Q&A: Attorney Alan Biederman on the latest Zaremba/Dollar General victory

Alan Biederman represented Zaremba Group, the developer of the proposed Dollar General store in Chester, during the Act 250 appeals brought by opponents of the project.  He is a lawyer in Rutland who is happily heading toward retirement.

Four questions were posed by email by Telegraph editor Cynthia Prairie. Biederman also responded by email. Except for a bit of editing, the answers appear in full. Additions by the editor are in brackets [ ].

©2015-Telegraph Publishing LLC

Was there anything in the decision that surprised you? If so, what and why?

I was not surprised by the decision. We had won on the facts in the Environmental Division, as opposed to winning on some complex issue of law. In cases where the trial court decides the case predominantly on the facts (there weren’t many questions of law here), by long-standing precedent, the Supreme Court of the United States and the supreme courts of all of the states show deference to the trial court on issues of fact. The theory is largely that the trial judge is in the best position to see and evaluate the witnesses and their testimony.

Alan Biederman, left, and Jim Dumont during a Supreme Court hearing. All photos The Chester Telegraph.

Alan Biederman, left, and Jim Dumont during a Supreme Court hearing. All photos The Chester Telegraph.

Appeals courts often contrast the difference between a “cold transcript” and a live trial. So, for example, a sarcastic response that clearly indicates that a witness means “no” when s/he says “yes” will appear as a “yes” on a transcript. The judge or a jury who saw the witness knows this and understood what the witness actually meant. The transcript merely says “yes” which is not what the witness really meant.

Most of the issues appealed here were fact issues. For example, whether the Zaremba building looks or does not look like other buildings is an issue of fact. Likewise, the question of whether the building will “fit” the neighborhood depends on facts, not legal issues. Whether the river will or will not be affected adversely is a question of fact.

Unless the opponents could show that there were no credible or material facts to support the trial judge, the Supreme Court will ordinarily uphold a fact-based decision.

The only significant issue that was law, not fact, is whether the Town Plan’s provisions were a clear community standard. Here, where there are zoning regulations to implement a Town Plan, the Town Plan just didn’t seem to me to be a binding standard. In fact, the zoning did not prohibit a project of this size and expressly contemplated such a building. We did not think it was likely that the court would find advisory statements in a Town Plan to be controlling when the zoning allows such a building.

To be honest, the issue regarding the river, and the judge’s minor error that omitted “equal to” when he said “wider,” was never a problem. Just read the U.S. Supreme Court decision on Obamacare’s tax credits and you will see that courts are not required to consider such minor differences to be controlling. Everything that Judge Walsh wrote indicated that he understood the evidence and held that the river discharge wasn’t going to increase erosion.

I believe you at one time said you expected to win, but what made you certain that this would be the outcome?

I was never certain. I’ve never done a case where I was certain. Judges and juries are people. They are the only audience that matters in a trial. One can’t be too confident because it is common in my “regular” life that my family or friends or colleagues know the same facts about something as I do but nonetheless see them differently. So one can lose any trial. Certain is not a term an experienced litigator would use.

However, I did believe that we would win and I was quite confident. That’s less than certain, but is about as sure as I get. I always try to look at cases objectively. It doesn’t help anyone to fool oneself by “wishing” the evidence was better than it is. In fact, I often say that I spend 90 percent of my time worrying about 10 percent of the facts.

Biederman1

Alan Biederman

Here, I wasn’t involved in the case at the DRB before the case was appealed to the court. So I got the facts that were already largely prepared and had been presented by someone else. I had never represented, or even heard, of Zaremba, and didn’t know much about Dollar General. Also,while I’d been through Chester many times, I guess I had never really looked at it closely.

So what I had to go on was a visit to Chester, and the documents and statements that had already been made before I ever heard of the case. Right from the beginning, it seemed to me that the case was a winner.

Zaremba had done a thorough job with experts who I either knew or whose work seemed thorough. To be specific, the traffic issue was a non-starter. I know traffic from other cases. The river issue made no sense to me. I was a science major in college and have done science cases my whole career, including a fair number of cases concerning hydraulics and river flow.

