Environmental Court OK’s Dollar General with conditions

By Cynthia Prairie

Concluding that pertinent segments of Chester’s Town Plan are “aspirational” and not mandatory and that, even though the project will have an adverse impact, it will not be an undue impact, Environmental Court Judge Thomas Walsh has ruled that a 9,100-square-foot Dollar General can be built on Main Street in Chester.

You can read the ruling here.

The ruling comes after a three-day trial in September 2013 at the Windham Courthouse in Newfane (pictured on the cover) in which opponents, a  group of interested residents called Smart Growth Chester, presented expert testimony, at times testifying themselves. They are represented by attorney James Dumont.

This was the second blow within 10 days to opponents of building a Dollar General in Chester, who have been fighting the proposal at multiple levels for almost 30 months, since it was first proposed in August 2011. On Feb. 4, 2014, in response to a successful appeal by Dollar General opponents and a remand by Judge Walsh, the Chester Development Review Board issued more detailed arguments on why the DRB approved the project in the first place.

Artist’s rendering of the proposed Dollar General store for Chester.

In his ruling issued Friday, Feb. 14 — this one in response to Smart Growth Chester’s appeal of the Act 250 Commission approval — Walsh did say that the project lacked conformity with buildings in the surrounding area since it included faux front windows, all-glass front doors, an off-center cupola and an unbroken mass.

Walsh wrote that, “Despite the varied character of the area and the other buildings of similar size, these features do not fit the character of the area. We therefore conclude that the Project will result in an adverse aesthetic impact to the area’s character.”

An  adverse impact, but is it undue?

Although Walsh concluded that an adverse aesthetic impact was present, he also had to decide whether that impact was “undue.” To be ruled as such, and thus dismiss the project, the judge would have had to answer one of three questions with a yes. Those questions are:

1. Does the project violate a clear, written community standard intended to preserve the aesthetics or scenic, natural beauty of the area?
2. Does the project offend the sensibilities of the average person?
3. Has the applicant failed to take generally available mitigating steps that a reasonable person would take to improve the harmony of the proposed project with its surroundings?

As to Question 3., Walsh said that the project design was compatible and in harmony with its surroundings and the applicant has taken steps to mitigate impact with earth tone colors. However, the judge ordered the Zaremba Group, the developers of the Dollar General project, to replace the faux front windows with real windows. The all-glass front and off-center cupola can remain as can the “unbroken mass,” which is a reference to a single, large box with no varied roof angles, porches, ells, multiple stories or other features that make the building seem smaller.

The judge ordered the Zaremba Group, the developers of the Dollar General project, to replace the faux front windows with real windows and replace proposed vegetation with species native to Vermont.

The judge also ordered that proposed vegetation – in this case Amur maples and dwarf rhododendrons – be replaced with “similarly functioning species that are native to Vermont.”

 As to Question 2., the judge accepted the testimony of neighbors Diane Holme and Richard Farnsworth, whose properties overlook the proposed site, one from the south, the other from the north, and who testified that the views of the building, the parking lot and the parking lot lighting would be offensive. But, he concluded that he had to look at it from the viewpoint of the “average” person, who “would not be offended or shocked by the … Project.”

 Of Question 1., Walsh said that while the applicants contend that there is no clear, written community standard and appellants disagree, “The Project is located in an area with a current mix of development types and building styles. Nothing about the Project diminishes or spoils the unique characteristics of the Town especially in the Project’s immediate surroundings.”

Dollar General spokesman Dan MacDonald said Tuesday, “We are pleased with the decision. It’s a sound legal decision and we have believed all along that this is a suitable site for the store.” MacDonald added that his corporation “looks forward to serving the community with low prices, name brand products that everyone knows and loves in a convenient format.  We are all about serving families who are trying to stretch their budgets.”

MacDonald added that Dollar General currently has 17 stores in Vermont with plans for 10 more this year.

An aspirational, not mandatory town plan

In deciding whether the project conforms with local and or regional plans (known as Criterion 10), Walsh addressed the Chester Town Plan and its Mixed Use Village provisions. He stated that “…for a Town Plan to be enforceable … the language must be mandatory and not merely aspirational. … The (Chester Town) Plan provisions … only describe in general terms how development ‘should’ or ‘is encouraged to occur.’ ” He therefore said that he could not deny the application since it complies with Chester town policy.

In what appears to be a suggestion to the town, Walsh, in a footnote, stated that while Chester has a zoning ordinance “generally regulating setbacks, height, and use, and the Town Plan speaks to certain land use planning issues,” it does not have a design review board or a process for allowing a more detailed design review of proposed projects.

“For a Town Plan to be enforceable … the language must be mandatory and not merely aspirational. … The (Chester Town) Plan provisions … only describe in general terms how development ‘should’ or ‘is encouraged to occur.’ ”

Asked what happens next and who enforces the judge’s order, Act 250 Commission District 3 coordinator Linda Matteson said Tuesday that Act 250 District 2 will most likely reissue a permit with Judge Walsh’s conditions and “We have an Act 250 permit compliance officer, so if a complaint comes in we will contact that officer and take it from there.”

Shawn Cunningham* of Smart Growth Chester said, “We have options for further steps, further appeals in each of the two tracks (DRB and Act 250). At the moment we are evaluating those options and deciding which would be the most effective while raising money to continue the fight.”

*Shawn Cunningham is the husband of the reporter of this article.