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2009-06-23
St. Albans, VT. Wal-Mart Project Finishes Three Days In Court

For the past 15 years, Wal-Mart has been trying to convert a cornfield in a small, northern Vermont town into an asphalt field of dreams. Although the retailer was rejected by the Vermont Supreme Court in 1995, a private developer has returned to the same parcel in the town of St. Albans, Vermont, to have a second bite of the apple. In the process, the developer, who also built a Wal-Mart in Taft Corners, Vermont, has held rallies in support of his store, and enlisted the aid of Vermont's Governor Jim Douglas as his cheerleader. On April 22, 2008, Sprawl-Busters reported that developer Jeff Davis was pushing officials in the city and town of St. Albans -- to back his plan. On August 4, 2008, Sprawl-Busters said that the project had reached the stage where two developers were battling each other over the fate of this proposed Wal-Mart. One mall owner will lose big-time if the Wal-Mart is built, and the other will make millions off the store. The mall owner is apparently willing to live with the Wal-Mart -- as long as it doesn't have a grocery store component that competes with the mall's Hannaford's grocery store. The cornfield is located on Route 7 across from the St. Albans Drive-In, just off Route 89, a few miles south of the Canadian border. In this second try, local officials have again given the store its blessing, as well as the regional commission set up under Vermont's Act 250 land use control law. But the Vermont Natural Resources Council (VNRC) and local residents filed the legal paperwork needed for a "Motion to Alter" to ask the District 6 Commission to reverse its position and rescind the granting of an Act 250 permit that would allow the Wal-Mart superstore. In addition to the VNRC, the citizen's group the Northwest Citizens for Responsible Growth (NWCRG) and farmers Marie Frey and Richard Hudak, appealed. Hudak owns a prominent farm stand in St. Albans town just down Route 7. The appeal charges that the Act 250 District 6 commission, which is the local panel that hears Act 250 cases in the St. Albans area, ignored its own findings when it granted the permit. According to the Vermont Business Magazine, the appeal cites the finding that the superstore would pollute a nearby brook, increase traffic congestion, and cost as many as 200-297 jobs, and result in the closure of over 40 businesses in the abutting city of St. Albans. The District 6 Commission also was warned that the project would pave over prime agricultural land, and that the developer had not compensated for the loss of those soils. The Commission said it agreed with all these findings, yet voted to grant a permit to the developer. The deputy director of the VNRC said the conclusion of the Commission was not supported by its findings. The Commission, for example, criticized the economic impact study done by Wal-Mart's consultant, calling the report "not credible," yet relied on that same study when citing that the project would only result in 40 lost jobs and 12 businesses closing in the city of St. Albans. A similar economic impact study for the same site in 1994 performed by the late Tom Mueller, and Beth Humstone, concluded that a Wal-Mart would result in a net loss of 500 jobs five years after opening. The St. Albans Wal-Mart will be the largest of its kind in Vermont, at 146,755 s.f. On the same site in 1994, Wal-Mart tried to build a 100,000 s.f. store -- but the local permit was denied by the Vermont Supreme Court, in part because of the projected impact of the store on the local trade area. Today that impact will be even worse, because a large Price Chopper grocery store is now located less than a mile away, as well as a Hannaford's grocery store in another neighboring mall. The area does not have the population to support three large grocery stores. To sweeten this very unpopular and controversial plan, Wal-Mart would make a payment of $500,000 to the city of St. Albans to compensate them for damage to their downtown. The local newspaper, the St. Albans Messenger, editorialized that Wal-Mart should give the city $600,000 per year, or roughly 1% of the $60 million a year that the Wal-Mart will bring in. Every community, it seems, has its price. In August of 2008, the owner of a nearby mall urged that Wal-Mart be forced to drop any plans for a grocery store as part of the deal. Highgate Commons, which is located roughly half a mile from the proposed Wal-Mart site, has a Hannafords and a Peebles department store that would take a hit financially if the Wal-Mart is built. The owners of Highgate Commons submitted a statement to the District 6 Commission listing issues it would like to see mediated. The competing developer wants Wal-Mart to strip the grocery store from its project, noting that the permit it got from the town of St. Albans includes a grocery store, but the Act 250 Permit does not have a grocery store in it. So the owners of Highgate Common are asking that the permit have language in it that would exclude the possibility of a grocery store. The mall owner said in a letter to the environmental court manager, that Highgate Commons and Wal-Mart be included in these discussions -- not other parties like the VNRC. "If such issues are not resolved by about August 22, 2008, I expect to begin preparing a motion to broaden the scope of intervention by at least Commons Associates in the Act 250 case," the lawyer for the mall owner warned. This past week the Environmental Court held three days of hearings on the Wal-Mart project. Judge Thomas Durkin listened to testimony that focused on economic impacts and traffic. There are four challenges to Wal-Mart's permits: the subdivision permit issued by the St. Albans Town Development Review Board, the site plan and conditional use permits issued by the town, the original Act 250 permit and the amended Act 250 permit. The Environmental court was reviewing the project's impact on substantial change to the area, economic impacts, traffic, prime agricultural soils, compliance with the town and regional plans. The owners of Highgate Commons charge that the provisions in the Wal-Mart agreement that ban the retailer from selling gas and groceries cannot be enforced. Developer Davis also produced a new economic assessment. Davis' earlier economic impact study, done by Economic and Policy Resources, concluded that the project would cause 10 businesses in St. Albans City to close and a loss of 41 jobs. The new study, conducted by Northern Economic Associates (NEA), said that Wal-Mart would bring 240 jobs to Franklin County -- 225 at Wal-Mart and another 15 elsewhere. According to the new study, only 11 jobs would be lost at other "general merchandisers." The NEA study did not distinguish between full and part-time jobs. "There's no one to drive out of business," the study's author said, since there are no general merchandisers in the area. "There isn't anyone of significance to push out." Less than a mile from the site is a Peebles department store, which replaced the empty Ames store. NEA claimed the new Wal-Mart would not create any secondary growth, because the author visited eight other Wal-Marts -- half of them in Vermont. Much of the secondary growth has already arrived, the NEA study said, such as fast food restaurants. But the VNRC attorney established that NEA failed to consider the available land right around the Wal-Mart site. Opponents entered the testimony of an economist who challenged the model used by NEA to predict economic impacts, and the testimony of the owner of Highgate Commons, who said his center alone will lose at least seven stores. The owner of Highgate Commons said sales at a shopping center he owns in North Carolina dropped 16% following the opening of a Wal-Mart nearby. Most of the testimony taken on the last day in court focused on traffic, with each side presented different numbers of projected car trips and methodologies. Part of the proceedings focused on agricultural soils and how many acres of prime agricultural soils would be eliminated by the development. Wal-Mart's application in 1993 was rejected on economic criteria. The Supreme Court ruled that economic testimony submitted by opponents was more credible than anything submitted by Wal-Mart. This project is larger than the one that was rejected.

