Q&A: Attorney Alan Biederman on the latest Zaremba/Dollar General victory

Alan Biederman represented Zaremba Group, the developer of the proposed Dollar General store in Chester, during the Act 250 appeals brought by opponents of the project.  He is a lawyer in Rutland who is happily heading toward retirement.

Four questions were posed by email by Telegraph editor Cynthia Prairie. Biederman also responded by email. Except for a bit of editing, the answers appear in full. Additions by the editor are in brackets [ ].

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Was there anything in the decision that surprised you? If so, what and why?

I was not surprised by the decision. We had won on the facts in the Environmental Division, as opposed to winning on some complex issue of law. In cases where the trial court decides the case predominantly on the facts (there weren’t many questions of law here), by long-standing precedent, the Supreme Court of the United States and the supreme courts of all of the states show deference to the trial court on issues of fact. The theory is largely that the trial judge is in the best position to see and evaluate the witnesses and their testimony.

Alan Biederman, left, and Jim Dumont during a Supreme Court hearing. All photos The Chester Telegraph.

Appeals courts often contrast the difference between a “cold transcript” and a live trial. So, for example, a sarcastic response that clearly indicates that a witness means “no” when s/he says “yes” will appear as a “yes” on a transcript. The judge or a jury who saw the witness knows this and understood what the witness actually meant. The transcript merely says “yes” which is not what the witness really meant.

Most of the issues appealed here were fact issues. For example, whether the Zaremba building looks or does not look like other buildings is an issue of fact. Likewise, the question of whether the building will “fit” the neighborhood depends on facts, not legal issues. Whether the river will or will not be affected adversely is a question of fact.

Unless the opponents could show that there were no credible or material facts to support the trial judge, the Supreme Court will ordinarily uphold a fact-based decision.

The only significant issue that was law, not fact, is whether the Town Plan’s provisions were a clear community standard. Here, where there are zoning regulations to implement a Town Plan, the Town Plan just didn’t seem to me to be a binding standard. In fact, the zoning did not prohibit a project of this size and expressly contemplated such a building. We did not think it was likely that the court would find advisory statements in a Town Plan to be controlling when the zoning allows such a building.

To be honest, the issue regarding the river, and the judge’s minor error that omitted “equal to” when he said “wider,” was never a problem. Just read the U.S. Supreme Court decision on Obamacare’s tax credits and you will see that courts are not required to consider such minor differences to be controlling. Everything that Judge Walsh wrote indicated that he understood the evidence and held that the river discharge wasn’t going to increase erosion.

I believe you at one time said you expected to win, but what made you certain that this would be the outcome?

I was never certain. I’ve never done a case where I was certain. Judges and juries are people. They are the only audience that matters in a trial. One can’t be too confident because it is common in my “regular” life that my family or friends or colleagues know the same facts about something as I do but nonetheless see them differently. So one can lose any trial. Certain is not a term an experienced litigator would use.

However, I did believe that we would win and I was quite confident. That’s less than certain, but is about as sure as I get. I always try to look at cases objectively. It doesn’t help anyone to fool oneself by “wishing” the evidence was better than it is. In fact, I often say that I spend 90 percent of my time worrying about 10 percent of the facts.

Alan Biederman

Here, I wasn’t involved in the case at the DRB before the case was appealed to the court. So I got the facts that were already largely prepared and had been presented by someone else. I had never represented, or even heard, of Zaremba, and didn’t know much about Dollar General. Also,while I’d been through Chester many times, I guess I had never really looked at it closely.

So what I had to go on was a visit to Chester, and the documents and statements that had already been made before I ever heard of the case. Right from the beginning, it seemed to me that the case was a winner.

Zaremba had done a thorough job with experts who I either knew or whose work seemed thorough. To be specific, the traffic issue was a non-starter. I know traffic from other cases. The river issue made no sense to me. I was a science major in college and have done science cases my whole career, including a fair number of cases concerning hydraulics and river flow.

I didn’t think Claudio [Veliz, architect and Smart Growth Chester member] knew what he was talking about regarding the river because the physics of the issue as he presented it made no sense whatsoever. His view respecting the behavior of water joining a larger river was just not accurate.

Despite the fact that the project wasn’t perfect, I was persuaded early on that Chester had allowed such buildings as conditional uses under its zoning, so unless there was something really out of line, the community’s standards for aesthetics allowed this building.

— Alan Biederman

As for aesthetics, that was the major question and the opponents’ best issue. Claudio was a good witness for the town on this subject. Once I had deposed the aesthetics expert (whose name I also forget), I was sure he wasn’t a problem. Despite the fact that the project wasn’t perfect, I was persuaded early on that Chester had allowed such buildings as conditional uses under its zoning, so unless there was something really out of line, the community’s standards for aesthetics allowed this building.

Perhaps being more blunt than I should be, the opponents tried to win the case by raising “concerns” or “questions.” I rarely find that sufficient. One needs good science and experts. Anyone can be concerned. To win at trial, one must raise facts, not concerns.

The depositions did not change my mind. Some of the opponents, whom Jim Dumont wisely did not call, objected to Dollar General because the folks who shop at Dollar General are just not their “kind of people.” But there were some good witnesses, including Shawn Cunningham and John Holme and his wife, Diane [all Chester residents and part of Smart Growth Chester]. However, I wasn’t impressed with the opponent’s experts, and they were the most important witnesses. I knew our experts were solid, and the river issue buttressed, rather than hurt, our case. So I was quite confident walking in the door. But I was never certain because one can never be.

