Select Board appointment error throws Dollar General OK into question

By Cynthia Prairie

Confusion on the part of the Select Board over when appointments to the Development Review Board are made could throw into question the DRB’s recent decision to allow a Dollar General store to be built, as well as other actions it may have taken since the beginning of March. (You can read the decision here: Chester DRB – Dollar General Decision)

Note posted at Town Hall Monday night announcing canceled DRB hearing./ photo by cynthia prairie

The first inkling of a problem came Monday night, with a sign posted at Town Hall canceling the scheduled DRB meeting apparently because the Chester Select Board had failed to re-appoint two members of the DRB to fill terms that had expired in early March. Those members are Scott Wunderle and Dan Ferguson.

Reached Monday night for comment, DRB chair Peter Hudkins said, “The town of Chester canceled the meeting” after Shawn Cunningham* of Smart Growth Chester questioned “the period of time they were actually appointed for.” Hudkins added that town zoning administrator Michael Normyle informed the board of the decision. “He said we couldn’t meet till we had five members.” Five members is the minimum number of DRB members required by state law.

On Tuesday, Normyle would only say, “It is my understanding that the intention was that the appointments were to be to early June.”

“We’re sorting out the situation right now,” said Town Manager David Pisha. “… in 2010 the DRB members were appointed. We thought they were appointed till June.” Pisha said the confusion occurred because the DRB had been formed in June 2007, and appointments were made at that time.

“Then the transition was to move people back to March. … We will have to reappoint members to bring the number back to five. (The Select Board) will do it soon,” Pisha added, “but I don’t know when.” Concerning next steps, Select Board chairman John DeBenedetti said, “We’ve solicited applicants.” (The next meeting of the Select Board is Wednesday, May 2, 2012 at Town Hall, 556 Elm St. The meeting begins at 7 p.m.)

With one exception, according to the 2011 annual town report, all open appointments are made at the first meeting of the newly elected Select Board after Town Meeting in March.

Failure to reappoint – again

At the Select Board meeting of March 7, 2012, according to a SAPA DVD of the meeting, Select Board member Bill Lindsay brought up the issue of  DRB appointments, suggesting that those posts should have been voted on earlier in the month. Town Manager Pisha assured the board that he was told the date was June.  And board member Derek Suursoo said that he remembered the date as June “because there was one year that we didn’t appoint till very late.”

However, the minutes from the Feb. 3, 2010 meeting tell a more complex story.

According to town annual reports for 2007 through 2009, Development Review Board terms did run from June to June.

But when the Select Board failed to re-appoint Wunderle and Ferguson in June 2009, it corrected the error eight months later — in February 2010 — by putting the appointments on the March schedule and reappointing Wunderle and Ferguson to the DRB with terms expiring March 3, 2012.

And, according to those minutes, the motion was made by “Mr. Suursoo that Dan Ferguson and Scott Wunderle be appointed to the Development Review Board and their term to expire in March 2012. Mr. DeBenedetti second. Passed unanimously.” Suursoo also “expressed concern about any problems with those individuals making decisions on behalf of the Town (from June 2009 to February 2010) and they had not been reappointed.”

No clear picture on what happens to the Dollar General ruling

Since the Chester Select Board failed to reappoint or name new members to the DRB, the most contentious and drawn-out of recent actions – a proposal to build a 9,100-square-foot Dollar General store – might be considered approved by default without the 35 conditions imposed on it by last week’s DRB decision, DRB chair Hudkins said. He explained that the DRB had 45 days to make a decision from the time it closed the hearing on March 12. That time would be up on April 26. “But,” he added, “they still have to go through Act 250.”

Brian Leven, an attorney and Deputy Secretary of State, said, “As long as there is a majority (of the five-member board) who approved the process, then it was approved. But if it was 2 to 1, the actions potentially are invalid.” This could put the Dollar General decision in limbo since it was a 3 to 2 vote in favor, with Dan Ferguson voting for the project and Scott Wunderle voting against – making the valid vote 2 to 1.

“As long as there is a majority (of the five-member board) who approved the process, then it was approved. But if it was 2 to 1, the actions potentially are invalid.”

Brian Leven
Deputy Secretary of State

The 45-day decision clock hasn’t even started according to Jim Dumont, an attorney representing Smart Growth Chester, which has been fighting the Dollar General proposal. “If they didn’t have five members on the board, then their vote to close the record (to deliberate their decision) is not valid either,” Dumont asserted, since it occurred nine days after Ferguson and Wunderle’s terms expired.

