Attorneys were back in court last week regarding the Wilderness Crossing rezoning.
The case stems from an April 2023 decision by the Orange County Supervisors to rezone more than 2,600 acres of land in the eastern end of the county, changing it from being zoned primarily agricultural and industrial to mixed-use allowing for development by KEG Associates III. The project plans consist of a variety of uses with up to 5,000 residential units and 732 acres of industrial use, along with commercial use and possibly data centers. A lawsuit filed by the Piedmont Environmental Council (PEC) discovered that 10 local officials had signed nondisclosure agreements for “the benefit of Amazon.com, Inc. and its affiliates.” PEC voiced concerns about the project, noting it would irrevocably change the landscape, as well as cause a potential health risk due to several contaminated abandoned gold mines in the area. Supervisors, meanwhile, state the rezoning is inline with the county’s comprehensive plan and Germanna Wilderness Area Plan which calls for development along the Rt. 3 corridor.
In May 2023, the American Battlefield Trust (ABT), Friends of Wilderness Battlefield, Inc. and Central Virginia Battlefields Trust, Inc., along with residents Mark and Cheryl Nowacki and Robert J. Foster filed suit against Orange County and the board of supervisors challenging the rezoning. The suit consisted of seven counts, but in September, Orange County Circuit Court Judge David B. Franzen reduced that number to four, dismissing three of the seven counts. The remaining counts allege violations of Virginia law governing rezoning processes, public hearings and taxation.
In early January, Orange County Attorneys Amy Wilson and Robinson Hubbard, along with KEG Associates III attorneys, filed an appeal with the Court of Appeals of Virginia. It was that appeal, dubbed an interlocutory or non-final order appeal, that was the subject of the hearing Friday.
In court, Jaime Wisegarver, representing KEG Associates, said the landowners filed the appeal to preserve their right to appeal, noting the statutes can be confusing as they require an appeal to be made within 30 days of a decree. She argued that the circuit court still had jurisdiction to hear the remaining four counts.
Franzen was unsure. He pointed to case law set by the case NAACP vs. Youngkin in which the Virginia Court of Appeals dismissed an appeal in the case as being premature. Michael Brady, attorney for the American Battlefield Trust, argued that the court of appeals now has jurisdiction to the appeal, reiterating his motion to move the case to the higher court. He agreed with Franzen in that the court of appeals will likely reject the appeal, sending the case back to the circuit court.
Franzen questioned if it would be better to proceed with the case to a final judgement and then have the court of appeals be able to take up the issue in one piece rather than piecemeal.
Wisegarver said regardless, she plans to ask for a trial date, accusing the opposing side of delaying the process.
Brady disagreed, stating the court of appeals process is lengthy, anywhere from 14 to 16 months with criminal cases taking precedent. He said he would hope in that time, the matter could go to trial.
Franzen chose to not make a ruling, instead opting to wait until the court of appeals acts. In a press release following the hearing, American Battlefield Trust President David Duncan praised the court for carefully considering the issue.
“A rezoning of this magnitude, and the infrastructure it would necessitate, has massive reverberations that need to be properly vetted so irreplaceable stories and historic landscapes are not lost to the selfish and shortsighted desires of developers,” he said. “Today’s hearing was another indication that the Orange County Circuit Court is giving this issue the consideration it deserves.”
