Bypass Foes Take their Case to the Feds

Building a highway over the mountain: Solving one problem creates another.

by James A. Bacon

An Environmental Assessment (EA) of the Charlottesville Bypass prepared by the state and submitted to the Federal Highway Administration (FHWA) is based on an outdated highway design, uses a deeply flawed traffic model and fails to consider transportation alternatives, charges the Southern Environmental Law Center (SELC) in a formal response to the assessment.

Having failed to halt the Charlottesville Bypass at the level of state, regional and state government, the SELC and its allies are taking their case to the feds, who must review the EA before granting final approval for the federally funded project. The 6.5-mile bypass would circumvent a congested stretch of U.S. 29 north of Charlottesville and a cost of roughly $245 million.

“I don’t think the FHWA has the information it needs to made a decision,” says Morgan Butler, SELC senior attorney. When asked what outcome he hoped to get from the federal review, he said: “The FHWA could say, ‘We want [the Virginia Department of Transportation] to go back and take a closer look.”

By contrast, bypass supporters find the environmental assessment “a very defensible document,” in the words of Neil Williamson, president of the Free Enterprise Forum in Charlottesville. “VDOT is moving fairly, methodically and carefully,” he says. The EA addressed important issues such as the noise impact not considered in the original Environmental Impact Statement.

Barring a rejection of the EA by federal authorities or the filing of a lawsuit, construction of the bypass is scheduled to begin November 2013.

Outdated design. The SELC argues that the environmental assessment is based upon a conceptual VDOT bypass design that differs in important respects from the design submitted by winning bidder Skanksa/Branch. Of particular concern is the configuration of the southern terminus connecting to the U.S. 250 Bypass.

The original VDOT design anticipated a grade of 4% as the highway crossed over Stillhouse Mountain near the southern terminus. Skanska/Branch increased the elevation of the bypass in order to reduce the significant cost of blasting and removing rock. But that would create a new  problem: Cars and trucks entering the bypass from the south would encounter an extremely steep grade — 11.26%, or more than twice the average grade of Interstate 64 as it climbs Afton Mountain. Trucks struggling to accelerate up that grade could block traffic and reduce the desired level of service.

Additionally, noted the SELC critique, one of the other bidders, American Infrastructure, had filed a protest against the awarding of the contract to Skanska/Branch on the grounds that the southern terminus design was deficient. “American Infrastructure noted that the traffic lights included in the design would likely cause long queues that would impede flow on the eastbound 250 Bypass during special events on the University’s North Grounds.”

Flawed traffic analysis. Citing an analysis it contracted from Smart Mobility Inc., the SELC contends that the VDOT traffic projections contain a major methodological error: treating growth of “external” traffic (originating outside the Metropolitan Planning Office boundaries) as “through” trips, meaning that all such vehicles will travel through the region to destinations outside the region. However, some of those trips will be, in fact, to destinations in Charlottesville and Albemarle County. The model projects that the percentage of “through” trips on U.S. 29 will jump from 13.5% in 2010 to 51% in 2040, thus inflating traffic counts and the putative benefits of the bypass.

No look at alternatives. VDOT never gave serious consideration to bypass alternatives, SELC argues. Installing grade-separated interchanges at the two busiest intersections, Hydraulic Road and Rio Road, would achieve greater delay reductions than the bypass — and it would benefit everyone using the 29 corridor, not just people passing through the region. Building the two interchanges also would cost less.

Representing much of the Charlottesville business community, the Free Enterprise Institute has long supported the bypass. In comments submitted to the FHWA, Neil Williamson minimized the changes that have taken place since the original Environmental Impact Statement was completed two decades ago. “Even though some of the areas on US29 North have been rezoned and/or developed since 1995, these areas have been designated for high density growth since at least the 1984 Comprehensive Land Use Plan. This designation was factored in when the original route was developed.”

The EA was correct in stating that the bypass would divert up to 28% of U.S. 29 traffic to the bypass by 2o4o, the Institute wrote. “The project will result in significant improvement in traffic flow on the new Business 29.”

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  1. the most amazing thing to me is that VDOT… KNEW/KNOWs the EIS is out of date and FHWA fairly routinely requires that it be brought up to date once the original doc becomes “stale”.

