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*A CROZET UNITED EXCLUSIVE REPORT*

Albemarle County’s Project Heron - Part 4

Is Project Heron over?

Dear Crozet United reader,

We know that today’s Project Heron update might feel a little dense. It is jam packed with new information along with some background on the policies that govern the County’s public-private partnerships. 

For those policy wonks out there, enjoy. For those of you that just want the bullet points, here they are:

• Project Heron documents are being destroyed by Albemarle County

• “Election pressure” may have factored into County staff’s work on Project Heron

• Supervisor Mallek worked with Riverbend Development and a private landowner to realign the Eastern Avenue bridge for over a decade

• Evidence of a potential quid pro quo continues to mount

• Albemarle County is already out of compliance with the public-private partnership guidelines its Board adopted on March 20th

• At this time, Supervisor Mallek is not aware of any active proposals for a public-private partnership to build the Eastern Avenue Connector

Given these new revelations, we believe it’s time for the Board of Supervisors to conduct a thorough external audit of Albemarle County’s Community Development function with an independent third party mutually agreeable to, and in full cooperation with, Crozet citizens.

We hope you’ll agree that it is worth taking the time to read this issue and draw your own conclusions.

Sincerely,

Your Publishers: Eric Schmitz, Brad Rykal, and Jeff Stone

Albemarle County destroys important documents related to Project Heron

In response to the FOIA request mentioned in our last issue, Albemarle County informed Crozet United that they have destroyed the Eastern Avenue Connector design plans that they were recently considering under Project Heron.  

Albemarle’s justification for destroying the documents was that the project had become “obsolete” once they “determined that it would not proceed with the specific transaction described in that term sheet” referring to an October 5, 2023 draft term sheet it had negotiated with Riverbend Development.   It went on to state that the Virginia Public Records Act allows it to immediately destroy obsolete project records. 

The full text of the County’s response is shown below.

Crozet United subsequently requested that the County provide the specific date that it destroyed these important documents as well as the “Certificate of Records Destruction (RM-3 form)” required by the Library of Virginia’s records management department whenever a public document is destroyed.  The County has not responded to either of these requests.

Further research raises doubt about whether the County had a lawful basis for destroying these documents.  According to the Library of Virginia’s official record management guidelines, any documents in the possession of a Department Head must be retained for a period of three (3) years after they were received as shown in the image below.

Given that the Collins Engineering plans for the Eastern Avenue Connector were received by Albemarle’s Director of the Department of Facilities and Environmental Services in 2023, we believe these documents should have been retained at least until 2026.  

Crozet United provided this legal reference to Albemarle County and asked whether they agreed that the documents were destroyed in error.  The County has not responded to our request.

Albemarle County destroyed the documents around the same time they received a Freedom of Information Act request related to “Project Heron”

According to the County, it terminated Project Heron prior to destroying documents related to it.  Based on email shown below, Project Heron was still being actively discussed on April 24, 2024.    

Therefore, Albemarle County began destroying documents sometime after the date of this email and near the date (or after) it began receiving FOIA requests for information about Project Heron.

The initial FOIA request for documents related to “Project Heron” was received by the County on April 30th, just four working days after the email shown above. Crozet United began reporting on Project Heron a month later on May 28th.

Albemarle County may not have had the legal authority to develop the detailed terms of a potential public-private partnership with Riverbend Development in 2023

Crozet United wrote an email to Albemarle County asking it to provide the legal justification it used to enter protracted and confidential negotiations with Riverbend Development regarding Project Heron, a potential public-private partnership to build the multimillion dollar Eastern Avenue Connector.  

Albemarle County has not responded to our request.  

However, the County has recently and explicitly stated that its Economic Development Authority (EDA) was not involved in Project Heron, in spite of several emails between County and EDA officials regarding the confidential project including the one below.

If Albemarle County, as it says, did not use the powers of its EDA to explore a confidential arrangement to build the Eastern Avenue Connector with Riverbend Development, what powers DID IT USE to do so in 2023?

