Letter to the Virginia Department of Environmental Quality concerning the Stafford West Tract Residents Fight Plan for New Fairfax Sports Field - Fox 5 TV report

Dear Mr. Miller:

We spoke by telephone today regarding the environmental violations that are ongoing on the Fairfax City land tract known as the "Stafford West Tract", the spillover effects of these environmental violations that are creating adverse dumping and run-off and erosions of soil, pollutants and the end products of heavy machinery into the Accontink Creek of the Chesapeake Watershed. Thus, we are writing you as citizens of Fairfax City who are trying to save this pristine land that lies within our six square mile city limits. I have enclosed the Application for the proposed development, its variance, exceptions and extreme requests for nonadherence to standing environmental and normal ordinance precedent for your review while you consider what we detail for you herein. I also enclose two recent newspaper articles that were reported one sided (pro developer) to the subject of this proposed recreational development and they are the Washington Post Fairfax Extra Edition, Pages 1 & 7 and the Fairfax Connection Pages 1 & 9. As several crucial and vital environmental interests are at continuing risk, should this land be developed as the Fairfax City Council intends to do we wanted to list them in the priority in which they occur for your becoming familiar with the nature of our request for your consideration to intervene and help us in our legal defense to prevent any such development of this pristine 14 acres -- they are as follows:

1. First and foremost, the proponents of this development project have set their sights on moving this matter forward to funding and scheduling as a "done deal" at the next public hearing that the Fairfax City Council will hold is June 12, 2007 where they are going to try and rubber stamp City Manager Robert Sisson's Application that is attached herein as a PDF Document SU 0-7030016, SE-07030015, V-07030017, which is the land tract of Stafford West located at 10090-10120 Fairfax Boulevard, Fairfax, VA 22030. The first premise for which we ask for your immediate involvement in performing investigation, studies and sampling is the failure of the Application to contemplate and include any Environmental Impact Statement, thus from its construct the Application is arguably defective as a whole, and in part, due also to the aforementioned Applicant City Manager Robert Sisson's and other responsible parties' complete failure to file an Environmental Impact Statement pursuant to § 102(2)(C) of the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C.A. § 4332(2)(C)) and other applicable statutes, regulations and rules of the Federal Environmental Protection Agency and the Virginia Environmental Protection statutes which is a necessity because of the presence of the Stafford Tract directly atop the Accotink Creek; which is a Chesapeake Bay tributary. [The Chesapeake Bay, a national treasure, is the largest and most biologically diverse estuary in North America. The Chesapeake Bay is home to about 3,600 species of unique animals, fish, and plants, including bald eagles, blue crabs, menhaden, striped bass (rockfish), osprey, oysters, and the American lotus. One million waterfowl spend the winter in the Chesapeake Bay basin. As an estuary and coastal zone, it is “among the most productive ecosystems on Earth.] Please take note that on April 17, 2007 at the Annual Meeting for the Cambridge Station Association at the Old Town Hall in Fairfax,Virginia, Michael McCarty, Director of Parks and Recreation for the City of Fairfax stated in open meeting session, that "there is no Environmental Impact Statement in effect as regards the Stafford tract at this time."
2. The Stafford West Tract contains at least one known bird that is protected under the Endangered Species Act, which law includes the1973 Endangered Species Act (ESA), 16 U.S.C.A. §§ 1531-1544, that provides for the conservation of endangered and threatened species, and for the preservation of their ecosystems that would arguably include the Stafford Tract. Within the Stafford West Tract numerous the "red cockaded woodpecker", which is listed as an endangered species, under E.S.A. The red-cockaded woodpecker (RCW) ranges in the Southern pine forests from Virginia along the coastal plain into Texas. This woodpecker is dependent on several species of Southern pines for nesting and foraging, and lives in groups called clans whose members inhabit the cavities excavated in a group of trees known as colony sites. The bird needs foraging habitat with certain specific characteristics in close proximity to the colony site. Extensive clearing of Southern pine forests that began in the 19th century reduced available habitat for the RCW and brought it to the brink of extinction. The species was listed as endangered in 1970. The vast majority of the remaining clans of the bird occupy colony sites that are on public lands, which include the Stafford West Tract. It has also been reported in this pristine land area that Bachman's Warblers, Bay-Breasted Warblers and scrub jays have also been documented as present using the land as permanent and temporary housing and foraging areas.

