STATE OF VERMONT
ENVIRONMENTAL COURT
} In re: JLD Properties ‐ Wal Mart St. Albans } Docket No. 132‐7‐05 Vtec (Appeal of Frey, et al.) } }
Decision and Order on Cross‐Motions for Partial Summary Judgment
Appellants Marie Frey, Richard Hudak, and a group of forty‐four individuals (the
“Prent Group”), as well as Additional Appellants Commons Associates and R. L. Vallee,
Inc., appealed from a decision of the Development Review Board (DRB) of the Town of St.
Albans, granting conditional use and site plan approval to Appellee‐Applicant JLD
Properties, LLC,1 for a proposed Wal‐Mart store to be located at 424 Swanton Road (U.S.
Route 7) in the Light Industrial/Commercial zoning district. Appellants are represented
by Jon Groveman, Esq., and Jamey Fidel, Esq.; Appellee‐Applicant is represented by
Robert F. O’Neill, Esq., and Andrew Strauss, Esq. ; Additional Appellants Commons
Associates and R. L. Vallee, Inc. are represented by Jon T. Anderson, Esq.; and the Town
of St. Albans is represented by David A. Barra, Esq.
The parties had agreed that this municipal appeal, and the state stormwater appeal
filed as Docket No. 129‐5‐06 Vtec, should await the conclusion of the Act 250 proceedings
before being scheduled for trial, so that any appeal of the Act 250 decision could be
combined with the already‐filed appeals for further proceedings. V.R.E.C.P. 2(b).
However, the parties also agreed that the partial summary judgment motions in the present
case should be decided, as the decision could affect the procedural posture of the appeals.
1 In the pretrial conferences, the parties informed the Court that JLD Properties holds an option to purchase from the St. Albans Group and has an understanding to lease the property to Wal‐Mart; however, neither entity is a party to this appeal.
1 The parties have moved for summary judgment on Questions 1, 2 and 3 of
Appellants’ Statement of Questions, addressing whether two DRB members had a conflict
of interest disqualifying them from participating in the hearings or the decision on appeal,
whether four other DRB members were also disqualified due to having missed some of the
hearings on the application, and whether the DRB decision should therefore be vacated or
is void.
The following facts are undisputed unless otherwise noted. The DRB consists of
nine members. The DRB held seven warned public hearings on the application that is the
subject of this appeal: on June 10, 2004; September 23, 2004; November 18, 2004; December
16, 2004; February 10, 2005; March 24, 2005; and May 26, 2005. The latter two dates
occurred after the terms for some of the DRB members had concluded in early March of
2005, and other members had been selected for those positions.
Mr. Ernest Levesque, Jr., was a member of the DRB during the entire time that the
DRB held hearings on and considered the application. He had also served as the Zoning
Administrator for the Town of St. Albans in the 1990s. During some of the period between
the end of his term as Zoning Administrator and his appointment to the DRB, he lived
elsewhere and worked as Zoning Administrator for another municipality.
The parties do not dispute Mr. Levesque’s deposition testimony that, while sitting
as a DRB member conducting the September 23, 2004 public hearing, Mr. Levesque wore
a hat bearing the words “ST. ALBANS TOWN2 NEEDS WAL‐MART.” At that hearing he
was asked to remove the hat by the chair of the DRB. Although he did remove it,
Appellants allege, and no party disputes, that he placed it with the words outward in front
2 This text is taken from Mr. Levesque’s own response on page 5, line 25 of his deposition. It is referred to in other places as “St. Albans Needs Wal‐Mart” or “St. Albans Needs a Wal‐Mart.”
2 of him on the hearing table where it could be seen by the hearing participants and by the
television camera that was recording the proceedings. Appellants’ attorney: Mr.
Groveman, and the Town’s attorney: Mr. Barra, were both present at that hearing.
Appellant Frey and Mr. Groveman both spoke at that hearing, as reflected in the minutes.
The parties do not dispute Mr. Levesque’s deposition testimony that he had received
the hat in the 1990s, while serving as the St. Albans Zoning Administrator, as a gift from
a Wal‐Mart employee after a local permit proceeding. In the deposition, he stated that he
wore the hat at the September 23, 2004 public hearing because “[i]n America I thought it
was a free country so I wore the hat” and that “I thought in America you could wear
anything you wanted on your head at any time because it’s still a free country.” In answer
to a request that he further explain his interrogatory answer that he chose to wear the hat
for its historical significance, he stated:
Historical, historically because there’s a gentleman named Sam Walton had nothing in his pocket and he built himself an empire. I say the American dream came true to him. That’s the only reason I wore the hat. No other reason.
