East Lexington's Dam

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Should the East Lexington low-head dam be removed within 5 years?

Yes
27
68%
No
13
33%
 
Total votes: 40

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Coondog
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Re: After the Dam

Postby Coondog » 2008 Jul 24 17:36

Well, I hope they anchor those new bouys better than they did the last ones, which at last viewing, were still piled in the tree line along the North side of the Maury below Buena Vista about a half mile down River Road. They were replaced, but never retrieved. I wonder why?

Naturally, a flood severe enough to wash the bouys down stream would create a hazardous situation - lack of adequate warning - for potential swimmers and boaters in the vicinity of the dam. This consideration may lead one to the conclusion that the only way to render the river 'safe' is to remove the dam, thus eliminating the need for bouys entirely.

One may even conclude, from this observation, that I favor removing the dam. Well.........no! Knee jerk reactions to events usually result in implimentation of excessive restrictions and expenditure of excessive amounts of money. This seems to be the way things are going with this situation. Yet, retribution against an inanimate object can certainly only afford a small measure of satisfaction. Of course, when extraordinary law suits are involved, everything becomes magnified.

As this debate continues, the old Maury River keeps roll roll rolling along, over the dam which, in spite of it's reported deteriorating condition, refuses to just go away on it's own. Environmentally, I don't know that the still water above the dam has any detrimental affect. Personally, I like it! Were it not there, the rope swing experience would be greatly diminished. Nor am I technologically smart enough to address the effects of water falling over the dam - although, I suspect that it depends, as do many other factors, on how much water is involved at any given time.

But, I do read the local parakeet cage liner once a week, and some related factors stand out. The City has spent some $24,000 for 'expert' analysis of the situation. Not surprisingly, the sturcture of the dam is deemed 'unsafe'. (The same can be said of most bridges) In another item, we find that a 1 cent increase in the real estate taxes yields about $56,000. in this regard, we can attribute at least 1/2 cent of the rise in real estate taxes to this project. The remedy is likely to represent another 5 cent increase. By the same standard, 9 million dollars would require an increase in the rate of about $1.87 (roughly a 300 percent increase). Feel free to check my figures.....I'm no math genious, either. Considering the myrad potential safety risks that exist throughout the area, this seems a bit extreme to me.

I suppose my point is, were we to apply the same standard of remediation for the same reason to Interstate #81, we would either install speed bumps or barricade it off and allow no one to drive on it at all. (maybe not bad ideas, but hardly practicable or economically feasible).

Coondog :cool:

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Wise One
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Re: After the Dam

Postby Wise One » 2008 Jul 25 13:15

Good points ... tie me warning buoys down, mate.
coondog wrote:... Knee jerk reactions to events usually result in implimentation of excessive restrictions and expenditure of excessive amounts of money.
Getting a grip on my twitchy knee, I'll just note that the experts seem to agree that dam removal is the least costly active option. The "do nothing" option exposes the City to continuing potential liability, ongoing environmental impacts, and incremental hazard to the public above that posed by a natural river.
coondog wrote:...I don't know that the still water above the dam has any detrimental affect.
Inhibited mobility for healthy reproduction for fish and other populations; altered water temperature; reduced oxygenation; potential spill hazard from silt & trapped pollutants if the dam should fail.
coondog wrote:Personally, I like it! Were it not there, the rope swing experience would be greatly diminished.
I know what you mean, and have the same feeling, but there is no shortage of flat water in these parts. I vote to move that rope, a small price to pay to get back our free-flowing natural river.
coondog wrote:... the same standard of remediation for the same reason to Interstate #81
Tempting. I mostly lean toward restoring those parts of Nature we've screwed up, and would put the dam in this category.

:rolleyes: Where the hell did I leave my water wings? :rolleyes:
"If your only tool is a hammer, every problem looks like Donald Trump."

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Coondog
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Re: After the Dam

Postby Coondog » 2008 Jul 25 16:08

Wise One wrote:Getting a grip on my twitchy knee, I'll just note that the experts seem to agree that dam removal is the least costly active option. The "do nothing" option exposes the City to continuing potential liability, ongoing environmental impacts, and incremental hazard to the public above that posed by a natural river.

Uh Huh!

Well, it looks like City is doing all it needs to do to contend with the liability issue.

As noted, there are other still water areas -The dam in BV, from Beans Bottom to the Water Treatment Plant and a number of places upriver which appear to be of natural occurance. I don't see why the 'environmental' issue is much of a concern.
From your prior statements, you would prefer eliminating all man made impediments to the natural flow.

Let us recall that when the last big one came down the pike, Jordan Point was completely under water. Completely! In fact, I can remember the water level just short of the bottom of the old Rt. #11 bridge. Whole lot of brown stuff passing through! Worrying over the impact from the normal still water levels seems a bit trivial....assuming the dam would fail......and with water that high, (incremental) it would probably be some time before anyone realized it was gone. Problem solved! Naturally!

Times are tough. I still favor the least expensive method. Relax! Take a swim. Do nothing!

Coondog :cool:

"Sometimes, nothin' can be a real Cool Hand!"

