It was a long-awaited day in court for the Vermont Natural Resource Council, local farmer Marie Frey, and members of the Northwest Citizens for Responsible Growth (of which I am an active member.)

After eight years of controversy, appeals of the permit for a proposed Walmart at exit 20 of I-89 in St. Albans Town had a final half-hour of oral arguments before the Vermont Supreme Court this past Wednesday at the Vermont Law School in S. Royalton.

The room was packed with about a hundred spectators.  As if to illustrate our claim that the local permit review process had been contaminated by conspicuous and persistent conflicts of interest, former Town Selectboard Chairman, Bill Nihan, took his seat in the front row, cheek-to-jowel with applicant Jeff Davis of JLD Properties, his attorney Stewart McConaughy, and project engineer Sam Ruggiano.  

Mr. Nihan has been a consistent figure in Town government throughout the Walmart saga, even popping-up on the special “Ad-Hoc Committee” that was formed by the Northwest Regional Planning Commission, under pressure from the Town, to “reconsider” Davis’ Walmart project after the usual NRPC Project Review Committee had rejected it.  Not surprisingly, that “Ad-Hoc Committee,” under the heavy thumb of Mr. Nihan and friends, returned a decision favorable to the project.  But Mr. Nihan does not even play a minor role in our assertions of a tainted process.

In fact, the pattern of conflicts of interest throughout the process was so widespread and insidious that former VNRC attorney Jon Groveman was forced to narrowly focus on the most egregious examples (due to filing limits on the number of words in the written arguments.)

The abundant evidence of conflicts of interest that was included in the written arguments was not wasted on the Supreme Court justices who peppered attorneys from both sides with many questions on the issue.  Everyone, even the attorney for JLD, seemed to finally agree upon the existence of those conflicts. What remained to be evaluated was the validity of the applicant’s assertion that, since the Environmental Court hearing (the venue for our appeal of the Act 250 decision)  was considered “de novo,” meaning a new look at the evidence, contamination of the local permit process was unimportant.

As VNRC’s Jared Margolis very ably argued, if the Supremes were to accept this view of the local permit process, it  would send an appalling message that corruption could simply be overlooked; and it would have a “chilling effect” on concerned citizens’ access to that process.  If those citizens did not possess the financial means to appeal a local decision to the Environmental Court, they would simply be deprived of their right to a fair hearing.  

Other issues being appealed included the complete absence of evidence provided by the applicant that the project would be compatible with a large and thriving family vegetable farm and farm-stand located just a third of a mile down the road; and the omission by the applicant  of evidence with regard to the impacts of “secondary growth” that would inevitably accompany location of the Walmart.  Mr. Davis’ attorneys have insisted that there will be no secondary growth; an argument that, for anyone familiar with the retail boom around the Walmart near Taft’s Corners, really stretches credibility beyond the breaking point.

The final points of law argued in the appeals concerned Res Judicata and Collateral Estoppel which are principles of settled law.  As I understand it, we are arguing that, because a similar, albeit smaller Walmart, was proposed in 1993 for exactly the same parcel of land, and ultimately denied a permit by the Supreme Court, the applicant cannot propose what is essentially the same project in the same location, again.    Without this safeguard, an applicant with deep pockets might ultimately prevail simply by exhausting the resources of opponents in successive applications for the same project.

So that is the long and the short of it.  Some will be dismayed that so little of the obvious economic and environmental arguments against the project actually made it into the Supreme Court appeals, but there are practical limits both to the length and scope of arguments that could be made within the constraints of the venue.  

Despite the fact that preserving the working rural landscape was one of the principle intentions of Act 250, the fate of Marie Frey’s farm is reduced in the appeals to little more than a debate over geographical standing and semantics.  This is particularly ironic since the Hudak Farm is the quintessential rural Vermont success story. Formerly a struggling dairy operation, Hudak Farm has been transformed over the past generation into a thriving crop-farm, and is now completing the challenging transition to fully organic methods.  Throughout their business journey, the farm has made significant contributions to local schools and always upheld responsible stewardship for the environment.

I am told that the decision is not likely to be announced for several months.  The judges must draft careful opinions on each aspect of the combined appeals.  Their decision with regard to conflicts of interest, alone, has particular significance for the future of Vermont’s citizen access. The very legitimacy of Vermont’s cherished local control hangs in the balance.

Stay tuned.