L. Preston Bryant, Jr.
Secretary of Natural Resources
Department of Historic Resiources
2801 Kensington Avenue, Richmond, Virg inia 23221-03 11
Kathleol S. Kilpatrcck
Director
Tel: (8041 367-2321
Fax: (804) 367-2391
TDD: (804) 367-2386
www.dhrvirginia.gov
June 8,2009
Sharon Pandak, County Attorney
County of Orange
Greehan, Taves, Pandak and Stoner PLLC
Attorneys at Law
4004 Genesee Place, Suite 201
Woodbridge, Virginia 22912
RE: Orange County Request for Technical Assistance related to SUP 8-07, JDC Ventures
LLClWal-Mart
Dear County Attorney Pandak:
Thank you for your letter of May 26,2009, c o n f m i n , Orange
~
County's (County)
request to this Department for technical assistance related to the deliberations of the Orange
County Planning Commission and Board of Supervisors on S LJF' 8-07, JDC Ventures
LLClWal-Mart.
This Department respects Orange County's authority over land use decisions within its
jurisdiction and stands ready to assist a local government in matters related to the stewardship
of Virginia's historic resources. We believe that it is importa it for the County Planning
Commission and Board of Supervisors to have accurate and pertinent data on the location,
condition, and significance of historic properties that may be ~ffectedby the Wal-Mart
development, as proposed.
In that regard, let me clarify the nature and substance of the contacts which County staff
had with Department staff on February 5,2009, particularly ill light of public reports attributed
to Mr. Richard Grover that he and Ms. Deborah Kendall met ,withDHR Archivist Quatro
Hubbard and staffers Ron Grayson and Susan Smead on that day. Indeed, on February'5 Mr.
Grover and Ms. Kendall made an unscheduled visit to Archives to view files and maps, which
Mr. Hubbard provided. While County staff examined these n:cords, they asked to speak with a
member of Project Review staff to clarify a technical matter a bout federal environmental
review requirements. Accordingly, Mr. Grayson came into the archives room and in response
to the inquiry, confirmed that there would be no federal revielw of the project if there were no
Administrative Services
10 Courthouse Avenue
Petersburg, VA23803
Tel: (804) 862-641 6
Fax: (R04)862-6196
Capital Region Office
2801 Kensinpton Ave.
Richmond, VA 23221
Tel: (804) 367-2323
Fax: (804) 367-2391
Tidewater Region OWcs
14415 Old Counhouse Way, PdFloor
Newpon News. VA 23608
Tel: (757) 886-2807
Fa*: (757) 886-2808
Roanoke Region OWcf
1030 Pel~rnarAve., SE
Roanoke, VA 240 13
Tel: (540) 857-7585
Fax: (5401 857-7588
Northern Region Office
5357 Main S t ~ r e l
POBox 519
Stephens City. VA 22655
Tei: (5401 867-7029
Fan: (540) 868-7033
federal permits or other involvement That was the sum of the contact with Mr. Grayson. Ms.
Kendall later spoke with Susan Smead--not about the Wal-Mart project--but about DHR's
Survey and Planning Cost Share Program and the County's possible interest in sharing costs for
a county-wide architectural survey.
Mr. Hubbard provided appropriate data and guidance to Mr. Grover and Ms. Kendall on
the historical significance of the parcel proposed for develop~nentby Wal-Mart in the form of
maps and information that showed thaf a large area north of State Route 3, where Wal-Mart
wants to build, is located within the Chancellorsville and Wilderness Battlefields and within an
area that is eligible for listing on the National Register of Historic Places. Mr. Hubbard also
diiected County staff to contact the staff of the American Battlefield Protection Program
(ABPP) of the National Park Service for further guidance ant1 information. This Department
does not know whether or not County staff contacted the staf Fof the American Battlefield
Protection Program. DHR does know, and we think it is important that the Planning
Commission and the Board of Supervisors know, that the Do vetail report commissioned by
Wal-Marf which DHR has now had the opportunity to review, states clearly that the Wal-Mart
project area is located within two National Register-eligible Civil War battlefields and retains
sufficient integrity of landscape and setting to be considered contributing to the significance of
the battlefields.
Given the confusion that has clouded the county's review and interpretation of data and
studies in our agency's archives and in other sources, it may 1x helpful to the County's
deliberations to share some general statements on the nature of battlefields, the dierence
between a battlefield and a park, and the authoritative work o'f the 1993 Federal Civil War Sites
Advisory Commission (Commission) in identifying, classifying, and mapping the boundaries of
nationally significant battlefields in Virginia
What is a battlefield?