   Your Agency should take special note that both the Washington Post and the Fairfax Connection failed to appreciate the seriousness of the need for any environmental considerations in their press coverage of this proposed development and completely failed to report the growing list of environmental improprieties in proposed development that are ongoing with this Stafford West Tract, which is the habitat for these vanishing breeds' last chances to survive extinction, then consider what the Federal criminal penalty is for those who disturb or destroy the RCW habitat under Federal law. Under the Endangered Species Act, 16 U.S.C.A. §1531, et. seq. applies to local governments as well as to state and federal governments and agencies under the landmark Supreme Court decision in Tennessee Valley Authority v. Hill,98 S.Ct. 2279, 437 US 153 (1978), the penalties for disturbing an endangered woodpecker such as the Red Cockaded woodpecker is relatively severe. §1540 provides for civil penalties of $10,000 for each violation and criminal penalties of $20,000 and one year in prison for each offense. It is our understanding that the penalties increase if the bird is killed or if as in this case, a mating pair and juveniles are also present and disturbed by such development or disturbances by those seeking to change the character of the land from natural to developed. It is also believed that there are Bachman's warblers and scrub jays amidst the other species that are now using and living this habitat for permanent or temporary homes and foraging.

   Thus, the Press's complete failure to note these facts which were entered into the record at the Public Hearing on April 24, 2007 and which I personally testified to in Open Hearing is a direct disservice to the citizens of Fairfax City and the citizens of Fairfax County, whom these newspapers purport to inform and advise as to actions within their midst.

   The newspaper articles also failed to note that in cases involving an endangered species, where Federal law (in this case, the Endangered Species Act, 16 U.S.C.A. §1531, et. seq.) preempts and prevents development aspirations of a recreation department director, Michael McCarty, and Fairfax City Manager Robert Sisson who along with the following named entities and individuals envision profitable private contracts for development at this site. Those private individuals who seek to profit from this development include but are not limited to, Developer(s)(William H. Gordon Associates, Inc., Brian S. Parsons (a Land Use Planner), Brian Cipriano (a Landscape Architect), Brian Fletcher (a Land surveyer), Douglas Kennedy of Patton, Harris Rust & Associates who are said to have performed the discredited and unverifiable traffic studies and the firm of Rummel, Klepper & Kohl Associates who were awarded an $87,000 nonbidded contract to perform studies of the Accotink Creek. If the leftover environmental pollution, breaking of forestry, disturbation of topsoil and runoff increase and overall pollutants dumped by this latter firm into the Accotink Creek, which is a direct tributary to the Chesapeake Bay Watershed, were not investigated by these two newspaper reporteres along with other reviewers of this proposed development project, then we assert they are seriously remiss as the Third Estate who is supposed to act as "stewards of the public trust" in failing to report these facts and players to the Fairfax City and County public at large.

   If any of your group representatives happened to be present at the April 24, 2007 public hearing, then you will quickly recognize that the two newspaper articles are merely rubber stamping a press release of the Fairfax City Council and Mayor Lederer, in the two articles' "omissions" of these environmental facts, and we ask the Sierra Club which its renowned reputation for intervening and assisting endangered animals and vulnerable pristine lands from development to intervene and join our efforts to protect this vulnerable land tract and its important RCW woodpecker residents whom so very badly need the veteran experience and contacts and abilities that your organization possesses to assist us in preventing this atrocity from happening. I ask this given the fact that since said hearing, both the Secretary for the Department of Interior and the Agency Director for the Environmental Protection Agency have been officially written and asked to immediately intervene to stop any development in the Stafford West Tract as on April 24, 2007 at the public hearing, I testified to the City Council and Mayor Lederer and all assembling stating, "The City of Fairfax is now officially put on public notice that they have a Federal and state statutory duty to act and protect this valuable national treasured bird. We ask that the future reviewing authorities take note that the City has not performed any required Environmental studies including the preparation of the Environment Impact Statement" required under existing Federal law.