  2. DJRippert Avatar

    This is life in the world of LarryG. Instead of letting local officials decide the matter, it should be constantly reviewed by the state and then litigated repeatedly at the federal level.

    Yes, LarryG – Dillon’s Rule is very efficient and effective. This project has only been studied for 20 years.

    Heaven forbid that the people of Central Virginia decide for themselves what they want to do.

    This state is broken … perhaps beyond repair.

  3. For local government (counties) to run their roads, they would need to take control over at least the secondary roads. Only Arlington and Henrico Counties have agreed to operate and maintain their secondary roads. Fairfax County absolutely does not want to have control over, or responsibility for, local streets. I guess that means counties will continue to deal with VDOT and VDOT will continue to deal with the counties.

    1. DJRippert Avatar

      VDOT and the counties dealing with each other is fine by me. Regardless of funding, the state is going to insist that some roads have statewide significance. The state will insist on having a say over those roads regardless of the jurisdictions through which they pass.

      The problem comes from an overly litigious society in which minority interests continually sue to block progress.

      Those who bring the lawsuits should be responsible for reimbursing the government for the costs of defending the suits if they lose. Perhaps they should even reimburse the community for the benefits lost through delays to the project.

  4. The Federal EIS is triggered because Federal dollars are involved. The State OR Charlottesville could build this road without one page of EIS.

    The Feds have this other niggling concept – one in which if a road proposal has been around for a decade or more – they want to see if all the original parts and pieces are intact – such as development which would make right-of-way and traffic data ( that may make the difference between an intersection vs an interchange is traffic is much higher than the original concept road.

    this are things that any sponsor, Federal, State or even local would want to know because it effects the real cost of the road and tends to put the k bash on low-ball antics – which VDOT has been accused off fairly regularly. They move the proposal along to the point of no return then drop the “oh costs have changed” bomb.

    Charlottesville could build this road – as a toll road with no Federal requirement for an EIS so now we know this is all about getting money from the rest of Va – something most localities would not turn down but if the funding became their responsibility what would happen.

    This is the “really” “real” world DJ. The truth hurts, eh?

  5. The Feds REQUIRE what is known as the “Hard Look” in the vernacular so that taxpayer money is not wasted on a project that has questionable metrics including costs.

    here’s a link just for you to confirm the “hard look” doctrine:

    The SELC is well-schooled in this requirement but VDOT can’t resist trying end runs every now and then. They win some and lose some – the ones they lose cost millions in tax dollars.

    Va and the locality require no such foolery so it’s always an option for a really badly needed road.

    But the entire dynamics change when the locality has to front the money and it comes from local taxpayers, eh?

    1. DJRippert Avatar

      One day LarryG applauds Dillon’s Rule because it reduces layers of government. The next day LarryG applauds the Feds being involved in a 6.2 mile road entirely within the state of Virginia as an important check on both the local and state government.

      When it comes to some things, two governmental entities are too many. When it comes to other things, three governmental entities aren’t enough.

      LarryG has no philosophy.

      LarryG prattles on about Charlottesville getting money from other localities in Virginia as if the people in Charlottesville don’t pay taxes themselves.

      LarryG thinks localities should fund their own roads but not their own schools, jails or law enforcement.

  6. Actually philosophically, I support the Fed govt handling the top role, the state the next, and localities third.

    In terms of money – localities who are responsible for their local roads take a much more responsible approach to growth and development and in fact every city and town in Va takes that approach.

    They have to decide what they can afford and what taxpayers in their jurisdiction are willing to pay for.

    I must say DJ’s view on taxation is markedly different that his guy Ryan’s approach… very strange.

    re: localities funding roads, schools, and law enforcement.

    All Home Rule states have the localities responsible for roads, schools, and law enforcement but the state sets standards and also funds schools and law enforcement to maintain minimum standards.

    Think about HOW NoVa would pay less taxes for the rest of the state.

    They would:

    1. – have a lower sales tax than the rest of the state?

    2. – the state would “refund” income taxes – to localities using what procedure?

    Can DJ say how this would work?

