Letter to St. Albans Town Development Review Board

February 21, 2007

Town of St. Albans Development Review Board
C/O Rebecca Bushey
PO Box 37
St. Albans Bay, VT 05481

Dear St. Albans Development Review Board Members,

I am writing to inform the Town of St. Albans Development Review Board that the Northwest Citizens for Responsible Growth and Marie Frey and Richard Hudak (the ‘Petitioners’) will not attend further hearings on JLD Properties’ (Wal-Mart) Site Plan, Conditional Use, and PUD application unless the DRB members who have a conflict of interest recuse themselves from hearing the proposal.

The NWCRG is a local, volunteer, not-for-profit organization comprised of concerned citizens with an interest in participating in a fair public decision-making process regarding a large-scale retail development that will impact their communities. After careful deliberation, the Petitioners have concluded that they cannot justify bringing their experts to testify at any further DRB proceedings. That conclusion is based on two primary rationales. First, the makeup of the DRB remains largely the same as the board that approved the project in 2005. As such, it leaves little doubt that the existing board will, once again, approve the project. Second, the proceedings are biased and, therefore, do not justify the considerable expenditure of time, financial resources, and expertise when an outcome is predetermined.

At the first DRB hearing on this project, held on January 4, 2007, the Petitioners objected to the participation of DRB Chairman Bob Johnson and those DRB members who had voted to approve the proposed Wal-Mart in June 2005. The Petitioners’ objections were based on the DRB’s own conflict of interest policy. The DRB overruled the Petitioners’ objections.

The conflicts that continue to exist on the DRB are extremely serious and leave no doubt that the DRB process is biased and contaminated. Mr. Johnson, the DRB Chair, has clearly expressed his bias in favor of the project. As a member of the St. Albans Town Selectboard, Mr. Johnson made inflammatory comments that were very critical of how the DRB conducted the Wal-Mart review in 2004-2005. These statements included criticizing the DRB for demanding too much evidence from the applicant and chastising the DRB for hiring independent experts to evaluate the traffic and economic evidence submitted by the applicant. In perhaps his most revealing comments, on December 16, 2004, Mr. Johnson personally attacked the members of NWCRG, VNRC’s members and staff, and the Preservation Trust of Vermont. Mr. Johnson stated:

“The parties wishing to testify against Wal-Mart arrived here tonight with their thinly-veiled agendas, or axes to grind, if you will…We have local business people from the retail and agricultural communities who believe this land to be the Garden of Eden rather than a failed farm that is underutilized, overtaxed and smack in the middle of our designated growth center. The most conspicuous of these ‘Interested Parties’ is the sister agency of the infamous Conservation Law Foundation. This group, the Vermont Natural Resources Council, needs a map to find Northwestern Vermont as all of their board members, attorneys and staff work and reside far from the St. Albans area. Among other things, they take issue with one board member who had the nerve to wear a Wal-Mart hat to a DRB meeting. Other entities have suggested they know better what would work for St. Albans Town…One such idea, an ill-conceived and economically infeasible suggestion for a scaled-down Wal-Mart in the heart of the City is just short of comical. The one thing it shows is their total lack of understanding of the local area and why decisions need to be made by those who are informed, not by a bunch of elitists with nothing invested in the community.”

Despite the objections of the Petitioners, and the advice of former DRB Chair Cheryl Teague and DRB members Schofield and Wechsler, Mr. Johnson refused to recuse himself at the January 4, 2007, hearing. How can the NWCRG have any faith in the DRB process given Mr. Johnson’s clear and biased statements in favor of Wal-Mart and in opposition to the NWCRG and VNRC? Mr. Johnson’s bias violates the DRB conflict of interest procedure that states:

“Section XI: Conflicts of Interest – A. Participation. A board member shall not participate in any official action where he or she has a conflict of interest in the matter under consideration.

Section III: Definitions. – C. ‘Conflict of interest’ means any one of the following: 2. A situation where a board member has publicly displayed a prejudgment of the merits of a particular proceeding before the board.”

Mr. Johnson’s conflict of interest is compounded by the fact that six of the current DRB members already voted to approve the Wal-Mart in 2005. The DRB conflict of interest policy, as sited above, states that a DRB member shall be recused from a proceeding if that member has prejudged an application. The six members in question have obviously prejudged the application because they previously voted to approve the project. The proposed Wal-Mart does not differ in any material way from the project approved by these six DRB members in 2005. Accordingly, there is no question how these members will vote on the Wal-Mart application that is under review. This objection was also raised by the Petitioners at the January 4, 2007, hearing and overruled by the DRB.

The Petitioners are also concerned about the statements by DRB members that the Petitioners experts should recommend solutions to the deficiencies in the Wal-Mart application, not criticisms of the application. These statements reveal a fundamental misunderstanding of the DRB’s own review process. The applicant has the burden to prove that its project meets the zoning bylaws. It is not the Petitioners’ responsibility to hire experts to assist the applicant in crafting a legal project. To the contrary, it is the Petitioner’s responsibility, and right as parties to the proceeding, to point out deficiencies in the application and the potential impacts of the project. This process is in place to ensure that the DRB hears not only from the developer, who will understandably highlight all the community benefits of the proposal, but also hear valid concerns from other interested parties regarding the potential negative impacts of a project. This approach helps to ensure that the local decision-making body has a full picture of the potential impacts of a project when hearing from an applicant who is seeking a permit.

The Petitioners will continue to participate in the proceedings by filing written evidence. We have already filed significant written testimony on traffic and the economic impacts of the project. Attached is additional evidence on stormwater (Kim Greenwood, VNRC’s staff scientist, testimony in the Act 250 hearings on the proposed Wal-Mart and a stormwater summary) and further economic impact evidence in the form of the City of St. Albans Act 250 Proposed Findings of Fact and Conclusions of Law. We will also ask our experts to corroborate their testimony if any party objects to its admission in this proceeding, or answer DRB questions about their testimony in writing. However, the Petitioners are not willing to expend resources to bring our experts before a clearly biased tribunal that has prejudged the application and that has directed us to help solve the deficiencies in the application.

The Petitioners are taxpayers in the Town of St. Albans and surrounding communities who are concerned about the impact of a Wal-Mart that would be the largest free-standing retail store in Vermont. Rather than taking the Petitioners’ concerns seriously, the DRB has consistently deferred to the applicant while being overtly hostile to the Petitioners’ attempts to participate in the proceedings. Government, especially local government, is intended to serve the people. It is not supposed to create road-blocks to participation in the process for citizens who are attempting to protect their rights and raise legitimate concerns.

The Petitioners believe that the development review process in St. Albans Town is broken and in need of serious reform to ensure that obvious conflicts of interest and bias in favor of a developer or a predetermined outcome are no longer allowed to stand. The DRB can take a step toward such reform in this case by having the DRB members with a conflict of interest in this matter step down so that the citizens can participate in this proceeding with the confidence that it is not biased, contaminated, prejudged and in violation of the DRB’s conflict of interest policy. Until and unless that occurs the DRB will be wasting the time and money of all the citizens of the Town of St. Albans by conducting a severely tainted proceeding. Furthermore, members of the locally-based NWCRG — and its consultants from the Vermont Natural Resources Council — will no longer validate a flawed process by attending the public hearings on this important matter.

Sincerely,

Jon Groveman, Legal Counsel
Vermont Natural Resources Council