3. 1. There are verifiable nontidal wetlands inside the interior of the Stafford Tract which will be filled in and which are the home and life breath for essential wildlife including numerous species such as water fowl (Canadian Geese, Mallard Ducks, Blue Winged-Teal, Northern Shovelers, American Wigeon, Golden Eyes, Scoters, Long-Tailed Ducks, Mergansers, Canvasbacks, Redheads, Ruddy Ducks, Wood Ducks and the like);
   2. Within the Application attached above as PDF doc SU--7030016 et seq, there is no required replacement being planned or contemplated by the City of Fairfax Application for the viable replacement of these wetlands inside the Stafford Tract interior, the complete omission and failure to make such replacement are both material misrepresentations both in the Application and the lawful notice and environmental impact procedurals that are predicated by Federal area for protected wetlands.
   3. There is absolutely no mention of the topographical effects of the fact that the Stafford Tract elevations, some of which stand at >75 degrees will be leveled and no environmental impact of such leveling, removal and disturbation of top soil has been provided for, and the potential run-off and erosions into the Accotink Creek could be a catastrophic consequence to the Chesapeake Bay Watershed which the City of Fairfax has a duty to protect from happening, and as this is a foreseeable event, the Application is defective in failing to address these adverse environmental consequences to species, wetlands and soil preservation as detailed heretofore.
4. Also omitted from any press coverage of the Public Hearing was the former published article in the Fairfax Connection, which was included in the relevant minutes from the last calendar year including the published fact that City of Fairfax Mayor Robert Lederer was quoted on the record in print on August 31, 2006 in the Fairfax Connection, that, "several members of this Council have received direct financial benefit from developers in exchange for favorable consideration of Rocky Gorge and other tracts... Council members involved have taken no interest in the welfare of the City or its residents on this land use issue, but have cut a deal for, nasty, dirty, little, political insider, reasons." (Source, Fairfax City Council Minutes Dated September 12, 2006). Please take note that although the developer in question, through counsel, demanded a complete retraction of these statements, Mayor Lederer has never withdrawn his statements despite pressure from the City Council and business community including named and unnamed developers. Where was any mention or notation of this precedent or historical event in your reporting of the April 24, 2007 Public Hearing?
5. If the aforementioned environmental concerns and extinction of animal species were not of sufficient reporting value to the press, we were even more surprised to learn that the fact of possible improper use of public taxpayer funds in excess of Six Million Dollars ("$6,000,000.00") allocated for open green spaces on the public ballot will render your treatment of Stafford West Tract as worthy of "supplementation" in reporting. You should note with particular interest that the Application being debated herein seeks unprecedented development using land and public tax money set-asides that were intended by the voters 3-1 on the public referendum to be kept as lands in their environmentally natural state. That does not include the aforementioned Application whose permitting, variance, exceptions and exemptions would seek to avoid or not have to comply with existing local ordinances that govern many areas including noise, zoned use, lighting, traffic, environmental impact and other things.

   The Washington Post first published these intended purchases to be set aside as public lands on Thursday, May 20, 2004; Page VA03, when it reported that "Fairfax City has agreed to buy nearly 27 acres from private landowners that will be used as open space and public parkland, officials said, continuing a plan to expand green space in the six-square-mile city." The $6.45 million land deal consisted of two tracts: a $5.7 million, 23.23-acre parcel known as the Stafford Drive tract located off Lee Highway near the Mosby Woods and Cambridge Station neighborhoods, and a $750,000, three-acre parcel on the west side of Providence Park, called the Jester tract. It is the Stafford Drive which is the subject land at issue with the Stafford Ballfields project. At the time the Post article was written, City Council Member Scott Silverthorne was quoted as saying, ""I'm pleased that most of these landowners have begun to sell to the city," said City Council member R. Scott Silverthorne, who helped initiate Fairfax City's land purchase program in 2000. "I think the Stafford tract is going to be a crown jewel for the city," he said, adding that the parcel was large enough to accommodate new trails and open spaces." The implication was clear at the time that the land would be kept in a natural state, with the passive building of nature trails and presumably a nature center which would educate all of the City of Fairfax's citizens, no matter what their age, as to how to preserve natural resources, protect habitat, and leave land in a natural undisturbed state for future generations. That is what the people of Fairfax City voted unanimously in 2000 for their Six Million Dollars of tax revenue to be dedicated for.

   When we ask, why is there no mention of these material discrepancies and possible abuses by local government of public tax money in excess of Six Million Dollars ($6,000,000.00) and lands to be put into perpetuity as environmentally protected open green spaces as our Fairfax City legacy for generations to come, there has been no coherent or reasoned response at all to this query, only a suggested compromise to make the two ballfield proposal for one ballfield? That is clearly not acceptable to us in seeking to protect these vulnernable lands and precious Red Cockaded Woodpecker.

