The Law

Development Brings More Development by Ron Davis Growth in the area surrounding a Vermont planned retail development has paved the way for local approval of the controversial project. The development, set for location in St. Albans, a town just north of Burlington, has experienced delays since it was initially proposed some 18 years ago. That was in 1993, when the owner of the site first sought permission from the local development review board to allow Wal-Mart to build a store at the site. Opponents quickly mounted a campaign to shoot down the project. And they had sympathetic backing. That’s because the area surrounding the developer’s property was, for the most part, rural. In fact, nearby was a sizable farming operation, as well as scattered single-family housing. At first, approval of the project seemed certain. A district environmental commission backed the plans of the developer. But on appeal, a higher court concluded that the proposal failed to meet several review criteria. The developer could have asked the court to reconsider that conclusion, but instead he appealed. Apparently, that was a big mistake. A Vermont court upheld the finding that the proposed Wal-Mart would “accelerate and attract substantial secondary growth.” The implication was that the surrounding area would suffer from accelerated development that would overburden the financial capacity of the St. Albans community. That was then. This is now. Another developer of that property recently applied to build a Wal-Mart store that would be much larger than the one planned in 1993. And the surrounding area has recently changed considerably. Engineering and economic analyses show that much of the potential secondary commercial growth that was a concern in 1993 has already occurred during the intervening years. For example, within a mile-and-a-half radius of the proposed Wal-Mart site are 51 new commercial enterprises. Those enterprises include fast-food restaurants, bank offices, automobile sales and service centers, as well as supermarkets and home-supply centers. Such development was the result of the city’s recent designation of the area as a “growth center” and the extension of sewer lines to former rural communities. Still, opponents of the Wal-Mart continued their battle. But a Vermont court ruled that “commercial growth is now encouraged for this area and that the proposed Wal-Mart will fill a void that now exists in the local discount retail market.” On appeal of that ruling, the Vermont Supreme Court upheld the lower court, commenting, “The evidence shows that significant expansion in commercial development in the area surrounding the St. Albans site has already occurred, such that secondary growth is no longer a concern.” (JLD Properties of St. Albans, LLC, 2011 WL 3370401 [Vt.]) Decision: August 2011 Published: August 2011