Atty. Cooper Wins VT Supreme Court Appeal for Clients
Chester, Vermont, will be seeing a Dollar General Store in its future, even though the project was opposed on multiple grounds by a group of town residents. During the litigation, the project caught national attention when the New York Times published an article sympathetic to the opposition: http://www.nytimes.com/2012/05/14/us/dollar-store-plans-divide-vermont-residents.html?_r=0. Generally, Act 250 and the Town's zoning ordinance prohibit projects that would exacerbate flooding, or that would have an "undue adverse effect" on traffic or the character/aesthetics of the area, or that would not conform with the Town Plan. Opponents raised objections to the project primarily on aesthetic grounds, but also because of potential traffic and nearby flood plain impacts and alleged nonconformance with the Town Plan.
Regarding the conditional use application, the Town's Development Review Board (DRB) approved the project by a 3-2 vote on April 16, 2012. On appeal, the Vermont Environmental Court (Walsh, J.) held that the DRB's decision lacked adequate findings and conclusions supporting its decision. Because Chester's Select Board had elected to have all DRB proceedings held "on the record" pursuant to 24 V.S.A. § 4471(a), the Environmental Court was unable to review the case de novo (i.e., from scratch) and was forced to remand the case back to the DRB with instructions to supplement its initial decision. On remand, the DRB again approved the project, this time by a unanimous vote, and issued a supplemental decision that included numerous additional findings and conclusions. On a second appeal, the Environmental Court affirmed the DRB's decision, concluding "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." The opponents appealed that decision to the Vermont Supreme Court, arguing that the DRB had violated Section 1209(b) of the Municipal Administrative Procedures Act. The Supreme Court affirmed the decision of the DRB (unpublished memo), holding that the DRB's decision was reasonably supported by the evidence. To read the full decision, follow this link: https://www.vermontjudiciary.org/UPEO2011Present/eo15-027.pdf
Regarding the Act 250 application, the District Commission approved the project subject to a variety of conditions, all of which were proposed by or deemed acceptable to the developer. The opponents appealed to the Environmental Court under Act 250 Criterion 1(D)--Floodways; Criterion 5--Traffic Safety and Congestion; Criterion 8--Aesthetics; and Criterion 10--Conformance with Local and Regional Plans. The Environmental Court affirmed the Commission's decision, concluding that although the project would have an adverse aesthetic impact, said impact would not be "undue" and therefore complied with the applicable standard under Act 250. The Court rejected opponents' arguments that the project would cause flooding or traffic impacts or that it did not conform with the Town Plan. After yet another appeal by the opponents, the Vermont Supreme Court (Skoglund, J.) affirmed the decision of the Environmental Court. The Court agreed with Zaremba that the provision principally relied upon by the opponents to support their arguments was not a "clear community standard" and was unenforceable. To read their full decision, published at 2015 VT 88, follow this link: http://info.libraries.vermont.gov/supct/current/op2014-162.html