6. And also notably missing from any mention in the press whatsoever is that within the contents of the aforementioned Application there are further material discrepancies, misrepresentations of fact and inaccuracies that prevent the process from being one of veracity, accuracy, and actuality in its construct, for example:
   1. Page 1, Fiscal Impact, Funds have been allocated. The fact that the funds for a recreational use from those earmarked specifically for environmentally protected areas is omitted and the omission is arguably a material misrepresentation.
   2. Page 1, Advertisements. April 11 and 18, 2007. There is no description of what publications the notice is published in or the content of the advertisement. This is a material omission.
   3. Pages 2-14, the Public Hearing is listed as April 25, 2007 when in actuality it is Tuesday April 24, 2007.
   4. Page 2. Paragraph 4. "The City's Comprehensive Plan" identifies the Stafford West property which at the Annual Meeting on April 17, 2007 was consistently referred to as "Stafford Tract". There are multiple tracts of land that have been purchased on Stafford Drive and Fairfax Boulevard so this is an ambiguous and confusing connotation that requires immediate clarification and correction as to the exact site parameters.
   5. Page 2. Paragraph 4. The City's Comprehensive Plan identifies the Stafford West property as "Open Space-Recreation" and the proposed park provides for multi-generational and multi-recreational use by all residents.
      1. There was no notice and comment period of the City of Fairfax designating what was on the public ballot in 2005 as green spaces to be used exclusively as environmentally protected areas formerly referred to in signage as "Green Spaces" implying in a natural undeveloped state as habitat for wildlife and non-development from now being actively designated as "Open Space-Recreation" by use of funds voted by the electorate for the former without it first being placed on the ballot again and a referendum gained.
      2. According to Recreation and Parks Director Michael McCarty in testimony before Cambridge Station Association community citizens, the construct of two recreational soccer ball fields made exclusively of artificial "green" synthetic turf and with electrical fixtures (initially planned without the lighting fixture artifacts to power the facility at night for additional usage, utility encumbrance and traffic consequences) was in his view "analogous" to what the voters had in mind when they appropriated $6,000,000.00 for environmentally protected areas.
      3. According to Recreation and Parks Director McCarty he has no know-how, instruction or direct knowledge of environmental impact statements, how they should be constructed, implemented or of their necessity and/or the legal ramifications of their exclusion from the extensive permitting, variance, exceptions and exemptions sought in Exhibit 1.
   6. Page 3. Paragraph 1. What the application fails to mention at all is that Draper Drive Park is an existing site which, if refurbished, would have all the necessary acreage, parking access, existing ball field configurations, and ability to be lit and is already in existence in the Cambridge Station, Mosby and adjacent communities as a recreational site. The public, in particular the athletic communities, know of Draper Drive Park, its location and it is already natural turf, which is a preferred surface to artificial turf in terms of injuries to athletes who perform upon it.
      1. According to Recreation and Parks Director McCarty, he asserted that artificial turf is superior in all ways to natural turf on any recreational site because it causes less injuries to athletes who perform upon it. This is a material misrepresentation and flies in direct contravention to published medical data including that compiled from the National Football League, the Major League Baseball Players Association, the American Medical Association and others all of which find that more significant and protracted injuries arise from athletes who sustain repeated impacts upon artificial turf arenas, stadiums and fields because it does not have the natural elasticity and give of natural grass. Citations to specific medical proof of this can be provided and will be supplemented in a second letter as it is quite voluminous in nature.
   7. Page 3. Paragraph 1. What is most disturbing about the idea of disturbing the last remaining natural habitat is when one considers that Draper Drive Park is less than one mile from the proposed Stafford WestTract.
      1. According to Recreation and Parks Director McCarty, the argument for breaking ground and constructing the new ball fields was so that the City of Fairfax would not be without one of its existent ball fields for one calendar season of play for soccer.
      2. According to Recreation and Parks Director McCarty, the idea of allowing an aging Draper Drive Park to continue into disrepair and obsolescence is preferable to refurbishing an area which is already graded and landscaped for athletic use.
      3. According to Recreation and Parks Director McCarty, the construction of recreational fields by the City of Fairfax benefits children who live within its borders at a premium as opposed to teaching these same children the importance of preserving species, protecting natural wild lands, how to be user-friendly with the environment and stopping unrestricted development as a self fulfilling prophecy as a norm.
7. Within the whole of the Application, there are material discrepancies and misrepresentations about the actual impacts of traffic ingress and egress from Route 50 corridor into the proposed Stafford Tract. The trivialization of Mosby Woods and Cambridge Station Developments’ citizen concerns for the past five years about traffic, noise, loitering, parking and crowding inside and beside their residences is a matter of public record as regards proposed development to the Stafford West Tract.
8. And finally in the Application, Page 8, Paragraph 2. Proposed Collocation of Telecommunications Facilities Light Poles. The Special Use Permit approval to collocate the proposed light poles was described by Parks and Recreation Director McCarty on April 17, 2007 as "not presenting the immediate need for lighting for the facility" but "anticipating" future usage that would require their "installations" at a later date.
   1. It is a patent misrepresentation for a Parks and Recreation Department who envisions 47 pages 1/4 of the content of its whole which fully details the technological improvements to lighting which will minimalize lighting spillover to the adjacent Mosby Woods and Cambridge Station communities to discount the proposed exception, variance and exemptions from the zoning restrictions on existing recreational sites of this nature. The fact that the Director of Parks and Recreation used questionable photographic evidence in his audio-visual presentation in support of this contention is also most troubling and should be fully investigated including:
      1. The Application's photographs on Pages 37-40 purport to detail the lighting improvements over athletic field lighting of past eras.
      2. The Park & Recreation Director's "audio-visual presentation" of the implementation of the "light structure green" lantern configurations in a photograph of an existing baseball field (which is not analogous in nature to 2 adjacent soccer fields either) purported show diminishment of light spillover away from the athletic fields, however;
         1. The reflections off the baseball dugouts from the preexistent lighting and the installation of the "light structural green lantern" as shown to us as the test field case failed to account for the same reflectivity, shine dimension and spillover which to even an amateur eye make the photograph appear to be doctored only to show the installation of the lantern. The laws of physics as to light reflectivity, angulation, spillover and carrying over distances into adjacent residential areas cannot properly be addressed, accounted for and relief upon when the only notable change to the photograph in the "brightness" and "spillover" effects was the redacting of the right side lantern with the new "light structural green lantern" configuration. In its least suspicious context, it is an erroneous photograph and it would be useful to have an independent photographer make a detailed study of the same "test field" to document these inaccuracies and ambiguities given scientific laws that apply in such circumstances from an engineering and planning standpoint as this is the firm who is seeking in part a substantial sum of a Three Million Eight Hundred Thousand Dollar ($3,800,000.00) contract.

