Environmental judge upholds Chester DRB on Dollar General permit

By Cynthia Prairie
©2014-Telegraph Publishing LLC

Environmental Judge Thomas Walsh handed the billion dollar Tennessee-based  Dollar General corporation an early Christmas present by striking down an appeal of the Chester Development Review Board’s OK of a developer’s plans for a 9,100-square-foot store across from the Country Girl Diner.

The decision was signed on Monday, Dec. 22. You can read the 16-page decision here.

This was the second appeal of the DRB’s OK of a conditional use permit issued to developer Zaremba Group by a loosely organized group of Chester residents calling themselves Smart Growth Chester.

The first appeal was successful, when in June of 2013 Judge Walsh demanded that the DRB, a quasi-judicial body, rewrite its OK of the permit with a fuller explanation of its reasoning. It issued its clarified findings of  fact and conclusions of law in February of this year.

Smart Growth Chester disagreed with the DRB’s legal conclusion that the project does not have an adverse impact on the character of the area, a general conditional use criteria under the town’s zoning regulations. But Judge Walsh, in his Dec. 22 opinion, stated that he believed that the DRB met the required procedural rules in upholding its decision. He stated: “We therefore conclude as a matter of law that the proposed commercial retail development is allowed as a conditional use in the Residential/Commercial District in the Town of Chester, Vermont and the project satisfies the conditional use requirements of the Chester Zoning Regulations.”

Smart Growth Chester has been fighting the proposed Dollar General store since August of 2011, likely the longest battle the grocery-department store has had to face in the country. While its legal arguments have centered around whether the project conforms with the Town Plan, members say they are mostly concerned with the economic impact of the small-box retailer in such a economically sensitive small town. “It’s pretty clear that Dollar General has had an adverse effect in many other small towns and we believe it will be bad for Chester,” said Shawn Cunningham* of Smart Growth Chester, “it’s just unfortunate that our zoning and planning documents have not given us the ammunition to protect ourselves.”

There is one appeal pending in Smart Growth Chester’s fight against the Dollar General. In November, its attorney, James Dumont, went before the Vermont Supreme Court asking:

• 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?

That opinion is expected any day. Cunningham could not say whether an appeal of Walsh’s ruling would be filed.