Fight to preserve historic New Market Heights Battlefield from development wins white flag

Jeremy M. Lazarus | 4/21/2022, 6 p.m.
Around 7 a.m., Sept. 29, 1864, five regiments of U.S. Colored Troops charged Confederate defenses under withering fire and dislodged …

Around 7 a.m., Sept. 29, 1864, five regiments of U.S. Colored Troops charged Confederate defenses under withering fire and dislodged troops dug in at New Market Heights in Eastern Henrico — about a mile east of what is now Interstate 295.

Fourteen Black soldiers and two of their white officers ultimately were awarded the Medal of Honor for their valor in the savage fight that cost 161 Union lives and left another 666 soldiers wounded.

The Battle of New Market Heights proved to be the final attempt by Union forces to breach the outer defenses of Richmond before the surrender of the Confederate capital six months later to Union Gen. Gregory Weitzel’s all-Black XXV Corps.

Now, 157 years later, advocates for preserving the battleground are celebrating a new victory at New Market Heights — this time over America’s largest homebuilder who sought to transform a portion of the battlefield into a 650-home subdivision.

On April 6, Texas-based D.R. Horton Inc. waved the white flag and announced it was giving up on the project. The pending deal to buy hundreds of acres at Long Bridge and Yahley Mill roads was off, the company stated in a message to the county that quickly circulated.

The company backed away after finding itself under attack from state and federal government agencies and a coterie of residents who opposed the massive development as bringing too much change to a still rural and largely wooded area where Confederate trenches are still visible.

That has opened the door for a regional group, the Capital Region Land Conservancy, led by Parker C. Agelasto, to begin efforts to buy the property from the Atack Trust, its owner.

Mr. Agelasto has confirmed the conservancy’s interest in purchasing and adding the property to the growing inventory of protected property in this section of Henrico to ensure that the New Market Heights battlefield and surrounding grounds are maintained forever in a natural state.

Already engaged in multiple projects in the Richmond area, Horton appeared to be unbeatable when the homebuilder arrived in 2020 to take on the Ridings housing development that first had been envisioned 16 years earlier by the late Henrico developer Robert M. Atack. Horton brought a small army of attorneys, land planners and others to plan the Ridings and secured the backing of the Henrico County staff for the project on a large tract known as the Warner Farm, located between Turner and Long Bridge roads, in the middle of the New Market Heights battlefield and two other previous failed Union attacks on the Richmond defenses known as Deep Bottom I and Deep Bottom II.

According to a Henrico County planning document, the total land area, bounded by Long Bridge, Yahley Mill, Turner and New Market roads, comprises 616 acres, with Horton to develop 419 acres. The rest, including a fort area on another rise called Camp Hill and a section of still pristine Confederate trenches, was either to remain undisturbed or had been deeded to Henrico, the documents indicate.

But the Horton plan ultimately collapsed after the company applied to expand the number of houses to be developed from 650 to 770 in July 2021. That awakened residents who had forgotten that a development had been planned for the property.

By February, Horton pulled that request, but the company still had a permit to undertake the 650 units. The company also inherited required permits the U.S. Army Corps of Engineers and the state Department of Environmental Quality had issued years earlier to Mr. Atack allowing the project to proceed.

Enter Jeffrey K. Dawes, a retired Richmond firefighter and Henrico school bus driver, who has lived on Yahley Mill Road since 1986. Like a majority of his neighbors, Mr. Dawes viewed the Horton plan as a threat to the quiet lifestyle to which he had become accustomed.

Despite feeling like there was little chance, Mr. Dawes said he was determined to fight, and his effort appears to have resulted in Horton’s final determination not to proceed.

Mr. Dawes’ first step was to create an organization with retired attorney and preservationist Mark Perrault called the Coalition For Protection Of the New Market Heights Battlefield. Then he went door to door taping flyers to mailboxes in the surrounding area to raise money to hire an attorney to challenge the development.

“I didn’t know what to expect,” he said.

He received an outpouring of support and checks as residents contributed $20,000 to support the fight.

After facing rejection from five other firms, Mr. Dawes found Marion F. Werkheiser, a principal with her husband, Gregory A. Werkheiser, in Cultural Heritage Partners, a law firm that specializes in this kind of legal battle.

Ms. Werkheiser, the firm’s managing partner, needed a few weeks to find critical chinks in the permit armor that appeared to surround Horton, and with a few critical letters upended the company’s plans.

According to documents the Free Press has obtained, Ms. Werkheiser found that Horton, Henrico County and the Atack Trust had failed to comply with a small list of obligations that the Army Corps of Engineers included when it filed the permits.

The Corps’ requirements included having two pieces of the property associated with the three Civil War battles donated to the county or a preservation organization and registered on the National Register of Historic Places.

The Atack family previously had donated a portion of its holdings to Henrico County, but the county never had begun the process of seeking landmark status for approximately 9 acres on Camp Hill, also known as Fort Southard. Separately, the Atacks had not begun the process to gain landmark status for another 4 acres that contained a 1,200-foot Civil War trench.

Ms. Werkheiser’s letter to the Corps of Engineers about the noncompliance with the historic preservation conditions led that key federal agency to notify Horton that the project could not proceed until that was done.

In another letter, she notified the state Department of Historic Resources, or DHR, about the lack of compliance, which led that agency to notify Horton and the corps that nothing had happened and also to inform the state Department of Environmental Quality.

Then Horton got notice from Virginia DEQ that its permit to disturb wetlands would expire in June and would require a new application.

DEQ also noted the information from DHR and advised Horton that a new permit would lead to a re-opening of the federal process that mandates a full and expensive review of all historic resources and the impact the project might have on them. Under the federal 106 process, Horton would have to create a plan to remediate any impact.

After the nationwide social justice demonstrations of 2020 and the rise of the Black Lives Matter movement, there were expectations that the historic review would have to be more extensive given the participation of the U.S. Colored Troops and the impact the development could have on the battlefield, which is largely located south of the property.

And all of that would need to be done before 2023, when the Corps’ permit is set to expire.

The bottom line: Horton was facing an unexpected expense and essentially was out of time to comply with getting historic status for the properties as the Corps demanded to avoid losing the state permit.

Mr. Dawes said he is proud to have played a role in protecting, for now, a place where Black soldiers put their lives on the line to uphold freedom.

“When I got into this fight,” he said, “I really could not imagine anything like this happening. But it has all worked out.”