway proponents is that as long as you replace any lost property that you can then effectively change the boundaries to allow for something like a road. I can understand that logic, but I think it would also allow for parks to be gradually shifted and relegated to the most undesirable land.

  61. So I guess American “Indians” should have a say at all this!? How’bout the families of pre-historic men? There’s just a slight problem with this reasoning here…

    Unless you can find a deed from American Indians, specifying the terms of their “gift” to the United States, that’s hardly relevant.

    ———————

    Nice one! Most American Indians believed land cannot be really owned and we are just stewards of it. What you are doing is like asking a vegetarian to dictate dietary rules for meat-eaters. Or a car mechanic to diagnose a brain tumor. Basically, you – like all masters in the art of exploitation – make the rules that benefit you: many of our land property laws are extensions of Napoleonic Code on land registration. Seems quite fitting for all you little royals out there…

  62. Nice one! Most American Indians believed land cannot be really owned and we are just stewards of it. What you are doing is like asking a vegetarian to dictate dietary rules for meat-eaters. Or a car mechanic to diagnose a brain tumor.

    I don’t know how to make this any clearer. The hypothetical land in question was neither a gift nor purchased. It was stolen and, as such, it has absolutely no relevance to this discussion.

    Basically, you – like all masters in the art of exploitation – make the rules that benefit you: many of our land property laws are extensions of Napoleonic Code on land registration. Seems quite fitting for all you little royals out there…

    Um.

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