While Virginia’s Public Private Transportation Act (PPTA) allows localities to explore public-private partnerships with private entities, Albemarle County was unable to use the provisions of the PPTA prior to authorizing it in a Board meeting held on March 20, 2024.

Albemarle County didn’t follow its own PPTA guidelines after it adopted them

Following a presentation delivered by Lance Stewart, the Director of Facilities and Environmental Services, the Albemarle Board of Supervisors authorized the use of Virginia’s Public-Private Transportation Act (PPTA) within specific guidelines on March 20, 2024.  

These guidelines, among many other provisions, require the County to form a Selection Committee that will review any unsolicited proposals before they are given further consideration.  

If the Selection Committee determines that an unsolicited proposal deserves further consideration, it may refer that proposal to the Board of Supervisors.  If in turn, the Board of Supervisors approves an unsolicited proposal for further consideration, that proposal must be published on the County’s website for 45 days.

The full list of the County’s PPTA guidelines are linked here.

As previously mentioned, Mr. Stewart continued to advance the Project Heron schedule that had been jointly developed with Riverbend in 2023 as evidenced by an email he set to them on April 24, 2024. 

The Board of Supervisors has not approved any unsolicited proposal under the newly adopted PPTA for further consideration as of June 18, 2024.

Therefore, the County continued to operate Project Heron, out of compliance with the PPTA governance guidelines between March 20 and April 24, at a minimum.

County staff member notes “Election Pressure” during a meeting specifically regarding Project Heron

As shown in the image below, handwritten notes from an August 4^th meeting involving an Albemarle County staff member note “election pressure” in association with a Project Heron meeting.

Given that Supervisor Mallek was in the middle of a re-election campaign at the time, Crozet United reached out to her to ask about her level of involvement with Project Heron.  The full email we sent is shown below.

Supervisor Mallek responded to Crozet United’s questions the next day.  

Ms. Mallek denied knowledge of any currently active proposal under the County’s newly adopted PPTA program.  She did not directly answer the question about when she first became aware of Project Heron, but instead acknowledged that she has worked with Riverbend Development and the owners of the property where the Oak Bluff development is now proposed since 2010. 

The full email we received is shown below, including highlighting by Ms. Mallek.

Staff notes further link the development of a public-private partnership to build the Eastern Avenue Connector to Riverbend’s proposed Oak Bluff development and rezoning plan

For background, a public-private partnership (PPP) is a contracting arrangement typically used to execute a specific capital project, in this case, the construction of the Eastern Avenue Connector.  The rationale for using these arrangements is to lower the public’s cost for a specific project due to operational and financial efficiencies that are available to the private sector.  

It is important to understand that a PPP does not create a legal loophole to execute a quid pro quo arrangement between a public body and a private entity.   However, multiple documents show that the Oak Bluff rezoning plan was discussed in conjunction with a potential PPP to build the Eastern Avenue Connector. 

In a previous issue, we shared an email that showed that Albemarle County and Riverbend created a schedule for Project Heron that included approving the Oak Bluff rezoning plan prior to finalizing a design for the Eastern Avenue Connector, giving the appearance of a quid pro quo.  

Additional documents recovered via a FOIA request show Oak Bluff was regularly discussed as part of a potential public-private partnership between Riverbend Development and County.

Handwritten notes from a County staff member in August 7^th meeting with the Riverbend team contain the phrase “Intertwined projects.  Reverse order?”

It is reasonable to assume that this note refers to the Oak Bluff rezoning plan and that it would need to come before the Board of Supervisors for a hearing before a plan to build the Eastern Avenue Connector was finalized. 

In notes from a meeting on September 21^st with the Riverbend team and Vito Cetta, Albemarle County’s Director of Community Development, Jodi Filardo, wrote that the parties “may want the work to be public (sic) aligned w/ Oak Bluff”.  