Important battlefields are typically defined as a type of historic resource called a
cultural landscape, which is a geographic area including both cultural and natural resources,
associated with a historic event, activity, or person, or exhibiting other cultural or aesthetic
values. Of the four general types of cultural landscapes--historic sites, historic designed
landscapes, historic vernacular landscapes, and ethnographic landscapes--battlefields are
generally considered to be historic sites. Features in the cultural landscape that are critical to
understanding a military conflict can be natural, such as land topography, waterways, and
vegetation, and man-made, including roads, paths, fences and other structures, objects, and
buildings. Defining the perimeter or boundaries of a battlefield requires an understanding of
the military action and related activities that occurred on the land, comprising military and
tactical movements, important positions or stationary points held during the engagement, areas
characterized by specific activities, and additional locations kty to the conflict.
Virginia has more important Civil War battlefields than any other state but only a
portion of a fifth of them have been preserved as national, staie or local parks. Fredericksburg
and Spotsylvania National Battlefield Park, including its Wilcierness Battlefield component,
was established by an Act of Congress in 1927 and listed on the National Register of Historic
Places in 1966. Because battlefields can encompass thousands of acres of land, battlefield
parks in Virginia and elsewhere in the nation generally do not encompass all features of the
cultural landscape that are diiectly associated with a significant battle. Two decades ago, in the
face of growing evidence that significant Civil War battlefielis in Virginia and all across the
country were being lost to unimpeded development, Congress established the Civil War Sites
Advisory Commission (Commission) for the purpose of idenjifying, classifying, mapping, and
prioritizing the nation's most significant Civil War battlefielcls. Our Department worked
closely with the Commission in fulfilling its charge to Congr1:ss and completing its 1993 report
to Congress and the American people. We have since worked closely with the American
Battlefield Protection Program (ARPP) of the National Park !iervice during periodic revisions
to the Commission's work.
Pertinent Findings o f the Federal Civil War Sites Advisory C~mmission
The Commission identified 384 armed conflicts out o [the more than 10,500 that
occurred from 1861 to 1865 as the principal battles of the Ci! il War and classified them
according to their historical significance. Forty-five sites werl: ranked "A" (having a decisive
influence on a campaign and a direct impact on the course of the war). Chancellorsville
Battlefield and Wilderness Battlefield counted among that elite class of national battlefields for
possessing the highest level of historical significance and meiiting the highest priority for
preservation. One hundred and four were ranked "B" (havin; a direct and decisive influence
on their campaign); 128 were ranked "C" (having observable influence on the outcome of a
campaign); and 107 were ranked "D" (having a limited influence on the outcome of their
campaign or operation but achieving or affecting important I< cal objectives.)
As documented in The Q@cial Virginia Civil W m Ba!'tlej?eldGuide by John S. Salmon-a reference recommended to your staff by Mr. Hubbard--the Chancellorsville Battlefield,
where Confederate and Union forces clashed in late April to taarly May 1863, is arguably the
most important battlefield in Virginia as the site of Lee's gres test victory and of Stonewall
Jackson's mortal wounding, and it had greater consequences For the Confederacy than any
other battle fought on Virginia soil. From the Chancellorsville victory, Lee again determined to
invade the north, leading to the momentous conflict at Gettysl2urg three months later. The battle
of the Wilderness, which occurred a year later over much o f t he same terrain, for the first time
locked Lee and Grant in mortal combat, waged in a nearly impenetrable tangle of trees and
brush, resulting in 18,000 Federal troops killed, wounded, or ilissing, and 11,000 losses on the
Confederate side. Lee and his men considered the battle a sbategic victory but the spring
offensive that Grant launched on May 4 in the Wilderness effzctively put Lee on the defensive,
virtually eliminating any possibility that Lee could maneuver against Grant and attack him
successfully.
In addition to classifying battlefields according to their significance, the Commission
classified battlefield lands based on a careful examination of oficial records and other sources
and using established survey and evaluation criteria These classifications are the Study Area
and Core Area.
The study area of a battlefield includes all places relat,edor contributing to the battle
event: where troops deployed and maneuvered before?during, and after the
engagement; it is the maximum delineation of the historical site and provides more of
the tactical context of a battle than does the core area.
The core area of a battlefield is within the study area imd includes only those places
where the wmbat engagement and key associated act ions and features were located; the
wre area includes, among other things, what often is described as "hallowed ground."