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Wise One
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Re: After the Dam

Postby Wise One » 2008 Jul 25 17:48

coondog wrote:Well, it looks like City is doing all it needs to do to contend with the liability issue.
Maybe, but it's entertaining to perform your calculation on the $3.3 million sought by Chuck (about 59 cents on property tax rate) plus all the attorney and city staff time, I'm guessing about $300,000 (5 cents). I don't know the technicalities, but maybe some of this is covered by insurance and/or can be amortized over several years. In any event, it seems smart to avoid this kind of exposure in the future.
coondog wrote: ... other still water areas -The dam in BV, from Beans Bottom to the Water Treatment Plant and a number of places upriver which appear to be of natural occurrence.
What counts environmentally is the volume of water held dead still ... dams generally hold vastly larger volumes than natural features -- by design. And natural pools have larger current velocities (less sedimentation) than dammed pools.
coondog wrote:From your prior statements, you would prefer eliminating all man made impediments to the natural flow.
Yup, that's my bias.
coondog wrote:... Jordan Point was completely under water... Whole lot of brown stuff passing through!
Yes, there is spillage of silt during such flood events but most is still retained in the large area above the dam. A dam breach/collapse during a flood event would dump orders of magnitude larger quantities all at once and would probably kill the river for several years. There's 110 years of accumulated silt waiting to blow. A managed dam removal would enable controlled release.

:wink: This water ain't brown ... you expect me to drink stuff I can't even see? :wink:
"If your only tool is a hammer, every problem looks like Donald Trump."

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Neck-aint-red
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Re: After the Dam

Postby Neck-aint-red » 2009 Jul 01 14:26

I noticed that Chuck Volpe has amended his lawsuit to seek $9 million now. This will be a fascinating one to watch.

And today, there appeared yet another story about another "killer dam." A woman trapped it the below-dam hydraulic was kept afloat with life vests etc. long enough to be rescued from an aerial crane, but it was a very close call. I wouldn't want count on this kind of rescue!

Her husband died.

:sail:

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nudgewink
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Re: After the Dam

Postby nudgewink » 2009 Jul 09 12:18

ROBERTA ANDERSON on the July 8, 2009 News-Gazette wrote:Volpe Trial Under Way

Victim’s Family Suing Lexington Over 2006 Death

A jury of seven women and one man began hearing testimony on Monday in the lawsuit brought against the city of Lexington concerning the drowning death of 16-year old Charles Oliver Volpe that occurred in 2006.

Volpe’s father, S. Charles Volpe, his mother, Kimberly Volpe, and brother, Derrick Volpe, are suing the city for $9 million, claiming gross negligence and willful and wanton misconduct on the part of the city. The case is being heard in Rockbridge County Circuit Court before Judge Michael Irvine.

Volpe was swept over the dam at Jordans Point Park while swimming in the Maury River on a Sunday afternoon in April after entering the water downstream from the old boat ramp. The city was later determined to be the owner of the dam.

Volpe got caught in the strong current as he swam close to the dam and was swept over the structure. He was unable to escape the deadly revolving hydraulic forces on the downriver side of the dam and subsequently drowned. His body was recovered from the water at the base of the dam approximately 24 hours later.

Jury selection took nearly four hours Monday morning with several potential jurors eliminating themselves after expressing strong opinions concerning the case. A teacher at Rockbridge County High School where Volpe was a student was also expunged as was the spouse of a city employee.

In his opening statement, Mark Obenshain, attorney for the plaintiffs, called Charles Volpe “The center of his family’s life.” His death has left his father “depressed, withdrawn and paralyzed with pain,” the attorney continued.

Obenshain recounted the events of April 24, 2006 for the jury. Charles Volpe spent the day with his friend, Bryc Talley, also 16 at the time. The pair went to the Lexington skate park, back to Talley’s house for lunch, to Brewbaker Field to see Volpe’s girlfriend and then to Jordans Point to go swimming. Showing the jurors a diagram of the park including the entrance road, parking area and boat ramp; “Everything (about the park layout) directs you down to the river,” Obenshain declared. He pointed out the distance from the boat ramp to the dam is 85 feet.

Obenshain then referred to the practice of swimming out to the dam, standing on the structure and jumping off into the water on the downriver side. “Kids have done that for generations,” the attorney said.

On that Sunday afternoon, Obenshain said Volpe and his companion were lulled into an illusion of safety by the “deceptive calm of the millpond” water, the lack of any warning signs posted about the dam and by the sight of a friend who had recently been in the water. They both dove into the water and swam towards the dam. When Volpe got within two feet of the structure, Obenshain said he was swept over the dam. Talley was carried over the dam as well but was able to swim to safety.

Obenshain also recalled the planning of the Jordans Point Park that began in 1997. He referred to several occasions when concerns about the dam and safety issues, particularly relating to the proximity of the boat launch, were discussed. “The city has done nothing to prevent people from being lulled into a false sense of security,” Obenshain said about use of the river. He also claimed the city applied for state funding on two occasions to move the canoe ramp but never used the funding as it was intended.

Defense attorney John Zunka representing the city of Lexington was far briefer in his opening remarks.

“This is really about adventuresome risk taking of teenagers and the tragic outcomes,” Zunka, responded.

