Is the City of Charlottesville wrong about the requirements for the Unite The Right rally?

Maybe. It has been repeated several times recently in news media reports, that Jason Kessler does not have to have a permit for his "demonstration", however, Standard Operating Procedures state the following:

"3.2 Permit Requirements

3.2.1. Demonstrations and Special Events may be held only pursuant to a permit issued by the Events Coordinator, with the following exception: demonstrations involving 50 or fewer persons, or which will not occur in any city rights-of-way, may take place without a permit if (i) otherwise conducted in accordance with the regulations set forth within Sections 3.5.5 through 3.5.14 herein; and (ii) the group will not unreasonably interfere with other demonstrations or special events scheduled or taking place concurrently.

3.2.2. Wherever these regulations specify that a particular use or activity may be conducted only pursuant to a permit, such permit shall be required in order for that use or activity to be lawful."

The above says both "Demonstrations" and "Special Events", not "Special Events" only. The only exceptions to the requirement for a permit are events with fewer than 50 people (which Kessler's gathering will have more than 50, so that's out), or in which it will not occur within a city right-of-way (which Kessler's won't), and as long as it is also done in accordance with all regulations contained within sections 3.5.5 through 3.5.14. The truth is folks, Jason Kessler's "demonstration" meets all of the requirements set forth in Sections 3.5.5 through 3.5.14.

The problem however, is that it is nearly impossible to believe that Mr. Kessler's insistence to hold this "huge" rally in Emancipation Park, in a space that measures approximately 260' by 200', would not neccessitate the closing of a street (it likely will.) This is where things get tricky, because Section 3.5.2. on street closings states, in part, the following:

"3.5.2. Street Closings

a. No City street may be closed for any demonstration or special event, unless done so pursuant to a permit issued by the City pursuant to sec. 28.5 of the City Code. "

Uh oh. Did that say a permit must be issued by the City? Here is what Section 28.5 of the City Code states, I've highlighted the pertinent parts:

"Sec. 28-5. - Temporary street closings generally.

(a) The city traffic engineer or city manager may permit the temporary use of any city right-of-way (including any street, on-street parking space(s), or sidewalk) for other than public purposes, and may close the rights-of-way to public use and travel during such temporary use, for a specified period of time, when he determines that such temporary closing will not be unduly injurious to the safety and convenience of the general public, that such closing is necessary because the event will impede traffic and/or pedestrian travel, and that, where any rights-of-way to be closed are extensions of the state primary highway system, adequate provision can be made to detour through traffic. Such temporary use shall be authorized by a written permit conditioned upon the temporary user's compliance with the following conditions:

(1) No matter advertising any thing or business shall be displayed in or on the public rights-of-way in connection with such temporary use; and

(2) The person so permitted to use the public rights-of-way shall furnish a public liability and property damage insurance contract insuring the liability of such person, firm, association, organization or corporation for personal injury or death, and for damages to property, resulting from such temporary use, in such amounts as shall be determined by the city manager. The city shall be named as an additional insured in the insurance contract.

(3) The person so permitted to use the public rights-of-way shall be liable for damages to persons or property arising out of or on account of such use.

(4) All objects and structures that will be located within a public right-of-way during an approved period of temporary use (including, without limitation, any equipment, vehicles, scaffolding, trailers, containers, etc.) must be specifically listed within the permit issued by the city traffic engineer or city manager.

(5) Temporary use of public rights-of-way for other than public purposes shall be limited to a period of forty-eight (48) hours; however, where an application seeks such temporary use in connection with construction activities on property adjacent to the right-of-way, the city traffic engineer may authorize the temporary use of a public right-of-way under this section for a longer period of time, subject to the provisions of paragraph (d) of this section, below.

(6) Compliance with any applicable permit requirement imposed by City Code section 5-57(b).

(7) Such other reasonable conditions as are deemed necessary by the city traffic engineer or city manager to protect the public welfare, safety or convenience, as set forth in writing within an approved permit.

Should a permittee fail, at any time, to comply with any conditions set forth within this section, or any applicable city regulations, then the permit-issuing authority may revoke the permit.

(b) Application for a permit required pursuant to this section shall be made in writing to the city traffic engineer. Upon approval of any such permit, the following fees shall be charged for each day such permit is in effect:

(1) Five dollars ($5.00) per on-street parking space utilized; and

(2) Five dollars ($5.00) per sidewalk utilized; and

(3) Five dollars ($5.00) per city right-of-way utilized, and

(4) Any fee required for the issuance of a permit under the building code to authorize the erection of any temporary structure(s).

(c) The city manager and the city traffic engineer, with the approval of the city manager, are authorized to promulgate regulations, including the establishment of reasonable fees, charges, and insurance coverages, as well as reasonable time, place and manner restrictions for and in connection with the temporary use of public rights-of-way as authorized by this section.

(d) A decision of the city traffic engineer made pursuant to this section, authorizing the temporary closing of a public right-of-way for a period of longer than thirty (30) days, may be appealed by a city resident, or the owner of a business located within the city, pursuant to the procedure specified within section 15-4(e)(2).
(Code 1976, § 25-4; 11-16-98(3); 11-15-04(2), § 4)

State Law reference— Authority to permit temporary use of streets for nonpublic purposes, Code of Virginia, § 15.1-14(9)."

Based on this report, Jason could have a problem. Does anyone really believe that Jefferson, Market, 1st, and 2nd Streets will not be closed due to Mr. Kessler's "huge" rally? I hope he has insurance...

Restoring the honor!


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