The fate of a lawsuit opposing a major development in the eastern end of Orange County will likely be decided in the coming weeks.
Late last month, Orange County Circuit Court Judge David B. Franzen heard arguments regarding a demurrer filed to quash a 2023 lawsuit challenging the rezoning associated with Wilderness Crossing, a more than 2,600 acre proposed development adjacent to the Wilderness Battlefield. The battlefield was placed on the National Trust for Historic Preservation’s annual America’s 11 Most Endangered Historic Places list last year. This is the second time the battlefield has been on the list, the first being in 2010 when Walmart considered a site adjacent to it before moving further down Rt. 3.
In April 2023, Orange County Supervisors approved a rezoning for the Wilderness Crossing site, changing it from primarily agricultural and industrial zoned land 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 has 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 consists of seven counts and alleges issues with the development’s close proximity to historic battlefield land as well as impacts on infrastructure, including water, and the process used to approve the plan. The suit alleges that last minute changes were made to the application, increasing cash proffers from $6 million to as much as $24 million, increasing the square footage of industrial data center and warehouse/distribution building space from 5 million to more than 30 million and eliminating some project amenities. These changes, according to the suit, happened on the same night as the public hearing on the rezoning. The plaintiffs also argue the developer was given nonuniform taxation by allowing for the deferral of the rollback tax penalty associated with removing the property from the land use program until a final site plan or subdivision is approved. Typically rollback taxes are implemented upon the approval of a rezoning.
In response to the suit, the county filed a demurrer seeking to dismiss it. In the packed circuit courtroom on March 21, attorneys for the county and KEG Associates III argued the plaintiffs have no standing and took aim at claims the county acted unlawfully. Attorney Andrew McRoberts took particular issue with the first count in the ABT suit which he said challenges the county’s PDM Zoning Ordinance that was approved in 2018, not the rezoning. He also argued that the changes to the conditions on the rezoning were done prior to the start of the meeting as evidenced by them being included in the presentation prior to the public hearing and said the plaintiffs lack standing as they do not own property within close proximity to the subject property and won’t suffer unique harms not experienced by the public at-large. McRoberts said the Friends of the Wilderness Battlefield doesn’t own land while the American Battlefield Trust doesn’t pay taxes. The Nowackis, he said, are in Lake of the Woods and thus don’t have land eligible for the land use program. Nor, he said, does the Central Virginia Battlefield Trust since its parcel is only two acres. Other parcels owned by the entity are outside of Orange County. The Foster Trust, being represented by Robert J. Foster, is also outside of the county.
Michael Brady, representing ABT, disagreed.
“This case matters a great deal to the folks in this room,” he said, noting that all seven counts in the suit attack the rezoning decision of the local governing body. He spent a majority of his time arguing in favor of count one which takes aim at the PDM zoning, stating it was not adopted correctly.
Brady reiterated claims in the suit that conditions for the rezoning were changed last minute and a FOIA violation occurred when supervisors discussed the project at an economic development group meeting without proper advertisement. He also said the deferral of rollback taxes associated with taking the property out of land use were unconstitutional since everyone in the county under the same land use program was not afforded the same luxury.
Judge Franzen asked several questions of Brady including what would happen if the demurrer was approved or denied to which Brady responded, if approved, the matter would go to the court of appeals; if denied, a trial could be set allowing for discovery to go forward and possibly a summary judgement.
“It’s clear that both sides believe this is a clear cut case,” Franzen said. “It’s a complicated case, a detailed case and one which will require extensive review and analysis by this court.”
The case file is more than 2,000 pages.
Franzen said he will rule by an opinion letter, but his usual turnaround of 30 days is unrealistic.
However, he did make one ruling during the hearing. He approved two amicus curiae briefs–one filed by the National Parks Conservation Association, National Trust for Historic Preservation and the Coalition to Protect America’s National Parks and the other by the PEC in support of the ABT lawsuit. Attorneys from the groups were present, but not permitted to make oral arguments in the case.
