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(AMICUS BRIEF FINAL DRAFT 2020-11-13 (Y0197203xbd6fb)).Docx IN THE SUPREME COURT OF VIRGINIA __________ RECORD NO. 200195 __________ HISTORIC ALEXANDRIA FOUNDATION, Appellant, v. CITY OF ALEXANDRIA, et al., Appellees. __________ Brief of Amicus Curiae in Support of Appellant __________ Anthony F. Troy (VSB #05985) Benjamin A. Beliles (VSB #72723) Eckert Seamans Cherin & Mellott, LLC 919 East Main Street, Suite 1300 Richmond, Virginia 23219 (804) 788-7751 (804) 698-2950 (Fax) [email protected] [email protected] Counsel for Amici Curiae TABLE OF CONTENTS Table of Authorities .................................................................................................. ii Statement of the case.................................................................................................. 1 Questions Presented ................................................................................................... 2 Statement of Facts ...................................................................................................... 2 Standard of Review .................................................................................................... 2 Assignments of Error ................................................................................................. 2 Amici .......................................................................................................................... 3 Interests of the Amici ................................................................................................. 3 Argument.................................................................................................................... 6 1. Background ....................................................................................................... 6 2. HAF Has Standing ............................................................................................ 9 3. The Requirements of the OSLA Must Be Satisfied Before Construction On OSLA-Protected Property Can Be Approved By A Government Entity......................................................................................... 14 Conclusion ............................................................................................................... 18 Certificate of Service ............................................................................................... 19 i TABLE OF AUTHORITIES CASES Friends of the Rappahannock v. Caroline Cty. Board of Sup'rs, 286 Va. 38, 743 S.E.2d 132 (2013) ................................................................. 11 Tran v. Fairfax Cty. Bd. of Supervisors, 87 Va. Cir. 344 (2013) ..................................................................................... 11 STATUTES Va. Const. Art. XI Sec. 1 ................................................................................... 15, 16 Va. Const. Art. XI Sec. 2 ......................................................................................... 16 Va. Code Ann. § 1-248 ............................................................................................ 17 Open-Space Land Act, Va. Code Ann. §§ 10.1 - 1700-1705 .......................... 1, 7, 12 Va. Code Ann. § 10.1-1704 ........................................................................... 4, 13-14 Va. Code Ann. § 10.1-2204(A)(1) ............................................................................. 7 Va. Code Ann. § 10.1-1704(B) ................................................................................ 16 Va. Code Ann. § 10.1-1705 ............................................................................... 16, 17 1966 Va. Acts Ch. 461, § 4 ........................................................................................ 4 1966 Va. Acts Ch. 632, § 4(a) ................................................................................... 7 3 Former Va. Code Ann. § 10-138 (1973 Repl. Vol) ................................................ 7 Alex. Zon. Ord. § 10-107(B) ..................................................................................... 9 OTHER AUTHORITIES About the Virginia Outdoors Foundation, VIRGINIA OUTDOORS FOUNDATION ............................................................ 12, 13 Collection of Early American Architectural Details, 25 THE BRICKBUILDER 44-45 (No. 2, Feb. 1916) ............................................. 7 Collection of Early American Architectural Details, 25 THE BRICKBUILDER 67–68 (No. 3, Mar. 1916) ............................................ 7 D. Davis et al., Alexandria Houses 1750-1830 112-14 (1946) ................................................. 7 Gay Montague Moore, Seaport In Virginia: George Washington's Alexandria 222-225 (1949) .......... 7 ii Historic Preservation Easements, HISTORIC ALEXANDRIA FOUNDATION .............................................................. 