County Claims Wal-mart Opponents Lack Standing In Court
By Scott C. Boyd

(November 2009 Civil War News)

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ORANGE, Va. – The Orange County Board of Supervisors (BOS) seeks to have a lawsuit regarding its so-called Wilderness Wal-mart decision dismissed. The BOS claims the plaintiffs lack standing.

The suit was filed on Sept. 23 in response to the BOS approval on Aug. 25 of the special use permit required for retail giant Wal-mart to build a 138,000-square-foot supercenter at the entrance to the Wilderness Battlefield.

The National Trust for Historic Preservation and the Friends of Wilderness Battlefield (FoWB) were joined by six individuals as plaintiffs in the lawsuit filed in Orange County Circuit Court.

Five of the six live at Lake of the Woods, a private gated community in Orange County across State Route 3 and slightly west from the proposed store site; the sixth lives in a nearby Spotsylvania County subdivision, a half-mile from the proposed supercenter. Three of the filers are FoWB directors and a fourth is an interpreter at the Ellwood mansion on the battlefield.

The plaintiffs’ “Petition for review and complaint for declaratory judgment, injunctive and other relief” criticizes not only the process the BOS followed to reach its decision on the Wal-mart permit, but the reasonableness of the decision itself. The petition describes the outcome as “flawed in many respects.” The result would be “desecration of hallowed land.”

The answer filed by the Board of Supervisors states, “The Complaint displays a lack of understanding of Virginia land use law…. Plaintiffs want to prevent use of land that they do not own, and this suit is a contrived effort to do so.”

The BOS challenges the standing of the National Trust and Wilderness Friends and the six individuals, claiming none of them “demonstrate that they are ‘aggrieved persons’” under the county ordinance cited.

The plaintiffs are represented pro bono by Arnold & Porter, a law firm with eight offices across the U.S. and Europe. Senior counsel Robert D. Rosenbaum said, “The county’s arguments ignore the seriousness of the claims made, with detailed supporting facts, in the complaint. We look forward to litigating their challenges before the court.”

He added, “We will file an opposition to the County’s motion, then there will be a hearing date.”

The Four Counts
The complaint’s four counts against the BOS are contained in a 41-page filing. The first alleges the supervisors’ manner of deciding and decision to grant the permit “were unreasonable, arbitrary and capricious and not reasonably related to the public health, safety, morals and general welfare.”

According to the suit, the BOS “brushed aside and gave inadequate weight to the substantial negative impacts of the Wal-mart project,” failed to protect the county’s historic resources or citizens’ interests, and gave “little or no weight” to others’ views about the impact the proposed store would have on the Wilderness Battlefield, among other things.

According to the second count, “No valid recommendation was made to the BOS by the Planning Commission as required by law.” This refers to the confusing commission votes on the Wal-mart special permit sent to it by the BOS for recommendation.

At an Aug. 20 Planning Commission meeting, the vote on the Wal-mart permit resulted in a 4-4 tie, meaning no action. The following night a different combination of commissioners voted 5-1 in favor of the permit. The BOS claims that was a valid Planning Commission vote. The plaintiffs disagree.

Many people who attended the Aug. 20 meeting thought the matter was closed after that meeting adjourned and attendance was sparse at the Aug. 21 meeting (see coverage last issue).

The third count alleges an “unlawful zoning ordinance for failing to comply with Virginia Code Section 15.2-2283.” That section, in part, requires zoning ordinances “to give reasonable consideration … where applicable … to protect against destruction of or encroachment upon historic areas.”

The suit claims the special permit approval “under an ordinance which failed to comply with Section 15.2-2283 was invalid.”

According to the fourth count, the special permit “unlawfully requires the construction of a commercial access road across residentially-zoned land.” This regards a condition the BOS attached to the permit: a “western access connector” road to be built on an adjacent property to the proposed Wal-mart site, which is zoned for residential use.

The suit cites the 2005 Capelle v. Orange County case, which made its way to the state Supreme Court, claiming the ruling “prohibited permitting such an access road across residentially zoned property, even with the agreement of the owner of the property.”

The plaintiffs ask for a court order declaring the BOS approval of the Wal-mart special permit unlawful, and prohibiting the county from taking any further action on it.

Further, the court is asked to declare the county zoning ordinance unlawful if it is applied to any land on or approaching historic areas, and to require county zoning ordinance compliance with Section 15.2-2283 before it can be applied to any land on or approaching historic areas.


Supervisors’ Filing
According to the Board of Supervisors’ answer to the suit, “Plaintiffs have a policy dispute with the Board rather than any demonstrable harm or injury; this is not legally actionable because approving the SUP [special use permit] is a legislative decision.”

The BOS asks that “the Complaint, including all counts therein, be dismissed with prejudice….” This means the plaintiffs’ legal rights in the case would be considered to have been determined and lost. Further, the BOS asks the court to require the plaintiffs to pay the board’s legal costs.

The BOS further characterizes the lawsuit as “a rambling set of allegations designed to try to avoid dismissal prior to trial. As a matter of law, these allegations do not state a cause of action.” The board’s reply discusses each of the four counts in the plaintiffs’ suit and says each is not a valid cause of action.

At the end of its answer, the BOS concludes: “No allegation or facts alleged in the Complaint support a legal conclusion that the Board acted contrary to law in approving SUP 08-07 or imposing conditions in conjunction with the special use permit.”

When Civil War News asked about the BOS filing’s characterization of the Aug. 21 meeting, an assistant of BOS attorney Sharon E. Pandak (with Greehan, Taves, Pandak & Stoner in Woodbridge, Va.) replied they were not addressing questions regarding the specifics of their pleadings.