I didn’t think Claudio [Veliz, architect and Smart Growth Chester member] knew what he was talking about regarding the river because the physics of the issue as he presented it made no sense whatsoever. His view respecting the behavior of water joining a larger river was just not accurate.

Despite the fact that the project wasn’t perfect, I was persuaded early on that Chester had allowed such buildings as conditional uses under its zoning, so unless there was something really out of line, the community’s standards for aesthetics allowed this building.

— Alan Biederman

As for aesthetics, that was the major question and the opponents’ best issue. Claudio was a good witness for the town on this subject. Once I had deposed the aesthetics expert (whose name I also forget), I was sure he wasn’t a problem. Despite the fact that the project wasn’t perfect, I was persuaded early on that Chester had allowed such buildings as conditional uses under its zoning, so unless there was something really out of line, the community’s standards for aesthetics allowed this building.

Perhaps being more blunt than I should be, the opponents tried to win the case by raising “concerns” or “questions.” I rarely find that sufficient. One needs good science and experts. Anyone can be concerned. To win at trial, one must raise facts, not concerns.

The depositions did not change my mind. Some of the opponents, whom Jim Dumont wisely did not call, objected to Dollar General because the folks who shop at Dollar General are just not their “kind of people.” But there were some good witnesses, including Shawn Cunningham and John Holme and his wife, Diane [all Chester residents and part of Smart Growth Chester]. However, I wasn’t impressed with the opponent’s experts, and they were the most important witnesses. I knew our experts were solid, and the river issue buttressed, rather than hurt, our case. So I was quite confident walking in the door. But I was never certain because one can never be.

I did expect to win but, of course, one can never be too certain.

Was this won on the arguments that you expected and for the reasons expected as well?

Short answer: Jim Dumont argued the only issues he could argue. Having lost the case below, there wasn’t much to argue. I expected the aesthetic argument and the Town Plan argument. Didn’t expect the river argument, which was sort of a throw-in, I am sure. We won for the reason we expected, i.e. the deference that appeals courts show to trial courts on appeal respecting issues of fact.

And finally, what would you tell the opposition that it or the town needs to do to address the issues that it has brought up in this long-running battle?

Interesting question, especially how you pose it. It is and never has been clear to me that the Town opposes Dollar General. The DRB certainly didn’t. Neither did the Select Board. So I have no reason to think the town opposed it, or that a majority or even a large number of people opposed it.

Candidly, my view regarding all of these cases is that most people don’t much care one way or the other. That’s not just Chester. That’s everywhere about everything. Polls showed that most folks didn’t know anything about the Obamacare case including those who would have lost their subsidies. They know about escaped convicts, but not about development issues or environmental issues. That’s not a criticism. That’s just how it is.

The beauty of democracy is that someone who knows nothing about an issue has the same vote as I do. I used to hate that. Now, I appreciate that this is how the whole system is supposed to work. Most people worry about their own lives, not issues like zoning. For a town to change that, they have to persuade people to see things a different way. It makes change hard, as it is supposed to be under our system, but it also motivates activists to go out and speak with their neighbors to bring about changes.

Jim Dumont, standing, and Alan Biederman, seated.

Jim Dumont, standing, and Alan Biederman, seated.

So I don’t know what, if anything, the Town should do. What the opponents should do, if they want to change things, is to remember that it is the Select Board and the voters, not the courts, which is where they should be focused. I disagree with lots of what I expect Jim Dumont and Jean Vissering [landscape architect for Smart Growth in the DRB hearing] prefer, although I respect them both. But if the opponents want to change things, they have many avenues, if they can get it by the Select Board and the voters.

If Chester wanted to outlaw future Dollar General size stores, it could do so. It could implement design review standards. It could change the zoning to incorporate those standards. It could set different size, volume, shape, setback or other such limits. It could define almost any design standards it wants, even to the color of the paint, the materials used, the roof designs, etc.

