BY ROBIN KNEPPER
An Orange County judge heard arguments yesterday in a lawsuit challenging a Walmart Supercenter in the Wilderness battlefield area, but did not immediately rule on whether to let the case proceed.
Yesterday's three-hour hearing before Circuit Judge Daniel R. Bouton was on a response by Orange County to a lawsuit filed by two preservation groups and
Bouton said he would consider the arguments made by both sides and read the "voluminous" papers they've filed before delivering his opinion. He asked the court reporter for a full transcript of the day's hearing in 10 days to two weeks.
The National Trust for Historic Preservation, joined by the Friends of Wilderness Battlefield and six individual plaintiffs, filed suit against the Orange Board of Supervisors in September. They are asking the court to invalidate a special-use permit approved by supervisors that allows construction of a 138,000-square-foot Supercenter to anchor a retail development a quarter of a mile north of State Route 3, near the Fredericksburg and Spotsylvania National Military Park.
The plaintiffs, represented by Washington lawyer Robert Rosenbaum, claimed in their suit supervisors' approval of the permit failed to comply with the county's comprehensive plan. Their lawsuit also claims the county's zoning ordinance is invalid because it fails to follow state laws requiring such ordinances to protect historic sites, and that the Planning Commission made procedural errors in the course of three separate votes on the permit.
Orange County Attorney Sharon Pandak said the plaintiffs do not have legal standing to challenge the board's action. She said that would require that they prove they would be particularly harmed by the decision.
She said supervisors have full authority to make land-use decisions, and that merely disagreeing with such a decision doesn't provide a legal basis for overturning it.
Rosenbaum countered that the complaint alleges that supervisors failed to take certain actions before voting on the permit, specifically considering the concerns and offers of help from then-Gov. Tim Kaine, the Virginia Department of Historic Resources and preservation groups.
"The board didn't do a whole host of things offered to them," Pandak responded. "It didn't have to wait to hear opinions, yet they held three public hearings. But land-use decisions aren't based on public opinion.
"The bottom line is that all the complaint shows is that there's another school of thought about what should happen to that property."
The property chosen by Walmart has been zoned for commercial use since 1973. The store would be outside the limits of the protected national military park, but within an area where troops prepared for battle, marched and died of their injuries.
The May 1864 battle was the first clash between Confederate Gen. Robert E. Lee and his Union counterpart, Ulysses S. Grant. It left more than 26,000 soldiers dead or wounded.
Pandak argued yesterday that none of the complainants were aggrieved by the supervisors' actions. The National Trust, authorized by Congress 60 years ago, has no powers or duties that would give it standing to contest a local land-use decision, she said.
"The plaintiffs cannot be aggrieved if their concerns [about traffic, noise, litter] are no different from the public at large," Pandak said.
Rosenbaum argued that all the plaintiffs were "asserting a direct interest."
The six individual plaintiffs all live within three miles of the Walmart site. Friends of Wilderness Battlefield volunteers work with the National Park Service at Ellwood, a historic house over a half-mile away on the Wilderness battlefield.
"Her [Pandak's] arguments for standing, no one could ever meet," Rosenbaum said. "Standing should be determined on the allegations of the plea."
fredericksburg.com/walmart orangewalmart.com wildernesswalmart.comRobin Knepper: 540/972-5701
Email: rknepper@earthlink.net