Both the study area and the wre area are critical to urtderstanding the significance of
battlefield lands and interpreting the conflicts that marked tht:m. Together, these two
components of a battlefield define the full extent of a battlefield. The Commission rewgnized
that the distinction of study and core areas was particularly important when planning a
protection and preservation plan for battlefields, particularly For Class B, C, and D sites. The
core area is generally the part that should remain undisturbed,with less stringent and more
diverse protection techniques usually appropriate for the rem.Cnder of the study area,
particularly for Class B, C, and D sites. However, a clear inference from the Commission's
work is that the preservation goal for the study areas of Class A battlefields such as
Chancellorsville and Wilderness should be that they remain undisturbed. Primary among
features in the landscape factoring in the conflicts waged on these battlefields are roadways
along which troop movements occurred, terrain and land fomls, and waterways and fords.
Why did the Federal Civil War Sites Advisory Commission include the Wal-MariSite within the
Boundaries of the ChanceNorsville and Wilderness Battlefields?
According to the findings of Civil War Sites Advisory Commission and subsequent
updates of the Commission's Report by the American Battlefield Protection Program of the
National Park Service, the proposed Wal-Mart development rite is located entirely within the
boundaries of the Chancellorsville and Wilderness Battlefields. This important point is
illustrated clearly on the attached maps, which our staff has compiled from files and maps in
our archives. and from files and maps of the National Park Service. The maos show that the
parcel
for development b i Wal-Mart is located dire'ztlywithin the$tudy area of the
Chancellorsville and Wilderness Battlefields and directly adjtcent to the core area of the
Wilderness Battlefield.
During the Battle of Chancellorsville, the parcel now proposed for development by
Wal-Mart was occupied by Confederate troops. It was to the nearby Wilderness Tavern that
the wounded Stonewall Jackson was brought and his arm am1)utated after his wounding.
During the Battle of the Wilderness, the parcel proposed for c~evelopmentby Wal-Mart formed
part of the continuous landscape that stood between the right flank of the Union line
(Sedgwick's 6" Corps), and the main rear area of the Union army that stood a short distance
south and east of a stretch of Union earthworks and trenches i hat crossed the Germanna Plank
Road (Route 3) to the north and west. These earthworks werei constructed by elements of the
Union 6" Corps on the evening of May 6,1864 to defend themselves against Confederate
attack from the west. The Wal-Mart site occupies a location t o the rear of these earthworks
where it is reasonable to surmise that military activity in prep mtion for action, during military
action, andlor following military action took place. In prepmition for action, the Union Corps
of Warren and Sedgwick marched past this site on maneuvers in the opening moments of the
battle. A map drawn after the War by Surgeon Thomas A. McParlin, Medical D i t o r for the
Union Army of the Potomac, indicates that the Union's Sixth Corps hospital [identified as "C"
on McParlin's maps] stood across the Gennanna Plank Road (Route 3) from the proposed WalMart site. McParlin's report that accompanied this map states: "The hospital of the First
Division of this Corps was at the Spotswood house on the Gemanna Ford turnpike; that of the
Second Division on the Old Wilderness Run near Woodville Mine, and that of the Third
Division near Old Wilderness Tavern. About 1,000 wounded were brought in during the day,
the greater part from the Second Division." It is conceivable:for that hospital to have occupied
both sides of the Gennanna Plank Road. A more accurate miip of this same general area of the
Wilderness Battlefield, published in Atlas to Accompany the Official Records of the Union and
Confederate Armies, Plate XCVI, Map 1 shows that in 1864 -therewas some clearing in the
vicinity where Wal-Mart is being proposed. In the Wilderne!~~,
clearings were sought out for
camps, staging, and storage areas, as well as hospitals and wigon parks. The preponderance of
evidence thus indicates that this parcel figured directly in military operations of the
Confederate Army during the Battle of Chancellorsville and of the Union Army during the
Battle of the Wilderness.
DHR Comments on the Dovetail Report
Per your request of May 26,2009, DHR has reviewed the report entitled Phase I and II
Cultural Resource Investigations at the Orange County Retail Development, Orange County,
Virginia prepared by Dovetail Cultural Resource Group I, Inc . for Bowman Consulting Group
LTD. The purpose of this study was to identify significant historic resources within the
project's Area of Potential Effect. Recommendations regarding the impact or potential impact
of the development on identified significant resources were ns3t a part of the report, nor were
they the goal of the Dovetail investigation.
