Wal-mart At Wilderness Trial Date To Be Set On Aug. 13
ORANGE, Va. — The lawsuit filed by preservationists and residents to prevent construction of a Wal-mart Supercenter at the entrance to the Wilderness Battlefield will not go to trial until fall. It will take place in mid-November or early December, on a date not yet set, Orange County Circuit Court Judge Daniel R. Bouton said at a July 13 pre-trial conference. After the one-hour conference Bouton set an Aug. 13 hearing at which the trial date will be scheduled. At that time lawyers will continue pre-trial conference discussions about the specials use permit issued to Wal-mart, the writ of certiorari and any discovery requests for relevant documents. This was done in part because the plaintiffs’ lawyer had receive a lot of county documents and had not had time to assess them. Bouton began the proceeding explaining that the conference was not a formal hearing and that he “didn’t anticipate making any seminal rulings.” He listed five topics he would cover, including the trial date. The judge noted the conference was the first time the attorneys for the three defendants recently added to the case (see CWN July issue) were present at the defense table. In addition to the county Board of Supervisors (BOS) attorney, Wal-mart had an attorney and one lawyer represented both developer JDC Ventures and landowner 3 & 20 Limited Partnership. The lawsuit was filed on Sept. 23, 2009, by the National Trust for Historic Preservation, Friends of Wilderness Battlefield and six residents of Orange and Spotsylvania Counties who live near the proposed Wal-mart site at the intersection of State Routes 3 and 20. The suit had four counts challenging the legality of the county supervisors’ Aug. 25, 2009, decision to grant the special use permit (SUP) required for the 138,000-square-foot store. The judge’s first conference topic concerned count four, which the plaintiffs previously agreed to withdraw. It alleged the SUP “unlawfully requires the construction of a commercial access road across residentially-zoned land.” Bouton said he issued an order on June 28 overruling the defendants’ prior arguments against count four and attorneys for both sides said they did not object to his ruling. That left the first three counts of the suit intact. The judge’s second discussion topic concerned count three, which alleges that the SUP was approved under an invalid county ordinance that fails to comply with state law and “give reasonable consideration to the objective of protecting against destruction of or encroachment upon historic areas.” The two issues for count three were whether it was “timely filed” and, if it were, what were its merits, Bouton said. He asked the attorneys if they thought they could resolve this in 30-40 minutes at that day’s hearing. They said they could, but it was put off until the Aug. 13 hearing. The judge’s third point concerned the scope of the writ of certiorari requested by the plaintiffs on May 19, 2010. This would involve a court order to compel the BOS to produce all documents related to its special permit decision. The sides could not agree on the extent of the records to be included in the writ of certiorari. “We want not only the formal record, but the whole record,” said Robert D. Rosenbaum, lead attorney for the plaintiffs (with Arnold & Porter LLP in Washington, D.C., working pro bono). Rosenbaum was trying to turn the writ into something “overly broad,” said BOS attorney Sharon Pandak (with Greehan, Taves, Pandak & Stoner PLLC in Woodbridge, Va.). After asking if they had been able to resolve this through negotiation, Judge Bouton concluded, “It does not sound to me as if any meeting between you would be productive.” He told Rosenbaum to draft a “short form” writ of certiorari for him to sign. “In that way the court will rule on and address the sufficiency of the information [produced by the BOS],” Bouton said. The fourth discussion topic was setting a trial date. Plaintiffs’ attorney Rosenbaum said he would be ready by mid-to-late fall and, among other things, would need at least 30 hours in court for the testimony of his witnesses, not counting time for their cross-examination by the defense. Pandak said that the BOS would like the trial to take place as soon as possible. She said mid-November was fine. “We could try this case in no more than three days.” She questioned whether Rosenbaum would take too much of the court’s time by presenting witnesses with “redundant testimony.” “We don’t have a single redundant expert witness,” Rosenbaum countered. Rosenbaum said the issues around the firing of County Administrator Bill Rolfe, if disputed, may require additional witnesses. The supervisors fired Rolfe on July 3, 2009. The plaintiffs claim Rolfe was fired for advocating building the Wal-mart in a different location and allege that this is a telling fact about the BOS and its ultimate decision to grant the special permit. Pandak has disputed this and has refused to hand over records about Rolfe’s firing, saying they concern confidential personnel matters that are not pertinent to the Wal-mart suit. The judge’s fifth and final topic was how friends of the court amicus briefs should be handled. The Civil War Preservation Trust (CWPT) and National Parks Conservation Association (NPCA) filed one together on Jan. 25, 2010, in support of the plaintiffs. “The court won’t hear anything new from any amicus brief, it just adds more paper for the court to read,” Pandak said. “It is the court’s call. The perception of people being heard is important to a court decision being accepted,” said Bradshaw Rost (with Tenenbaum and Saas, PC in Chevy Chase, Md.), attorney for the developer and landowner. “We want people to be able to say they have been heard.” Rosenbaum pointed out that the CWPT/NPCA amicus brief also included a letter from the Director of the National Park Service. “The court’s concern is that there has to be some kind of limitation to how much is submitted to the court,” Bouton said. “I’ll make my own independent decision on this.” When the attorneys were asked to bring up any lingering issues, Pandak noted the case is officially titled: “National Trust for Historic Preservation, et al, Plaintiffs, v. The Board of Supervisors of Orange County, Virginia, Defendant.” She said that since the National Trust was dropped from the case when Bouton ruled on April 29, 2010, that they lacked standing, and three new defendants were added, it should be re-titled to begin with “Friends of Wilderness Battlefield….” “It would create confusion in the public’s mind” if renamed, Rosenbaum said, citing how long the suit has been known by its current title. Rost and the attorney for Wal-mart, Jonathan T. Blank (of McGuireWoods LLP in Charlottesville, Va.) both supported Pandak. Rosenbaum said that he officially objected to the proposed change. “I think this case has become known as the Wal-mart case,” Pandak quipped. The implication was that the judge will consider this point and possibly issue a ruling. Next Rosenbaum asked that he receive the defendants’ reply to the allegations in counts one and two so he can plan for the trial. The defense attorneys collectively agreed to provide that by Aug. 9.
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