Zaremba defends Dollar General plans in court

This is Part I of two parts reporting on this week’s Dollar General appeal, only covering the testimony for Dollar General and cross-examination. Please share your views in the Comment section below the article.

By Cynthia Prairie
NEWFANE

Many punches were thrown, quite a number were landed but none seemed to be a knockout in two and a half days of testimony in the appeal of the Act 250 approval of a proposed Dollar General store for Chester.

Attorney Alan Biederman representing Zaremba Group, developer of the proposed Dollar General in Chester. He was brought in to litigate. All photos copyright Lew Watters. CLICK photo to launch gallery.

In the end, the opposing parties shook hands, chatted with one another and wished each other safe travels before heading to their homes, ending yet another round in what very well could be the longest fight to keep the retail giant from setting up shop in small town America.

The grass roots group Smart Growth Chester had appealed the District Environmental Commission’s approval in March of a land-use permit for the 9,100-square-foot retail store on 1.37 acres adjacent to Main Street Pizza and across the road from Country Girl Diner. Smart Growth Chester has been opposing the project for more than two years, since it was first proposed by the developer, Ohio-based Zaremba Group in summer of 2011. The store would be owned and operated by Tennessee-based Dollar General Inc.

Representing the Zaremba Group are David Cooper and Alan Biederman, both of Rutland. Cooper has been counsel to Zaremba since the project was first proposed. Biederman was brought on specifically for this week’s trial and handled all the questioning.

Representing Smart Growth Chester from the beginning is James Dumont, an attorney from Bristol who has been handling similar cases in the state.

FERRISBURGH CRITERIA VS. CHESTER CRITERIA

On Tuesday, the opening day of the trial at the columned, 1825 Windham County Courthouse in Newfane, Dumont’s experience fighting a proposed Dollar General in Ferrisburgh proved beneficial when an expert witness testifying for Zaremba turned out to be the same one who testified for Zaremba in the Ferrisburgh case.

Clockwise from left, court clerk Jackie Fletcher, David Saladino on the stand, two law clerks, attorney James Dumont cross-examining Saladino, and Zaremba attorneys Alan Biederman and David Cooper.

Landscape architect Michael Buscher of TJ Boyle and Associates of Burlington testified that he went to the site of the proposed Dollar General three times, reviewed the data, town and regional ordinances and looked at the surrounding community to determine if there would be an adverse impact. He said he determined there would be none, calling the neighborhood a “transitional zone between a historically dense village center to an auto-accessed center … with some attempt at pedestrian” access.

He added that Dollar General would add a concrete walkway in the front. Buscher described the homes and businesses between the Country Girl Diner and the American Legion as a conglomeration of ages, rooflines, heights, construction materials, styles and lot sizes.

In the Ferrisburgh Dollar General case, landscape architect Buscher surveyed a one-quarter mile radius around that site, finding industrial and commercial buildings of 20,000 and 35,000-square-feet.  In Chester, Buscher looked at buildings seven-tenths of a mile away, starting with the American Legion on Route 103.

On cross-examination, Dumont questioned Buscher about his testimony in the Ferrisburgh case.  Biederman objected, but Judge Walsh said there was precedent for allowing it.

In the Ferrisburgh Dollar General case, Buscher used several criteria to say that a 9,100-square foot Dollar General would fit in and surveyed a one-quarter mile radius around that site. Within the immediate area, which is industrial and commercial, are a 20,000-square-foot strip mall, a large solar farm, and a 35,000-square-foot car dealership.

Through Dumont’s questioning, it was revealed that for his Chester study, Buscher began looking at buildings seven-tenths of a mile away, starting with the American Legion on Route 103.

And while one criterion Buscher used to show that the 9,100-square-foot Dollar General in Ferrisburgh would fit in its proposed environment was the large “mass” of nearby structures, he did not use that criterion in Chester, where it would be the largest retail by almost half . In architecture, mass is a combination of size and shape that can make a building look larger or smaller than its actual square footage.

DOLLAR GENERAL AS ‘BACK BARN’

Buscher also testified that the Dollar General design was like that of the “back barns” attached to some Chester homes and that many buildings in Chester represent similar forms such as Chester Hardware and St. Joseph’s Catholic Church.

A recess in Tuesday’s proceedings: On the left, architect and Smart Growth member Claudio Veliz, Deputy Sheriff Trevor Dickerman and court clerk Jackie Fletcher speaking to a visitor. Center, Smart Growth Chester attorney Jim Dumont seated as Zaremba attorney Alan Biederman speaks with landscape architect Michael Buscher. Far right, Zaremba attorney David Cooper and engineer Chris Ponessi.

But Dumont pointed out that Chester Hardware has two stories, real windows and is only 5,000-square feet and St.  Joe’s is a stone facade, paying homage to Chester’s Stone Village, of cruciform design and the steeple is not a cupola.

Dumont then took Buscher through other buildings the landscape architect used to bolster his argument that the Dollar General was of similar form, including People’s Bank and TD Bank.

Dumont said, “You could fit two TD Banks and two Peoples Banks within the Dollar General and still have” room for more.

Through repetitive questioning, Dumont was able to get Buscher to drive home the point that the only similarity between the Dollar General design and all the buildings he compared it to was a gable end and a roof line, that none was as massive as the Dollar General and there were many more differences than similarities.
Dumont then addressed the issue of windows, of which the Dollar General design — at 70 feet across by 130 feet deep — has none. (The design calls for two large faux picture windows on either side of a commercial front door.) After much back and forth, Buscher admitted that “the absence of windows would be a negative.”

During ski season, traffic engineer Saladino claimed that the intersection of Maple Street and Route 103 would have a B rating, but only because a traffic officer was present. No modeling of the intersection during ski season and without a traffic officer was conducted, Saladino admitted, since “we assumed the officer would be there.”

The first two witnesses of the day were David Saladino, the traffic engineer who had conducted a traffic study on behalf of Zaremba Group, and Chris Ponessi of Speath Engineering out of Manchester who did the site design and later flood water mitigation designs following flooding by Tropical Storm Irene.

Dumont’s cross-examination of all three Zaremba witnesses focused on their methods of reaching their conclusions, as he strived to show  that the criteria were being cherrypicked to reached a favorable conclusion, that sufficient modeling of specific situations were not being done or that the methods did not sufficiently address the special circumstances that Chester finds itself in.

A traffic study concluded that a Dollar General would only add a 2 percent increase in traffic. During ski season, Saladino claimed that the intersection of Maple Street and Route 103 would have a B rating, but only because a traffic officer was present. No modeling of the intersection during ski season and without a traffic officer was conducted, Saladino admitted, since “we assumed the officer would be there.”

By 4:30 p.m., Biederman had rested Zaremba’s case and Judge Walsh recessed the court asking for an 8:30 start on Wednesday Sept. 11,  when Dumont would put on Smart Growth’s case.

Part II: Chester citizens and Smart Growth experts take the stand.