George,

While we've focused on the Meadowcreek Parkway there is an overlooked issue: the threatened encroachment on the Vietnam Dogwood Memorial. That hillside may well prove to be attractive legal high ground for Parkway opponents.

Virginia law actually does not protect ordinary parkland very well. The question whether or not a conveyance to VDOT requires a 3/4 majority only arises because an outside agency is building the road. If City Council built it themselves, in theory they could approve the Parkway by simple majority. In theory they could even pour cement over all of McIntire Park and turn it into a vast undulating parking lot, by simple majority. Our laws do not adequately protect parks against a City Council majority which often is unfortunately, all too simple.

It is because parkland is so vulnerable, that in 2000 the City of Richmond conveyed conservation easements to an outside nonprofit organization (which the Attorney General said required a 3/4 majority). There are no conservation easements protecting McIntire Park.

There is a feature of the park that does enjoy considerable legal protection though: the nation's first Vietnam memorial, created in 1966. The Grand Marshal of the Dogwood Parade that year was Staff Sargent Barry Sadler, U.S. Army Special Forces, who wrote the Ballad of the Green Berets. Every year there is a rededication, with veterans marching under the blossoming dogwoods.

Mayor Cox has warned (at the fractious City Council meeting on December 15) that the Meadowcreek Parkway will force us to move the Memorial. That's illegal. A Virginia law originally intended to protect monuments from The War Between The States against the forces of political correctness, prohibits local officials from disturbing war memorials. This, combined with a constitutional doctrine called the Rule in Dillon's Case (City Councils can only do what the General Assembly specifically authorizes) could in effect block the Parkway.

Any citizen can sue to stop an encroachment (if the City Attorney fails to do so in 60 days, i.e. by February 13.) And the statute tempts private lawyers with the offer of fees for a successful litigant.

The full spread of the law's protection is debatable of course. Parkway proponents will argue it should permit reasonable changes intended as an enhancement. Meantime parkway opponents will link arms around each and every dogwood in the path of the growling bulldozers, insisting every leaf is sacrosanct, every inch of land upon which their dappled shadow falls, hallowed ground.

The basic question of whether moving and redesigning the Vietnam Dogwood Memorial is a good or a bad thing may get lost in all of this. Its founder, Jim Shisler, considers a move okay so long as the city keeps some sort of marker to show where the original was. His voice will carry considerable weight.

Ultimately, though, a judge may very well be called upon to decide just how much of McIntire Park, how much hillside and arboreal splendor, is reserved against encroachment under the law.

Jock Yellott (electronic mail, December 30, 2003)

Editor's Note: According to Angela Tucker's letter of December 22, 1999: "The Vietnam War Memorial will not be impacted by this project as it falls completely outside the construction limits, both temporary and permanent." Perhaps this has changed.