Wal-mart At Wilderness Trial A Go;
ORANGE, Va. — The lawsuit to prevent construction of a Wal-mart Supercenter at the entrance to the Wilderness battlefield will go to trial on Jan. 25, 2011. Count three, saying that the county zoning ordinance was unlawful, will remain as part of the suit. Orange County Circuit Court Judge Daniel R. Bouton scheduled the trial for Jan. 25 through Feb. 3 during an Aug. 9 hearing. He said he expects to finish the trial before Feb. 3, but “scheduled for a full week, if need be, and have spillover, if need be.” Bouton also announced a ruling on a request that BOS attorney Sharon Pandak made at a July 13 hearing to change the case’s title to reflect that the National Trust for Historic Preservation was removed as a plaintiff in the judge’s April 29 ruling on standing (see CWN August issue). The suit filed by preservationists and local residents on Sept. 23, 2009, was triggered by the Orange County Board of Supervisors’ (BOS) Aug. 25, 2009, vote to approve the special use permit (SUP) Wal-mart requires to construct a 138,000-square-foot store at the intersection of State Routes 3 and 20. The case is now titled “Friends of Wilderness Battlefield, et al, Plaintiffs, v. The Board of Supervisors of Orange County, Va., et al, Defendants.” Bouton heard opposing counsel argue the merits of whether count three of the original complaint should be dropped per a Plea in Bar motion by the defendants. This issue was deferred from the July 13 hearing. Count three states that the Orange County zoning ordinance used in the Wal-mart SUP application process was unlawful because it failed to comply with state law requiring such ordinances to contain provisions to protect historic areas from encroachment or destruction. After hearing arguments from both sides, Bouton said the question was whether the zoning ordinance was being challenged in general or just as applied in the approval of the Wal-mart SUP. “In my judgment, that is an ‘as applied’ challenge,” Bouton said. “I overrule the Plea in Bar to count three.” That keeps count three in play for the trial. The last major issue Bouton addressed was what he termed “the hotly contested dispute over the exchange of information.” “I’m not trying to be critical of any particular attorney,” Bouton said, noting that all of them said they are anxious to get the case resolved and cooperate with the court. “When I look at what’s developed, I hear complaints from the plaintiffs that information is not being produced, that information is discoverable and hasn’t been turned over,” Bouton said. He heard from the defendants that “information not being given is not disclosable. We’ve given them more than is required.” Bouton suggested it might be appropriate for them to discuss at length what can’t be disclosed and why. “Take a couple of hours and try to narrow it down.” Robert D. Rosenbaum, attorney for the plaintiffs, replied, “I’m very willing to have that discussion.” “If you both want to resolve it, why hasn’t it happened?” Bouton asked Rosenbaum and Pandak. “Arguments over extraneous issues,” Pandak answered. “We are willing to sit down.” Pandak next brought up a contentious topic. “Mr. Rosenbaum insists I do something that I won’t do: turn over the personnel file of the former county administrator [William C. Rolfe].” The plaintiffs want Rolfe’s record because they contend the BOS fired him for proposing that the Wal-mart be built on a different Orange County site than the one supported by the majority of supervisors. The complaint alleges Rolfe’s record is relevant by showing that the BOS had made up its mind “at an early stage” to approve the Wal-mart SUP and “tolerated no internal views to the contrary.” Pandak then gave an envelope she said contained Rolfe’s file to the court bailiff to hand to Bouton. She would not give it to the plaintiffs, because it was confidential personnel information not subject to discovery, but would give it to the court. Bouton said that a protective order would be placed on the rest of Rolfe’s personnel record if any part of it is permitted to be disclosed. All the back-and-forth over what documents have to be turned over will have to be resolved, Bouton said. “There will come the point where there will have to be some certification that all relevant documents have been searched for and produced.” The opposing counsels set a date for the week of Aug. 16 to meet and discuss the issue of document exchange per Bouton’s urging, according to one of the lawyers. The outcome of that meeting was not known at presstime. |
