(This story was updated May 22 at 6:45 p.m.)
[B]URLINGTON — An environmental court judge has denied a stay that would have blocked construction at the Burlington Town Center mall pending the outcome of a legal appeal brought by residents who oppose the project.
Judge Thomas Walsh ruled that the stay is not in the public’s interest and that the residents’ appeal was not strong enough to justify the substantial harm to the developer that would result from blocking construction.
Don Sinex, the developer behind the planned $225 million mixed-use project, told the court he would lose more than $500,000 a month if construction were delayed. Walsh’s ruling paves the way for construction to begin in early July.
“I am pleased with this decision, which is a good step forward for the Burlington Town Center redevelopment,” Sinex said in a statement issued through his spokeswoman Liz Miller.
A group of 57 residents brought an appeal in the environmental division of Chittenden Superior Court on April 14, arguing that Burlington’s Development Review Board erred in greenlighting the project.
The residents’ attorney, John Franco, later sought a stay of construction activities pending the outcome of the appeal.
The appeal is one of three separate legal challenges Franco is bringing on behalf of residents who oppose the project. The plans for the site include housing, retail and office space on half of the existing mall. Its towers would reach 14 stories, a height that would make it Vermont’s tallest building.
The final suit, in Superior Court, challenges a November ballot referendum in which voters approved $22 million in tax increment financing for public improvements that will be built as part of the redevelopment. A judge dismissed three of four counts in that case Friday, but has yet to rule on a fourth.
Walsh’s ruling Monday isn’t an unmitigated victory for Sinex. The judge states that if the court ultimately determines the project doesn’t conform to zoning regulations, Sinex won’t be able to complete the project as planned and will “likely be ordered to remove any part of the project that is built.”
Franco described the ruling as “very fair and balanced” and said it validates the residents’ claims as well-reasoned and not frivolous.
“Secondly, it makes clear that if Mr. Sinex proceeds, his investors do so at their own risk that the project will be changed after the court’s review, including removal of portions which have been constructed, and they will have to make the changes,” Franco said.
Challenging city’s plans to borrow
In the lawsuit over the tax increment financing ballot question, Superior Court Judge Robert Mello on Friday granted the city’s motion to dismiss three of the four counts because he said they had no legal basis. The decision is a victory for the city, which enthusiastically supports the redevelopment.
“The city welcomes the strong decisions by two separate courts over the past few days validating last fall’s election and denying the stay sought by the project opponents,” Mayor Miro Weinberger said in a statement. “We are two important steps closer to reconnecting our lost streets and creating new jobs, homes, city revenues and better environmental protections in the heart of our downtown.”
Project opponents sued the city in November, days after the question authorizing $22 million in bonding passed with 59 percent of the vote.
“It’s nice for the city that they won the first round, but the first round isn’t the important one. It’s the last round that’s the important one,” Franco said.
Franco said his clients will appeal Friday’s ruling to the Vermont Supreme Court, but not until Mello has ruled on the fourth count in the ballot question lawsuit. That is an appeal of the city’s denial of a public records request the residents made before the November vote.
Project opponents sought an unredacted version of an economic feasibility study. The city refused, saying the redacted figures were proprietary information, such as anticipated lease, rental and parking rates for the redevelopment.
A ruling in that appeal could take several months, according to Franco, because the final count will require a ruling on the facts, instead of a ruling on whether it has a basis in the law. That means the judge will need to review the feasibility study, he said.
In the counts that were dismissed, the residents argued the language of the question regarding a $22 million tax increment financing bond authorized the city to do something it did not have the authority to do; that the city failed to receive approval for the plan from the entity that oversees tax increment finance bonds; and that the city failed to comply with transparency requirements for putting the question on the ballot.
The $22 million in tax increment financing that voters approved would be used to reimburse Sinex for reconnecting Pine and St. Paul streets through his property and selling the roadways back to the city. It would also pay for eight blocks of redesigned streetscapes surrounding the project.
Tax increment financing pays for public infrastructure meant to spur private development by allowing a municipality to issue bonds.
The bonds are repaid with a portion — or increment — of the additional property tax revenue the city receives from the new development. That money would otherwise go to the state education fund.
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