Don't tread on me: Razor wire festively beribboned in pink, green, and blue continues to guard a tiny former stretch of the Rivanna Trail below Shirley Presley's Bland Circle bungalow.
PHOTO BY HAWES SPENCER

When the Hook last reported on Presley in October 2005, her federal lawsuit had been dismissed in U.S. Western District Court in Charlottesville. Presley and her attorney, Debbie Wyatt, appealed, and the Fourth Circuit Court of Appeals upheld her right to sue Charlottesville and the Rivanna Trails Foundation for violating her rights by effectively seizing part of her property for the trail. The suit will be heard in federal court here January 15, 2008.

Presley has successfully stymied the city's efforts to force her to remove the wire. In 2004, Judge Robert H. Downer ruled that City Code as written-- forbidding razor wire that "encloses" or "partially encloses" property-- doesn't apply, even though the sharp coils stretch on two sides of her property, from her embankment to the Rivanna River bluff.

Although Presley has thus far preserved her right to string a potentially lethal barrier across her property, some citizens are concerned that a wall of concertina wire that stretches from ground level to 45 inches high still poses a hazard to those who can't read the large signs warning of its presence, such as small children and animals.

"The issue to me is harming innocents," says Elizabeth Petofi. "A bird, a hawk, or a squirrel can run across it, and its feet are cut off before it knows it."

In 2004, the Hook reported that at least one person and one dog had been injured by Presley's unusual measure.

The case, according to Wyatt, isn't about Presley's right to string razor wire. "I'm defending her right to be left alone on her property," Wyatt says.

Petofi notes that she was friends in college with a man who had been blinded by a bootlegger's explosive boobytrap. Such measures are illegal in many jurisdictions and have resulted in civil judgments-- even from victims who were trespassing.

"I respected [Presley's] wanting to keep people off her land," says Petofi, herself a landowner who has been troubled by trespassers. Nonethess, she notes, "A landowner has a certain responsibility if someone gets hurt."

City attorney Craig Brown says there have been recent discussions about settling the case before it heads back to court. "Until it's resolved," he says, "I'd better refrain from talking about razor wire."

"It will not be resolved with a trail across her property," predicts Wyatt. "It is not her desire or mine to need razor wire."

That would suit Petofi, who believes Presley is carrying the Fourth Amendment-- the one giving the right be secure in one's home-- too far.

"We certainly have lost all common sense when razor wire is out there," she says. "[Animals] can't exactly call 911 and say, 'I just got my legs amputated.'"

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On Thursday, November 29, Blair Austin, who accuses an officer of pushing her down, will stand trial on public drunkenness and obstruction charges stemming from the incident at this downtown crosswalk.
FILE PHOTO BY COURTENEY STUART

According to Police Department records from that night, a call went out from the central dispatcher's office at 12:41am regarding a possible "domestic in progress" at 322 E. Main Street, the building that houses Timberlake's Drug Store and a few apartments.

"We look at that as two people in an intimate relationship," says Charlottesville Police spokesperson Lt. David Shifflett. "The dispute could be anything."

The dispatcher's report doesn't specify whether it was a simple argument or full-blown fisticuffs (or a false alarm, as the building owner suspects), but according to police officials, Flaherty was rushing to respond to that call when his marked police SUV came down Second Street SE past the X Lounge. At the foot of the hill, he encountered Silva and Austin crossing the street as he attempted to make the turn onto Water.

"He was going so fast it didn't look like he was going to stop," says passerby Treva Smith, who saw the incident from across Second Street. "If he'd gotten there a second sooner, he would have hit them. So [Silva] was trying to cross the street and put a hand out like, 'Can you give us a chance to cross?'"

While that account matches three others quoted in the original Hook story about the incident ["Show of force: Couple arrested, allege police brutality," October 11, 2007], Edwin Banks reports a slightly different version of the events from his vantage point working in the booth at the Water Street parking lot.

"They walked into the street in front of the officer," says Banks. "They were intoxicated. I see a lot of that down here."

Smith, who says she had a drink herself two hours earlier, argues that she knows intoxicated people when she sees them, and neither Silva nor Austin fit that description.

"They weren't drunk or anything," she says. "Maybe they had some kind of alcohol with dinner, but they weren't stumbling or making noise."

As Flaherty was bearing down to make the turn onto Water, and Silva and Austin were scrambling out of the crosswalk to avoid him, Silva spoke the words he now regrets.