“This is a court of law, not a court of sympathy,” he added. Volpe assumed a risk but “made a tragic mistake in judgment. Under the law of the state of Virginia you cannot blame that on the city of Lexington.”

Zunka told the jurors his role as attorney for the defendants was not to garner sympathy from the jury but to facilitate information. He reminded them the Maury River is a public river. Furthermore, dam jumping was a practice not known to city officials and “probably not widely discussed,” Zunka said.

Volpe and Talley went to Jordans Point Park specifically to dam jump that day, Zunka the defense attorney stated. The pair had jumped off the dam on at least two occasions before, making about 10 jumps each time.

Zunka also asked the jurors to consider river conditions on that day and the fact that rivers by nature are not static. Water levels go up and down; currents change; sometimes there is debris, Zunka said. “The river speaks for itself.” He reminded jurors that there had been rain prior to the day of the drowning and the river was up over the lower step of the boat dock. Using the map of the park, Zunka pointed out that Volpe and Talley did not take the precaution to walk the fewer than 50 steps required to check the amount of water coming over the dam before making the decision to dive into the river.

The plaintiffs began calling their witnesses to testify Monday afternoon. The trial is expected to last all week.

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Wise One
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Is this the end of the Volpe case?

Postby Wise One » 2009 Jul 16 12:07

ROBERTA ANDERSON July 15, 2009 News-Gazette wrote:Court Sides With City In Volpe Case

Jury Was Deadlocked After Deliberating Six Hours

After a seven-person jury failed to reach a unanimous verdict, the court ruled last Friday afternoon in favor of the city of Lexington in the $9 million lawsuit brought against the city by the family of Charles O. Volpe.

Volpe drowned in April 2006 after being swept over the low-head dam on the Maury River. Volpe had entered the water from Jordans Point Park, a city-owned facility. Although the Maury is a public river; the dam, once essential to the thriving commercial center at Jordans Point that was serviced first by canals and then by railroad transportation, is owned by the city of Lexington.

The trial, based on the lawsuit claiming gross negligence and willful and wanton misconduct on the part of the city, took five days to complete last week in Rockbridge County Circuit Court. The Volpe family was seeking compensation for damages including sorrow and mental anguish caused by the drowning death.

In making his decision, Judge Michael Irvine said that the danger of drowning in a natural body of water is an open and obvious one as determined by the case, Washabaugh v. Northern Virginia Construction Company, heard before the Virginia Supreme Court in 1948.

The judge said dangers exist every time a fisherman, including himself, stops along the road in Goshen Pass and pulls on his waders, grabs his fishing pole and enters the river.

Irvine said that the case had been “well tried” and that he was not surprised that a unanimous vote could not be reached for the plaintiff in the case.

The jury of six women and one man deliberated for nearly six hours before sending a note to the judge notifying the court that they were “we are deadlocked; we are unable to agree; we are sorry.” They had heard more than three and one half days of testimony during which the plaintiffs attempted to demonstrate that the city was aware of the dangers posed by the presence of the dam at Jordans Point Park and chose to ignore that danger. The defense attempted to convince the court that the conditions in the river were unfavorable that day for swimming out to the dam and that Volpe had the necessary personal experience to decide not to make that choice. Furthermore, at the time of the accident, city officials testified that city limits were thought to extend only to the banks of the Maury River. It was only after the accident that it was discovered that the dam had been conveyed to the city along with the Jordans Point Island from Virginia Military Institute in the 1940’s.

In making his decision, Irvine said he was saddened and touched by the case. However, he said the evidence had shown that the water was up in the river on the day of the tragedy, and that Volpe was aware the dam was there. He said that although people may believe they can handle a risk when they undertake an activity, it doesn’t mean they are unaware of the risk.

An indication as to how Irvine was thinking came midway through the trial after Mark Obenshain, attorney for the family of Charles Volpe, had presented his case. At that point when the jury was out of the courtroom, the judge interjected that it was clear that the case did not involve a situation analogous to a boater on the river suddenly faced with going over a dam without warning that the dam was there. “He was killed because of the water,” Irvine said.

“This is not a conclusion I’ve come to hastily, but I’ve got to follow the law,” Irvine said.

Obenshain prevailed on the judge to allow the trial to continue and for the Volpes to have their day in court.

In a lengthy, opening statement to the jurors, Obenshain called Charles Volpe “The center of his family’s life.”

Obenshain recounted the events of April 24, 2006, the day of the drowning and a day he referred to as being “a wonderful spring day.” Charles Volpe spent the day with his friend, Bryc Talley, also 16 at the time. The pair went to the Lexington skate park, back to Talley’s house for lunch, to Brewbaker Field to see Volpe’s girlfriend and then to Jordans Point to go swimming.

Showing the jurors a diagram of the park including the entrance road, parking area and boat ramp; “Everything (about the park layout) directs you down to the river,” Obenshain declared. He pointed out the distance from the boat ramp to the dam is 85 feet.

Obenshain then referred to the practice of swimming out to the dam, standing on the structure and jumping off into the water on the downriver side. “Kids have done that for generations,” the attorney alleged.

On that Sunday afternoon, Obenshain said Volpe and his companion were lulled into an illusion of safety by the “deceptive calm of the millpond” water, the lack of any warning signs posted about the dam and by the sight of a friend who had recently been in the water. They both jumped into the water and swam towards the dam.

