Walmart challengers battle county in court

Opponents of a Route 3 Walmart will soon find out whether or not their lawsuit against Orange County over a special use permit granted to develop a big box store on a commercially zoned piece of property can proceed.
Last fall, a lawsuit filed in Orange County Circuit Court on behalf of two preservation groups and six individuals who live near the Wilderness Battlefield challenged the Orange County Board of Supervisors' Aug. 25 vote to approve a special use permit allowing Walmart to build near the battlefield was unlawful and invalid. The plaintiffs further requested the court block Walmart and additional commercial development from building on the site.
Listed as the plaintiffs on the suit are National Trust for Historic Preservation, Friends of the Wilderness Battlefield, Locust Grove residents Curtis Abel, Susan Caton, Sheila Clark, Dwight Mottet and Craig Rains, and Spotsylvania resident Dale Brown.
The suit alleges that the board of supervisors' 4 to 1 vote to approve the special use permit was "unreasonable, arbitrary, capricious and not reasonably related to public health, safety, morals and general welfare." Further, the lawsuit claims that among other issues, no valid recommendation was made to the board of supervisors by the planning commission, and that the county's zoning ordinance is unlawful because it fails to comply with state code.
In addition, the plaintiffs in the case say the board of supervisors ignored certain aspects of economic projections, historical information and studies when they voted to approve the SUP. They also charge that supervisors announced their intention to support the permit long before they actually voted and "tolerated no internal views to the contrary," and that the board fired then-county administrator Bill Rolfe in July after he suggested an alternate location for the Walmart. Additional counts claim the board failed to comply with the county's comprehensive plan.
In court Thursday, Orange County Attorney Sharon Pandak argued none of the plaintiffs had standing to bring such a suit and vigorously defended the board's decision as a legislative act that was "fairly debatable." Essentially, she contended, the plaintiffs' chief complaint can be boiled down to "the board didn't listen to 'them.' "
Meanwhile, attorney Robert Rosenbaum advocated the board acted unreasonably by failing to acknowledge the recommendations of dozens of experts and pleas from the governor and House of Delegates and that all of the parties he represents are indeed aggrieved and should be able to pursue a trial.
"I'm aware this case has generated a great deal of public interest-and for very valid reasons," circuit court Judge Daniel Bouton said Thursday morning. "As a Virginia judge, I'm proud a dispute like this can be heard and resolved in an open courtroom."
But before it gets that far, the judge has to rule whether or not the plaintiffs have standing to bring such a case to trial.
Pandak argued they don't. And, she noted, all six individuals listed in the suit live within less than two miles of the battlefield and have houses that fall within the battlefield study area-much like the proposed Walmart property.
"None of the plaintiffs have demonstrated standing any different than the community at large," she said, "and it's ironic that five of the six actually live on battlefield lands. "
But Rosenbaum argued five of the six plaintiffs have standing as Lake of the Woods residents because the proposed Walmart will require the community to upgrade its dam and they'll incur assessments to offset that improvement as LOW property owners.
Additionally, he said, they'll be subject to increased traffic, litter, noise and pollution.
"We're not talking about a Starbucks," he said. "We're talking about 240,000 square feet of retail space that will produce thousands of cars each day. "
Still, Pandak maintained, "the impact they claim is speculative and indirect and not any different than the public at large. They're saying, 'we pay taxes and we don't agree with the board of supervisors, so we have standing.' "
Pandak argued the plaintiffs must show a direct connection and if they can't, they're simply making a public policy argument.
"I want to point out how close Mr. Brown is to Route 3," Rosenbaum countered. "He already has trouble getting in and out of his subdivision. Susan Caton lives less than 1/10th of a mile from Route 3 and she can hear the traffic now. It'll be much worse if this project moves forward. As a business owner, it's critical to her business that she get customers in the door and is able to deliver flowers. The amount of traffic will make it difficult for her to conduct her business.”
"A business impact is still an impact," Rosenbaum said.
"The issue of standing can be a thorny one," Judge Bouton said, noting he had found no similar cases for reference, but would continue his research.
In addition to the individuals, Rosenbaum argued Friends of Wilderness Battlefield had standing in the case as well.
FoWB has an agreement with the National Park Service to maintain and manage Ellwood, the lone remaining extant structure on the Wilderness Battlefield. The group has raised funds to renovate the structure, provides interpretive staff and maintains the property, he explained.
"They're not just a group with rights to use Ellwood, they have contracts to occupy and manage real property," Rosenbaum argued.
Pandak noted FoWB doesn't own the Ellwood property, it's not adjacent to the proposed Walmart site and it's three-quarters of a mile away.
"Their claims that people will not want to come to the battlefield because of Walmart are wholly speculative. I'd argue they may be more inclined to stop."
Pandak said the plaintiffs can demonstrate FoWB has a direct interest in Ellwood, but wondered if they can demonstrate the group is aggrieved and merits standing in the lawsuit?
"The obligation of the plaintiffs is to show standing-not just tell the court to go along with us," she said.
"This is about traffic, noise and pollution-real concerns for someone near the project and cause for study," Rosenbaum said. "When the time comes, we'll prove that. For now, all we can argue is standing."
But standing wasn't the only issue debated before Judge Bouton Thursday.
Additionally, Pandak had filed a demurrer-which essentially requests a dismissal that acknowledges even if a complaint's facts are true, no legal grounds for a suit exist.
Her demurrer arguments boiled down to the board being well within its authority to grant the special use permit for Walmart and the plaintiffs simply didn't like the supervisors' ruling.
Land use is a legislative matter, she noted, and the plaintiffs have to demonstrate the board acted arbitrarily and capriciously. She insisted the board's actions were "fairly debatable."
"Does the complaint do anything more than state an opposite point of view?" she wondered. "It states somebody else would not have approved a special use permit. That's all they demonstrate."
That alone, she continued, proves the board's actions were "fairly debatable."
But Rosenbaum and his clients see it differently.
"The complaint alleges the failure of the board of supervisors to take actions a reasonable person would take prior to making this decision and that ultimately that decision was made arbitrarily and capriciously," he argued.
In applying an objective standard, would a reasonable person act as the board of supervisors acted under the same circumstances? Rosenbaum queried.
"The outpouring of concern and offers of help were all brushed aside by the board of supervisors. The governor and House of Delegates offered assistance and it was rejected or ignored. The county administrator wrote a memo to the board that said they should consider an alternative location and they fired him," Rosenbaum continued. “Dozens of experts were dismissed and externally funded studies were unwanted.”
"Their analysis of the subject-which was not done independently, but by Walmart-only talked about the positive impacts, not the negative," Rosenbaum concluded.
"What we're saying is what they did is not reasonable."
But Pandak noted the issue before the board was not a rezoning, but a special use permit for a piece of commercially and appropriately zoned property. The board held three public hearings on the issue and heard hundreds of speakers on the subject-some for and against. "Land use decisions are not made by the public," she said. Even the governor, in his letter to the board recognized the local zoning ordinances, Pandak noted.
"Even if you take their complaint at its very best, all it shows is another school of thought for that piece of property," she said.
For the balance of the afternoon, Rosenbaum and Pandak sparred over the validity of the planning commission's recommendation and the validity of the county's zoning ordinances.
After more than three hours, Judge Bouton told the two sides he'd further study the matter and requested transcripts of the day’s discourse in 10 days to two weeks. He said he’d notify both sides of his ruling, which could be either in-person--if mutual scheduling permits--or in a detailed, written opinion.