"He yelled, 'Slow your a**!'" says Smith. "The cop immediately stopped and got out. I guess he had the adrenaline of going to this other scene and got upset."

What happened next has become the subject of much public debate. As Flaherty got out of the car and began to handcuff Silva, Austin shouted, "Why are you arresting him?" At that point, Flaherty allegedly got physical.

"He pushed her hard," says Smith. "It's like when you're a kid, and you're mad at someone, and you push them with all your might. He didn't say, 'Stay back,' or anything like that. It was out of the blue."

According to Austin, the police plan to claim that she tripped, an allegation she vehemently denies. However she hit the Water Street asphalt, her predicament didn't stop Flaherty from arresting her in addition to Silva, both on charges of drunk in public and Austin on an additional charge: obstruction. 

Besides the alleged use of force on a woman, something else doesn't sit right with Smith about Officer Flaherty.

"If he had to go to an emergency," she wonders, "why did he have time to arrest two people crossing the street?"

According to police officials, Flaherty had been called off the 12:41am domestic call by the time he encountered Silva and Austin. But according to the list of police dispatches from that night, Flaherty called in his suspicion of Silva at 12:42am. How could he be speeding to the scene of a potentially serious domestic dispute one minute and stopping to arrest a couple on a misdemeanor drunk in public charge the next?

"That whole incident is currently under investigation," says Shifflett, "and I'm not at liberty to discuss it, as is normal when something is being investigated by the department internally."

One man who may be able to clarify the night's events is Gordon Butler, a cab driver who saw the incident and has been issued a subpoena by the prosecution. So key is Butler to the prosecution's case that even after lawyers and five witnesses assembled in Charlottesville General District Court for the trial on November 13, prosecutors were successful in getting the trial delayed because Butler was busy with a scheduled medical consultation.

"I got a call the day before the trial, and I said I couldn't come because I'm trying to get this kidney transplant," Butler explains.

Butler refuses to divulge his account of the incident with the Hook before he testifies; however, with only days remaining until the new trial, Butler says he still doesn't have his marching orders.

"They haven't called me, and I haven't gotten a subpoena," he said November 21, eight days after the trial date. "I went down to the police station," he explains. "I told them what I'd seen, and they said they would get back with me."

The prosecutor in the case, Charlottesville Assistant Commonwealth's Attorney Katherine Peters, has not returned the Hook's repeated calls for comment about whether Butler has since been served with his subpoena and why it's taken this long to serve him. To veteran defense attorney Debbie Wyatt, this kind of lag seems unusual.

"It certainly raises an eyebrow," says Wyatt, who has no stake in the case. "It's not common that you can't run down a witness. In this day and age, I can find anybody, and I think the police have more resources than I do."

The trial comes at a particularly momentous time for both Silva and Austin. Silva is a veteran of the wars in both Iraq and Afghanistan and is slated to return to Afghanistan in December as a private contractor. And the couple discovered recently that Austin isn't the only loved one he'll be leaving behind.

"I have just found out I was pregnant at the time of the incident," says Austin.

Despite injuries which Austin says resembled the stiffness resulting from a car accident, she says her unborn baby is fine, but she adds, "It's scary to think it could have been worse."

Silva and Austin stand trial Thursday, November 29 at 9am in Charlottesville General District Court.

[The original print version of this story stated the wrong month that Silva is going to Afghanistan. It has been corrected in this online edition.]

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Richard Selden granted the first conservation easement in the county and the state. Today he says he feels duped.
PHOTO BY WILL WALKER

The planned structure-- a whopping 19,500-square-footer-- got hit with a stop-work order September 18 because of fears that clearing for its construction would violate Albemarle County's oldest conservation easement.

However, the building permit has been reissued and construction continues. And that has the original conservation easement grantor, Richard Selden, scratching his head. 

"I think I was a fool," says Selden, who developed the Turner Mountain Woods subdivision in the early '80s and carved 11 parcels out of the original 103 acres.

According to Selden, county planning department staff persuaded him to put the 47-acre parcel in a conservation easement, and he did so in 1992 partly paying homage to his first wife, "ardent conservationist" Martha Selden.

"With hindsight, I've concluded that our objectives were doomed to fail and that my children and I were foolish to walk away from the wealth we could have reaped by creating extra lots on the 47-acre tract," Selden told the Albemarle Board of Supervisors November 7.