When Volpe got within two feet of the structure, Obenshain said he was swept over the dam. Talley was carried over the dam as well but was able to swim to safety.

Obenshain also recalled the planning of the Jordans Point Park that began in 1997. He referred to several occasions when concerns about the dam and safety issues, particularly relating to the proximity of the boat launch, were discussed. “The city has done nothing to prevent people from being lulled into a false sense of security,” Obenshain declared about use of the river. He also claimed the city applied for state funding on two occasions to move the canoe ramp but never used the funding as it was intended.

Defense attorney John Zunka representing the city of Lexington was far briefer in his opening remarks.

“This is really about adventuresome risk taking of teenagers and the tragic outcomes,” Zunka, responded. Furthermore, he added the case is not about a canoe dock or canoeing, “it’s about swimming.”

“This is a court of law, not a court of sympathy,” he added. Volpe assumed a risk but “made a tragic mistake in judgment. Under the law of the state of Virginia you cannot blame that on the city of Lexington.”

Zunka told the jurors his role as attorney for the defendants was not to garner sympathy from the jury but to facilitate information. He reminded them the Maury River is a public river, and that Talley and Volpe went to Jordans Point that day specifically to jump off the dam. The pair had jumped off the dam on at least two occasions before, making about 10 jumps each time, Zunka said.

Furthermore, dam jumping was a practice not known to city officials and “probably not widely discussed,” Zunka said. He later said in his closing remarks about dam jumping that “If you [the city] don’t know about something, you can’t plan for it.”

Zunka also asked the jurors to consider river conditions on that day, and the fact that rivers by nature are not static. Water levels go up and down; currents change; sometimes there is debris and sometimes the water is muddy or murky. “The river speaks for itself,” Zunka said. He reminded jurors that there had been several days of rain prior to the day of the drowning, and that the river, according to some witnesses, was up over the lower step of the boat dock. Using the map of the park, Zunka pointed out that Volpe and Talley did not take the precaution to walk the fewer than 50 steps required to check the amount of water coming over the dam before making the decision to dive into the river.

Throughout the three and one-half days of testimony, pictures taken both above the dam and below the dam one day after the drowning were used by both sides to convince the jury that the water conditions appeared to be either safe or unsafe. The pictures showed the swimming area created by the water upriver from the dam. Pictures below the dam showed rescue boats anchored to cables strung across the river to stabilize boats in the waters cascading heavily over the dam. Attorneys for both sides used the observations of contemporaries of Volpe who were at the river that day to attempt to show that Volpe either did or didn’t demonstrate a lapse in judgment when he decided to go swimming. Talley said the river that day appeared to look “smooth, like any other day.”

Mez Welch, who later dove into the water below the dam to look for Volpe said, “I could tell there was a lot of water pouring over the top of the dam. The dam is obviously dangerous so I decided not to go out there [that day].”

Employing far more technical jargon, both sides utilized the expert witnesses to make the same point. An expert witness with a practical observation was Sgt. Scott Bedell, a certified rescue diver with the Rockbridge County Sheriff’s Office. Testifying for the defense, Bedell said he told Sheriff Robert Day that diving conditions beneath the dam were unsafe for underwater rescue operations on the day of the accident.

Bryc Talley was the first person to take the stand on behalf of the plaintiffs. He confirmed that it was his and Volpe’s intention to swim out to the dam that day to jump off. “We saw people do it all the time,” Talley said and added that dam jumpers did not appear to try and conceal their activity from authorities although he could not confirm that Lexington police had witnessed any young people jumping from the dam.

Talley described climbing up on the dam as being similar to getting out on the side of a swimming pool. There was a place, he said, approximately 20 feet wide, in the middle of the dam from where people would jump into a pool of water about five foot deep on the down river side.

Talley said he first jumped off the grassy bank east of the boat dock and swam directly back to the dock. He and Volpe then jumped off the bank from approximately the same spot and swam diagonally directly across to the dam. It wasn’t until he got right up to the dam that he noticed a significant change in the current, Talley said. Volpe, who was in front of him, was swept over the dam first.

Talley said he was unable to turn back to avoid being swept over as well.

During his questioning of city officials, Obenshain used the Jordans Point Master Plan, the work of an ad hoc citizens’ committee formed in 1998, to allegedly prove the city’s gross negligence. Director of Planning and Development Bill Blatter told Obenshain that the Jordans Point Park committee had “acknowledged and was aware that there are risks involved (with using the river),” but felt that “we should not deny people access to the river.”

Blatter went on to observe that different people have different skill levels for various river activities. “The important thing is to know your own level of skill,” Blatter said. “I am a recreational kayaker, and I am not going to go to Goshen Pass and play with those guys. I would last 30 seconds.”

Obenshain then questioned Blatter about recommendations made by a local canoeist, Andy Wolfe, to move the boat ramp at Jordans Point to a location farther west on the island. Blatter indicated that he believed Wolfe’s recommendation had more to do with the depth of the water at the boat ramp than to the proximity of the dam. He added the ramp had been used successfully without incident for more than 20 years for the Lexington Road and River Relay.

