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Wednesday, August 9, 2017

Oh the horror…Dollar General Store a major step closer to coming to Charlestown

Charlestown loses long-running, expensive case due to Zoning’s “abuse of discretion”
By Will Collette

Related imageFor the past two years, I have been getting a stream of court documents from Town Hall on the case of Liscotti Development Corp vs. the Charlestown Zoning Board of Review (ZBR) and its individual members.

Liscotti Development is, among many other things, a Dollar General franchisee and wants to build a 9,000 square foot store in a commercially-zoned space on Old Post Road (1A) in what Charlestown calls the Traditional Village District (TVD).

The idea horrified Charlestown Citizens Alliance leadership who used their total control of the town government to try to block this project.

On July 17, 2015, Town Housing and Zoning Official Joe Warner nixed the project on the grounds that Dollar Stores are “department stores” which are forbidden in the Traditional Village District and not a "general store/country store," which IS permissible in the TVD.

The CCA-controlled Zoning Board of Review decided on November 17, 2015, on a 4-1 vote to uphold Joe’s decision that Dollar Stores are “department stores” and sent THIS LETTER.

On December 11, 2015, Liscotti sued Charlestown arguing the designation of their proposed 9,000 square foot Dollar store was “clearly erroneous,” “contrary to the law and the evidence” and “constitutes a clear abuse of discretion.”

On July 31, 2017, RI Superior Court Judge Bennett Gallo ruled against the town and the ZBR, calling the town decision to classify the Dollar store as a “department store” as “clearly erroneous” and that it “amounted to an abuse of discretion.”

In my opinion, this decision was no surprise and indeed, was predictable from the start when Joe issued his finding that Dollar is a “department store.”

I am no fan of the Dollar Stores. Progressive Charlestown has carried articles critical of the company (HERE and HERE and HERE and HERE) mainly over their appalling practices toward their own workers. Continue reading below for more detail on Dollar's track record.

But from the start, Charlestown leaders made it clear that Dollar General just isn’t the kind of business they want in Charlestown.

Gun shops, sure, come on down. But cheap retail, mmm, not so much.

Rhode Island courts have stated they are predisposed to support municipal decisions on contracting and zoning. They generally will NOT overturn a local decision unless that decision was made improperly.

In my work prior to retirement, I needed to understand how the courts evaluated municipal decisions on such matters as contracts and permits. The RI Supreme Court’s 1997 decision in HV Collins Co.v. Tarro, 696 A.2d 298, the court laid it out.

The court ruled that “it is well settled that…the Judiciary will interfere… only in the event that the [municipal agency] has ‘acted corruptly or in bad faith, or so unreasonably or so arbitrarily as to be guilty of a palpable abuse of discretion.’”

Related imageThe Dollar store developer used pretty much this same language to characterize the “department store” designation and the half-assed ZBR “review” of Dollar’s appeal.

So did Superior Court Judge Gallo in his decision against the town of Charlestown.

I feel bad for Joe Warner having to come up with the “department store” story. I suspect it was the best reason he could find in the Charlestown Zoning Ordinance to monkey-wrench the project.

By the same logic, every retailer in Charlestown is a department store if it presents its goods in different sections.

Are the Mini-Super or Rippy’s department stores because they have deli counters, milk and cold beverage cabinets? Canned goods in one section, bread in another, produce in another.

Is Charlestown Liquor a department store because it has a wine section, distinct from a beer section or a hard liquor section?

Is the Charlestown Gallery a department store because it has a separate room for jewelry?

Is Cumberland Farms a department store because they have the gas pumps outside and separate sections inside separately the milk and soda from the junk food?

Image may contain: shoes
Looks like a department store? Top Gun LLC near
Arrowhead Dental. From their Facebook page.
Are Charlestown’s gun shops also department stores because they keep the handguns in one section and long guns in another? Don’t get me started on CVS.

I understand the far-fetched dream of many in the CCA to turn Cross Mills into some sort of Sturbridge Village. 

But the ship has already sailed on that one, given the motley mix of commercial establishments all up and down Route 1A.  

In this instance, the next question for Charlestown is whether to accept the verdict of the court and cut our losses or go all in and throw even more thousands of taxpayer dollars to take a losing case to the RI Supreme Court.

Charlestown should understand that Dollar General is prepared to bleed us dry in the courts. Their conduct in this case shows it, and their national track record shows it even more clearly.

When one of the parts that comprise the current  Dollar General, Family Dollar, was caught cheating its Alabama workers of their wages, they fought the case to a 2006 federal court decision against them. 

They took it even further by asking the Supreme Court to hear their appeal. The Supremes declined to do so in 2009, at which point Family Dollar owed its workers $35.8 million. I don’t know how many of the workers who were originally cheated were still alive to receive their money.

Last year, after years of foot-dragging, Dollar lost a federal disability discrimination case and was ordered by the jury to pay $277,565 to an employee they unjustly fired. This are just a few examples of a pattern of corporate abuse (CLICK HERE for their corporate "rap sheet").

While Dollar General's bad actor conduct and litigious nature may deter Charlestown Citizens Alliance leaders thinking about directing Charlestown town government to appeal Judge Gallo’s decision, it also offers a basis to think about an entirely different approach to permitting.

Through much of my working career, I have advocated for state and local laws to bring some law and order to the way local governments do business.

RI state agencies and municipal governments spend hundreds of millions of dollars for goods and services with some of the sketchiest rules and regulations. Connecticut and Massachusetts both have special agencies who carefully vet contractors doing business with local government while Rhode Island has no such mechanism at all.

We also award permits with little regard to the character and background of the permit applicant.

If a business has a history of cheating its workers of $35 million, should they be allowed to get a permit to do the same kind of business in Charlestown?

Should a company be awarded a permit to strip-mine in Charlestown when its company leaders have a history of criminal convictions, poor financial management, industrial accidents and delinquent taxes as COPAR did when Charlestown issued it a permit to mine at Morrone Sand and Gravel?

What Charlestown sorely lacks is a town ordinance that addresses such questions and more when we spend town money to buy something or issue a permit for a business to do something.

If such an ordinance is grounded in common sense and avoids the pitfalls of being unreasonable, unfair, arbitrary, corrupt, in bad faith or capricious, we could have a way to screen out bad actors before they can cause any headaches for the town.

In my numerous articles on the infamous Copar Quarry, I pointed out that there is already a legal-tested model for such a town policy to be found in the federal Surface Mining Control and Reclamation Act. The law acknowledged that many mines were being run by rogue operators and that you had to identify and weed them out before they got their permits.

Last week, on August 3, SMCRA had its 40th anniversary of being signed into law. One of the most heavily challenged provisions of SMCRA was its Applicant-Violator System, with the courts upholding the principle that you do not have to do business with violators.

Charlestown CAN create policies to deny town business and business permits to law-breakers. So we must ask why we don’t. For once, can our Charlestown Citizens Alliance-controlled town government consider an approach that doesn’t come from inside the CCA?

Or are they going to rely on Planning Commissar Ruth Platner to try to torture undesirable projects to death? There are provisions in Charlestown's zoning ordinance that give the town the authority to micro-manage the details of building projects in the TVD.

I predict this is what they will do: let Ruthie handle it. 

But bear in mind, fellow taxpayers, that Dollar stores just took us to the cleaners and won a decisive victory in court. Less formidable opponents than Dollar General have been ferociously nit-picked by Ruth Platner and still ended up building their monstrosities.