As far as the county is concerned, however, the massive house planned by John and Amy Harris will not exceed restrictions imposed by the easement, which allows one house and a maximum clearing of two acres of the forested tract. But what about the existing 4,200-square-foot dwelling?

Albemarle spokeswoman Lee Catlin says that the county attorney has already determined that if the 4,2oo-square-foot building is converted into an outbuilding, the new mansion can be built despite the easement.

Specifically, the county has determined that removing the stove in the existing house-- a brick neo-Georgian with bevelled granite kitchen counters, hand-wrought stair rail, and oversized bathrooms-- renders it an outbuilding.

"The county verified with a certified plat that the acreage to be cleared is within the two acres permitted," says Catlin. "That resolved that issue."

But it's the part about the stove that really raised some eyebrows.

"There's been some angst about that," Catlin concedes, "but that is the legal definition we have to work within."

 "I'm flummoxed by this well-held concept that a house is not a house if it doesn't have a stove," says Supervisor Sally Thomas, who represents the Samuel Miller District, which includes Ivy. She says she's spoken with attorneys from "California to New Jersey," and confirmed that, throughout the country, "without a stove, you don't have a legal house."

Incidentally, the 19,500-square-foot main structure may turn out to be the third largest house in the county, following Patricia Kluge's Albemarle House, with a total of 23,020 square feet (including a 5,100-square-foot basement), and Mark Fried's 22,594-square-foot chateau in White Hall.

Although the Harrises are good to go as far as Albemarle County is concerned, there's one more entity with a say in their project: the Public Recreational Facility Authority, which holds the conservation easement with the county.

"As a joint holder of the easement, they can take their own look to see if it meets the conditions of the easement," says Catlin.

"We haven't seen an outbuilding that size on an easement," say Authority chair Sherry Buttrick. "There was no consultation with us."

Buttrick says the Authority meets December 6 to decide whether it agrees with the county's legal opinion. And if the Authority decides it disagrees, it can either decide to do nothing-- or hire an attorney.

"The Public Recreational Facility should have been brought in a lot earlier because they're co-easement holders," says Thomas. Another thing Thomas says she will do differently in the future is to keep a closer eye on conservation easement properties. "We're so proud of all the easements we have in the county," she says, "but we haven't made it a staff obligation to check on them."

Selden calls the county "seriously negligent" in its management of easements. "If  you're going to have conservation easements, by God you have to have the responsibility to enforce them."

He believes the Harrises' deep pockets-- John Harris is the former CFO of an A-list private equity firm, the Carlyle Group-- have cowed the county with threats of a lawsuit.

"I can imagine the county people are scared stiff," says Selden. "They don't have the guts to stand up and do the moral thing."

 "I don't believe anyone is making decisions based on that," counters Supervisor Thomas. "People are aware there might be a lawsuit, so they're making sure, as trite as it sounds, to dot i's and cross t's."

Thomas has met with the Harrises and says there's another option: "They've said they'd hate to tear down the old house," says Thomas, alluding to another way a wealthy couple could work around the easement. The Harrises did not return a phone call from the Hook.

Hank Martin believes Albemarle has gone too far in eroding property rights. "It sounds like Amy and John Harris did everything above board," he says, including obtaining verbal assurances from the county that they could build before buying the property. "After they made a $2.1 million purchase and are issued a building permit, you can't stop it because a bureaucrat doesn't know the rules." 

Several Turner Mountain residents said they are resigned that the property could contain two houses, despite the easement.

"The neighbors are upset because we moved in here with the feeling this was a preservation tract," says one resident. "I'm very disappointed with the county."

"I'm worried about it as a precedent," says another neighbor, "not just for Turner Mountain, but for everyone." This neighbor is sympathetic to the plight of the Harris family. "These are not terrible people," she says. "They were assured it was all right by their lawyer."

Selden is less sympathetic.

"Lawyers are very clever at figuring out loopholes," he says. "The Harrises, I don't think, are blameless. The Harrises are smart people. I don't think they should be in the dark as to what my intentions are. I don't feel very kindly toward them to run roughshod over my wishes."

When the conservation easement was granted-- "the first in the whole state--" says Selden, "I felt proud of that. Now I feel sorry for the people I sold to who thought they were going to be protected."

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