Overall it is our opinion that the study's methods and reporting are consistent with
D m ' s Guidelinesfor Conducting Cultural Resource Survey in Virginia (rev. 2003). However,
the report's discussion of various battlefield boundary design;~tionsis unnecessarily conhsing
and begs for clarification. We hope that the maps we are inclt~dingwith this letter will help
dispel this confusion. It is our assumption that when the Dol,etailreport mentions the National
Park Service boundary, the authors intended this to be a refen:nce to the boundary of the
adjacent Wilderness Battlefield Park, which is part of the Fre~iericksburg& Spotsylvania
National Military Park. Once again, it is important to note that park boundaries should not be
confused with the historic battlefield boundaries, which are defined by the Commission and the
ABPP. Finally, we should make it clear that DHR by itself does not define the boundaries of
battlefields, as suggested in the Dovetail report. DHR takes as authoritative Civil War
battlefield boundaries as defined by the CWSAC and ABPP.
Our review also noted that the analysis of the battles c f Chancellorsville and The
Wilderness is very general in the Dovetail report. It does not appear that the consultants went
beyond a cursory overview of the two battles to discover what happened on the site by looking
at the Official Records, letters, diaries, regimental histories, and other sources, nor does it
appear that Dovetail consulted with National Park Service historians in an effort to discover
what is known to have happened or to be reasonably expected to have happened on this specific
site during these two battles. Nevertheless, the Dovetail repol? clearly states that the project
area is located within two National Register-eligible Civil War battlefields and retains
sufficient integrity of landscape and setting to be considered contributing to the significance of
the battlefields. DHR strongly supports this conclusion. Again, this finding is consistent with
the data and maps provided in February to your staff.
On June 4,2009, the archaeological subcommittee of DHR's National Register
Evaluation Committee met to consider the eligibility of the nkmaining five archaeological sites
and one architectural resource identified during the Dovetail study. The subcommittee concurs
that archaeological sites 440R0347,440R0348,440R0349,440R0350, and 440R0351 are
not individually eligible for listing in the National Register. ;Becauseof the age and
composition of their artifact assemblages, sites 440R0347,410R0349, and 440R0351 were
also evaluated as possible contributing resources to the National Register-eligible battlefield
landscape. It is the subcommittee's opinion that none of these archaeological sites contain
definitive associations with activities related to the battles and therefore do not contribute to the
significance of the battlefields.
The historic sunken road trace @HR ID $068-501 3), which bisects the project area,
~
however, Dovetail could fintl no conclusive evidence that this
clearly dates to the 1 9century;
road was part of the battlefield landscape. Accordingly, Dovetail recommends this resource as
not eligible for listing in the National Register. Our review o fthe period maps provided in the
Dovetail report suggests that this road may have been present during the time of the battles and
should be considered a contributing element to the National Register-eligible battlefields
In sum, the Dovetail report concludes, and DHR concurs, that the project area, as part of
the Wilderness and Chancellorsville Battlefields, is a siflnificmt historic resource eligible for
listing in the National Register of Historic Places. EV& thoyh the five archaeological sites on
the property could not be tied to the battles, the cultural landscape, including the historic road
trace, remains intact and should be addressed within the larger battlefield context. It is DHR's
recommendation that the results of Dovetail's study should bt: fully incorporated by the County
and its applicant into the overall analysis of the impact and cc~nsiderationof this proposed
development.
Effects of the proposedproject on the Chancellorsville and R'ilderness battlefields
While the Dovetail studv is an identification reDort that does not attemnt to address the
question of the effect of wal- art's proposed development on the Wiiderness'~attlefie1dor
Chancellorsville Battlefield decision-makers together with this Department routinely considers
actions that may cause impacts to important historic properties based on such reports. We
routinely assess the potential for effects on historic properties a s part of the federal and state
project review processes and in response to requests for technical assistance from local
governments. Impacts that are detrimental to a historic property are those that diminish
characteristics that cause the property to be historically signif cant.
Since the proposed project involves placement of a large, "big box" commercial
development, with attendant parking and secondary commercial development sites in the midst
of and on Register-eligible battlefield lands, the impact is direct and adverse, notwithstanding
Wal-Mart's offer to set aside a major portion of the development parcel as a conservation area.
In consultations with project sponsors for federal or state undertakings with adverse
impacts on historic properties, the first goal of best practices in the management of historic
properties is to seek to avoid, and if not avoid, to minimize the impact on historic properties.
When it is clear that a project has strong potential for advem: effects, the routine question is
whether there are alternatives to the location that will avoid an adverse effect.
