Judge’s Ruling Awaited After First
Hearing On Wilderness Wal-mart
By Scott C. Boyd
(April 2010 Civil War News)
ORANGE, Va. – The so-called “Wilderness Wal-mart” case had its first day in court on Feb. 3. The judge has not yet made a decision in the opening legal clash between preservationists and Orange County.
A Wal-mart Supercenter is proposed to be built at the gateway to the Wilderness battlefield, where Gens. Robert E. Lee and Ulysses S. Grant first met in battle.
Last Aug. 25 the Orange County Board of Supervisors approved the special use permit Wal-mart required for the 138,000-square-foot store it wants to build at the intersection of Virginia State Routes 3 and 20. It would be the fifth Wal-mart within 20 miles of that location.
The National Trust for Historic Preservation and Friends of Wilderness Battlefield (FoWB), along with six individuals living near the proposed store site, filed suit on Sept. 23 to overturn the BOS decision.
Orange County Circuit Court Judge Daniel R. Bouton presided over a three-hour hearing on Feb. 3. “We’re not going to try the merits of this case today,” Bouton said. “The primary issues that we’re going to take up at this hearing involve challenges to the pleadings and some of the facts that each side is claiming.”
To illustrate the complexity he was dealing with, early in the hearing the judge held up a folder several inches thick, calling it the “starting point to the reading” required for the case.
Judge Bouton began with what he termed the “complex standing challenge to all of the named plaintiffs in the case” that county attorney Sharon E. Pandak (with Greehan, Taves, Pandak & Stoner in Woodbridge, Va.) made.
In her plea in bar filing, Pandak mustered a variety of reasons why the six individuals and two preservation organizations did not have standing, or legal grounds, to file suit in the first place.
“None of the plaintiffs have demonstrated that they have any standing that is different than the community at large, that is direct and pecuniary, that would give rise to allowing them to be plaintiffs in this case,” according to Pandak.
She closed this part of her argument with: “It is rather ironic that five of the six [individuals] actually live on battlefields.”
Plaintiffs’ attorney Robert D. Rosenbaum said the effect of Pandak’s arguments “are essentially to insulate, if accepted, the BOS [supervisors] from any judicial review because she argues for a standard which no one could ever meet.” He is with the international firm of Arnold & Porter which is representing the plaintiffs pro bono.
“[The plaintiffs] can’t just say there’s traffic, there’s noise, there’s air pollution. They have to show you that direct connection and, if they cannot, then they simply are making a public policy argument or they’re making an argument that’s general to the public as a whole,” Pandak said.
Judge Bouton praised the lawyers’ arguments as “precise and to the point.” He noted, “The issue of standing can be a thorny one.”
“I didn’t find any cases in which there was a standing issue in the context of a commercial development with historical preservation and private citizens claiming standing for various reasons,” Bouton said. “But nevertheless, the Court will study the cases further and reach a judgment on these specific ones.”
Regarding the standing of the Friends of Wilderness Battlefield, Pandak said that no case law would give them standing.
Rosenbaum emphasized the contractual obligations of FoWB for management of Ellwood Manor (on Wilderness Battlefield) and the $256,500 the friends group contributed for Ellwood’s renovation. This was substantial enough to give the group standing.
Additionally, he said the proposed Wal-mart would bring 2,000 more cars per day to Route 20, where the entrance to Ellwood is, making it harder for people to visit the historic home.
Pandak conceded the FoWB demonstrated they have an interest in Ellwood, but said they had to do more to prove standing.
“That’s like my saying I have an interest in Monticello because I make contributions to it. That’s not sufficient to get me standing.”
Rosenbaum said the National Trust for Historic Preservation, created by Congress in 1949, could bring a lawsuit in any locality in the country where “a historical site of national significance” is threatened. He said Wilderness Battlefield met these criteria.
Pandak countered that there was just one case in 60 years where a court determined the National Trust had standing as a plaintiff.
“I cannot think of any analysis that would have Congress contemplating giving the National Trust the ability to go and have standing under state law at any time in any place based on its belief that it should be involved,” Pandak said.
She speculated that if the court accepted this argument, the case would “probably” end up before the U.S. Supreme Court because of the “profound magnitude” of such an issue.
When Bouton adjourned the hearing, he told the attorneys that he would either issue his rulings by letter or by summoning both sides and ruling from the bench. Referring to the 10 to 14 days it would take to create a hearing transcript, he said he would “anticipate being well into the decision-making process at that point.”
FoWB president Zann Nelson said afterward the judge had “done his homework” and that she liked how he asked both sides good questions.
“The judge was very attentive and asked great questions,” said Jim Campi, communications director for the Civil War Preservation Trust, which filed a friend-of-the-court brief in the case.
Two people with a keen interest in the proceedings sat on the bench closest to the Orange County attorney — siblings Gregory W. and Claudia J. Bayliff, part-owners of the land on which Wal-mart wants to build the new store.
When asked for his opinion of the day’s hearing, Gregory Bayliff replied with a brusque, “No comment.”