Why, Obenshain asked, didn’t the city use some of the $187,000 received in state funding to move the launch? Or to put up a sign warning about the dam? Blatter said the city was hoping to obtain funding elsewhere to eventually move the boat launch.

The plaintiff’s attorney made an issue of the number of other signs in the park warning against parking, or hitting golf balls or climbing on trees further up river. Blatter responded that the trees specifically had been posted because of concerns about people being hurt after falling from the trees on to the ground, and not, as Obenshain implied, to force people into the water closer to the dam.

“You put a sign up on a tree, but not on the dam?” Obenshain asked City Manager Jon Ellestad.

“To the best of my knowledge, no one had been swept over the dam, carried over the dam or jumped over the dam,” Ellestad replied.

Both Volpe’s parents, Chuck Volpe and Kimberly Volpe, also testified in their suit against the city. Chuck Volpe frequently removed his glasses to wipe his eyes with a bandanna as he described a tight-knit family of four and his late son who had a lot of friends, was loved by his teachers and looked up to by his younger brother. “He was the synergy of our family,” Volpe said. “We really revolved around him.”

“He pretty much ran the show,” Kimberly Volpe said.

Chuck Volpe said he learned about the drowning when he called his son’s cell phone that Sunday afternoon around 5 p.m. after Charles did not return home on time.

After his son’s death, Volpe testified that friends and family abandoned him, his wife and surviving son.

Volpe’s testimony was followed by Dr. Kirk Luder, a Lexington psychiatrist who has treated all three members of the Volpe family. Luder was established as an expert witness. Luder expressed greatest concern for Derek Volpe who was 14 at the time of the accident. Derek’s parents were “emotionally unavailable” to him, Luder testified, his mother was withdrawn; his father was obsessed with the dam. “There was no emotional safe harbor,” Luder said about Derek Volpe.

Matters became worse for Derek, Luder continued, when “intense discord” developed between his parents, who have decided to divorce.

Prior to the conclusion of the trial, Irvine did dismiss the charge of willful and wanton negligence and did not allow the jury to consider a charge of the city’s maintaining a public nuisance. Attorneys for the plaintiff said they forgot to mention this issue in their opening remarks and attorneys for the defense then countered that they had presented their case without this consideration.

There were indications that the jury was not reaching the required unanimous agreement one half hour before they announced being deadlocked. At 2:20 p.m., the jury sent a note to the judge announcing their inability to reach a unanimous decision.

At that time, Irvine instructed them to return to the jury room to deliberate further. However, after the second notification came that the jury was deadlocked, the judge said ordering further deliberation would put unnecessary pressure on the jurors.
"If your only tool is a hammer, every problem looks like Donald Trump."

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nudgewink
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Re: East Lexington's Dam

Postby nudgewink » 2009 Dec 08 10:53

Regarding Chuck Volpe, strange things have apparently transpired.

Here's an order from the Virginia Real Estate Board rapping his knuckles.
DPOR_volpe[1].pdf
(779.61 KiB) Downloaded 214 times
Strangely, while the order levies fines, it does not appear to compel him to compensate any persons who might have lost money as a result of the cited infractions. What's going on here?

And somewhere I saw a printed allegation that the scholarship fund set up in honor of his dead son is a fraud. That is, it was alleged that only the tiniest fraction of funds collected have been disbursed as scholarships, and that he stiffed a boy who'd been "awarded" one of them. Is this true? Does anybody know what's going on? Has he been charged with a crime?

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Amy Probenski
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The Beat Goes On

Postby Amy Probenski » 2010 Jan 09 15:19

Is Chuck Volpe's motivation, primary or otherwise, to gather $$$ to salvage the financial wreckage of his business and marriage?

PS. I am assuming all his publicity has made Chuck a "public figure" so that Stonewall's admonition against mentioning people unfavorably by name no longer applies.
Patte Wood of Rockbridge Weekly wrote:Volpe Appeals Jordan's Point Dam Decision

The City of Lexington has received notice that S. Charles "Chuck" Volpe and Kim A. Volpe, co-administrators of the estate of Charles Oliver Volpe have filed an appeal to the final judgment order entered by the trial court in favor of the City of Lexington on September 25, 2009.

The Volpes (plaintiffs) filed a wrongful death action in the Circuit Court of Rockbridge County against the City of Lexington (defendants) after their son, Charles, was swept over the lowhead dam and drowned on April 23, 2006 at Jordan's Point.

In the case, the Volpes' complaint cited gross negligence; willful and wanton conduct; and public nuisance requesting compensation from Lexington in excess of $9M.

According to a letter from Attorney John W. Zunka of Zunka, Milnor, Carter & Inigo, Ltd. of Charlottesville to J. Scott Martin of VML Insurance Programs, representing the City and dated December 30, 2009, the Volpes have filed an appeal to the Supreme Court of Virginia and certified that appeal on December 22, 2009.

Zunka advises that the City of Lexington's Brief in Opposition is due 21 days after the plaintiffs' Petition for Appeal on January 12, 2010 and advises Martin "we are drafting and will timely file the Brief in Opposition" with copies going to Lexington City Attorney Larry Mann and Lexington City Manager Jon Ellestad.