This note is followed by the initials “PH” which presumably refers to Project Heron, further showing that the parties considered the Oak Bluff rezoning plan in conjunction with their discussions for public-private partnership to build the Eastern Avenue Connector.

The same note also shows that the geographical alignment of the Eastern Avenue Connector was a topic of discussion, particularly as it related to the “Westhall plat”, which Riverbend envisions as the primary entrance to the future Oak Bluff development. For more information on the issues surrounding this particular Westhall property, please review the story in our May 9th newsletter.

Albemarle County has worked with Riverbend Development to shift the future Eastern Avenue bridge onto the property of a private landowner for over a decade

As Supervisor Mallek communicated to Crozet United, there has been a concerted and sustained effort by Albemarle County officials and Riverbend Development to shift the alignment of the Eastern Avenue Connector to the east and onto the Coble property since 2010.

Ms. Mallek reports that Mr. Coble suggested moving the bridge onto his property to reduce the bridge length and therefore its costs.  It is also reasonable to assume that the Coble’s property value would increase as a result of gaining access to the northern portion of property from the Eastern Avenue Connector rather than just from Radford Lane in the southern portion.  

In 2020, the County hired Kimley-Horn to conduct an independent road alignment study for $23,212.  That study resulted in a formal recommendation to shift the road the way the County, Riverbend and Mr. Coble had intended.  

As reported in last week’s issue, in 2021, VDOT reviewed the Kimley-Horn road alignment and bridge design and advised Albemarle County that the bridge should be extended from 260’ to 440’ so that it did not encroach on the FEMA floodplain. 

In that report, VDOT also noted that “there may be potential to adjust the (road) alignment to reduce roadway length, particularly if bridge length is increased.”

The roadway length could be reduced if it was shifted off of the property where Oak Bluff is now proposed, and back to its long standing original and direct alignment between the Westhall and Cory Farm neighborhoods.

Vito Cetta purchased site control from the Cobles for $2.1M in July 2022.  Mr. Coble passed away later that year.

County staff are now meeting with Riverbend Development to discuss its Oak Bluff rezoning application but will not release their staff report to the public until just before the Planning Commission hearing on August 13th.

The March 6th draft of the County’s staff report on the Oak Bluff rezoning application states that “Transportation staff views this infrastructure improvement (Eastern Avenue Bridge) as critical for this development and cannot recommend approval of this development without the bridge because of traffic and safety concerns.”  

Riverbend subsequently deferred its Oak Bluff rezoning application but then resubmitted it on April 15, 2024. 

According to a May 1st email from County staff, Riverbend Development also decided to pursue a Public Hearing with the Planning Commission and forgo the benefit of first seeing the County’s final staff report and recommendation. 

The email goes on to say that as a result “staff will not be sending them (Riverbend) any additional ‘official’ comments until the Staff Report, which will be ready about a week prior to the meeting” which is scheduled for August 13th. 

However, a June 10th email from the County revealed that staff had been in a “couple of meetings with the Applicant (Riverbend Development) since then”.

Crozet United reached Bill O’Malley, a resident of the Westlake Hills subdivision adjacent to the potential Oak Bluff development site for comment.

“Why is the development community getting exclusive access to County staff while public citizens are being denied basic information? The County’s apparent disregard for the people they serve has reached new depths with the way they’ve handled the Oak Bluff application,” O’Malley said.

O’Malley believes that the Board of Supervisors has the opportunity to restore basic transparency by “insisting that the County finalize and share its staff report with the public by no later than July 15th, four weeks prior to the Planning Commission hearing on the Oak Bluff rezoning application.”  

He concluded, “We urge the Board of Supervisors to stand by the County’s original transportation assessment that the Oak Bluff rezoning cannot be approved prior to the development of the Eastern Avenue bridge due to traffic and safety concerns.”

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Crozet United will continue to share material developments of this rapidly evolving story.