In addition, although not apparent to the public at that hearing, at some time before
serving on the DRB, Mr. Levesque had telephoned Mr. Jeff Davis (the principal of
Appellee‐Applicant JLD Properties, LLC) to suggest that Wal‐Mart first go into an existing
retail space in St. Albans, so that it would have community support behind it when it
would later apply for its original proposal, that is, the present application. Mr. Levesque’s
deposition testimony reflected that, at some later time, “Wal‐Mart called me up and
apologized and said we should have listened to you, Ernie, we would be in town now. I
said well that’s the way the ball bounces and the cookie crumbles and that’s the end of it,
and then I get appointed to the Development Review Board.”
Mr. Albert J. Benson was a member of the DRB during the entire time that the DRB
held hearings on and considered the application. The parties do not dispute Mr. Benson’s
3 deposition testimony that he signed a petition for interested person status that was
submitted to the DRB on November 18, 2004 (at the third of the seven public hearings on
the DRB’s consideration of the application). At the time, he believed it to be a petition “for
Wal‐Mart supporters.” Also at that time, his personal opinion was that “we should have
JLD Davis Enterprises.” By letter to the Selectboard, Mr. Benson withdrew his signature
from the petition the day after he had signed it, on advice of a Selectboard member. None
of the materials submitted in support of the motions suggests that any members of the
public saw the petition containing Mr. Benson’s signature.
Four other DRB members (Mr. Guptill, Mr. Sanders, Mr. Martin, and Mr. Montagne)
did not attend some of the evidentiary hearings on the application. However, a written
record of the minutes of the hearings and the written materials submitted at the hearings
was made available to them, and all of those members reviewed those written materials.
In addition, two of the four watched some of the hearings when they were later televised
on cable television.
Appellants argue that their constitutional due process right to a fair and open
hearing before an impartial decisionmaker was violated so egregiously as to require this
Court to conclude that the DRB decision is void or should be vacated, and to remand the
matter for further proceedings before the DRB so that it can render a valid decision.
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STATE OF VERMONT
ENVIRONMENTAL COURT
} In re: JLD Properties ‐ Wal Mart St. Albans } Docket No. 132‐7‐05 Vtec (Appeal of Frey, et al.) } }
Decision and Order on Cross‐Motions for Partial Summary Judgment
Appellants Marie Frey, Richard Hudak, and a group of forty‐four individuals (the
“Prent Group”), as well as Additional Appellants Commons Associates and R. L. Vallee,
Inc., appealed from a decision of the Development Review Board (DRB) of the Town of St.
Albans, granting conditional use and site plan approval to Appellee‐Applicant JLD
Properties, LLC,1 for a proposed Wal‐Mart store to be located at 424 Swanton Road (U.S.
Route 7) in the Light Industrial/Commercial zoning district. Appellants are represented
by Jon Groveman, Esq., and Jamey Fidel, Esq.; Appellee‐Applicant is represented by
Robert F. O’Neill, Esq., and Andrew Strauss, Esq. ; Additional Appellants Commons
Associates and R. L. Vallee, Inc. are represented by Jon T. Anderson, Esq.; and the Town
of St. Albans is represented by David A. Barra, Esq.
The parties had agreed that this municipal appeal, and the state stormwater appeal
filed as Docket No. 129‐5‐06 Vtec, should await the conclusion of the Act 250 proceedings
before being scheduled for trial, so that any appeal of the Act 250 decision could be
combined with the already‐filed appeals for further proceedings. V.R.E.C.P. 2(b).
However, the parties also agreed that the partial summary judgment motions in the present
case should be decided, as the decision could affect the procedural posture of the appeals.
1 In the pretrial conferences, the parties informed the Court that JLD Properties holds an option to purchase from the St. Albans Group and has an understanding to lease the property to Wal‐Mart; however, neither entity is a party to this appeal.
1 The parties have moved for summary judgment on Questions 1, 2 and 3 of
Appellants’ Statement of Questions, addressing whether two DRB members had a conflict
of interest disqualifying them from participating in the hearings or the decision on appeal,
whether four other DRB members were also disqualified due to having missed some of the
hearings on the application, and whether the DRB decision should therefore be vacated or
is void.
The following facts are undisputed unless otherwise noted. The DRB consists of
nine members. The DRB held seven warned public hearings on the application that is the
subject of this appeal: on June 10, 2004; September 23, 2004; November 18, 2004; December
16, 2004; February 10, 2005; March 24, 2005; and May 26, 2005. The latter two dates
occurred after the terms for some of the DRB members had concluded in early March of
2005, and other members had been selected for those positions.
