By Gracie Hart Brooks
Editor
A lawsuit opposing a major development in the eastern end of Orange County will proceed following the release of an opinion letter by Orange County Circuit Court Judge David B. Franzen.
Last week, Franzen released a 17-page opinion letter regarding attempts to quash a 2023 lawsuit challenging the rezoning associated with the Wilderness Crossing project, a more than 2,600 proposed development adjacent to the Wilderness Battlefield. The project has been a bone of contention since Orange County supervisors approved the rezoning in April 2023, changing the land 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 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. It was that demurrer that led to the hearing in March and subsequent opinion letter released last week. In the letter, Franzen agrees with some portions of the demurrer, dismissing three of the counts in the lawsuit, but allowing four of the seven to move forward. The remaining counts allege violations of Virginia law governing rezoning processes, public hearings and taxation.
The American Battlefield Trust sees the move as a positive one, stating that “despite years of constructive collaboration about the future of the region by local residents, the trust and its partners in the Wilderness Battlefield Coalition, Orange County undertook a secretive and unlawful rezoning process to permit the Wilderness Crossing developers to rush through the total reshaping of the Germanna-Wilderness area, contrary to the longstanding commitments of the county.”
“Officials put the near-term interests of a developer over those of the local community and willfully ignored the damage to the irreplaceable resources that make this region a vital tool for understanding our nation’s history,” David Duncan, president of the American Battlefield Trust, said. “We look forward to advancing our case and protecting the area’s historic treasures from wanton and inappropriate development.”
The Wilderness 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.
“I am pleased that our case against the mishandling of this rezoning decision will proceed,” Central Virginia Battlefields Trust President Tom Van Winkle said. “The threat to the Wilderness Battlefield is real and the merits of our case are strong. We are gratified that our case will receive the full and careful consideration it is due.”
Several briefs were filed in support of the lawsuit by various groups including the National Parks Conservation Association, National Trust for Historic Preservation and the Coalition to Protect America’s National Parks and the Piedmont Environmental Council.
Orange County has not issued a statement regarding the judge’s opinion letter. An order consistent with the opinion is due to the court by Oct. 1.
