Environmental Court of Vermont

State of Vermont MAY 3 20m
ENTRYREG_I;_F:DINGMOTIONENM, |[M-ONT
===========B================================================ _____ mNMMrAk=@OuRT
JLD Properties of St. Albans, LLC Docket No.s 92-5»07 Vtec & 116-6-08 Vtec
Project: Wal-Mart discount/retail store (mun. permit and Act 250 permit)
Applicant: JLD Properties of St. Albans, LLC
Title: Motion to Amend Judgment (filing No. __)

Filed: March 26, 2010

Filed by: Jon Groveman, Attorney for Appellants VNRC, NWCRG, Marie Frey and
Richard Hudak

Response: on Feb l?, 2010, by Ross A. Feldmann, Attorney for Applicant JLD
Properties of St. Albans, LLC.

Reply: on Feb 18, 2010, by Jon Groveman, Attorney for VNRC, et. al.
X Granted (in part) and X Denied (in part). Other

Appellants Vermont Natural Resources Council, the Northwest Citizens for
Responsible Growth, Marie Frey, and Richard Hudak (hereinafter collectively
referred to as “VNRC”) have requested that this Court amend its Merits Decision
of January 20, 2010 (“Merits Decision”), both to correct factual errors in our
Findings, as well as any legal conclusions that may flow from the factual
corrections. Specifically, VNRC requests that we amend the Merits Decision to
accurately reflect the boundaries of the Hudak Farm property, its proximity to
the proposed project, and the impact the proposed project may have upon the
Hudak Farm, which includes agricultural production and retail sales facilities
operated by Appellants Marie Frey and Richard Hudak.

VNRC is correct in its assertion that this Court did not accurately
summarize the location of the Hudak Farm property and its proximity to the
proposed development. As noted in our Merits Decision, Applicant JLD ?roperties
of St. Albans, LLC (“Applicant”) proposed to create a four-lot subdivision of
1071 acres it now owns off of U.S. Route 7 in the Town of St. Albans (“Town”),
and to construct and operate a Wal-Mart discount store and garden center on Lot
3 of that commercial subdivision. The subject property is located in the Town
of St. Albans Commercial and Commercial/Light Industrial zoning districts and in
a growth center specifically identified by the Town and the Northwest Regional
Planning Commission. Merits Decision at 6-7. A portion of the growth center
abuts the Town's boundary line with the adjoining Town of Swanton. Ld.

In our deliberations and review of the evidence admitted at trial, the
Court had difficulty identifying the specific boundaries for the Hudak Farm
property. In fact, our notes from trial do not reference testimony that
specifically identified the Farm's boundary limits. Trial evidence appeared to
focus on “the nearby Hudak Farm”; one of the site visits that the Court
conducted with the parties occurred at the Hudak Farm retail facilities, located
on the Westerly side of U.S. Route 7, in the Town of Swanton. Agricultural
production occurs on Farm property across from the retail facilities. We also
have trial notes concerning testimony of agricultural production on nearby
fields maintained by the Hudak Farm and identified on Applicant's Exhibit 3.

To provide for an accurate record, we have reviewed the tax invoices and
the Farm Service Agency map VNRC has supplied with their post-trial filings.
These documents substantiate that a portion of the Hudak Farm property lies in

In re JLD Properties/St. Albans Wal-Mart, Nb. 92-5~07 & 116-6-08 Vtec (05-03-10}

Page 2 0f3
the Town of St. Albans. A copy of the Farm Services Agency map is attached to
this Entry Order. We have highlighted what we understand to be the boundary
limits of the total Hudak Farm property and have included hand-written notations
that are referenced below. This site map also appears to identify the areas
used for agricultural production on the Hudak Farn\ property. The remaining
property consists of forested land and the land that includes the retail
facilities and other buildings.

The Hudak Farm property lies on either side of U.S. Route 7. The
municipal boundary line between St. Albans Town and Swanton bisects the Hudak
Farm property. The portion of the Hudak Farm that lies on the westerly side of
U.S. Route 7 (the same side of the highway as to~be-developed wal-Mart store) is
bounded to the south by a town highway known as Jewett Avenue. Several other
properties, including the commercial developments known as Cobb Auto, Senesac
Auto Body, Champlain Commons store complex, Progressive Auto Sales, and a
storage and distribution facility, are located between the Wal-Mart site and the
Hudak Farm property on the Westerly side of U.S. Route 7. These properties and
commercial developments buffer the Wal-Mart site from the Hudak Farm property.
VNRC is correct in noting that a small portion of its St. Albans Town property
lies between Jewett Ave to the south and Stevens Brook to the north; this
portion of the Hudak Farm property is not, in fact, buffered from the Wal-Mart
site by Stevens Brook, but all other portions of the Hudak Farm property is
buffered from the Wal-Mart site by Stevens Brook and multiple properties owned
by others, including the commercially-developed properties listed below.
Nonetheless, it was inaccurate for the Court to conclude that all of the Hudak
Farm property was separated from the Wal-Mart site by Stevens Brook.

The portion of the Hudak Farm property located in St. Albans Town includes
approximately 69.4 acres and has a net taxable value of $14,100.1 This portion
of the Hudak Farm appears to contain forest land and some agriculture fields,
but no buildings; this summary is confirmed by the St. Albans Town tax invoice.

The portion of the Hudak Farm located in the Town of Swanton includes
approximately 89 acres and has a net taxable value of $139,600, per the Swanton
tax invoice. This portion of the Hudak farm appears to also contain forest land
and agricultural fields, as well as buildings and other improvements, including
the retail facilities on the easterly side of U.S. Route 7.