Mr. Ernest Levesque, Jr., was a member of the DRB during the entire time that the
DRB held hearings on and considered the application. He had also served as the Zoning
Administrator for the Town of St. Albans in the 1990s. During some of the period between
the end of his term as Zoning Administrator and his appointment to the DRB, he lived
elsewhere and worked as Zoning Administrator for another municipality.
The parties do not dispute Mr. Levesque’s deposition testimony that, while sitting
as a DRB member conducting the September 23, 2004 public hearing, Mr. Levesque wore
a hat bearing the words “ST. ALBANS TOWN2 NEEDS WAL‐MART.” At that hearing he
was asked to remove the hat by the chair of the DRB. Although he did remove it,
Appellants allege, and no party disputes, that he placed it with the words outward in front
2 This text is taken from Mr. Levesque’s own response on page 5, line 25 of his deposition. It is referred to in other places as “St. Albans Needs Wal‐Mart” or “St. Albans Needs a Wal‐Mart.”
2 of him on the hearing table where it could be seen by the hearing participants and by the
television camera that was recording the proceedings. Appellants’ attorney: Mr.
Groveman, and the Town’s attorney: Mr. Barra, were both present at that hearing.
Appellant Frey and Mr. Groveman both spoke at that hearing, as reflected in the minutes.
The parties do not dispute Mr. Levesque’s deposition testimony that he had received
the hat in the 1990s, while serving as the St. Albans Zoning Administrator, as a gift from
a Wal‐Mart employee after a local permit proceeding. In the deposition, he stated that he
wore the hat at the September 23, 2004 public hearing because “[i]n America I thought it
was a free country so I wore the hat” and that “I thought in America you could wear
anything you wanted on your head at any time because it’s still a free country.” In answer
to a request that he further explain his interrogatory answer that he chose to wear the hat
for its historical significance, he stated:
Historical, historically because there’s a gentleman named Sam Walton had nothing in his pocket and he built himself an empire. I say the American dream came true to him. That’s the only reason I wore the hat. No other reason.
In addition, although not apparent to the public at that hearing, at some time before
serving on the DRB, Mr. Levesque had telephoned Mr. Jeff Davis (the principal of
Appellee‐Applicant JLD Properties, LLC) to suggest that Wal‐Mart first go into an existing
retail space in St. Albans, so that it would have community support behind it when it
would later apply for its original proposal, that is, the present application. Mr. Levesque’s
deposition testimony reflected that, at some later time, “Wal‐Mart called me up and
apologized and said we should have listened to you, Ernie, we would be in town now. I
said well that’s the way the ball bounces and the cookie crumbles and that’s the end of it,
and then I get appointed to the Development Review Board.”
Mr. Albert J. Benson was a member of the DRB during the entire time that the DRB
held hearings on and considered the application. The parties do not dispute Mr. Benson’s
3 deposition testimony that he signed a petition for interested person status that was
submitted to the DRB on November 18, 2004 (at the third of the seven public hearings on
the DRB’s consideration of the application). At the time, he believed it to be a petition “for
Wal‐Mart supporters.” Also at that time, his personal opinion was that “we should have
JLD Davis Enterprises.” By letter to the Selectboard, Mr. Benson withdrew his signature
from the petition the day after he had signed it, on advice of a Selectboard member. None
of the materials submitted in support of the motions suggests that any members of the
public saw the petition containing Mr. Benson’s signature.
Four other DRB members (Mr. Guptill, Mr. Sanders, Mr. Martin, and Mr. Montagne)
did not attend some of the evidentiary hearings on the application. However, a written
record of the minutes of the hearings and the written materials submitted at the hearings
was made available to them, and all of those members reviewed those written materials.
In addition, two of the four watched some of the hearings when they were later televised
on cable television.
Appellants argue that their constitutional due process right to a fair and open
hearing before an impartial decisionmaker was violated so egregiously as to require this
Court to conclude that the DRB decision is void or should be vacated, and to remand the
matter for further proceedings before the DRB so that it can render a valid decision.
Appellee‐Applicant argues that what did or did not happen before the DRB is not relevant
in a de novo appeal such as this one, and that the court is limited to a de novo
consideration of the application.
It is true that procedural defects in reaching a DRB decision are generally
disregarded in a de novo appeal, because the court must make its own determination as
to the questions of law or fact raised in the appeal, and must “apply the substantive
standards that were applicable before the tribunal appealed from.” V.R.E.C.P. 5(g).