Smart Growth Chester files motion to reconsider

Late Tuesday, Smart Growth Chester filed a six-page motion with the DRB to reconsider its approval of the Dollar General proposal based on “errors and omissions made by the DRB,” said Cunningham. “Throughout its decision, the DRB announced its conclusions – for example, that there’s no adverse affect of the development on the character of the area. But it never described how it came to that conclusion or why the arguments made by Smart Growth and by residents were not valid. An appeals court judge needs to see this to decide whether or not the DRB made a proper decision.” (Read the Motion to Reconsider 4 24 12 as filed)

Even though they believe that the ruling was invalid because the DRB lacked five members, Smart Growth will appeal the decision to the Environmental Court, Cunningham said, adding, “You are going to cover all the bases. You just don’t go with the one argument you think is strongest.” He added that Smart Growth will argue against the project at the Act 250 level as well.

Numerous calls to representatives of Dollar General were not returned.

In the meantime, the Select Board is looking for people to apply to serve on the Development Review Board. To apply, you can send a letter of interest by May 1st to Town Manager David Pisha, Town Hall, 556 Elm St., Chester, VT 05143.

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

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About the Author: Cynthia Prairie has been a newspaper editor for 30 years, having worked at such publications as the Raleigh Times, the Baltimore News American, the Buffalo Courier Express, the Chicago Sun-Times and the Patuxent Publishing chain of community newspapers in Maryland. She and her family moved to Chester, Vermont in 2004.

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  1. Paula Sargent Piper says:

    It is very sad to see a town that is in a nutshell being prejudicial about a business coming in. Will it add jobs to Chester’s economy? yes. Will is aid in transportation costs for residents? yes. Will it deter in the “look” of the town? NO. We are a town of approximately 3,500 people. It would be considered a very “small” town. If we are held back from expanding, and getting up with the times, we therefore are smothering our town for opportunity and growth. We want our children to stay in Vermont. We want them to have their families and stay in Vermont. But if we keep the mindset that a harmless business wishes to come in and open, who are we? Who are we to judge? It’s a shame. A shame that one business has to jump through so much hoops just to open. Makes me think twice about opening my own spa when it comes time. The town has no right placing such major restrictions on someone that is going to only do good to the community. Fair is Fair. Just be FAIR. What’s expected from one, should be expected from ALL. Sad in Chester.

  2. Barre Pinske says:

    I am open minded about the future of the town. I cannot say for sure how things would be or not be affected by any type of business. I’m not Nostradamus. The rules need to apply to all equally should be the main concern of a development review board. If we as a whole think we only want American goods or stores of a particular size then those rules should be lobbied for and put in place. No retail with less than, let’s say, 65% American-made goods, no retailer with a foot print bigger than x. We cannot make it up now to stop something coming in ahead of the rules unfortunately.

    What concerns me most is that some people want to pick and choose what they want, like which apple you want that is not reality. Business is not a popularity contest. It is how we survive. People need jobs, towns need sustainability, roads need gravel etc. It happens in many ways.

    Let’s hope like hell Dollar General does not sue the town for having meetings that were not legal and wasting their time. That would not make Smart Growth Chester’s loophole finding a smart thing.

  3. Diana Ashworth says:

    Excellent reporting and excellent representation and investigation by Smart Growth. I am really concerned that the Development Board was more concerned about the chance of Dollar General bringing a suit against the town than what was best for Chester. Dollar General’s representatives have acted dismissive of the public’s concern over the store coming to Chester. Just because a corporation decides they want to put a store in our town, it does not mean that we need to accept their decision. This is our town. We are the ones who will have to live with the store and the problems it will bring. The corporation only needs to rake in the profits to their out-of-state headquarters. Why would we jeopardize existing businesses that have invested in our town for years? If we want to buy cheap, plastic stuff, all we have to do is drive to Springfield, which has two such stores. We all drive to Springfield all the time for other things, and we have for years. What are our priorities?

  4. reginald says:

    Well written article. Sad commentary on how our town is being run and good to bring to light. First the debacle down at Jack’s Diner and now this…

  5. Bruce Farr says:

    Interesting reading, and excellent reporting!