Select Board appointment error throws Dollar General OK into question

By Cynthia Prairie

Confusion on the part of the Select Board over when appointments to the Development Review Board are made could throw into question the DRB’s recent decision to allow a Dollar General store to be built, as well as other actions it may have taken since the beginning of March. (You can read the decision here: Chester DRB – Dollar General Decision)

Note posted at Town Hall Monday night announcing canceled DRB hearing./ photo by cynthia prairie

The first inkling of a problem came Monday night, with a sign posted at Town Hall canceling the scheduled DRB meeting apparently because the Chester Select Board had failed to re-appoint two members of the DRB to fill terms that had expired in early March. Those members are Scott Wunderle and Dan Ferguson.

Reached Monday night for comment, DRB chair Peter Hudkins said, “The town of Chester canceled the meeting” after Shawn Cunningham* of Smart Growth Chester questioned “the period of time they were actually appointed for.” Hudkins added that town zoning administrator Michael Normyle informed the board of the decision. “He said we couldn’t meet till we had five members.” Five members is the minimum number of DRB members required by state law.

On Tuesday, Normyle would only say, “It is my understanding that the intention was that the appointments were to be to early June.”

“We’re sorting out the situation right now,” said Town Manager David Pisha. “… in 2010 the DRB members were appointed. We thought they were appointed till June.” Pisha said the confusion occurred because the DRB had been formed in June 2007, and appointments were made at that time.

“Then the transition was to move people back to March. … We will have to reappoint members to bring the number back to five. (The Select Board) will do it soon,” Pisha added, “but I don’t know when.” Concerning next steps, Select Board chairman John DeBenedetti said, “We’ve solicited applicants.” (The next meeting of the Select Board is Wednesday, May 2, 2012 at Town Hall, 556 Elm St. The meeting begins at 7 p.m.)

With one exception, according to the 2011 annual town report, all open appointments are made at the first meeting of the newly elected Select Board after Town Meeting in March.

Failure to reappoint – again

At the Select Board meeting of March 7, 2012, according to a SAPA DVD of the meeting, Select Board member Bill Lindsay brought up the issue of  DRB appointments, suggesting that those posts should have been voted on earlier in the month. Town Manager Pisha assured the board that he was told the date was June.  And board member Derek Suursoo said that he remembered the date as June “because there was one year that we didn’t appoint till very late.”

However, the minutes from the Feb. 3, 2010 meeting tell a more complex story.

According to town annual reports for 2007 through 2009, Development Review Board terms did run from June to June.

But when the Select Board failed to re-appoint Wunderle and Ferguson in June 2009, it corrected the error eight months later — in February 2010 — by putting the appointments on the March schedule and reappointing Wunderle and Ferguson to the DRB with terms expiring March 3, 2012.

And, according to those minutes, the motion was made by “Mr. Suursoo that Dan Ferguson and Scott Wunderle be appointed to the Development Review Board and their term to expire in March 2012. Mr. DeBenedetti second. Passed unanimously.” Suursoo also “expressed concern about any problems with those individuals making decisions on behalf of the Town (from June 2009 to February 2010) and they had not been reappointed.”

No clear picture on what happens to the Dollar General ruling

Since the Chester Select Board failed to reappoint or name new members to the DRB, the most contentious and drawn-out of recent actions – a proposal to build a 9,100-square-foot Dollar General store – might be considered approved by default without the 35 conditions imposed on it by last week’s DRB decision, DRB chair Hudkins said. He explained that the DRB had 45 days to make a decision from the time it closed the hearing on March 12. That time would be up on April 26. “But,” he added, “they still have to go through Act 250.”

Brian Leven, an attorney and Deputy Secretary of State, said, “As long as there is a majority (of the five-member board) who approved the process, then it was approved. But if it was 2 to 1, the actions potentially are invalid.” This could put the Dollar General decision in limbo since it was a 3 to 2 vote in favor, with Dan Ferguson voting for the project and Scott Wunderle voting against – making the valid vote 2 to 1.

“As long as there is a majority (of the five-member board) who approved the process, then it was approved. But if it was 2 to 1, the actions potentially are invalid.”

Brian Leven
Deputy Secretary of State

The 45-day decision clock hasn’t even started according to Jim Dumont, an attorney representing Smart Growth Chester, which has been fighting the Dollar General proposal. “If they didn’t have five members on the board, then their vote to close the record (to deliberate their decision) is not valid either,” Dumont asserted, since it occurred nine days after Ferguson and Wunderle’s terms expired.

Smart Growth Chester files motion to reconsider

Late Tuesday, Smart Growth Chester filed a six-page motion with the DRB to reconsider its approval of the Dollar General proposal based on “errors and omissions made by the DRB,” said Cunningham. “Throughout its decision, the DRB announced its conclusions – for example, that there’s no adverse affect of the development on the character of the area. But it never described how it came to that conclusion or why the arguments made by Smart Growth and by residents were not valid. An appeals court judge needs to see this to decide whether or not the DRB made a proper decision.” (Read the Motion to Reconsider 4 24 12 as filed)

Even though they believe that the ruling was invalid because the DRB lacked five members, Smart Growth will appeal the decision to the Environmental Court, Cunningham said, adding, “You are going to cover all the bases. You just don’t go with the one argument you think is strongest.” He added that Smart Growth will argue against the project at the Act 250 level as well.

Numerous calls to representatives of Dollar General were not returned.

In the meantime, the Select Board is looking for people to apply to serve on the Development Review Board. To apply, you can send a letter of interest by May 1st to Town Manager David Pisha, Town Hall, 556 Elm St., Chester, VT 05143.

* Shawn Cunningham is married to the reporter of this article.