4 However, this Court equally has an obligation to protect the due process rights of persons
appearing before municipal panels, as most decisions are not appealed and the system as
a whole will only function if citizens can be confident that DRBs are held to the same
standard of adherence to our society’s basic constitutional principles as any other tribunal,
that is, that DRB decisions are based on the rule of law.3
“A fair trial before an impartial decisionmaker is a basic requirement of due process,
applicable to administrative agencies as well as to the courts.” Secretary, Agency of
Natural Resources v. Upper Valley Regional Landfill Corp., 167 Vt. 228, 234–35 (1997)
(citing Withrow v. Larkin, 421 U.S. 35, 46 (1975)). Due process requirements are equally
applicable to a municipal board4 acting, as it did here, in a quasi‐judicial capacity. See
Chioffi v. Winooski Zoning Board, 151 Vt. 9, 13 (1989) (municipal boards perform a quasi‐
judicial function in determining the applicability of a zoning ordinance to the facts of the
case).
Judicial and quasi‐judicial proceedings must be conducted so as foster unbiased
decisionmaking and “the avoidance of even the appearance of partiality.” In re State
3 See, Boddie v. Connecticut, 401 U.S. 371, 374 (1971): “Perhaps no characteristic of an organized and cohesive society is more fundamental than its erection and enforcement of a system of rules defining the various rights and duties of its members, enabling them to govern their affairs and definitively settle their differences in an orderly, predictable manner. Without such a ‘legal system,’ social organization and cohesion are virtually impossible; with the ability to seek regularized resolution of conflicts individuals are capable of interdependent action that enables them to strive for achievements without the anxieties that would beset them in a disorganized society.” 4 Requiring municipal citizen boards to adhere to the requirements of due process is particularly necessary to minimize the introduction of “irregular practices in a forum which suffers from an excess of informality.” 4 K. Young, ANDERSON’S AMERICAN LAW OF ZONING §22.46 (4th ed. 1997 & Supp. 2006) (discussing voting by board members who did not attend hearings).
5 Highway No. 1, Peru, 133 Vt. 4, 9–10 (1974). That is, not only is it important that
adjudicatory hearings actually be fair and impartial, they also must appear to be fair and
impartial, both to participants and to observers. See Joint Anti‐Fascist Refugee Committee
v. McGrath, 341 U.S. 123, 172, n.19 (1951) (Frankfurter, J., concurring) (quoting Daniel
Webster: “In a government like ours, entirely popular, care should be taken in every part
of the system, not only to do right, but to satisfy the community that right is done.”)
Thus, an important purpose of holding public hearings in zoning and development
matters is not only to obtain the necessary information for the board to make its decision,
and not only for the board to make an unbiased decision, but also for the unbiased nature
of the decisionmaking process to be apparent to everyone; that is, to ensure that justice is
not only done, but manifestly seen to be done. The public hearings provide the board with
the “formal mechanism to obtain the needed information in a manner that is fair to all
stakeholders.” In re Appeal of McEwing Services, 2004 VT 53, ¶17; 177 Vt. 38, 44 (2004).
As a member of the DRB conducting public hearings on the application at issue in
this appeal, Mr. Levesque was acting in a quasi‐judicial capacity. Mr. Levesque had a right
to his privately‐held opinion, but when he wore a hat with a pro‐Wal‐Mart inscription
while sitting in an official quasi‐judicial capacity to judge the merits of an application to site
a Wal‐Mart store, he destroyed the appearance of fairness that due process requires and
to which the stakeholders at the hearing were entitled, whether or not he also departed
from the reality of giving the application a fair hearing. See Vermont Real Estate
Commission v. Martin, 132 Vt. 309, 312 (1974) (quasi‐judicial action prescribed by the
essentials of due process must faithfully observe the rudiments of fair play); Petition of
New England Tel. & Tel. Co., 120 Vt. 181, 188 (1957) (fair and open hearing is the absolute
demand of all judicial inquiry); and see Meyers v. Shields, 61 F. 713, 725 (C.C.Ohio 1894)
(proceedings require an “impartial and wholly disinterested tribunal.”)
It is precisely because this is “a free country” that Mr. Levesque should not have
6 worn the hat when sitting in an official quasi‐judicial capacity; the core American values
and guarantees set forth in our Constitution must be adhered to by all governmental
representatives, however part‐time and unpaid their service may be. These values include
the “high social and moral values inherent in the procedural safeguard of a fair hearing,”
Anti‐Fascist, 341 U.S. at 167, “perhaps the most majestic concept in our whole constitutional
system.” Id., at 174.