And summarily, many of the citizens of Mosby Woods and Cambridge Station worry about the veracity of those who advocate the expenditure of Three Million Eight Hundred Thousand Dollar ($3,800,000.00) for the principal immediate economic benefit to Developers, Monty H. Lowe, AICP, Deputy Zoning Administrator and Senior Planner, Community Development and Planning, William H. Gordon Associates, Inc., Rummel, Klepper, and Kohl and John Doe Developers, on the proposed construction of new athletic ball fields at Stafford West Tract as a sound, equitable, fiscally appropriate and environmentally sound idea. We have to formulate a coherent and comprehensive opposition when we appear back before them by June 12, 2007 at Public Hearing and request that you attend this essentially important Public Hearing that involves important Northern Virginia protected public lands. Some of us are willing to go to court and seek injunctive and other relief to prevent this project from happening but we need the likes of the Virginia Department of Environmental Quality inspectors to turn a focused eye and investigate as further guides to our community in protecting the essential environmental areas at stake in all these regards. The very life of a delicate ecosystem, vanishing species and the integrity of the Chesapeake Bay Watershed are all at stake. Please help us in this regard and you will be the heroes in our local community for generations to come.

We have also written to other persons of influence including the Bureau of Fish & Wildlife Services of the U.S. Department of Interior, The Agency Head for the United States Environmental Protection Agency, the Honorable Governor Timothy Kaine, Attorney General McDonnell, Senator James Webb, Senator John Warner, Congressman Tom Davis, and environmental groups including, but not limited to, Friends of Accotink Creek, the Sierra Club, Virginia Chapter, Defenders of Wildlife, Chesapeake Bay Foundation. Greenpeace, The National Audubon Society, The American Bird Conservancy, The Nature Conservancy, and the Wild Bird Centers of America, Inc.

Cordially yours,

Michelle Walker-Cook and Richard Alan Fancher