I did expect to win but, of course, one can never be too certain.

Was this won on the arguments that you expected and for the reasons expected as well?

Short answer: Jim Dumont argued the only issues he could argue. Having lost the case below, there wasn’t much to argue. I expected the aesthetic argument and the Town Plan argument. Didn’t expect the river argument, which was sort of a throw-in, I am sure. We won for the reason we expected, i.e. the deference that appeals courts show to trial courts on appeal respecting issues of fact.

And finally, what would you tell the opposition that it or the town needs to do to address the issues that it has brought up in this long-running battle?

Interesting question, especially how you pose it. It is and never has been clear to me that the Town opposes Dollar General. The DRB certainly didn’t. Neither did the Select Board. So I have no reason to think the town opposed it, or that a majority or even a large number of people opposed it.

Candidly, my view regarding all of these cases is that most people don’t much care one way or the other. That’s not just Chester. That’s everywhere about everything. Polls showed that most folks didn’t know anything about the Obamacare case including those who would have lost their subsidies. They know about escaped convicts, but not about development issues or environmental issues. That’s not a criticism. That’s just how it is.

The beauty of democracy is that someone who knows nothing about an issue has the same vote as I do. I used to hate that. Now, I appreciate that this is how the whole system is supposed to work. Most people worry about their own lives, not issues like zoning. For a town to change that, they have to persuade people to see things a different way. It makes change hard, as it is supposed to be under our system, but it also motivates activists to go out and speak with their neighbors to bring about changes.

Jim Dumont, standing, and Alan Biederman, seated.

So I don’t know what, if anything, the Town should do. What the opponents should do, if they want to change things, is to remember that it is the Select Board and the voters, not the courts, which is where they should be focused. I disagree with lots of what I expect Jim Dumont and Jean Vissering [landscape architect for Smart Growth in the DRB hearing] prefer, although I respect them both. But if the opponents want to change things, they have many avenues, if they can get it by the Select Board and the voters.

If Chester wanted to outlaw future Dollar General size stores, it could do so. It could implement design review standards. It could change the zoning to incorporate those standards. It could set different size, volume, shape, setback or other such limits. It could define almost any design standards it wants, even to the color of the paint, the materials used, the roof designs, etc.

If I wanted to change some town policy or ordinances, I would draft a comprehensive program for such changes rather than just beefing about the issues. Board members hear complaints all the time about all kinds of things. What they do not often get is a comprehensive program that is well-thought-out and can form the basis of the changes someone wants. It may not pass, but it is rational and clear, and it forms the basis for a sensible discussion.

Be aware, however, that once planning commissions and select boards start thinking about such things, they realize there is much more involved in such decisions than merely the design. Lots of design standards make pretty towns and buildings, but they sometimes make it impossible for ordinary folks to start businesses. They add a lot of cost. So you get many towns that really look the same with the same chains and chain stores – just more “tasteful” perhaps than Dollar General. Does Chester want to exchange its diners for Starbucks, or Lisai’s for a chain mini-mart?

Lots of design standards make pretty towns and buildings, but they sometimes make it impossible for ordinary folks to start businesses. They add a lot of cost. So you get many towns that really look the same with the same chains and chain stores – just more “tasteful” perhaps than Dollar General.

— Alan Biederman

You can create design conditions that prevent regular people from starting businesses. Ever wonder why only rich college kids shop at City Market in Burlington? It was because Bernie [Sanders] and some colleagues wanted a “local” market, which they can go to in the form of the Onion River Co-op. So instead of a Shaw’s or Price Chopper that regular people can afford, they got City Market, where meat is $18/lb though it certainly is organic and good. … My daughter can shop there because her dad is a lawyer, but regular folks cannot. They need to go to South Burlington to shop.

That happens, and while I can afford whatever, I didn’t grow up able to afford much. And I might be concerned that the design requirements wouldn’t stop Starbucks but it might stop a local person from giving a new business a try. I’m not saying this is bad or good, but I am saying that when you get down to the process, it involves choices. Which is why I suggest a well-thought-out plan … that doesn’t do exactly the opposite of what you want, which, if I understand it, is to keep Chester local.

I think you will also find that some people object that government shouldn’t tell people what to do with their own land. Others will argue that design standards often reduce values of property because any property that can’t comply becomes almost valueless. I don’t know if this is true, but I have heard the argument. Some argue that design standards impact jobs. I have no idea, but I’d research the issue early.

I do think that most design standards work against low-income people by ensuring that low-profit stores cannot even start. The current rage among designers, as you have heard, is to have parking behind buildings. Restaurant owners will tell you that many people won’t stop if they cannot see that there are already a lot of people at a restaurant. I’ve done that myself. Many folks in Chester might prefer more jobs to better planning. Some say good design promotes jobs rather than retards jobs. I have no idea. I’d recommend that if the opponents believe in design standards, they find the data to support their case and incorporate it into their pitch, if it exists, which it well may.

Vermont law gives towns a great deal of control over design. But I am the last one to say I know what the town needs to do. The older I get, the less I know. There was a composer, Erik Satie, who said something I often quote, probably erroneously. It goes something like this: “They always told me, wait until you’re 50. Then you’ll see. Well, now I am 50, and I haven’t seen a thing.”