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2010-01-24
St. Albans, VT. Environmental Court Oks Wal-MartóWith Strings

One of the longest running Wal-Mart battles in America made headlines again this week. A Vermont developer is shelling out millions in road upgrades and impact fees in order to buy his way into the town of St. Albans, Vermont. On June 23, 2009, Sprawl-Busters last updated the epic 16 year war that's been going on between Wal-Mart and its opponents in St. Albans. Wal-Mart has been trying to convert a cornfield in this small, northern Vermont town into an asphalt field of dreams. Although the retailer was rejected by the Vermont Supreme Court in 1997, another developer has returned to the same parcel in the town of St. Albans to have a second bite of the apple. In the process, the developer, Jeff Davis, who also built a Wal-Mart in nearby Taft Corners, Vermont, has held rallies in support of his store, and enlisted the aid of no less than Vermont's Governor Jim Douglas as his cheerleader. The cornfield is located on Route 7 across from the St. Albans Drive-In, just off Route 89, a few miles south of the Canadian border. In this second try, town officials have again given the store its blessing, as well as the regional commission set up under Vermont's Act 250 land use control law. But the Vermont Natural Resources Council (VNRC) and local residents filed the legal paperwork to ask the District 6 Commission to reverse its position and rescind the granting of an Act 250 permit that would allow the Wal-Mart superstore. In addition to the VNRC, the citizen's group, the Northwest Citizens for Responsible Growth (NWCRG) and neighboring farmers Marie Frey and Richard Hudak, appealed. The appeal charged that the Act 250 District 6 commission, which is the local panel that hears Act 250 cases in the St. Albans area, ignored its own findings when it granted the permit. Opponents have charged that the superstore would pollute a nearby brook, increase traffic congestion, cost as many as 200-297 jobs, and result in the closure of over 40 businesses in the abutting city of St. Albans. The District 6 Commission also was warned that the project would pave over prime agricultural land, and that the developer had not compensated for the loss of those soils. The deputy director of the VNRC said the conclusion of the Commission was not supported by its findings. An economic impact study done by Wal-Mart's consultant said the project would only result in 40 lost jobs and 12 businesses closing in the city of St. Albans. A similar economic impact study for the same site in 1994 performed by the late Tom Muller, and Beth Humstone, concluded that a Wal-Mart would result in a net loss of 500 jobs five years after opening. The St. Albans Wal-Mart would be the largest of its kind in Vermont -- at 146,755 s.f. -- larger than the proposal introduced in 1993 that measured 100,000 s.f. Today that impact will be even worse, because a large Price Chopper grocery store is now located less than a mile away, as well as a Hannaford's grocery store in another neighboring mall. In August of 2008, the owner of the nearby mall urged that Wal-Mart be forced to drop any plans for a grocery store as part of the deal. Highgate Commons, which is located roughly half a mile from the proposed Wal-Mart site, has a Hannafords and a Peebles department store that would take a hit financially if the Wal-Mart is built. The owners of Highgate Commons insisted that the permit have language in it that would exclude the possibility of a grocery store. The owner of a nearby gas station also appealed in the case -- concerned that Wal-Mart often opens gas stations in his parking lots. In June of 2009, Sprawl-Busters reported that the Environmental Court had held three days of hearings on the Wal-Mart project. Judge Thomas Durkin listened to testimony that focused on economic impacts and traffic. Developer Davis introduced a new economic assessment, conducted by Northern Economic Consulting (NEC), which said that Wal-Mart would bring 240 jobs to Franklin County -- 225 at Wal-Mart and another 15 elsewhere. According to the new study, only 11 jobs would be lost at other "general merchandisers." "There's no one to drive out of business," the study's author said, since there are no general merchandisers in the area. "There isn't anyone of significance to push out." On January 20, 2010, six months after the court hearings concluded, the Environmental Court issued a 55 page decision affirming the developer's right to proceed in St. Albans -- but with a lot of financial strings attached. Judge Durkin is requiring Wal-Mart to make payments to the city of St. Albans -- which is adjacent to the Town of the same name -- to compensate for economic harm that will befall the city's core downtown area. Depending on when construction starts, Jeff Davis will be required to pay up to $400,000 to the city. The developer also will be required to buy and renovate at least 4 properties in the city's downtown, spending at least $1.5 million to buy the properties, plus at least $1 million more to renovate them. Davis must agree to be a major development partner in the city's downtown core project, and contribute $50,000 to that effort. In addition, Judge Durkin is requiring that the Wal-Mart cannot have more than 10,000 s.f. of retail floor space devoted to food items. If Wal-Mart wants to exceed that figure, it must file an application for an amendment to its Act 250 permit. Davis also must follow through on his promise to pay the town of St. Albans for any municipal costs that exceed the amount of taxes being paid by the project. Davis also agreed to pay for 8 major roadway improvements. Because the project will negatively impact 58 acres of prime agricultural land, Davis agreed to an "agricultural mitigation agreement" that requires him to pay $167,622.50 to the Vermont Housing and Conservation Board to help conserve farmland. The limit on food sales was a controversial issue during the hearings. Davis told the Board that his Wal-Mart would not be a superstore, and would not carry groceries or have a gas station. Judge Durkin wrote, "There is no evidence in the record... that would allow for the operation of a Wal-Mart expanded beyond its conventional discount store theme." But Wal-Mart is no longer building discount stores -- a fact the Judge seems to have missed. In a story from the Arkansas Democrat-Gazette dated October 22, 2009, it was reported that "in addition to supercenters, Wal-Mart operates general merchandise discount stores, a format it is no longer adding to its store base." In reviewing the economic impacts of the Wal-Mart superstore, the Judge concluded that "none of the factors that led to the denial of the Wal-Mart developed in 1993 are likely to exist... some 15 years later." The Judge reasoned that all the discount stores in the area, like Ames, Woolworths and Ben Franklin "closed without competition from Wal-Mart." But Durkin adds: "Some might suggest that the demise of these competing discount stores was assisted by the national prominence of Wal-Mart and the presence of a Wal-Mart in Williston a number of miles away." The court opined that "the proposed Wal-Mart will fill a void that now exists in the local discount retail market." "To say that the proposed Wal-Mart is out of scale and exceeds the regions commercial needs," the Judge added, "is to ignore the credible evidence presented of the expansion of commercial activities in this area, all the while experiencing a steep decline in retail sales that remain in the region, given that the 3 prior discount stores have decided to remove themselves from this market." Less than a mile from the site is a Peebles department store, which replaced the empty Ames store. Davis' economic consultant claimed the new Wal-Mart would not create any secondary growth, because the author visited eight other Wal-Marts -- half of them in Vermont. Much of the secondary growth has already arrived, the consultant said, such as fast food restaurants. But the VNRC attorney established that consultant's impact study failed to consider the available land right around the Wal-Mart site. Opponents entered the testimony of an economist who challenged the model used by Davis' consultant to predict economic impacts, and the testimony of the owner of Highgate Commons, who said his center alone will lose at least seven stores. The owner of Highgate Commons said sales at a shopping center he owns in North Carolina dropped 16% following the opening of a Wal-Mart nearby. The ruling from the Environmental Court is not likely to sit well with opponents, who are expected to announce their next steps in the near future.