The appeal claims that the Trial Court erred in holding that the City did not have a duty to warn of the hidden dangers created by the dam, that they erred in striking the gross negligence evidence, that they erred in striking the willful and wanton negligence evidence and erred in rejecting the proposed nuisance instructions.

The 36-page appeal document gives an overview of the four-day trial proceedings in September. It outlines that the trial court struck the Volpes' evidence of willful and wanton negligence and then refused the Volpes' proposed nuisance instructions. It continues that after four hours of deliberation and then another 25-30 minutes of deliberation, the jury was deadlocked and the trial court discharged the jury and then granted the City's motion to strike the gross negligence claim.

The document states that the judge's ruling held that, under Virginia law, "'rivers and lakes present open and obvious dangers'" and "the City did not have a duty to warn of the danger posed by the dam 'whether . . . hidden, or whether . . . open and obvious,' and 'reasonable persons could [not] find that the City's failure to warn . . . constituted gross negligence'"

The appeal asks, under Standard of Review, "in reviewing the trial court's decision to strike the evidence, [the Supreme Court] must consider the evidence and all reasonable inferences in the light most favorable to the Volpes. Any doubt as the sufficiency of the evidence must be resolved in their favor citing Waters v. Safeway Stores (1993). In reviewing the trial court's refusal of the Volpes' proffered jury instructions, the Court also [must] examine the evidence in the light most favorable to the Volpes citing Honsinger v. Egan.

The appeal goes on to assert that landowners have a duty to warn invitees of dangerous conditions known to the landowner and unknown to the invitee; A landowner's duty to warn invitees is not lessened when the dangerous condition occurs in a natural body of water; Virginia Code Section 29.1-509 recognizes a landowner's duty to warn people using their waters of dangerous conditions.

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Neck-aint-red
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Re: East Lexington's Dam

Postby Neck-aint-red » 2010 Apr 09 17:12

Nudgewink and Amy, I poked around on the internets and found this TV story on Chuck Volpe.

Sounds pretty bad.

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notwaldo
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Re: East Lexington's Dam

Postby notwaldo » 2010 Apr 12 14:27

Nudgewink:
The printed thing you may have seen about the Volpe Memorial Scholarship fund money going missing and a "winner" of a scholarship getting stiffed appeared in the Sept. 2009 issue of the Rockbridge Advocate (which is not available for free over the internet)......several months before any television story, several months before the indictments, and several months before any other newspaper printed a word about it.

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Amy Probenski
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Sadness begets Sadness

Postby Amy Probenski » 2010 Sep 01 18:24

BY ROBERTA ANDERSON on September 1, 2010 in The News-Gazette wrote:Volpe Reaches Plea Deal On Thefts

Former Real Estate Agent Could Serve Up To 11 Months


Former Lexington real estate agent and developer S. Charles Volpe last week reached a plea agreement with the commonwealth on nine embezzlement charges pending against him in Rockbridge County Circuit Court.

Volpe, 56, who now resides in Bonita Springs, Fla., was indicted on the charges last February.

According to the terms of the plea agreement that was accepted by Judge Michael Irvine, Volpe will be sentenced to a term of five years on each count with the sentences to be served consecutively. Both the prosecution and the defense agreed to a cap of 11 months of actual jail time with the remaining time being served under supervised parole. The judge will determine the actual period of incarceration for Volpe after a presentencing report is completed by the court.

The plea agreement also requires that Volpe pay $13,531.30 in restitution to reimburse the victims of the embezzlement charges. This sum must be paid by the sentencing date or the terms of the plea agreement will be negated.

No sentencing date was set at last week’s court hearing on the plea agreement. Volpe had previously entered a not guilty plea, and the case had been expected to be set for a jury trial.

Volpe will also be required to pay up to an additional $63,896.20 in restitution upon in his release from prison. The exact sum of this additional restitution is to be determined by the judge when Volpe is sentenced. Irvine advised Volpe the money will have to be paid in equal monthly payments during the period of his supervised probation. Failure to make a monthly payment will negate the terms of the plea agreement, resulting in Volpe’s return to prison.

At last week’s hearing, Nan McGuire of the Virginia State Police testified about the embezzlement investigation that involved Volpe’s real estate business and the Charles Oliver Volpe Memorial Scholarship Fund. The fund was established on April 28, 2006, to honor Volpe’s son who had died while swimming in the Maury River. McGuire testified that the purpose of the scholarship fund was to send a qualified young person to a scuba diving adventure camp in the Virgin Islands.

Bank records indicate that eventually over $52,000 in donations and interest was deposited in the scholarship account. Volpe was the sole administrator of the scholarship fund and the sole signer for any withdrawals from the fund.

In 2007, the first year the scholarship was offered, McGuire testified, high school student Dylan Fitzgerald qualified by completing the necessary community service, writing an essay and meeting the academic standards. He was then told that only $2,200, or half, of his tuition would be paid and his parents would have to pay the remaining half if he wished to attend.

McGuire testified that Fitzgerald’s parents did pay the rest of the tuition in order for their son to attend the camp. Volpe also paid out another $2,200 that year for one other student to attend camp. The next year, Fitzgerald again completed the requirements to apply for the scholarship but was told by Volpe that he could not apply for the scholarship two years in a row, McGuire testified. She said a payment was made in 2008 for Rebecca Truett to attend the camp.

