In OK’ing Dollar General ‘warehouse,’ state Supreme Court affirms ‘adverse effect’

NOTE: Zaremba Group attorney Alan Biederman answered several questions for The Chester Telegraph concerning the appeals and other issues. You can read that article here.

By Cynthia Prairie
2015-Telegraph Publishing LLC
T he Vermont Supreme Court has given a green light for the construction of a Dollar General store on Main Street in Chester, after a long-fought battle against the big-box retailer by neighbors, residents and second homeowners of this small southern Vermont town.

The community opposition, an informal group calling itself Smart Growth Chester, came together in mid-2011 when plans to build the project were first proposed. In the process, it has appealed permits and decision six times, locally and at the state level.

Of the Dollar General design, the Supreme Court said, ‘It’s warehouse-like features shine through.”

In its opinion issued on Friday, June 26, the court upholds an Environmental Court opinion of February 2014 that found that the 9,100-square-foot project indeed had an adverse impact on the community, but not an undue adverse impact, which would have prevented it from being built.

Smart Growth had appealed to the high court, arguing that the Environmental Court had erred in its decision on the flooding and aesthetics criteria of Act 250.

Dan McDonald, a spokesman for Dollar General, said his company is ready to move forward. “We feel like we had a solid legal position, that it’s a suitable site and we feel like it’s time to move forward in building the store. We look forward to serving the community.” Dollar General, based in Tennessee, currently has almost 12,000 stores nationwide.

However, Jim Dumont, the attorney who represents Smart Growth Chester, is also considering a move. “We have to consider all of our options,” he said, referring to the appellants’ right to file a motion to re-argue the case. When asked if the opinion may have wider implications, he would only say, “Yes.” He did say that should the appellants decide to appeal, they had 14 days to file a motion to re-argue.

Attempts to get in touch by email and phone with attorney Alan Biederman, who represented Dollar General developer Zaremba Group before the court, were unsuccessful. Please see note at top of article.

Smart Growth member Shawn Cunningham* said, “This decision had us scratching our heads in that it confirms so much of what we argued was wrong with the project and yet states that it should go forward because it preserves the character of the neighborhood.” Cunningham added that Smart Growth would take a few days to look at the options.

Should the project go through, it will be the first building built in Chester to bring a major out-of-state retailer into this town of 3,100.

The project has been under fire and delayed for four years, since it was proposed in the summer of 2011 to be built on property owned by Ted Zachary, a Connecticut resident who owned and operated the Zachary’s Pizza restaurant across from the Country Girl Diner.

In its Friday decision, the Supreme Court did agree with appellants that the store was more warehouse-like than the Vermont-style barn that it has been called by developer Zaremba Group.

The court wrote: “its warehouse-like features shine through. It has large faux windows on each side of the front entrance, while no other buildings in the area have faux windows. The front entrance is comprised of full-length glass doors, while the sides of the building have no windows. It has a cupola, as some other buildings in the area have, but its cupola is located off-center, toward the front of the building and closer to Route 103, unlike those of nearby buildings. Finally, the Project’s building has a large, undifferentiated mass.”

And, as in previous decisions, Chester’s zoning regulations were singled out for being aspirational instead of mandatory in their requirements.

In this case, the Supreme Court questioned Chester regulations that call for new construction or a substantial change adhere harmoniously to the New England look of the “center of Chester.” The court called the “center of Chester” “a vague description that we will assume means the historic village center.” But the court went further and applied the appearance of the “center of Chester” only to the physical center of Chester, writing that “the Project is not located in the pedestrian-oriented village center; it is more than a half-mile away in a vehicle-oriented part of the town. We need not decide whether the reference to “over-all New England architectural appearance” in this provision would provide clear guidance if this project were in the historic village center.”

The court called the “center of Chester” “a vague description that we will assume means the historic village center.” But the court went further and applied the appearance of the “center of Chester” only to the physical center of Chester.

The court concluded that the architectural styles of the immediate surrounds – the Sunoco as well as the diner — “are evidence that the zoning criterion is not a clear community standard intended to preserve aesthetics, at least as applied to the area surrounding the Project.” However, the court ignored the fact that most were built prior to the creation of zoning in Chester.

Given the court’s acceptance of the warehouse-like Dollar General among nearby pre-zoning structures, the questions arise as to whether the Town of Chester now will have to accept other warehouse-like structures within this community and whether zoning to improve a community — while grandfathering in pre-zoning buildings — has any teeth at all.

The appellants had also attempted to show that computer modeling should have been conducted to address the flooding issues because without it, they claim, the Environmental Division had “insufficient evidence on which to base its finding that the Project would not harm the public.” However, the Supreme Court ruled that Zaremba is not required to perform any computer modeling.

*The reporter of this article is married to Shawn Cunningham.