If I wanted to change some town policy or ordinances, I would draft a comprehensive program for such changes rather than just beefing about the issues. Board members hear complaints all the time about all kinds of things. What they do not often get is a comprehensive program that is well-thought-out and can form the basis of the changes someone wants. It may not pass, but it is rational and clear, and it forms the basis for a sensible discussion.

Be aware, however, that once planning commissions and select boards start thinking about such things, they realize there is much more involved in such decisions than merely the design. Lots of design standards make pretty towns and buildings, but they sometimes make it impossible for ordinary folks to start businesses. They add a lot of cost. So you get many towns that really look the same with the same chains and chain stores – just more “tasteful” perhaps than Dollar General. Does Chester want to exchange its diners for Starbucks, or Lisai’s for a chain mini-mart?

Lots of design standards make pretty towns and buildings, but they sometimes make it impossible for ordinary folks to start businesses. They add a lot of cost. So you get many towns that really look the same with the same chains and chain stores – just more “tasteful” perhaps than Dollar General.

— Alan Biederman

You can create design conditions that prevent regular people from starting businesses. Ever wonder why only rich college kids shop at City Market in Burlington? It was because Bernie [Sanders] and some colleagues wanted a “local” market, which they can go to in the form of the Onion River Co-op. So instead of a Shaw’s or Price Chopper that regular people can afford, they got City Market, where meat is $18/lb though it certainly is organic and good. … My daughter can shop there because her dad is a lawyer, but regular folks cannot. They need to go to South Burlington to shop.

That happens, and while I can afford whatever, I didn’t grow up able to afford much. And I might be concerned that the design requirements wouldn’t stop Starbucks but it might stop a local person from giving a new business a try. I’m not saying this is bad or good, but I am saying that when you get down to the process, it involves choices. Which is why I suggest a well-thought-out plan … that doesn’t do exactly the opposite of what you want, which, if I understand it, is to keep Chester local.

I think you will also find that some people object that government shouldn’t tell people what to do with their own land. Others will argue that design standards often reduce values of property because any property that can’t comply becomes almost valueless. I don’t know if this is true, but I have heard the argument. Some argue that design standards impact jobs. I have no idea, but I’d research the issue early.

I do think that most design standards work against low-income people by ensuring that low-profit stores cannot even start. The current rage among designers, as you have heard, is to have parking behind buildings. Restaurant owners will tell you that many people won’t stop if they cannot see that there are already a lot of people at a restaurant. I’ve done that myself. Many folks in Chester might prefer more jobs to better planning. Some say good design promotes jobs rather than retards jobs. I have no idea. I’d recommend that if the opponents believe in design standards, they find the data to support their case and incorporate it into their pitch, if it exists, which it well may.

Vermont law gives towns a great deal of control over design. But I am the last one to say I know what the town needs to do. The older I get, the less I know. There was a composer, Erik Satie, who said something I often quote, probably erroneously. It goes something like this: “They always told me, wait until you’re 50. Then you’ll see. Well, now I am 50, and I haven’t seen a thing.”

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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. Cynthia Prairie says:

    There has been a process in place for making changes to the zoning laws and a process is in place to update the Town Plan. In the zoning laws, several changes — such as in building size — were made. And members of Smart Growth Chester were instrumental in seeing to those changes. Many business people also showed up to ease restrictions on sign legislation. Those however were not changed once the business people stopped coming to the meetings. What needs to happen is for the citizens themselves to come forward to tell the Planning Board what it wants and what it doesn’t want. They then need to keep coming back to the meetings to make sure that those changes are implemented. It is the only way changes will be made.

  2. Diana Ashworth says:

    Excellent article. I do feel that we should start drafting a comprehensive plan with teeth that will keep the uniqueness of Chester and encourage small businesses.

    Do we want to be another Springfield, VT? Is Springfield thriving? Are there lots of jobs? I’ve heard a lot of complaints from Springfield residents about what has happened to their town.

