[B]URLINGTON — The City Council gave preliminary approval to a new zoning district Monday that allows the additional building height the developer of a major downtown project had sought.
The new zoning would allow buildings up to 160 feet, or 14 stories, within an overlay district that covers about 9 acres of downtown, including the Town Center Mall, several parking garages, L.L. Bean and Macy’s.
Currently, downtown zoning caps building height at 65 feet — or 105 feet if the developer is granted bonuses for public amenities included in a project.
The zoning approved at Monday’s meeting also contains new building design requirements and more stringent environmental building standards.
A version of the new zoning was included in a predevelopment agreement between the city and Town Center developer Don Sinex that the council approved in May. Sinex has said the planned $220 million project that includes housing, commercial space and offices couldn’t go forward unless he could build upward to 160 feet.
That has led to allegations from project opponents that the overlay district amounts to spot zoning, or the illegal practice of creating zoning for a specific project.
A legal opinion from the city attorney said the new zoning could withstand such a legal challenge because it’s consistent with municipal planning and covers parcels not included in the Town Center project.
The zoning approved Monday differs in one major way from the language appended to Sinex’s agreement with the city: The newly adopted district doesn’t apply the greater height and reduced setbacks to buildings fronting Church Street.
Sinex originally envisioned taking advantage of the increased height along Church Street, but the zoning district as it took shape doesn’t interfere with his key requirement for two buildings exceeding the current limit.
The council voted 7 to 4 to move the new zoning forward after considering more than 25 amendments during a meeting that ran close to four hours. Efforts to shrink the overlay or reduce its height limits failed. Further attempts could be made during the final approval process.
Councilor Chip Mason, D-Ward 5, recused himself from Monday’s deliberations because his law firm is representing Sinex in an unrelated matter.
Councilor Max Tracy, P-Ward 2, who led the charge to further tweak the new zoning, called the public vetting a “charade” because councilors had done little to incorporate the views of project skeptics or those who oppose greater building height downtown.
Tracy was joined by three councilors who voted for the predevelopment agreement, but against the new zoning that it requires. They were Sharon Foley Bushor, I-Ward 1, Selene Colburn, P-East District, and Sara Giannoni, P-Ward 3. Tracy’s was the lone vote against the predevelopment agreement.
Bushor said that although the new zoning and the Town Center redevelopment are linked, “they are really separate beasts” and should have been considered separately.
She lamented that the council was forced to approve zoning for the downtown core that was constrained by the predevelopment agreement, calling the height and massing it allows “incompatible” with what she and many residents want for downtown.
Colburn, who is running for state representative, called the height “a deal breaker” and said that in the course of her legislative campaign, she’s spoken with hundreds of Burlington residents who are put off by the size of the proposed Town Center project.
“I want to see (the project) succeed. I just want to see it succeed at a slightly different scale,” Colburn said.
Both Colburn and Bushor said they voted for the predevelopment agreement to allow further vetting of the Town Center project but had hoped its scope would be reined in through that process. They said they aren’t sure they’ll support a final agreement between Sinex and the city if it doesn’t reduce the project’s size.
Other councilors said they believe the new downtown zoning district and the Town Center project will be a boon to the city.
“I think this is the right zoning for downtown. It also happens to work for this project. But if I didn’t think this was right for Burlington, I wouldn’t be voting to move it forward,” said City Council President Jane Knodell, P-Central District.
Councilor Joan Shannon, D-South District, said the new height limit “stretches (her) comfort zone” but that the project’s benefits — such as redeveloping a dying mall, creating more affordable housing and bringing more jobs downtown — outweigh her discomfort with taller buildings.
The overlay district must be the subject of a public hearing 15 days after its approval by the council. The council’s next regularly scheduled meeting is Sept. 26, just 12 days after Monday’s vote, setting up the need for a specially scheduled meeting that is expected to be held Sept. 29.
At that meeting, councilors will have the opportunity to vote on further amendments to the overlay district, and any material changes approved at that meeting would trigger another 15-day notice and public hearing.
The council and its subcommittees have already held 10 public meetings on the downtown overlay. For future amendments to pass, at least two councilors who voted for the zoning change Monday would have to be persuaded to join the opponents after one final round of public comment.
