J. ADDISON BARNHARDT

November 10, 2009

Vermonters love a good fight against Wal-Mart, perhaps more so than any other state in the Union. Vermont has fought the big box store from Bentonville, Arkansas in St. Albans for over fifteen years now. (See Mary Beth Blauser's September 29, 2009 In The News article on www.vjel.org for more information.) On February 13, 2009, the bicentennial of Lincoln's birth, the Vermont General Assembly passed a resolution opposing the special use permit application of another Wal-Mart, this located on the border of a Civil War Battlefield in Orange County. While statewide Vermont's opposition against Wal-Mart is by no means abnormal, what is abnormal is that this particular Orange County was in Virginia, five hundred miles south.

The armies of Ulysses S. Grant and Robert E. Lee met for the first time in central Virginia at what became known as the Battle of the Wilderness in 1864. The battle was a bloody affair with over 29,000 total casualties in only two days of fighting. The Vermont First Brigade suffered 1,234 casualties in what would become known as the first battle of Grant's Overland Campaign, or the beginning of the end for the Confederate Army. In 1927 this hallowed ground became a part of the National Park Service. And on August 25, 2009, the Board of Supervisors for Orange County (Board) voted 4-1 to approve a special use permit for a 138,000 square foot Wal-Mart Supercenter to be located adjacent to the Park's border.

The Vermont Resolution "[asked] that the commercial developers find an alternative location for their stores in an area farther from the battlefield that will not have a negative impact on an important historic area . . . ." The Vermont Resolution was a part of a national wave of opposition against the Wilderness Wal-Mart that included opposition by the Governor of Virginia, celebrities like Robert Duvall and Ken Burns, and a petition signed by over 250 historians. Opponents argued that alternative locations for a Wal-Mart existed within Orange County, but Wal-Mart argued that the Wilderness location was optimal, and that other commercial developments (gas stations and fast food restaurants) existed at the same location. The residents of Orange County were mostly in favor of the store because of its promise to add $800,000 in tax revenues and hundreds of new jobs for the 32,000 county residents.

Though the Wal-Mart site borders the Wilderness Battlefield, the area was zoned for commercial use. The area was also an "economic development zone" in the county's Master Plan. However, Wal-Mart was subject to a "large retail" zoning ordinance that required a special use permit from the Planning Commission and ultimately the Board. The Planning Commission initially voted 5-4 in favor of the Wal-Mart application, but before their recommendation could be sent to the Board, opponents pointed out that public notice had been improperly issued in the local newspaper. A month later, the Planning Commission voted 4-4, although after the meeting, the county's attorney informed the Board that a 4-4 tie was the statutory equivalent of a "no" vote from the Planning Commission. The Planning Commission then issued a controversial 4-1 vote in favor of the permit, only a day before the Board voted to approve the Wal-Mart.

On September 29, 2009, two preservation groups and six local residents filed a civil action in the Orange County Circuit Court alleging that the Board's special use permit approval of the Wilderness Wal-Mart was "unlawful and invalid." Plaintiffs typically do not prevail in these due process claims because the judiciary gives deference to administrative acts. However, the plaintiffs have a couple of strong arguments against the county's procedural failings, especially regarding the Planning Commission's last-minute vote of approval without three of the dissenting members in attendance, some of whom claimed that they were not even told about the last-minute vote. The plaintiffs also claim that the Board did not adequately consider alternative sites away from the Wilderness Battlefield. The Board has responded that these claims are without merit and that the plaintiffs lack standing to sue. Their motion to dismiss is pending before the court as of today.

Opponents of the Wal-Mart, like the Vermont General Assembly, still hope for a win-win situation in Virginia, where the Wal-Mart would get built, but away from the historic battlefield. This has been the opposition's argument from the beginning, but Wal-Mart has refused to consider a different location.

The Battle of the Wilderness was the first battle of Grant's war of attrition against the South. Despite repeated losses and casualties, Grant continued to attack Lee's army, eventually wearing it down by sheer force of will. Lee surrendered less than a year later. As the current battle in St. Albans indicates, Vermonters in the north continue to wage a war of attrition against the big box store from the south. It is unclear who will win that fight, as it is similarly unclear who will prevail in the battle over the Wilderness Wal-Mart. If St. Albans can offer any guidance on the Virginia outcome, it is that it could take more than a few lawsuits, and possibly many years, before Wal-Mart will ever surrender.

Sources

J.R.S. 14, NO. R-76, 2009-2010 Sess. (Vt. 2009)

National Trust for Historic Preservation, et al. v. Orange County Board of Supervisor, Petition for Review and Complaint for Declaratory Judgment, Injunctive and Other Relief, http://media.gatewayva.com/cse/PDFs/wilderness.pdf(last visited November 4, 2009)

Clint Schemmer, Vermont: Move Wal-Mart, Free Lance-Star, Feb. 14, 2009, available at http://fredericksburg.com/News/FLS/2009/022009/02142009/446099/index_html?page=2.

Associated Press, Orange Wal-Mart Dispute Heads to Court, Daily Progress, Sept. 24, 2009 available at http://www2.dailyprogress.com/cdp/news/local/orange/article/orange_walmart_dispute_heads_to_court/45913/.

Piedmont Env't Council, Information on the Wilderness Wal-Mart Development Proposal, http://www.pecva.org/anx/index.cfm/1,201,1509,-1,html(last visited November 5, 2009).

Mary Beth Blauser, Living in the Past or Preserving the Future: Vermont's Act 250 and the Fight Against Wal-Mart, VJEL In The news (Sept. 29, 2009), http://www.vjel.org/news/NEWS100202.html(last visited November 5, 2009).