  7. re: EIS – As I said before, this road can be built without Federal funds and in doing that – the rules for EIS are far different.

    If this was a serious priority issue – that State would fund it differently.

    If this road was badly needed, it could be paid for with tolls OR it could be paid for with Cville’s existing road allocations.

    I think DJ is showing what the real issues are which basically are how to NOT FUND locally – which is what many transpo issues in Va are all about – just look at Til Hazel and Mr. Chase and their advocacy for the state – not the localities or the drivers to pay for a “needed” road.

    The game is basically this – a group of rent seekers get involved at various levels of govt and then proceed to figure out how they can extract money to build their developments with taxpayer dollars but not local taxpayers who would never put up with such foolishness so they want non-local taxpayers to pay.

    This is why 80% oppose increasing the gas tax because they believe it would become a slush fund for other localities projects.

  8. The Commonwealth ought to adopt the funding standard just approved last night by the Fairfax County BoS – developers and landowners are going to pay 59.5% of the costs for road and bus transit improvements and those improvements are required for final rezoning approvals. Hazel and Chase would die, but if the percentage works for Tysons, why not for the rest of the state? Smaller development projects would require much less infrastructure, so developers and landowners would be required to fund much less in terms of dollars.
    By imposing the bulk of the costs for transportation facilities needed to support development or redevelopment on the developers affected, it is more unlikely that the latter will propose projects that only benefit them. The multi-billion developer wish list will decrease significantly.

  9. I think developers and folks like Chase would fight this idea tooth and nail if it were attempted to be made law by the GA.

    I think it IS fair to split the cost between developers/purchasers and existing property owners but what this does demonstrate is that growth has costs – and until recently, it was a game of how the developer could evade tranpo costs and, in effect, put in on taxpayers – but not local taxpayers – taxpayers in other localities because it’s far easier to talk local leaders into spending their VDOT allocations than increasing local taxes to pay.

    I think it may be a stretch to think that VDOT and the GA are going to devolve non-primary roads to the localities but it may well bemore more palatable and feasible than building support for a gas tax increase.

    You know it’s a hot issue when McDonnell tries to hike the sales tax (or is it divert it from education?) – either way that seems to be his preferred end-around rather than taking on a gas tax increase.

    When a popular Gov like McDonnell sees a gas tax increase as a political kiss of death – both to himself and the GOP – you know
    the chances of that are slim to none.

    I’d say the era of developers competing with each other to see which project VDOT will go for – are largely over.

    I also think it is wild that folks who present themselves as fiscal conservatives …. still support the VDOT slush fund method.

    1. DJRippert Avatar

      So, the Fairfax County BoS is doing the right thing in Tyson’s while the Imperial Clown Show in Richmond couldn’t be expected to do the same due to pressure from developers.

      My, my, my.

      Good thing we have Dillon’s Rule to ensure that Richmond protects us from our local government.

  10. re: ” One day LarryG applauds Dillon’s Rule because it reduces layers of government.”

    The State oversight of localities is not much different than the Federal oversight of the states.

    If the Feds let each state do their own EIS, we’d have 50 different approaches the same way we’d have 50 different approaches at the local level if the state did not have one approach that all used.

    In fact, when it comes to roads – you can consider the process (if Fed dollars are involved) to be a Dillon-type process.

    I do not advocate multiple levels but its the less of two evils when you’re dealing with 25, 50, 100 different jurisdictions.

    Do you want VDOT setting speed limits according to specific uniform criteria or do you want each county to use it’s own unique criteria?

    Do you want VDOT setting standards for road design and construction or do you want each county having their own unique approach?

    Do you want murder or rape to be defined by each county or by the state?

    So here’s a question.

    Do home rule localities have their own unique standards whereas Dillon localities do not or do Home Rule states still largely set many if not most standards?

    1. DJRippert Avatar

      “Do you want murder or rape to be defined by each county or by the state?”.

      Neither. Those crimes should be defined by the national government.

      There are a lot of things that should be done at the national level. There are a lot of things that should be done at the local level. There is very little that is logically done at the state level.

      State boundaries are accidents of history. States are too big to allow for effective community input to government and too small to operate as international sovereign entities.