These additional documents have convinced the Court that correction is
needed to its Merits Decision. at least in regards to the description of the
Hudak Farm property. For these purposes, we ADMIT the municipal tax invoices
and the Farm Service Agency map into evidence. Further, we hereby GRANT VNRC’s
request and do hereby supersede all references to the Hudak Farm boundary lines
and location contained in our Merits Decision with the descriptions contained
herein. Any future reference to our Merits Decision, particularly in relation
to the Hudak Farm property. location and boundaries, must refer to this Entry
Order and the attached Farm Service Agency map. The Court Manager is hereby
directed to note on our original Merits Decisionl as well as the electronic copy
of it posted on the Vermont Judiciary web site that we have hereby AMENDED our
January 20, 2010 Merits Decision.

Even with this clarity, we cannot discern where the Hudak Farm property is
adjacent to Applicant's property. More to the point, VNRC has not identified
any portion of its agricultural uses that are adjacent to the Wal-Mart project
property.

 

'WHMMMWWMMMmUmeMmmmmmwmmmMMmm%waWWMmMm
postjudgment filings This net value is derived from the reported real property value, less a sum denoted as “land use”
value, which we understand to mean a reduction due to the enrollment of some or all of the property in the state current
use valuation program

In re JLD Properties/St. Albans Wal-Mart, No. 92-5~07 & 116-6-08 Vtec (05»03»10)
Page 30f3

VN'RC presents a somewhat convincing argument of the difference between the
term used in our Merits Decision-“adjoin"-and the term used in the Town of
Swanton Subdivision Bylaws (“Bylaws”) § 220.3: “adjacent.” Our research does
not reveal such a dramatic difference in these two terms; in fact, the Merriam-
Webster's Collegiate Dictionary (10th Ed.) refers to the two terms as synonyms.2

Our use of the term “adjoining” was in error. However, even if we
substitute “adjacent” for all such references in our Merits Decision, our legal
determinations remain unchanged, since there is no evidentiary foundation for
VNRC’s assertion that the Hudak Farm, and more particularly their agricultural
operations, are adjacent to the Wal-Mart project site. Therefore, Bylaws
§220.3, does not require Applicant to perform a specific analysis of the
compatibility of their proposed Wal-Mart project with the Hudak Farm property
generally, and its agricultural uses in particular, since neither are adjacent
to Applicant’s property or project site. While the Hudak Farm property is
somewhat close to Applicant's property, and the Hudak Farm retail facilities are
less than a half mile away from the Wal-Mart project site, the intervening area
hosts a multitude of other commercial developments. Applicant supplied ample,
compelling evidence that its project was compatible with these adjacent land
uses. The very fact that the Hudak Farm property and agricultural uses are not
adjacent to the Wal-Mart project site relieves Applicant of providing a specific
compatibility analysis as to the Hudak property and uses,' the intervening
commercial uses, on both sides of U.S. Route 7, dilute even further the impact
that the Wal-Mart project will have on the Hudak Farm property and operations.

We hereby GRANT VNRC's motion to amend, so as to correctly identify the
boundaries and location of the Hudak Farm property, and to substitute the term
“adjacent" for wherever we used the term “adjoining.” In all other respects,
except as further amended by the Entry Order on Appellant Commons and RL
Vallee's motion to amend (also issued today) , our January 20, 2010 Merits
Decision remains in full force and effect, subject to appeals pending before the
Vermont Supreme Cou .

QH~A¢. " ,., May 3, 2010

Thomd)s S. Durkin, Judge Date

Date copies sent to: 5£§!/0 Clerk's Initials &éz

Copies sent to :

Attorney Jon T. Anderson for Interested Person R.L. Vallee, Inc.
(with Co-Counsel David W. Rugh)

Attorney Jon Groveman for Appellant Vermont Natural Resources Council, the
Northwest Citizens for Responsible Growth, Marie Frey and Richard Hudak

Attorney Gerald R. Tarrant Esq. (co-counsel for VRNC)

Attorney Stewart H. McConaughy for Appellee JLD Properties
(with Co-Counsel Robert F. O'Neill and Ross A. Feldmann)

Attorney Mark L. Lucas for Interested Person Natural Resources Board
Attorney John H. Hasen for the Natural Resources Board/LU Panel (FYI only)
Attorney Judith L. Dillon for the Agency of Natural Resources

Attorney David A. Barra for Interested Person Town of St. Albans

Attorney Brian S. Dunkiel for City of St. Albans (FYI only)

Attorney William H. Rice for Vt. Agency of Transportation (FYI only)
Clerk, Vermont Supreme Court (FYI only)

 

2 “Adjacent” is defined as “being in close proximity[;] . . . [it] may or may not imply contact but always implies [an]
absence of anything . . . in between[; for example,] <a house with an adjacent garage>.” Merriam-Webster’s Collegiate
Dictionary at 14 (]0th ed. ]998).

:Yi-ib_ ipcoe_r~`_i Sir -Fiiif_l:_ms Wai iiia,¢"i“ ?s?- 517th + //é- 6-§81/'¥1¢.

Fam#154 Tra°*#185 Farm ServiceA ency ._i'-iuta`:gi§r.r.. USDA
wetland Determination identifies Frank|ianrand ls|e oun tycya|e? ed .¢"'--~,..---""

. Restricted Use 2009 Digita| Naip Photography- -Not to
repare

‘V ' ' R tricti ns
! Limiied es C 0 t. Disctaimer. Wetland identifiers do not represent the size, shape or specific determination \'\
Exem pi from oii_S_eNa ion ofihe area Reier to your original determination (CPA-OZB and attached maps) V\Liic (Dii limit
COn`lpllanCB Pl’OV|S|O|"lS for exact wetland boundaries and determinationsl or contact NRCS. $` 3 z°\ ebl'L]a[/'y 1 201 0
“_

 