In 2009, Fitzgerald once again applied and received the scholarship. McGuire testified that Volpe asked Fitzgerald’s parents to pay the tuition, promising to reimburse them. Reimbursement was never made. No payment was made from the scholarship fund for any other student to attend the camp.

McGuire testified in 2008, Volpe made a one-time $25,000 withdrawal for himself from the scholarship fund. During the remainder of 2008, she said, he drained the remaining money from the account by transferring funds to his real estate business and leaving only a minimal balance.

McGuire also testified about the cases of multiple landlords for whom Volpe served as rental agent. In these cases, Volpe received security deposits and monthly rental check from tenants and failed to pay the property owners their monthly rents. The property owners listed in the indictments are Kim Kokko, Stan Fisher, David Wade, Brent Graden and Walter Smith.

Volpe didn’t say anything when Irvine gave him the opportunity to make a statement to the court. Volpe remains free on $10,000 bond until sentencing . He was cautioned by Irvine, however, that the terms of his plea agreement may not allow him to continue his residence in Florida.

Meanwhile, Volpe’s appeal in the $9 million civil lawsuit brought against the city of Lexington following the drowning death of his son remains under consideration before the Virginia Supreme Court.

Charles O. Volpe lost his life after being swept over the Jordans Point dam, a structure owned by the city. A trial in Rockbridge County Circuit Court resulted in a hung jury. Presiding Judge Irvine ruled in favor of the city, calling the danger of drowning a natural body of water “open and obvious.”

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Juggler
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Re: East Lexington's Dam

Postby Juggler » 2011 Feb 09 18:39

Dang. I thought joining this Rockbridge Forum thingy was kind of harmless, but I see that a guy who used to be an active participant here is off to jail. So I'm looking at all the rest of you guys suspiciously now!

:tongue8:
Roberta Anderson, in the February 9, 2011 News-Gazette wrote:Volpe Begins 6-Month Sentence

Former Lexington real estate agent and developer S. Charles Volpe was taken from Rockbridge County Circuit Court Tuesday to begin serving a six-month jail sentence for embezzlement.

Volpe, 57, who now resides in Bonita Springs, Fla., was sentenced to five years on each of nine counts of embezzlement by Judge Michael Irvine, the sentences to be served concurrently. The sentences were suspended except for the six months. Volpe will also remain on supervised probation for another five years after he is released from prison.

In addition, Volpe was ordered to pay $52,828.06 in restitution to the Charles Oliver Volpe Memorial Scholarship Fund. He is to being paying $881 per month at the time he is released from jail.

Volpe reached a plea agreement with the court last August after first pleading not guilty to the charges. The plea agreement required him to pay an additional $13,531.30 in restitution at the time of his sentencing to reimburse his victims of real estate embezzlement dealings.

Volpe failed to produce the money at Tuesday’s sentencing.

The charges against Volpe resulted from an investigation conducted by the Virginia State Police that involved Volpe’s real estate business and the Charles Oliver Volpe Memorial Scholarship Fund. The fund was established in 2006 in memory of Volpe’s son who died while swimming in the Maury River.

Bank records indicate that eventually over $52,000 in donations and interest was deposited in the scholarship account. Volpe was the sole administrator of the scholarship fund and the sole signer for any withdrawals from the fund.

According to the state police investigation, Volpe made a onetime $25,000 withdrawal for himself in 2008 from the scholarship fund. During the remainder of 2008, he drained the remaining money from the account by transferring funds to his real estate business and leaving only a minimal balance, police said.

Police also investigated the cases involving multiple landlords for whom Volpe served as rental agent. In these cases, Volpe received security deposits and monthly rental check from tenants and failed to pay the property owners their monthly rents.

Dukecati

Re: East Lexington's Dam

Postby Dukecati » 2011 Mar 16 11:48

"The plea agreement required him to pay an additional $13,531.30 in restitution at the time of his sentencing to reimburse his victims of real estate embezzlement dealings. Volpe failed to produce the money at Tuesday’s sentencing."

This is a totally false statement by Roberta Anderson and the News Gazette, the editors of which have had an axe to grind in this case ever since Volpe sued the city. He delivered every penny of the $13,531.30 in court. And of course there's not a word about the employee who embezzled some $50K from Volpe's real estate business and who was convicted and ordered to pay restitution, but who now and for some time, is not paying what she owes Volpe and yet nothing is being done about that by those whose job it is to see that restitution is paid as ordered by the court.

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Crux
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Re: East Lexington's Dam

Postby Crux » 2011 Mar 16 20:01

This all may be true... Still. What a disgrace. Mr. Volpe that is. To have acted as he did. The whole way around...
crux identifies with American Principles. Personal Liberty, Respect and Limited government.
He is a classic liberal, a libertarian at heart, and a conservative in the classical sense...

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Juggler
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Re: East Lexington's Dam

Postby Juggler » 2011 Apr 23 12:49

Willikers. Volpe's lawsuit has come back from the dead. Everybody wonders if he'll pursue it again when he gets out of the hoosegow.