    If we allow Chester’s growth to continue helter-skelter, there is no guarantee there will be more jobs. What will be guaranteed is that Chester will lose its beauty. Once that is gone, there is no getting it back.

    So, we will lose our tourist trade and be left instead with big box stores that siphon their profits out of state. I think formulating new town planning is the next step for Smart Growth Chester.

  3. Amanda Bourque says:

    Thank you for this excellent interview. Thoughtful questions and responses

  4. Barre Pinske says:

    Mr. Biederman clearly presented the value of facts and town planning. We have a very small but very vocal group that understands the value of esthetics and uniqueness.

    Normally, uniqueness ends up having great value so preserving something rare can create greater value the problem is preservation costs. Many museums de-accession because they can’t afford to keep art works or have to sell items to maintain their structure.

    These sort of decisions come with great hardship. We have big, beautiful homes that cost too much to heat and not enough jobs to keep the homes single-family not to mention well-maintained.

    Charming Chester is being sold off broken apart and homogenized in spite of the desires of interested patrons who vocally support it but can’t afford to preserve it. The thing that surprises me the most is that the folks who love the history of the town don’t seem to be on board with the preservationists.

    Things change and evolve but once you ding up your classic Mustang and let it rust, it’s just an old car. The charm of Chester may have to reside on the Green and the Stone Village when the Dollar General and the new Jiffy Mart get built as planned because we will have sold off some of our esthetic treasures.

    It’s not so much loss of land or structures but a loss of a feeling of uniqueness. Once it’s gone you’re just like the rest and so goes the value. If folks don’t care as the esteemed lawyer said, so it goes.

    The way it’s always been is the masses don’t get it and the folks who want the preservation and beauty need to be able to afford it. It’s too bad the community as a whole is not on the same page and able to work together because even if folks are poor, there is strength in numbers.

    Local government can, as Mr. Biederman said, make rules for much of what they choose. With the cost of living here, low property values and lack of good paying jobs, charm can go a long way in having folks who can afford it want to live here. As they say a rising tide lifts all boats.

    I’d like to add that a sinking ship takes everything with it. I don’t see us sinking, we are just becoming very average very quickly. And with that loss of aesthetics and culture, not very desirable.

    You can see on the wall at Town Hall the values of the properties that are being sold are very low right now. I have made my view known at town meetings: I feel this sort of development should be done on the edge or town. Shop and fuel up, then enjoy some charm. What’s the problem with that? Time will tell.

    I understand business. I don’t begrudge business wanting to make the best decisions for profits, but what a strong community needs and what a business needs are two different things. Community leaders need to make sure that what is happening now is the best for the community in the future. We need to trust them and hold them accountable.

  5. Mary Jane Miles says:

    This was a fantastic interview. I think however, sadly Mr. Bierderman is correct in his disclosure: “Candidly, my view regarding all of these cases is that most people don’t much care one way or the other.”

    It is evident in how low of a voter turnout even on the most controversial issues we have. It truly is sad that our voter representation is so low. I can’t say for certain on the opposed or for view on Dollar General. I have never researched it. But I have had many conversations with people that think it is fine and I am one of them.

    The truth here that is very important is we do not have a clear vision of our town’s goals — not in zoning and not in the town plan.

    Our town lacks vision on how to plan for future roads and needs of its residents and my concerns regarding the lack of honest transparency on projects is sad. It does appear not many care, not enough to change it and how we do that is to change how we run this town from the top down.

    Old school ways do not work anymore in this economy. This was a great interview. The questions were poignant; the answers were very clear and accurate there are lessons to be learned here.

    Great article Cynthia. Keep up the great work!

  6. Marilyn Mahusky says:

    Great interview! Thank you Chester Telegraph for your thoughtful questions. We, the residents and decision-makers of Chester (the Select Board and the Development Review Board), ought to give careful consideration to Mr. Biederman’s also thoughtful answers. I believe many in the town were opposed to Dollar General, and not just because they were opposed to “those” people who shop there. Residents, leaders and activists alike need to have a dialogue about these issues on a broader scale.