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Walmart legal fight heats up

October 19, 2010 12:36 am

BY CLINT SCHEMMER

It looks as if every square inch of the court case over a Walmart in the Wilderness battlefield area will be contested ground.

This Thursday, Circuit Judge Daniel R. Bouton is set to hear Orange County Attorney Sharon Pandak's motion to block the plaintiffs from questioning county supervisors. Attorneys for the nonprofit Friends of the Wilderness Battlefield and six area residents say the supervisors' testimony is "critical to this litigation."

The local group and the Orange and Spotsylvania residents are trying to overturn the Orange Board of Supervisors' 2009 decision to grant a special "big-box" permit for a 51-acre, 240,000-square-foot retail center anchored by a Walmart Supercenter. The project is planned for a ridge overlooking the intersection of State Routes 3 and 20, near Fredericksburg and Spotsylvania National Military Park.

In addition to the Board of Supervisors, Wal-Mart Stores Inc., the landowner and the site developer also are defendants.

In a brief filed last week, the plaintiffs' attorneys oppose the county's attempt to block the supervisors' depositions.

"Having approved perhaps the most significant zoning action in the history of Orange County, members of the board argue they should not have to 'spend unnecessary time' providing their testimony in this litigation," the brief states. "Even after the court has denied the board's entreaties to dismiss this action, the board apparently still fails to take plaintiffs' claims seriously."

The plaintiffs are also asking Bouton to rule on the county's denial of other information in the two-way discovery process that precedes trial.

This summer, Bouton chided attorneys for both sides for what he called a "contentious dispute over the exchange of information." He persuaded them to sit down and discuss what would be shared.

The defense said it has turned over more information than required, that the information being sought is not relevant, and that other information cannot be disclosed under attorney-client privilege and personnel rules.

But in their latest filings, the plaintiffs contend that the outstanding questions they have raised go to the heart of their argument.

Much of the plaintiffs' brief against Pandak's motion focuses on transportation issues raised by the development.

Walmart's traffic analysis for the Route 3 and Route 20 intersection relied, in part, on a new road being built across the King family's adjoining land west of the retail center's site, yet the retailer's talks with the Kings produced no agreement on that access, the plaintiffs state. That western entrance was to handle both eastbound and westbound Route 3 traffic, easing pressure on the intersection.

VDOT engineer Matthew Bolick told board Chairman Lee Frame and a county planner in a July 27, 2009, e-mail that without the King road, Walmart would have to revise its analysis to show how it would relieve the traffic increase.

In discovery, no documents were produced "indicating what steps [Frame and county staff] took, if any, when they learned that fact," the plaintiffs' brief states.

The plaintiffs also say they need to depose Frame about their claim that the county didn't provide adequate legal notice for the Planning Commission's Aug. 21 special meeting, at which it voted 5-1 to recommend board approval of the Walmart proposal.

It was the commission's third vote on the issue, after a 4-4 deadlock the night before and 6-5 vote for approval June 25 that was declared invalid because of a problem with legal advertising.

Asked for comment late last week on the plaintiffs' recent filings, Pandak said she didn't want to "try the case in the press." Robert Rosenbaum, lead attorney for the plaintiffs, declined to comment.

The trial is scheduled to start Jan. 25.

Clint Schemmer: 540/368-5029
Email: cschemmer@freelancestar.com




In a renewed motion to compel the Orange County Board of Supervisors to produce documents, the plaintiffs in the Wilderness Walmart case ask:

That the board provide a detailed log of supposedly privileged communications so the plaintiffs and the court can assess whether they are protected.

That the court order the supervisors to produce all documents involved in their firing of County Administrator William Rolfe. The plaintiffs claim the board fired Rolfe for suggesting, in an e-mail later made public, that it should consider alternative sites for the retail center farther from the national park "to preserve the battlefield as a tourist destination."

That the court compel supervisors and current or former county officials to answer questions about personnel matters. Besides Rolfe, "other county employees were at least uncertain about the status of their positions with the county during the crucial time" when the staff was reviewing the Walmart proposal for action by the supervisors, the plaintiffs state.

--Clint Schemmer




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