On April 20, 2011 The News-Gazette wrote:Case Against Lexington Over Dam Sent Back To Circuit Court

The Virginia Supreme Court has ruled that Rockbridge County Circuit Court erred in its judgment that the dam at Jordans Point presented an “open and obvious” danger when 16-year-old Charles O. Volpe drowned after being swept over the structure on April 23, 2006.

As a result, the Supreme Court justices have reversed the decision of the circuit court that the city of Lexington did not have a duty to warn public who used Jordans Point Park and swimming area on the Maury River about all potential dangers.

Specifically, the hydraulics present at the base of the dam were “unlike any naturally occurring feature of a river … The increased current above the manmade dame and the hydraulic created below were not always visible to a swimmer and were not always present,” according to the opinion written by Justice William C. Mims on April 21.

After Volpe drowned, his family sued the city that owns the dam and adjacent park for $9 million, claiming gross negligence and willful and wanton misconduct. The case was appealed to the Virginia Supreme Court after a jury in Rockbridge County Circuit Court failed to reach a unanimous verdict and Judge Michael Irvine ruled in favor of the city.

In the opinion of the Supreme Court, the dam is not an open and obvious danger as a matter of law. This is an issue that must be determined by a jury.

Similarly, based on trial testimony from city officials expressing concerns about safety conditions at Jordans Point Park, the Virginia Supreme Court found “there was credible evident to support a jury finding of gross negligence. The trial court erred in striking the Volpes’ evidence when the jury failed to return a verdict.”

The case is remanded back to Rockbridge County Circuit Court should the family of Volpe determine to pursue the case further.

Volpe’s father, S. Charles Volpe, is currently serving six months of a five year sentence, the remainder of which was suspended. He was imprisoned on embezzlement charges, including taking over $52,000 from a fund established to memoralize his son.

Dukecati

Re: East Lexington's Dam

Postby Dukecati » 2011 Apr 24 12:01

The original trial was a sham. The fix was in. Judge Michael Irvine's decisions were rightfully reversed. And Crux, you are woefully ill-informed about the details here. What the city created at the dam site was a killing field. Today, where are the cable and buoys that are supposed to protect and warn boaters coming downstream? The dam is still there, waiting to kill again.

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Crux
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Not so. Don't give me that...

Postby Crux » 2011 Apr 24 13:39

Dukecati wrote: Crux, you are woefully ill-informed about the details here. What the city created at the dam site was a killing field. Today, where are the cable and buoys that are supposed to protect and warn boaters coming downstream? The dam is still there, waiting to kill again.


As Fangz said today, "...common sense is officially dead..."

Now, I would not go quite that far. Common sense is often ignored. One doesn't have to be a genius to know that swimming above, or jumping off, or being washed over a severely rain SWOLLLLEN dam, is tempting great bodily harm, even DEATH. I would suggest Mr. Volpe and his son and son's friend and you and I and most folks with half a brain or better recognize the danger inherent.

People take risks everyday, some greater than others, and sometimes tempt fate towards a tragic end.

Now God bless the Volpes and Everyone but see here:

The highways and back roads are a potential killing field. Driving a tractor on a slope sideways or on slick grass is on such a field. Body surfing during a real high tide or when a storm is coming in, is a "killing field"...

...and we can go on and on... The desire for fun, adventure, and shortcuts, and a lapse in judgment is what it may be.

Yes the dam is still there. So is LIFE, and death. Sorry to be so bold...

Sincerely,

crux
crux identifies with American Principles. Personal Liberty, Respect and Limited government.
He is a classic liberal, a libertarian at heart, and a conservative in the classical sense...

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Neck-aint-red
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Re: Not so. Don't give me that...

Postby Neck-aint-red » 2011 Apr 24 15:07

crux wrote:... most folks with half a brain or better recognize the danger inherent.

That is the point exactly. You, with the possible exception of Sweetness 'n Light, should be the most familiar among us with the "half a brain" phenomenon.

Most people, institutions, and the law itself recognize that a significant portion of the population is not capable of making fully informed and mature judgments – especially adolescents. Owners/operators of hazards have moral and legal obligations to take protective steps that recognize this reality.

The East Lexington dam is an obsolete and dangerous design that is repudiated utterly by current professional design standards. No such vortex-generating dams will ever be built again. Meanwhile, disproportional hazard is known to exist in old low-head vortex-generating dams. Their owners/operators must address that hazard in a responsible way.

Dukecati

Re: East Lexington's Dam

Postby Dukecati » 2011 Apr 24 15:39

FYI The day that Charles Volpe drowned the river looked normal, although just underneath the surface the current was moving very rapidly. It looked like a usual swimming day. Young Charles was a very accomplished swimmer and a certified diver. Even with his experience in the water he was fooled by the danger that lurked at Jordan's Point, and had no knowledge of what a low-head dam is all about. Warning signs would have made him and others aware of the danger that lurked there, and a cable with buoys would have prevented him from going over the dam to his death. If the city had had an inkling of common sense these things would not have been completely ignored. So your common sense argument is misdirected.

After the tragedy, perhaps the most inane and callous statement was made by councilman Jim Gianniny who said, "There was some discussion among council members concerning the placement of warning signs in the park and that they might detract from the park's atmosphere. "I want the place to be safe but don't want signs all over." I have a word for this guy but I'd only say it to his face.