What you can do: Because Judge Durkin dismissed the notion that Davis wants to build a supercenter, he ignored the dramatic impact that this superstore will have on nearby grocery stores like Hannaford's and Price Chopper. But as a precaution, the Judge required Wal-Mart to amend its permit if it wants to use more than 10,000 s.f. for food, "so that operation of the proposed Wal-Mart does not morph into a store... that provides direct competition with area grocery stores or supermarkets." This is exactly what will happen, since Wal-Mart has no interest in building discount stores. Since Davis pledged to pay more taxes if the cost of his development to the town exceeded his property tax payments, Durkin concluded, "we find no basis for concluding that the proposed development is likely to cause unreasonable impacts upon the ability of local governments to provide municipal and governmental services." Last June, during the court hearings, Durkin told the media: "This isn't easy stuff, if it was we wouldn't be here." Local opponents of the St. Alban's project had assumed all along that the town board would approve the Act 250 permit. That's what happened in 1995, and that's what was expected in 2008. The citizens group, Northwest Citizens for Responsible Growth, says on its website, "Here in Franklin County, we are struggling against efforts to convert some of the largest concentrations of prime-agricultural soils in the state to large-scale retail and residential development. Successful organic farms on the perimeters of these soils will be threatened. We cannot allow this to happen, as high quality Vermont farm products and the countryside in which they are grown represent the two most promising industries for Franklin County, as we embark on the twenty-first century. Vermonters need to be especially careful not to overload their winding roads and covered bridges, not to ruin their green rolling landscapes and not to empty out their small historic downtowns. More than a quarter of the state's income comes from tourism, and nobody's going to mail home a postcard of Wal-Mart." There are currently only 4 Wal-Mart stores in Vermont -- the smallest number in any state. The Green Mountain state has not proven to be very hospitable soil for Wal-Marts. Readers are urged to email the NWCRG at: admin@nwcrg.org to find out how you can donate funds to their legal defense of the town and city of St. Albans. If opponents that are parties to this case decide to appeal the Environmental Court decision, this marathon battle in Vermont could run on for many more months.










 
 
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