Widow's peak: City's Rivanna Trail case crumbles
Charlottesville's razor wiring widow, Shirley Presley of Bland Circle, won a stunning victory last week in a Charlottesville courtroom. Less than three hours into the October 29 trial, Judge Robert Downer ruled that a new law banning razor wire– although allegedly written expressly for this case– didn't apply because the offending wire had to "enclose or partially enclose" a space.
"We were disappointed, to say the least," says prosecutor Ron Huber, who branded the ruling an "inexplicably narrow" reading in a case long considered a battle between property rights advocates and nature lovers.
Had the judge found against her, Presley could have faced jail time for the misdemeanor violation.
The verdict was "entirely appropriate," said Presley's lawyer, Fred Payne. "It's what we expected all along."
The case concerns Presley's property in the path of the Rivanna Trail, a popular in-town hiking route.
"Everyone acknowledges her legal right to block the trail," says Presley's next-door neighbor, John Potter. "But the razor wire is dangerous. That's not something that should be down near ground level."
That was the City's stance in repeated efforts to bring Presley to justice, but Payne believes that hikers' zeal to wrap a trail around the city pushed officials to violate Presley's rights. "Well, they had their shot," he says, "and they blew it."
The debate erupted two years ago, about a year after Presley– whose house sits on a bluff over the Rivanna River– realized that strangers were traipsing across her land. Payne told the courtroom that his client was so busy caring for her husband, dying of Alzheimer's disease, that she didn't realize what was happening in her own back yard.
For years, Payne says, anyone who requested access through her yard received it. But in the late 1990s, when a decades-old river path used by children and fishermen was designated as part of the Rivanna Trail, nobody bothered to get this property owner's permission.
Presley used escalating efforts to stop the encroachment– first signs, then brush piles, and finally the sort of wire famous for encircling death camps and penitentiaries.
"When the razor wire appeared," Payne told the court as his client smiled approvingly, "the trespassing essentially stopped."
After the Hook began publishing stories in the summer of 2002, the newspaper's Mailbag column erupted.
"I find it hard to understand why she is so upset by the orderly hikers and happy dogs I have encountered in my own trespasses on the trail bit of her fiefdom," wrote Hamlin Caldwell in one letter.
Richard Sincere offered another view: "There's a word for using someone else's property without asking permission: It's called stealing."
As the letters debate raged, the courtroom battle began heating up.
Two summer 2003 citations, based on agricultural law, gave Presley six months to take down the razor wire. Later that year, the City concluded that prosecuting Presley under the existing City ordinance wouldn't work, so the City drafted a new law. But according to Judge Downer, the new language– banning razor wire to "enclose or partially enclose" an area– doomed the case.
Payne showed that the razor wire runs in a single straight stretch, about nine feet inside of Presley's property.
Assistant City Attorney Lisa Kelley, who helped draft the ordinance, says her office is disappointed. "It wouldn't have occurred to us to read it the way the judge did," Kelley said after the dismissal, "but that was his ruling."
Jim Tolbert, the head of the City's zoning department that had been pressing Presley to remove the razor wire, said he had no immediate plans in the wake of the decision.
With 13 witnesses called by the defense– including a City Councilor, the City Manager, and the heads of several City departments, some wags wondered how City Hall functioned that day. Payne, however, considered the case important enough to contribute his defense pro bono.
Payne also brought numerous theoretical arguments and Supreme Court citations to a courtroom more accustomed to adjudicating purse snatchings and DUIs. Indeed, the trial was interrupted twice for short hearings: one for a woman accused of passing a bad check and another for someone who allegedly drove a vehicle on a suspended license.
Mixing Constitutional savvy with scorched earth tactics, Payne opened by vowing to call a witness who would testify that among the trespassers spotted on Presley's property was Craig Nordensen, the notorious "coal tower killer" who pleaded guilty to murder charges for killing two people in August 2001.
Later, Payne spent nearly an hour chipping away at the testimony of City inspector Jerry Tomlin, who admitted that he might have stepped on Presley's property to document the razor wire. Payne wanted Tomlin's photographs tossed out as the product of an illegal search.
In the past, Tomlin has told the Hook that at least one dog and one person have been injured by Presley's ground-level barrier.
After the trial, such talk stirred Payne– but not to compassion.
"If you let your dog run," says Payne, "I don't have much sympathy."
How about the injured human? "I would very much like to know the name of that person," answers Payne, "because if the person was injured, we would charge them with trespass."
As for the City Manager, Gary O'Connell, who allegedly strolled past Presley's "no trespassing" signs to chat with her, Payne said after trial that were it not for the statue of limitations, he would try to get O'Connell arrested for trespass. "This," Payne told the court, "is a truly shameful episode in the history of City government."
At one point, Assistant Commonwealth's Attorney Ron Huber accused Payne of "playing to the audience."
Among that audience was Diana Foster. Three years ago, shortly after assuming the presidency of the Rivanna Trails Foundation, the group that manages the narrow portions of the Rivanna Trail (the City handles the asphalted stretches), Foster found herself deep in the crisis.
"I was the first person Mrs. Presley called," says Foster, who sees the detour around Presley's land as an "acceptable solution." Foster says that the Rivanna Trail depends on easements from about 50 property owners, and all such easements, Foster says, can be revoked with 60 days' notice. Although some easement-granting owners have demanded privacy fences and additional signage to keep trail-users off their property, none, Foster says, has revoked permission.
The day after the trial, Foster rose at 6:30am Saturday to join 15 hikers on the third annual 20-mile pilgrimage around the Rivanna Trail.
"The entire walk is really beautiful," says Foster. Even the quarter mile over asphalt that Presley's objection necessitated she calls "part of the urban wilderness experience."
Presley's neighbor Potter hopes that may change someday. "The trail is something that benefits the neighborhood and the community," says Potter, "and I hope she'll have a change of heart so everyone can enjoy it."
Lawyer Payne concedes that the City– when it decides to widen the trail as far north as Presley's house– can condemn and take her land. Indeed, long-range plans say that linking City parks with an accessible trail is one of its highest pedestrian priorities.
In the meantime, however, Payne warns, "They're only gonna push this lady so far." Is that a hint at litigation? "I'll leave it at that," answers Payne. "Mrs. Presley never asked for this controversy. All she ever wanted was to be left alone."
Presley's pack: Just nine of 13 people she subpoenaed. The group waiting to testify included a City Councilor, the City Manager, the City Planning Director, and the Police Chief.
PHOTO BY HAWES SPENCER