The Dovetail report does not address the issue of whether Wal-Mart considered
alternative sites for the proposed development and why it may not be prudent or feasible for
Wal-Mart to locate the project on a different site on which t h e would be no adverse effects on
the two battlefields. A direct adverse effect of this magnitude and of this scale cannot be
mitigated successfully with building and landscape design treatments; the project constitutes a
large-scale alternation of an historic landscape.
Occasionally, an action that will cause an adverse impact on historic properties may be
reversible, allowing the harmful effects to be undone at a later date. However, in the case of
the Wal-Mart development, as proposed, the magnitude of the impact that will result to the
battlefield landscape, if the project is permitted, cannot be mi tigated by its potential
reversibility in the future.
Visual impact of the WaI-Martproject on the National Park
Wal-Mart's visual assessment of the impact of the prc ject on the National Park, which
DHR has reviewed, projects that the development would not ye visible from the Park.
However, letters of comment to the Planning Commission frcm the National Park Service and
the National Trust for Historic Preservation suggest othenvisc:. Moreover, the Piedmont
Environmental Council has undertaken its own projections of the visual impacts of the
proposed development, which indicate that the development will indeed be visible from the
Park. Wal-Mart's projections suggest that visitors approachir~gthe Wilderness Gateway along
Route 3 at the Orange County line will not be able to see the Wal-Mart Supercenter. Yet there
is conflicting evidence that visitors coming ffom this direction into the County will, in fact, be
able to look down upon the Wal-Mart store, splayed out in h n t of them. DHR also believes,
based on a communication from Mr. Grover, that the validatitw process he used did not
constitute a professional assessment of Wal-Mart's visual impact analysis. Accordingly, at
minimum, we would have to recommend that an independent professional assessment be
undertaken to settle the question of the visual impacts of the proposed development. In the
short time in which DHR has had to consider Wal-Mart's vis~~al
analysis, and lacking
independent validation of the quality and accuracy of that assessment, weight should be given
to the comments of the National Park Service that the proposrd Wal-Mart development would
be visible h m within the boundaries of the park, which extends all the way to the intersection
of Routes 3 and 20 and encompasses a lime of trenches in the Park that is situated within a few
hundred feet of the proposed development. We understand that a cultural landscape study
conducted for the National Park Service recommends that NPS open the existing landscape and
view sheds of Ellwood in the Park consistent with their histora-period appearance. Wal-Mart's
study indicates that the proposed development will not be visiible h m Ellwood, but Wal-Mart
on this critical point seems to depend on the National Park S~:rvicemaintaining the existing
non-historic tree cover at Ellwood, which NPS plans to remove as per its interpretive and site
management mission.
Options if the Wal-Mart prowsal is permitted
Regarding the County's request for guidance on mitigation options that it might require
if the Wal-Mart project is permitted, I can only repeat the earlier statement that construction of
a commercial development of this magnitude and scale is by definition incompatible with the
existing character land encompassed in two nationally significant battlefields. The direct impact
on the historic landscape cannot be mitigated through design and new landscape elements. The
proposed development's impact on the battlefields would also be irreversible. It must also be
noted that the development's readily foreseeable secondary irnpacts, if permitted, would be
reduced if the projected road to the west of the property propsed for development by WalMart were not required and constructed. Approval of this enirance road on land not owned by
Wal-Mart can reasonably be expected to enwurage development of the adjacent parcel, and
thus to enwurage additional adverse effects on battlefields lands.
In other situations in which a project of this scale and magnitude is approved to go
forward by a permitting agency or body and its impact on the land and historic resources cannot
be successfully mitigated, proposed strategies have included creation of a fund for the purchase
of battlefield land andlor easements on battlefield land, on and off-site. However, given
serious questions that remain unaddressed about both direct and visual impacts to two
battlefields and a National Park at the very gateway to the Wilderness and to Orange County,
we cannot recommend such a strategy until and unless there has been a careful understanding
and balancing of the legitimate claims of historic preservatiorl and orderly development in the
County. Moreover, in our considered judgment, the National Park Service's concerns about the
impact of the proposed development on both battlefields and the Park should not be dismissed,
but squarely addressed by the County, ideally in the context c f a comprehensive planning
approach.
I hope these comments are helpful to the deliberations of the Planning Commission and
the Board of S u p e ~ s o r s .DHR will have a senior staff memlm present at the Commission
meeting on June 11,2009 to answer questions about the enclc~sedmaps and our comments.
Sincerely,
Kathleen S. Kilpatrick
Director and State Historic Preservation Oficer
Attachments
Copies: Members of the Orange County Planning Commission