FERRISBURGH — The Vermont Supreme Court on Feb. 14, 2014, upheld a 2012 Environmental Court ruling favoring a Dollar General store proposed for the Ferrisburgh intersection of Route 7 and Monkton Road.
The Ferrisburgh Zoning Board of Adjustment in February 2011 first granted landowners Group Five LLC a permit for the discount retail store. It is proposed for a 9.9-acre field that lies across Monkton Road from Denecker Chevrolet and across Route 7 from a solar farm.
A group of neighbors appealed that approval to Environmental Court, which backed the Ferrisburgh board in October 2012. The neighbors again appealed, this time to Vermont Supreme Court.
The Feb. 14 decision, written by Chief Justice Paul L. Reiber, affirmed Environmental Court Judge Thomas Durkin’s 2012 ruling on all points.
Joe Handy, one of the five landowners of Group Five, said earlier this week he had mixed feelings about getting the green light for a concept Group Five first floated in 2005.
Handy was pleased that he and his Dollar General partners, who will lease a 10,640-square-foot store that Handy’s group will build, can proceed. He was less pleased with what he called a needless legal process.
“I’m very, very happy with the court decision,” Handy said. “I’m really, really sad that we had to go through it.”
Handy said he was unhappy with what he and now two courts have called baseless appeals.
“Anyone can come in and appeal and stop you,” he said. “They had no grounds whatsoever. We went by the bylaws.”
Handy expects a summer groundbreaking on a building intended to look like a barn, with an opening by the end of the year. Previously, Handy said Group Five had agreed with a prospective storeowner on a 10-year lease with a 10-year renewal option.
Building revisions that the zoning board insisted upon during the 2011 approval process include a peaked roof with standing seam metal roofing, large windows on the wall facing Route 7, a faux barn door on the second floor facing the front, two cupolas on the roof, faux windows on the north and south sides, and the addition of masonry brick to the lower half of exterior walls.
The building will not have a typical bright Dollar General sign (described by Durkin in 2012 as “out of place in most Vermont settings, including some commercial areas”). Group Five also agreed to move the entrance to the site further from Route 7 and install a sidewalk on Monkton Road.
Dollar General sells a variety of consumer goods, including groceries, hardware and electronics. There are about a dozen Dollar General shops in Vermont; the company on its website calls itself as a “small-box discount retailer.” Group Five LLC representatives at hearings in Ferrisburgh said they expected local consumers to shop at Dollar General, which would employ a dozen full- or part-time workers and could add $600,000 to the town’s grand list.
According to the Feb. 14 Supreme Court decision, the appeal was based on several points.
One was that the Environmental Court “erroneously shifted the burden of proof by requiring opponents to show that both the proposed project would have an adverse impact on the area and that existing commercial development in the area has already had an adverse impact.”
But the Supreme Court decision stated, “Opponents’ argument is without merit. The trial court made detailed factual findings based on the evidence offered by both sides at trial, and concluded based on those findings that applicant had demonstrated that its proposed project met the conditional use criteria — including the requirement that the proposed development not have an adverse impact on the area.”
The decision also cited a case as precedent: “we rejected the opponent’s argument in that case, noting that ‘the record, when read as a whole, clearly indicates that the court properly placed the burden on the applicant.’”
The appeal also contended the court erred in using the “Quechee definition of undue adverse impact” in the Dollar General case, rather than a stricter definition of adverse impact.
But the Supreme Court stated in the Dollar General application that the Environmental Court properly evaluated the Group Five proposal’s adverse impact based on specific criteria set forth in Ferrisburgh’s bylaws.
“The court found, based on the evidence, that the proposed development posed no adverse impact as to any of these areas,” the Supreme Court decision stated.
The Supreme Court also dealt with opponents’ objections based on Chapter 4 of the town plan. That chapter states as a goal that it seeks to prevent “the highway corridor from becoming a fully developed commercial strip.” To do so, the plan requires proposed Route 7 commercial uses to submit to site plan reviews to “protect neighboring residences, the visual character and transportation function of the highway.”
However, the Supreme Court decision stated the town plan does not provide specific standards, and “these general statements in a plan are insufficient to create a legally binding standard;” thus, the town plan could not be used to impose standards on the Dollar General proposal.
The Supreme Court decision also states that the Dollar General store conforms to the town plan, which encourages commercial development in the zone in question rather than in “low-density residential or open space/agricultural land.”
The Supreme Court also dismissed the argument that Dollar General is a “convenience, retail” operation, which is not on the list of permitted uses in the zoning district, rather than a “retail store,” which is on the list.
“A common-sense interpretation of the ordinance includes a retailer such as the Dollar General store among the conditional uses,” the decision stated.
Andy Kirkaldy may be reached at firstname.lastname@example.org.