Mary Beth Blauser

September 29, 2009

The battle over whether to permit retail giant Wal-Mart into the community of St. Albans, Vermont continues. In 1993, Wal-Mart applied for a permit under Act 250 to build a 100,000 sq. ft. store. The legal battle ultimately ended up in the Vermont Supreme Court which affirmed the Environmental Board's decision to deny Wal-Mart's application for a permit. In 2004, Wal-Mart renewed its efforts and applied for another permit to build a 160,000 sq. ft. store. Five years later, in June 2009, the Environmental Court conducted a three-day trial to determine whether to grant the permit. The court has not yet issued its ruling, but the decision is expected sometime this fall.

Thus far, the state of Vermont has done a good job of warding off Wal-Mart. To date, there are only four Wal-Marts in all of Vermont, which is the fewest of any state. The other four Wal-Marts escaped scrutiny because no new development was involved with the projects. Wal-Mart moved into spaces that larger retailers like Ames had vacated. But this application is different; the proposed 160,000 sq. ft. building with the accompanying 700 parking spaces has been fiercely opposed by Vermonters all across the state. However, there are St. Albans citizens who support Wal-Mart and would welcome the added jobs and convenience that the new store would offer.

Vermont's saving grace in this battle has been Act 250. Act 250 was passed in 1970 in response to highway construction. Worried that rapid growth and development would ensue, the Vermont General Assembly passed Act 250 to protect the environment, balance growth and development, and promote sustainable, smart growth. Act 250 is a permitting system that requires any builder to obtain the necessary permit for commercial buildings and subdivisions. Building size, lot size, and number of houses dictate who needs to obtain an Act 250 permit. For example, a subdivision of land into ten or fewer lots does not require an Act 250 permit. The power of Act 250 stems from ten criteria that all applicants must meet. Applications must reflect that the proposed project:

1. will not result in undue water pollution or air pollution,

2. will have a sufficient water supply,

3. will not cause an unreasonable burden on an existing water supply,

4. will not cause unreasonable soil erosion or runoff,

5. will not cause unreasonable traffic congestions,

6. will not cause an unreasonable burden on educational services,

7. will not cause an unreasonable burden on other municipal services,

8. will not have an undue adverse effect on scenic beauty, aesthetics, historic sites, or rare and irreplaceable natural areas; and will not destroy necessary wildlife habitat or any endangered species,

9. will conform to the capability and development plan, including limiting development on primary agricultural soils, and

10. will conform to local and regional plans or capital programs.

So far, Wal-Mart has had a difficult time complying with all ten criteria of Act 250. Traffic impacts, the loss of prime agricultural land, the impact on nearby farms, and the economic impact of downtown retail stores were at issue in the latest trial. Regardless of the verdict, it is expected that the case will be appealed and once again end up in Vermont's Supreme Court. The implication of this decision will test the strength of Act 250 and its power to shape the landscape of Vermont. The Vermont Natural Resource Council, a party to the action, commented on the significance of the case, saying that "Ensuring that any and all development fits into Vermont in a way that complements – not corrodes – a community's character, local economy, and quality of life is essential." For now it is a waiting game, but do not be surprised to see this decision appealed to the Vermont Supreme Court.

Sources

In re Wal-Mart Stores, Inc. 702 A.2d 397, 400 (Vt. 1997).

Vt. Stat. Ann tit. 10 § 6086 (2009).

Vermont Natural Resources Council, VNRC v. Wal-Mart: The David and Goliath Story, http://www.vnrc.org/program-initiatives/wal-mart-big-box-discount-stores/vnrc-v-wal-mart-the-david-and-goliath-story/ (last visited September 23, 2009).

Sarah Schweitzer, The 16 Year's War, Boston Globe, September 20, 2009, available at, http://www.boston.com/news/local/vermont/articles/2009/09/20/a_wal_mart_proposed_for_a_cornfield__has_long_divided_a_small_vermont_town/?page=2.

Vermont Act 250, http://www.uvm.edu/~vhnet/prespl/laws/act250.html (last visited September 23, 2009).