If you listen to some opponents, you’d think Sherman’s army was scorching sacred Southern soil again, only this time marching under the Walmart standard. And today, January 25th, five days after Robert E. Lee’s birthday, Walmart meets its challengers in court, defending the Orange County (Virginia) Board of Supervisor’s decision to approve a Walmart somewhere within the seventy square mile area known as the Battle of the Wilderness.

             The Battle of the Wilderness was a huge area – did I mention it was seventy square miles? – in which the armies of Robert E. Lee and Ulysses S. Grant (not Sherman, actually) met for the first time.  If you’ve ever traveled through Virginia you’ll know that it’s a state that has admirably preserved its history. It’s a state that values its historic structures and protects its rural areas much better than North Carolina.  But that’s not what’s being litigated.

            Legal battles usually rise and fall on who can successfully frame the issue.  I frame this issue as follows: Once historians, the Commonwealth of Virginia and the U.S. Government identify the portion of the seventy square mile area that should be protected as the core battlefield, how can one appeal to history to stop Walmart in 2009 from developing in an area that for years has become populated with other retail uses and has long been zoned for commercial purposes?  If the land is as sacred as opponents claim, why didn’t they move long before now to buy it or preserve it?  Where were opponents when huge subdivisions, industries and other retail uses began to pepper the seventy square mile landscape?

             New readers may notice that I’ve made Walmart its own blog category.  Long-time readers may remember that I first covered this story when this Walmart store was approved in August 2009. (Easily found in the right hand margin of the blog).

             If you wonder why Walmart is so special to merit its own blog category, it’s because Walmart presents fascinating case studies in land use approvals that no other entity can provide. 

             My best guess is that an upscale shopping and dining development on the same site would not have generated any controversy and that a big box retailer with a large red bull’s-eye on its wall would have generated far less controversy, though the results would have been equal.

            It’s just that Walmart is a lightening rod that rose to symbolic status long before other large box retailers did.  Citizens opposed to homogenized retail – from fast food to clothing stores – have a particular disdain for the Walmartification of America, a reputation K-Mart, McDonald’s, Sears, J.C. Penney, Burger King, Target and other retailers have escaped. 

             Sometimes it defies logic.  Othertimes not.

            The issues before a zoning board should be matters such as traffic, stormwater control and neighborhood buffers, but in a Walmart rezoning the first speaker will want to talk about factory conditions in the country where Walmart suppliers have shops and the second speaker will accuse Walmart of having inadequate employee benefits.  It makes no difference that all of the legitimate land use considerations point towards approval if opponents can vilify the company on irrelevant issues, some true and some not.

              Walmart rezonings really are different.

             In zoning battles, perception and reality are bent and shaped in cauldrons of fear and raw emotion.  To summon armies to support you, you have to vilify the developer.  You have to make neighbors and the community fearful.  You can’t afford to be rational.  Every point must ring the warning bell from the Community Watchtower. After all, invasion by an outsider is imminent.  To arms.

            To some extent, Walmart brought its troubles upon itself.  For years the company took an our-way-or-the-highway approach to its ugly-to-the-community-but-cheap-for-Walmart monolithic gray buildings, refusing to work with neighbors or local governments when other developers usually would have compromised.  There are sound reasons why a company that automates its inventory and builds stores on high production counts can’t custom build a store for every hamlet in America, but Walmart became especially known for its arrogance and inflexibility because it was both.

            A few years ago the company underwent a tectonic shift in attitude.  It developed store prototypes that had a slightly more Main Street feel.  It got serious about community outreach and helping community charities.  It adopted green technologies and standards. It has experimented with smaller store footprints.  It has empowered its consultants to work more closely with local governments. And it hired some of the best public relations companies available to communicate proactively with neighbors and elected officials. 

             We’ll soon have the trial court’s decision. With prominent and deep-pocketed backers like actor Robert Duvall, legal appeals could follow.  Without having read the legal pleadings, I’m putting my money on Walmart.  As a matter of (non-legal) principle, I hope that it prevails.  Stay tuned.

             To read previous blog posts, continue to scroll down or click on a category of interest in the right hand column.  To be alerted when a new post is published, simply click the “sign me up!” button above.  If you learned something, please forward this link to others who also might benefit.]

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Tom Terrell

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes…

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes parts of Virginia and South Carolina. His many clients are involved in commercial and residential real estate, solid waste hauling and disposal, telecommunications, quarries/asphalt and miscellaneous litigation related to permit denials, vested rights and rezonings.

He has published numerous articles and speaks regularly to legal, governmental and business groups on a variety of issues related to land use and zoning.

Mr. Terrell has served as a leader in numerous civic and legal endeavors, including Chairman of the Board of Trustees of the N.C. State Health Plan, Chairman of the Board of Trustees of Winston-Salem State University, and service on the Board of Directors of the UNC-CH General Alumni Association, Board of Directors of the High Point Chamber of Commerce, Board of Visitors of Guilford College and Board of Center Associates of the Center for Creative Leadership, and as a founding member of the N.C. Bar Association Zoning, Planning and Land Use Section.

More information can be found at https://www.foxrothschild.com/thomas-e-terrell-jr/.

Mr. Terrell can be contacted at mailto:tterrell@foxrothschild.com.