What you can do: Judge Durkin will be ruling on challenges to Wal-Mart's Act 250 permit and the subsequently modified Act 250 permit as well as the conditional use, subdivision and St. Albans Town Development Review Board permits. "This isn't easy stuff, if it was we wouldn't be here," Durkin told people in the courtroom. Jeff Davis' proposed Wal-Mart has gone nowhere fast. On April 5, 2008, Sprawl-Busters reported that the District 6 Environmental Commission had approved the Act 250 permit, which the Burlington Free Press called the "last hurdle" for the store. JLD Properties of St. Albans, Jeff Davis' corporation, issued a press release which said, "This culminates a four-year permitting process and is the final permit necessary to begin construction on the Wal-Mart store. All other permits are in hand. We view this as a very positive step forward for the store. There's a lot of support for a Wal-Mart in Franklin County. I think people are ready for it. If construction started right away, the store could be open within a year." Although JLD said it would "move ahead and start constructing" if no one appealed the project -- -- the developer knew there would be an appeal. JLD told the newspaper they hoped that opponents of the project would "allow this project to proceed." In 2006, this project ran into a snag when the town itself had to ask the state's Environmental Court to toss out permits granted in June 2005 to the developer. The town had to restart the project because a Vermont judge ruled that two members of the nine-member town Development Review Board showed apparent bias in favor of Wal-Mart during hearings in 2004. The judge herself did not overturn the permits, but the town feared that if the case proceeded, Wal-Mart opponents would challenge the case in court, delaying the project's timetable significantly. "We strongly believe that the Development Review Board correctly followed and applied the town's zoning bylaws," the town Selectboard said at the time. "The town would like to remove any suggestion of impropriety in the process." The Vermont Natural Resources Council, which represents the opponents, told the Burlington Free Press they were not "thrilled about having to go back to the beginning, but once the judge recognized the hearings were tainted, there's simply no choice." The judge ruled that Ernest Levesque Jr., a member of the development board, came to one of the Wal-Mart hearings wearing a hat with the words "St. Albans Town needs Wal-Mart." When the chairman asked him to remove the hat, he put it on the table in front of him with the words facing the audience. Another member, Albert Benson, signed a pro-Wal-Mart petition during the hearings. He withdrew his signature a day later after conferring with a town Selectman. The judge ruled that Levesque "destroyed the appearance of fairness that due process requires and to which the stakeholders at the hearing were entitled, whether or not he also departed from the reality of giving the application a fair hearing." Local opponents of the St. Alban's project had assumed that the town board would approve the Act 250 permit. That's what happened in 1995, and that's what was expected in 2008. The citizens group, Northwest Citizens for Responsible Growth, says on its website, "Here in Franklin County, we are struggling against efforts to convert some of the largest concentrations of prime-agricultural soils in the state to large-scale retail and residential development. Successful organic farms on the perimeters of these soils will be threatened. We cannot allow this to happen, as high quality Vermont farm products and the countryside in which they are grown represent the two most promising industries for Franklin County, as we embark on the twenty-first century. Vermonters need to be especially careful not to overload their winding roads and covered bridges, not to ruin their green rolling landscapes and not to empty out their small historic downtowns. More than a quarter of the state's income comes from tourism, and nobody's going to mail home a postcard of Wal-Mart." There are currently only 4 Wal-Mart stores in Vermont -- the smallest number in any state. The Green Mountain state has not proven to be very hospitable soil for Wal-Marts. Readers are urged to email the NWCRG at: admin@nwcrg.org to find out how you can donate funds to their legal defense of the town and city of St. Albans. Whatever the ruling from the Environmental Court, it is likely to be appealed to the state courts, and this epic battle in Vermont could continue for years.











 
 
"Norman has become the guru of the anti-Wal-Mart movement" ~ 60 Minutes

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