      Back in the days when 95+% of Americans lived on farms the framers of teh Constitution only had the states to use as counter-weights to excessive federal power. Today, few people live on farms and localities would be perfectly good counter-weights.

  11. DJRippert Avatar


    Virginia could lower its state income tax and adopt a county income tax. Maryland does this. Counties would have to take on more responsibility that is now run by the state. The counties would have to decide whether they wanted higher taxes and more government taxes or lower taxes and fewer government services.

    The lowest county tax rate in Maryland is almost one third the highest county tax rate. Not one third less, one third.

    In 2006, Maryland became America’s wealthiest state. It retains that title today. Maryland has the second lowest percentage of its citizens living below the poverty line. Maryland is one of three states, along with New Jersey and Connecticut, where more than 10% of families earned more than $200,000 in 2011. Across the U.S., only 5.6% of families made more than $200,000 in 2011.

    Maryland is one of three states, along with New Jersey and Connecticut, where more than 10% of families earned more than $200,000 in 2011. Across the U.S., only 5.6% of families made more than $200,000 in 2011.

    1. The last thing Fairfax County officials want is more responsibility from the Commonwealth. FC DOT has said taking over secondary roads would cost the County $60 M per year. And the Supervisors, with the exception of John Cook, want no part of it. Arlington took over streets only because they are all completed; VDOT gives it extra funding; and the County was able to impose the meals tax sans referendum in exchange for the maintenance obligation.
      Taking over more state functions would also deprive supervisors of the ability to blame Richmond and become responsible to the local residents. They don’t want that. And the Fairfax County Chamber of Commerce likes the status quo. The business community doesn’t want changes either.
      Virginia likes being Virginia at the state and local levels. So do most people.

      1. DJRippert Avatar

        “Virginia likes being Virginia at the state and local levels. So do most people.”.

        Do you use results from Gallup or do you conduct your own polling as the factual basis for your claims?

        If you asked the people in Fairfax or Arlington Counties if they should have more independence from Richmond I’d guess that 75% of those who had an opinion would say “yes”. Among the people I know (most of whom are lifetime Northern Virginians) Richmond is reviled.

  12. DJRippert Avatar

    TMT would like you to believe that local governments in Virginia prefer the state’s strict adherence to Dillon’s Rule. Therefore, one would expect the Virginia Municipal League to lead the charge in keeping power vested in the state government and out of the hands of localities.

    Let’s take a little peak at the draft of the VML’s General Laws Policy Statement

    Here’s the preamble …

    “The basic purpose of local government is to provide essential services and protection for the community that citizens cannot provide for themselves. Local governments should decide which services and programs are of primary importance to the community. Virginia has hamstrung its
    cities, counties and towns with 19th-century legislation. The financial ability of municipalities to survive is threatened.”.

    Oh dear, TMT, it seems your thesis is threatened.

  13. DJRippert Avatar

    Uh oh, TMT. I peeked at the Virginia Association of Counties web site. Guess what it has to say?

    “Dillon Rule
    VACo supports relaxation of the Dillon Rule
    to provide counties greater autonomy in areas
    including land use, local revenue measures and
    other issues of local concern.”

  14. DJRippert Avatar


    Let me guess …

    The VML and VACO are shell organizations founded and funded by Til Hazel?

  15. RE: VML Dillon Statement. Well that’s more specificity that we gotten before in this thread!


    so do you now want to concur with the VML list?

    1. what land use is NoVa prevented from doing because of Dillon?

    2. what taxes is NoVa prevented from increasing because of Dillon?

    3. do you admit that Home Rule will not let NoVa keep more taxes the state currently gets but instead will only allow NoVa to increase it’s own local taxes?

    some states don’t have income tax while others don’t have sales tax – can you name them ? Is there one or more states that have no income and no sales tax?

    Bonus Question – does the money that NoVa has received for Metro constitute a State/Federal subsidy from RoVa to pay for METRO?

    Is that money more or less equal (or not) to the money NoVa pays for RoVa schools?

    If the ledger were completely clear and Rova and Nova did not receive monies from the other – ( so no more subsidies for METRO and the Silver Line) would NoVa end up better off or worse off?

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