VERMONT SITE FIGHT: PERMIT DEADLINE

Wal-Mart faces permit deadline [Bennington (Vt.) Banner]

BENNINGTON — The Vermont Environmental Court set a firmer deadline Monday for an out-of-state developer to double the size of the current Wal-Mart.
Jonathan Levy of Ohio won town permits in January 2006 to increase the size of the Wal-Mart in the Monument Plaza on Northside Drive to 112,000 square feet.

After a year without any action, however, the Environmental Court said in March that Levy should file his Act 250 permit with the District 8 Environmental Commission by May 21. That date was not met.

On Monday, the court granted a motion by Levy’s attorney, Alan George, allowing additional time to file the Act 250 Permit. Levy now has until Oct. 1. If the filing is delayed again, however, the court may move forward with pending appeals in the case.

“I think all of the parties accepted the court’s position,” George said Tuesday.

Bennington Planning Director and Zoning Administrator Daniel Monks said the court’s ruling shows it is anxious to see progress in the case.

“I think what it does indicate is that the judge is becoming a little impatient, which we all are,” said Monks.

According to George, both Levy and Citizens for a Better Bennington, which opposes the expansion, would like to use an expert witness, Thomas Kavet, economic advisor to the Vermont Legislature, to address some of the criteria for Act 250. Working out an agreement for Kavet’s services has taken longer than expected, said George.
“We agreed with the citizens group formed in opposition ... to retain an expert to determine the economic impact. ... It took a little bit of time to get that going and organized,” said George. “Initially we hoped that it wouldn’t cause any delay, but it did. In order to accommodate the witness we had to change the schedule.”

George said Levy should be able to meet the October filing deadline.

“Deadlines are deadlines. ... I can’t predict all of it. We could have an ecological disaster between now and then that would stop everything,” he said. “That’s a reasonable deadline.”

Levy intends to file the permit by the deadline so that other pending matters, such as his opposition to conditions set forth in town-issued permits, can be consolidated with the Act 250 hearings.

“Ideally in cases like this, you’re going to file Act 250 and you can reasonably predict that people who opposed the local permit will also oppose Act 250,” said George. “Since appeals in Act 250 go to the Environmental Court, it’s more efficient to consolidate.”

Monks said the town has issued permits to Levy and is not standing in the way of the project. The town would prefer the matter to be settled quickly, he said.

“Essentially, we’ve already granted the permit so we don’t care whether they build it or not. It’s not a huge impact, it’s just that the longer it drags out the more the town spends on legal fees,” said Monks “We hope that a decision on whether or not to proceed is made reasonably soon. I think the public is anxious to see what happens and we’d prefer not to keep spending money on attorney’s fees.”

Progress is being made, said George. He said the availability of the shared witness is the only factor that could delay filing the Act 250 permit.

“We’re working on it. The only thing that’s really a concern about meeting the deadline is the witness’ ability to get the work done,” he said.

The project has been contentious in Bennington. Levy’s first proposal was not permitted because the town had a 75,000-square-foot cap on stores. Residents disappointed with the decision signed petitions, however, and forced a vote on the “big box” ban. The petitioners prevailed, overturning the bylaw.

A newer bylaw passed by the Select Board in April 2005 controls large retail stores, allowing them if an economic impact study is done, said Monks. The impact studies are required for stores larger than 50,000 square feet, he said.

Levy resubmitted his project during a small window of time when it was not subject to either bylaw, said Monks.