Judge to decide if county must revisit Costco decision

Does a New Baltimore man have the legal right to contest plans for a shopping center and Costco store because the project would do harm to his nearby home?

Did Fauquier County improperly advertise public hearings for developer Cross Creek Investments LLC’s special-exception permit for the project?

If the newspaper ads prove to be "defective," should Fauquier be required to hold new public hearings before the county planning commission and board of supervisors on the shopping center project, which includes a 148,000-square-foot Costco?

Judge Jeff Parker listened to lawyers representing the county, Cross Creek Investments and New Baltimore resident James Rohr discuss these and other issues for about three and half hours Monday morning in Fauquier’s circuit court.

Parker took no action Monday afternoon, but said he would issue a written opinion after fully reviewing the complicated case.

In a 3-2 vote last November, the supervisors granted Cross Creek Investments a special-exception permit for a planned 250,000-square-foot shopping center, including a Costco store, at U.S. 29 and Route 600.

In December, Rohr, who lives on Route 600 about .3 mile from the site, filed a lawsuit in circuit court against Fauquier and the developer to stop the project.

Leesburg lawyer Charles K. Moss, who represents Rohr, made broad and specific allegations as to why his client believes the supervisors erred in approving the Cross Creek Shopping Center proposal.

Moss claims his client has the legal right, known as "standing," to contest the county decision because he lives near the 39-acre commercial site and thus has "sufficient interest" in the project’s effects on his property.

Rohr, who lives on almost seven acres along Route 600, seems to believe, though never specifically alleges in his suit, that the additional traffic associated with the shopping center proposal would diminish his quality of life.

In testimony Monday, Rohr suggested the additional traffic would make Route 600 unsafe for him to cross the road to retrieve his mail, would make it unsafe for bike riders, school buses and emergency vehicles.

But County Attorney Kevin Burke told the judge that Rohr’s home "is simply too remote" from the shopping center site to claim "standing."

Moreover, Rohr "hasn’t pleaded any special damages" or noted "injury" particular to him because of his home’s proximity to the development site, Burke said.

Northern Virginia lawyer John Foote, who represents Cross Creek Investments, said that "standing is an absolute predicate to the maintenance of a lawsuit" such as Rohr’s.

Foote insisted Rohr cannot claim standing based solely on his home’s proximity to the site.

Rohr must also prove "immediate and pecuniary" damages to his property to establish standing, the Cross Creek Investments lawyer said. "Proximity alone doesn’t do it," Foote said.

But Moss described Rohr as living at "ground zero" of the shopping center site.

Moss also contends the supervisors’ approval of the project violated the county comprehensive plan, which prohibits "destination" retail or "big-box" stores in the New Baltimore Service District.

The development site lies within the New Baltimore Service District, one of nine key designated growth areas in Fauquier.

The site is zoned "highway commercial," which allows retail uses of more than 50,000 square feet with special-exception permit approval by the board.

Zoning always takes precedence over a comprehensive plan, which Burke called a "guideline" for growth.

Rohr believes the board’s approval of the project violated the comprehensive plan’s general standards for issuing a special-exception permit.

Moss also wants Parker to rule that Fauquier’s failure to provide a detailed description in newspaper notices of the shopping center project require the county to hold new public hearings.

The newspaper public hearing advertisements refer to a shopping center of more than 50,000 square feet and provides the site’s location.

The ads lack the information to allow residents to draw informed conclusions about the magnitude of the project, according to Moss.

Burke and Foote told Parker the advertisement language satisfies public notice requirements.

Residents who wanted to learn more about the proposal could have gone to the community development office and read the application file, Foote said.

Moss also considers the public hearing advertisement flawed because it omits reference to one of 13 parcels comprising the project.

The advertisement also gives an incorrect identification number to another parcel.

These errors also should require Fauquier to re-advertise the project, Moss told the judge.

Burke disagreed, calling the parcel omission "irrelevant" and parcel number error an inconsequential "scrivener’s" mistake. (The omitted parcel totals 1.8 acre, the other about three acres.)

But Parker wondered aloud about whether standing might be granted residents, whether or not they lived near a development site, to legally challenge a flawed public hearing notice.

No Virginia court has done anything like that, said Foote, whose tone suggested it would be stretch to permit the application of standing under such circumstances.

Moss believes the entire project must be re-advertised for public hearing because of the public notice errors.

That would means Cross Creek would have to submit a new application, which would be subject to public hearings before the planning commission and supervisors.

If Parker kicks it back to the supervisors, it will be a new board voting on the divisive proposal. New board members Holder Trumbo (Scott District), Peter Schwartz (Marshall District) and Terry Nyhous (Center District) would get a chance to decide the matter.

The lawyers and Rohr declined to comment on the hearing.

E-mail the reporter: ddelrosso@timespapers.com