11 NATIONAL PARK SERVICE, View from southwest - Vowell-Snowden-Black House, 619 South Lee Street, Alexandria, Alexandria (Independent City), VA, HISTORIC AMERICAN BUILDINGS SURVEY (1936) ........................... 7 NATIONAL PARK SERVICE, Vowell-Snowden-Black Stable, Franklin Street, Alexandria, Alexandria (Independent City), VA, HISTORIC AMERICAN BUILDINGS SURVEY (1933) .............................................................................. 7 McLaughlin, 74 Duke J. L. & Contemp. Probs. 279, 2800 (2011) ........................... 8 Op. No. 11-140, 2012 Report of the Attorney General 31 ........................................ 8 THE TRUST FOR PUBLIC LAND, VIRGINIA’S RETURN ON INVESTMENT IN LAND CONSERVATION (Aug. 2016) .......................................................................... 13 iii STATEMENT OF THE CASE This matter arises on appeal by the Historic Alexandria Foundation ("HAF") of a ruling by the Circuit Court of the City of Alexandria granting demurrers filed by Appellees, Vowell LLC, (the current owner of 619 South Lee St in Alexandria, Virginia, formerly owned by U.S. Supreme Court Justice Hugo Black from 1939 until his death in 1971) (“Justice Black Property”) and the City of Alexandria1 (“City”). In 1969, to protect what the Virginia Historic Landmarks Commission had designated as a Historic Landmark, Justice Black voluntarily donated a perpetual open-space easement on both his home and garden under the Open-Space Land Act, Va. Code Ann. §§ 10.1 – 1700-1705, which is now held by the Virginia Board of Historic Resources. This open-space easement has been in place now for over a half century. Appellant HAF seeks to preserve and protect both the “Old and Historic Alexandria District”2 and the Justice Black Property by challenging the City's failure to acknowledge and apply the provisions of the Open-Space Land Act, and failure to enforce the terms of the easement. The Circuit Court, by sustaining the demurrers, is allowing major and significant demolition and construction to take place —changes that directly contradict the express 1 The City of Alexandria Appellees include: the Alexandria Board of Architectural Review; Alexandria City Council; and the City of Alexandria. 2 This District was the first special zoning district for purposes of historic preservation in the Commonwealth. 1 requirements of the Open-Space Land Act (“OSLA”), and the express terms of Justice Black's duly recorded perpetual deed of easement. QUESTIONS PRESENTED 1. Does HAF have standing to challenge the City's decision approving the proposed demolition and construction project at the Justice Black Property? 2. Must the provisions of the Open-Space Land Act be satisfied before modifications to the Justice Black Property can be approved? STATEMENT OF FACTS The facts are not substantially in dispute and Amici concur with the Statement of Facts set out by HAF. STANDARD OF REVIEW The issues set forth in this case are issues of law and thus the standard of review is de novo. ASSIGNMENTS OF ERROR Amici concur with the Assignments of Error set forth by HAF. 2 AMICI This amicus brief is filed on behalf of: Preservation Virginia; Capital Region Land Conservancy, former Virginia Secretaries of Natural Resources, John W. Daniel II, W. Tayloe Murphy, Jr., L. Preston Bryant, Jr. and Molly J. Ward; and Addison B. Thompson, former Chairman of the Virginia Historic Resources Board. INTERESTS OF THE AMICI Preservation Virginia3 is a non-profit membership organization that has been dedicated to perpetuating and revitalizing the Commonwealth’s cultural, architectural and historic heritage for over 130 years. Preservation Virginia is the state-wide historic preservation organization in the Commonwealth of Virginia. Preservation Virginia’s mission is to make Virginia’s communities and historic places stronger, more vital and economically sustainable through preservation, education and advocacy for the benefit of present and future generations. Preservation Virginia also holds title to historic properties, buildings, landscapes and archeological sites, including: Historic Jamestowne at Jamestown, the John Marshall House in Richmond, Patrick Henry’s Scotchtown in Hanover County, Bacon’s Castle in Surry County and the Cape Henry Lighthouse in 3 Preservation Virginia was founded as the Association for the Preservation of Virginia Antiquities in 1889 and retains that corporate name; it was renamed Preservation Virginia in 2004 after combining with the Preservation Alliance of Virginia. 3 Virginia Beach. In addition, it also promotes preservation by encouraging owners of historic properties to donate easements to the Commonwealth of Virginia which are property interests held by the Virginia Board of Historic Resources,
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