Court hears Costco dispute on Monday

A New Baltimore man who wants to stop Costcos plan to build a 148,000-square-foot store in his neighborhood will get his day in court next week.

Circuit Judge Jeff Park set side four hours, beginning at 9:30 a.m., Monday, April 7, to hear the case in the county courthouse at 40 Culpeper St., Warrenton.

Rohr filed a lawsuit against the Fauquier board of supervisors and Cross Creek Investments LLC, which received county approval last November for a 250,000-square-foot shopping center, including a Costco, at U.S. 29 and Route 600.

Rohr lives on Route 600, less than a half mile from the 39-acre Cross Creek Shopping Center site.

Costco has a contract to buy about 16 acres from Cross Creek Investments, a corporation established by principals with Angler Development LLC of Warrenton.

Represented by Leesburg lawyer Charles K. Ross, Rohr wants the court to void the supervisors approval of a special-exception permit for the Costco store because he claims the action violates the county comprehensive plan, which prohibits "big-box" stores in the New Baltimore Service District.

The shopping center site lies within the service district, one of nine growth areas identified in the comprehensive plan.

Rohr also wants the court to scuttle the Costco decision because he believes the board didnt satisfy general standards in the comprehensive for granting a special-exception permit.

He also contends the court should void the boards actions because it failed to provide details for the shopping center proposal in public notice advertisements.

Beside the particulars of Rohrs argument, Judge Parker will rule whether the New Baltimore man has "standing," or the legal right to contest the board action.

Rohr insists he lives within "sufficient proximity" of the shopping center site and thus possesses "sufficient interest" in the projects effects to challenge the county.

In court responses, the county and Cross Creek Investments take exception to all of Rohrs objections.

Fundamentally, the boards permit decision does not necessarily violate the comprehensive plan, the two parties contend.

Virginia Supreme Court and local court rulings conclude a comprehensive plan "does not have the status of a zoning ordinance," County Attorney Kevin Burke wrote.

It "is advisory only and serves as a guide to a zoning body," Burke said.

Michael J. Coughlin, a Northern Virginia lawyer who represents Cross Creek Investments, said that a master plan serves "only a comprehensive guideline" for and "simply cannot be elevated to the status of a land-use development ordinance."

Effectively, a comprehensive plans intent cannot supersede zoning.

The Cross Creek site is zoned commercial, which allows a big-box store with special-exception permit approval, according to the county ordinance.

Fauquier and Cross Creek also disagree that the board failed to adhere to the comprehensive plans general standards in approving the Costco special-exception permit.

Further, the public notice sufficiently explained the shopping center proposal, according to Burke.

"This advertisement covered the main points concisely and was sufficient to alert hundreds of members of the public, including (Rohr), who appeared and spoke at public hearings, that the application was pending and was to constitute a retail outlet of significant size," Burke wrote.

The advertisement referred to retail uses of more than 50,000 square feet.

Burke and Coughlin believe Rohr lives too far from the shopping center site to claim a legal right to contest the boards decision.

Thus, the county attorney suggested, Rohr has no "direct" or "immediate, pecuniary and substantial interest in the litigation."

Rohr lacks the right to challenge the county because the distance between his home and the shopping center site "is simply to great to establish standing, and his lack of direct impact from the" project "buttresses this defect," according to Coughlin.

Cross Creek Investments hoped to close its contract with Costco by June. But various delays, including the lawsuit and the Cross Creeks inability to secure credit to develop the site, will prevent that.

Despite setbacks, Costco remains committed to building a New Baltimore store, according to Steve Vento, who represents Cross Creek Investments.

Originally, the Issaquah, Wash.-based retailer wanted to open the store before this Thanksgiving.

E-mail the reporter: ddelrosso@timespapers.com