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Virginia Supreme Court Hears Boat Club Case Against City and Restaurant

Old Dominion objects to City Council lease of public alley for private use.

No photographs, videos or audio recordings are allowed in the Virginia Supreme Court.

No photographs, videos or audio recordings are allowed in the Virginia Supreme Court. Photo by Michael Lee Pope.

Place

Wales Alley

Alexandria, VA

Wales Alley

Timeline

  • 1789: Former Alexandria Mayor John Fitzgerald and Maryland businessman Valentine Peers divide up their holdings, including the land that is now Wales Alley. The deed allows "free use and passage of the several streets and allies."
  • 1850: In a case that doesn’t directly involve the alley, the United States Supreme Court describes Wales Alley as public property, referring to it by its original name, Fitzgerald Alley.
  • 1935: The Old Dominion Boat Club begins operating a boat yard and parking lot at Number 2 King Street. Club members begin using Wales Alley to transport boats to and from its waterfront parking lot.
  • 1970: Dockside Sales erects a five-foot wooden fence blocking public access to Wales Alley to store inventory. The Old Dominion Boat Club files a lawsuit, charging that it has the right to use the alley to transport boats to its waterfront parking lot.
  • 1972: The Alexandria Corporation Court rules that Dockside Sales does not have the right to block access to Wales Alley for retail inventory storage. City workers begin treating the alley as a public way by clearing snow, issuing parking tickets and filling potholes.
  • 2010: The Alexandria City Council grants a special use permit to a restaurant known as Virtue Feed and Grain allowing the restaurant to use part of Wales Alley. The Boat Club sues the city, arguing that its easement rights to the restaurant have been violated.
  • 2011: The Alexandria Circuit Court sides with the Boat Club, ruling that the its members have an easement right to use the alley to move its boats to a boat launch.
  • 2012: The Virginia Supreme Court hears the city’s appeal of the Circuit Court ruling.

— Does Alexandria have the right to close Wales Alley? That’s an issue now before justices of the Virginia Supreme Court, who heard oral arguments in a case that’s divided Alexandria for years. At issue in the case is a deed from 1789, which allows “free use and passage of the several streets and allies.” Lawyers for the Old Dominion Boat Club say that document allows their members to use the alley to get boats to and from the organization’s boat launch at the foot of King Street. But City Attorney James Banks told justices any easement rights the club had were vaporized when the city assumed responsibility for the road in 1972.

“Our position is that there are no extra rights or benefits for the Boat Club because it previously had easement rights,” Banks told justices in the Supreme Court chamber across the street from the Capitol. “The private easement rights should be extinguished.”

Lawyers for the Boat Club said the city was perverting the charter provision granting authority of public land. Instead of making that land available to the public, they said, the city was doing the opposite — making it available to a restaurant known as Virtue Feed and Grain, denying the public an opportunity to use it in the process. In court documents and before justices this week, Boat Club lawyers argued that their right to use the alley dates back to the 1789 deed.

“The easement doesn’t just disappear into thin air,” said David Chamowitz, attorney for the Boat Club. “This is condemnation by other means.”

MOST EMINENT DOMAIN cases involve governments taking private land for public use. This case turns that on its head, with city officials making the case they can take a public street and lease it to a private restaurant. Banks says that the city has treated Wales Alley as a public street since 1972, in the wake of a separate lawsuit the Boat Club brought against a retailer known as Dockside Imports that wanted to shut down public access to the alley. Since that time, Banks said, the city has been plowing snow, issuing parking tickets and filling potholes.

“The city received the property though the process of implied dedication,” he said. “As a result, the any private easement rights must necessarily be extinguished by that dedication.”

Boat Club lawyers countered that the city was inventing what they called a “merger doctrine,” merging the special easement rights previously enjoyed by the club into the same access rights every other citizen can claim.

“This merger doctrine is an argument of the city,” said Chamowitz, “not a doctrine of Virginia law.”

When one justice asked how the city could take property without offering compensation, Banks responded that the proper remedy was for the Boat Club to ask for monetary damages. Instead, the boat club is seeking an injunction to prevent the city from allowing Virtue to use the alley for its restaurant. The Supreme Court is expected to rule in the next six to eight weeks.

THE HISTORY of the alley dates back to the earliest days of the city, when former Mayor John Fitzgerald and businessman Valentine Peers had joint ownership of land that’s now known as Wales Alley. Back then it was called Fitzgerald Alley, until Andrew Wales started selling beer in the alley in 1786. Three years later, Fitzgerald and Peers decided to dissolve their joint ownership, creating a deed that allowed “free use and passage.”

“They probably didn’t like working with each other on it,” speculated Andrew Carroll, attorney for Virtue Feed and Grain Restaurant, according to court documents. “So they said, ‘let’s split it,’ and they split it.”

The Boat Club has long been at odds with the city, especially over a waterfront parking lot that the city wants to transform into a public park. Club members have rejected the city’s advances, prompting Banks to threaten taking the parking lot by the city’s power of eminent domain last summer. Now the city has entered into a license agreement with Virtue that allows the restaurant to use 11.5 feet of the alley. Boat Club members say the city is currently in contempt of court for violating Judge McGrath’s ruling.

“What the city has done here is give one private property owner priority over another," said Boat Club member David Elsberg in an interview last year. “What the city is doing is worse than eminent domain because they failed to compensate us.”