Appeal of Environmental Court OK of Dollar General goes before VT Supreme Court

By Cynthia Prairie
©2014 – Telegraph Publishing LLC

MONTPELIER

Chester’s Dollar General opponents took their fight to the Vermont Supreme Court Tuesday, a venue that — by its very nature as the court of final decision — awards more technical wins based on nuances of law than KOs delivered by an attorney’s one-two punch.

From left, Zaremba attorney Alan Beiderman, Smart Growth Chester attorney James Dumont and one of the justices’ law clerk. Chester Telegraph photo.

Thirty minutes was allotted for the appeals hearing before the five-member court, made up of two women and three men. One of the justices, Chief Justice Paul Reiber, recused himself because of his past relationship with the law firm representing the developer, the Zaremba Group. Associate Judge John Dooley took his place as presiding judge and retired Judge Walter Morris was called back to round out the panel.

The two questions that attorney James Dumont, representing appellants Smart Growth Chester, was addressing in his appeal of the Environmental Court’s OK of the Dollar General’s Act 250 permit were:

• Is the Environmental Division’s conclusion that the project would not restrict the flow of flood waters and endanger the public welfare contrary to the record and clearly erroneous? and
• Is the Environmental Division’s conclusion that the project does not violate a clear, written community standard intended to preserve the aesthetics of the area clearly erroneous?

Addressing the second question, Dumont told the panel that 9.4(c)(4) of the Chester zoning regulations “is a clearly written community standard,” despite the fact that Environmental Court Judge Thomas Walsh had disagreed in his decision, handed down last February. Dumont pointed out that Walsh had agreed with Zaremba that the proposed design of the Dollar General looked like other “back yard barns” in Chester, including its proposed full glass front doors, which Walsh noted some barns in Vermont have.  That there may be barns in Vermont that have full glass doors however was suggested by Zaremba’s counsel Allan Biederman during cross examination at the September 2013 hearing in Newfane (You can read those articles here, here and here.)  Dumont contended that Biederman’s  question was not evidence and therefore should not be a component in Walsh’s decision.

From left, for Zaremba, attorneys David Cooper and Alan Beiderman, a Supreme Court Justice law clerk, and for Smart Growth Chester attorney James Dumont. Chester Telegraph photo.

Walsh ruled that the design of the Dollar General had an adverse affect on the area, but since other barns had glass front doors, the affect was not undue. Dumont contended that since the basis for saying that the affect was not undue was suspect, and a ruling of “undue adverse affect” would have killed the project, then Walsh’s ruling should be reversed and the permit denied, by the Supreme Court.

Most of the limited time frame was spent on the issue of flooding, which the proposed site — along Route 103/Main Street across from the Country Girl Diner — has experienced both during Tropical Storm Irene and after.  Judge Dooley questioned why Irene was relevant to the issue since it was the “worst storm we’ve ever had.” Dumont disagreed with that characterization.

Dumont said that during the Act 250 hearing both a Zaremba engineer and an expert with the state Agency of Natural Resources testified concerning the engineer’s plan to prevent future flooding such as occurred during Irene at the site.

The engineer proposed dredging and widening the Lover’s Lane Brook, the stream behind the proposed Dollar General site, while berming the embankment. The dredging will result in higher velocity, the widening in higher capacity.  During the Act 250 hearing Dumont questioned whether the ANR rep could be sure what impacts would occur. The ANR rep answered she did not know because she had not done computer modeling on the site.

During the Act 250 hearing, the issue was addressed as one of public safety. And Dumont said that the public safety issue was not addressed by Walsh in his decision.

The judges on Tuesday questioned whether dredging would also result in erosion.  And one wondered if requiring the computer modeling would have called one expert’s testimony into question.

The Supreme Court decision is expected by the end of the year.