Judge sends Dollar General OK back to DRB for clarifications

UPDATE: Chester to convene DRB hearing to get clarifications. See the 2nd section below for the press release.

By Cynthia Prairie

The judge reviewing the Chester Development Review Board’s April 2012 approval of a Dollar General store for Main Street has remanded the decision back to the DRB for a number clarifications.

In effect, the judge stated that there was not enough information in the DRB decision for him to decide whether the DRB was correct in its approval on two points: adverse impact on the character of the area and adverse impact on traffic. You can read the document here and a summary is below.

The case ended up before a Superior Court judge of the Environmental Division after a group of residents appealed the DRB decision, claiming that it insufficiently addressed how the 9,100-square-foot project met town zoning criteria.

On Wednesday, June 12, Superior Court Environmental Judge Thomas Walsh notified the parties in an eight-page document that he agreed, at least in part, with the appellants.

This is another delay for the Dollar General, which was first proposed in summer of 2011 by developer The Zaremba Group in hopes of building a 9,100-square-foot store across from the Country Girl Diner. Opposition to the plan quickly mounted under the aegis of Smart Growth Chester, which has been raising funds, hiring experts and turning this into what could well be the longest zoning fight that the Tennessee-based Dollar General Corp. has ever had. In opposing the store, Smart Growth advocates have stated their concern that locally owned stores would be underpriced out of the market, that the store itself doesn’t fit in with the New England character of the town and that necessary tourism would be lost by diluting the uniqueness of Chester.

Chester has two designated historic districts, one the large Victorian village along Main Street and the other the Stone Village on 103 North.

Walsh wrote that while the DRB decision “demonstrates clear effort on the part of the DRB and is detailed and well-organized … Appellants assert that the DRB’s factual findings and legal conclusions were insufficient, and we agree.”

Appellants willing to fight on

Reached Thursday afternoon, Dollar General spokesman Dan MacDonald said he could not comment on the situation because it had just occurred. He did say though that there are 17 Dollar General stores currently in Vermont with 10 more scheduled to come on line this fiscal year, which ends February 2014. Among those 10 is the Chester store.

Attorneys for the town of Chester and the Zaremba Group, as well as town manager David Pisha did not return repeated phone calls on Thursday seeking comment on their next steps in the process.

But on Friday morning, town government issued this press release: “Following a thorough review of the Decision and Judgment Order, the DRB will consider the matter at a duly warned meeting in the near future.  The DRB will move forward to complete its tasks on remand as quickly as possible while fully providing the clarification requested by Judge Walsh.  In the interim, the DRB will not make any further comment on the matter given its obligation to fairly and impartially consider the pending application on remand .”

“It makes sense to me that the new DRB would have to rehear the case since the old DRB isn’t around and the transcripts are not of good quality.”

Jim Dumont
Attorney
Smart Growth Chester

Claudio Veliz, a Chester architect and member of Smart Growth Chester, called the ruling “a victory in a battle  … It would be naive to think that Dollar General doesn’t have the resources to continue.” Even so, he said his organization was “willing to continue the fight for many years.” Veliz added, “We’re trying to make it much more likely that Vermonters will have a say in their economy and stopping Vermont money from going to Tennessee.”

Attorney Jim Dumont, who has been representing Smart Growth Chester and the appellants, said the judge’s decision “means the DRB needs to rewrite its opinion complying with the judge’s order. … there wasn’t much else the judge could do.”

But he added, given that four of the five members of today’s DRB were not part of a decision, “It may mean reopening the hearing.” Since Chester is an on-the-record town, Dumont said, the judge will act as an appellate body. “It makes sense to me,” Dumont added, “that the new DRB would have to rehear the case since the old DRB isn’t around and the transcripts are not of good quality.” He said that in a hearing there is no substitute for live expert testimony, exhibits and being able to ask questions.

The judge’s decision

In his decision, Judge Walsh found that:

1. while the DRB decision explains the visual appearance of the project and states that it fits in with the “character of the area,” it fails to explain in detail what that character is. Walsh writes that the DRB finding fails to “explain the character of the area, such as … nearby structures’ size, architectural features, lot coverage, height, setbacks, hours and types of use, landscaping, prominent topographical features, and parking configurations.”
2. the DRB failed to show that the Dollar General would not adversely impact the character of the area. “Because the DRB’s decision fails to include an adequate analysis, we must conclude that the DRB’s conclusions of law are also lacking,” Walsh wrote.
3. while the DRB found that the project would not adversely impact traffic, it failed to explain how, despite the fact that the DRB put a condition on the Dollar General that it pay for a traffic officer if problems occur.
4. although the DRB concluded that the Dollar General would “adhere to the overall New England architectural appearance which gives Chester its distinct regional character and appeal,” as required by town zoning laws, it omitted the words “center of” before the word Chester, and did not describe what the center of Chester looks like. Therefore, the judge concluded, there is a lack of points to compare.

Walsh concluded with, “We hope this decision will assist the DRB in understanding how to fulfill its role of ensuring that property owners and interested persons receive an adjudicative process that is fair, comprehensible, and not unnecessarily delayed.”