While sitting as a member of the DRB and deciding on the merits of the application,
Mr. Levesque was required to set aside the actual hat that he was entitled to wear as a
private citizen, and to put on instead the metaphorical ‘hat’ of a disinterested and impartial
public decisionmaker. In failing to do so, he engaged in the “personal intermixing of roles
that normally is a hallmark of a due process violation.” In re Crushed Rock, Inc., 150 Vt.
613, 621 (1988). Similarly, Mr. Benson’s action in signing a partisan petition while he was
acting as a member of the DRB and deciding on the merits of the application detracted
from the appearance of a fair hearing, albeit to a lesser extent as he withdrew the signature
promptly and the public may not have seen it.
It is hard to avoid the conclusion that Mr. Levesque intended, by wearing the hat
while sitting on the DRB at the hearing, to indicate to the participants his prejudgment of
the merits of the application. But whether that was his intent or not, his actions gave the
appearance of prejudgment and contravened the constitutional standard of a fair trial
before an impartial decision maker. His act of disrespect for the integrity of the DRB
proceedings, whether or not intended as such, gave both the stakeholders and observers
good reason to doubt that the proceedings were being conducted by the required impartial
and wholly disinterested tribunal. That reasonable doubt in the fairness of the hearing
contaminated both that day of hearing and the further proceedings in which Mr. Levesque
participated.
It is not enough to say that this Court, sitting de novo, can now judge the application
7 impartially, and thereby remove the stain of apparent bias from the result below. The
public’s expectation of an orderly, predictable, and fair system for the settlement of
disputes, as opposed to a system based upon “the will of strategically placed individuals,”
Boddie v. Connecticut, 401 U.S. 371, 375 (1971), is damaged by that appearance of bias in
the municipal proceedings. The government on every level “must turn square corners . .
. when dealing with its citizens.” In re McDonaldʹs Corp., 146 Vt. 380, 385 (1985) (internal
quotation and citation omitted). It is the responsibility of the tribunal in which the
apparent bias occurs to remedy the constitutional violation in the first instance, by
addressing the board member’s potential disqualification and conducting the remainder
of the hearing with a properly‐constituted board.
However, although it was the DRB chair who apparently asked for Mr. Levesque
to remove the hat, none of the parties or their attorneys requested his disqualification at the
time of the event. Neither the Town’s attorney, who was present at that hearing, nor
Attorney Groveman or Ms. Frey, who both spoke at that hearing, raised the hat incident
as a disqualifying issue. There is no question that at least Mr. Levesque, and possibly also
Mr. Benson, should have been disqualified, but it is not fair to the applicant or the Town
to do so retroactively two years later. We do not wish to waste the public funds and time
spent at the five public DRB hearings and the DRB deliberations, over the course of ten
months, that occurred after this incident. V.R.E.C.P. 1. Accordingly, under the
circumstances of the present appeal the DRB decision will not be vacated and remanded;
instead, the Court will proceed with the de novo appeal. However, if the DRB has not
already taken measures to make certain that a similar problem would not arise in the
future, the Court urges it to do so as soon as possible, and notes that Mr. Levesque and Mr.
Benson should not participate in any future hearings or decisions related to this project.
Appellants also argue that this Court should also vacate the decision below or
declare it be void because four other DRB members (Mssrs. Guptill, Sanders, Martin, and
8 Montagne) should be disqualified for having voted on the decision without having
attended all of the public hearings on the application. However, a written record of the
minutes of the hearings and the written materials submitted at the hearings was made
available to them, and all of those members reviewed those written materials. In addition,
two of the new members watched some of the hearings on cable television. A quorum of
board members was present at each of the hearings, and the whole tribunal carefully
reviewed the record prior to rendering the decision. The participation of those four
members was sufficient under Vermont law in order to comply with due process.
Lewandoski v. Vermont State Colleges, 142 Vt. 446, 452–53 (1983). Those four members
were not disqualified from participating in the DRB decision that is the subject of this
appeal, and of course may participate in any future hearings and decisions related to the
project.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
Appellants’ Motion for Partial Summary Judgment is DENIED, with the recommendation
that the Town institute procedures so as to ensure the procedural safeguard of future DRB
hearings that are both fair and are seen to be fair. We will hold a telephone conference on
September 19, 2006, as already scheduled, to discuss further pretrial proceedings in these
related cases and the related Act 250 proceedings.
Done at Berlin, Vermont, this 5th day of September, 2006.
_________________________________________________ Merideth Wright Environmental Judge