By Carla Branch and Taylor Allen
For years, the City of Alexandria and the Old Dominion Boat Club have been at odds over the Club's two parcels of land on the Potomac River. The tone of those negotiations changed in January, when the U. S. Court of Appeals upheld the Club's right to limit access to that property because of the Club's legal title to the land. As the City's waterfront planning process moves forward, continuous access to the waterfront remains a priority, making ODBC's property more important to the City.
Today, City Attorney Jim Banks spoke to the media about the state of the current negotiations. “We had intended, as did ODBC's leadership, to keep these discussions at this stage of negotiations between the City and ODBC, however one of ODBC's members learned of some of the details of these discussions and then contacted the press and relayed information that was not correct,” Banks said.
During the May City Council public hearing on the proposed waterfront Small Area Plan, Attorney Harry Hart, who represents ODBC, asked Council to defer action on the Small Area Plan until after June 15. He told Council that, by that time, he believed, negotiations between the City and ODBC would be concluded and all outstanding matters resolved. Council ultimately deferred action on the Waterfront Small Area Plan until the fall.
In June, Virtue Feed and Grain restaurant opened with outdoor seating in Wales Alley. ODBC filed a Motion to Show Cause in Alexandria Circuit Court to require the City to show why allowing such outdoor seating did not interfere with ODBC's access to their property. That motion was scheduled for a hearing on July 11, but was continued to allow ODBC and the City to continue their negotiations.
On July 1, 2011, Banks, as the City's representative in this matter, made a written proposal for the City to acquire:
(1) ODBC's claims to the ownership of an approximately 73 foot long portion of the long publicly owned and used Strand Street;
(2) The ODBC owned parking spaces along the Strand Street adjacent to Mai Thai restaurant and bike rental store; and
(3) The ODBC boat and trailer access easement in Wales Alley.
“The City's offer for the above property was $150,000 which we believe to be the fair market value. Most all of the value is in the parking spaces as the Strand Street is a publicly owned right-of-way and so is Wales Alley,” Banks said.
These are all properties that are subject to the frequent nuisance flooding, and the City has conducted an extensive flood mitigation study and preliminary plans have been developed to address this flooding by raising the elevation of most of the property listed above.
“The City's acquisition offer was not related to any other ODBC property, such as their parking lot or clubhouse,” Banks said. “ODBC did not accept the offer, but did agree to put on hold their Wales Alley lawsuit against the City and the Virtue Feed & Grain Restaurant. ODBC and the City have mutually agreed to continue negotiations with the City related to reconfiguring the ODBC parking lot with the goal of providing continuous public access along the waterfront from King Street southward. We have subsequently met with ODBC's negotiating team and had a productive session, and will continue to meet with ODBC's team throughout the summer to find a global, fair and equitable solution for all, which provides public waterfront access balanced with ODBC's needs,” Banks said.
Hart and the ODBC leadership would not comment. "I, the negotiating team, and members of the Board have refrained from comment in the press, and we shall continue to honor the understanding that the negotiations will stay confidential," Hart said.
In 1632, King Charles I granted a charter for Maryland to Cecilius Calvert, Lord Baltimore. That grant included the bed of the Potomac River, thus establishing the boundary line between Maryland and Virginia at the Virginia shore. See Morris v. United States, 174 U.S. 196, 223, 225 (1899). A century and a half later, in 1791, Maryland, having succeeded to title from Lord Baltimore following the Revolutionary War, ceded a portion of its territory, including a piece of the riverbed, to the United States for formation of a seat of government pursuant to Article I, Section 8, Clause 17 of the Constitution. Id. at 230. Although Virginia also ceded territory on its side of the river, including Alexandria, the 1791 high-water mark became the District's border and marked the edge of the federally owned riverbed when the United States retroceded Alexandria to Virginia in 1846. Act of July 9, 1846, § 1, 9 Stat. 35, 35-36. In 1945, Congress moved the boundary to the then-existing high-water mark but clarified that “[n]othing in this Act shall be construed as relinquishing any right, title, or interest of the United States to the lands lying between the mean high-water mark as it existed January 24, 1791, and the boundary line as [now established].” See Act of Oct. 31, 1945, Pub.L. No. 79-208, §§ 101, 103, 59 Stat. 552, 552.
Early in the twentieth century, Old Dominion, formed as a private social club in 1880, purchased two adjacent parcels on the Alexandria waterfront. Both parcels occupy reclaimed lands filled after 1791. Old Dominion operates a private clubhouse and marina on one of the parcels and a private parking lot on the other. Both are fenced.
In 1973, the United States commenced this action against thirty-four Alexandria riparian owners pursuant to two statutes that authorize the Attorney General to bring quiet title actions against parcels of dry or submerged land in the District of Columbia. Act of April 27, 1912, Pub.L. No. 62-138 § 1, 37 Stat. 93; Pub.L. No. 79-208 § 103. Claiming ownership of all filled and submerged lands on the District of Columbia side of the 1791 high-water mark, the government argued that those riparian owners, including Old Dominion and its predecessors in interest, had no right to fill the land at issue. Praying for neither trespass damages nor ejection, the government seeks only to establish public access to the Alexandria waterfront, or, at the very least, a public view of the waterfront. See Recording of Oral Arg. at 28:35-28:55 (describing that if “you're walking down” toward the water by Old Dominion's parcel “you can't see anything because on one side there's a privacy fence and on the other side there is a parking lot with a chain link fence”). Most of the thirty-four defendants settled, agreeing to some degree of public access. Old Dominion and three other defendants, owning a total of seven parcels, have continued to defend the lawsuit.
On Jan. 11, 2011, The U.S. Court of Appeals ruled in ODBC's favor. "The district court held that despite the United States' ownership of the riverbed, Old Dominion had not trespassed nor was it obligated to provide public access because, as a riparian owner abutting District of Columbia waters, it had the right to lay fill and build wharves. Since binding circuit precedent recognizes just such a right, we affirm," Judge Tatel wrote for the panel.