BTC Mall and Associates, the developers behind the long-stalled CityPlace project, have countersued the city of Burlington.
The move comes after the city submitted a lawsuit against the developers in early September to move long-awaited construction forward.
The news came during a Monday night City Council meeting, during which attorneys representing the city of Burlington gave councilors an update about the ongoing litigation between the city and BTC Mall and Associates.
The council also heard plans from Burlington school district leaders about how to get high school students back to in-person learning after the high school building was closed in September due to PCB chemical contaminants. The council also voted down a proposal to allow permits for outdoor fire pits.
The counterclaim filed by BTC Mall and Associates continues its attempt to nullify the originally agreed upon CityPlace development agreement, which they argue is now obsolete because the project has dragged on, with no construction, for years.
BTC had filed a suit against the city the same day Burlington sued BTC in September, in an attempt to terminate the development agreement. The city argues that BTC still has a responsibility to abide by the agreement, and that neither party can unilaterally terminate it.
BTC also included another company, PC Construction, in its countersuit against the city through a third party complaint.
“What BTC is alleging is that PCC, which is the general contractor for the project,” explained attorney Marc Heath, “breached their contract by providing an unreasonably high maximum price.”
Councilor Franklin Paulino, D-North District, said he thought that the complaint brought by BTC against PCC was “strange” and questioned why a lawsuit was necessary.
“We say to constituents all the time, this is a private development,” Paulino said. “I’m assuming that private developer could turn around and go to somebody else.”
There have also been some signs of progress with the project, according to Burlington’s CityPlace consultant Jeff Glassburg. The developers recently presented a construction plan to Ward 2 and 3 residents at a neighborhood planning assembly meeting, which was required for the developers to apply for zoning permits, according to Glassburg.
He said that the application outlines the proposal of a “primarily residential project” which proposes roughly 400 dwelling units. The application materials also project that construction would begin on CityPlace in September 2021 and be completed by November 2026.
The council continued their discussion about the CityPlace lawsuits in executive session with the city’s attorneys, which lasted about a half hour.
Burlington High School aims for in-person learning after closure
Burlington school district leaders also provided councilors an update about the current status of Burlington High School, which was closed in early September after polychlorinated biphenyls (PCB) chemicals were found in high doses in some parts of the building.
Burlington Superintendent Tom Flanagan told councilors that the district has three options that it could explore to get students back in classrooms with in-person learning, hopefully by January.
First, students could return to some parts of the building, which the Burlington Educators Association and AFSCME do not support, that have lower levels of PCB contamination. This is an idea that some parents have told administrators they support, Flanagan said. Second, the district could rent out an alternative building for 2-3 years while the original high school is remediated. Third, the district could build a new high school.
Flanagan said the city has identified an alternative building and is expected to enter into negotiations with the owners.
In response to questions raised by Councilor Ali Dieng, I-Ward 7, about the cost of transferring to a new building, Flanagan said it’s estimated to cost the district $3 million to initially transfer to a new building, plus the cost of rent, which he didn’t have an estimate for.
“It is unbudgeted right now,” Flanagan said. “It is something we have to think hard about.”
Councilor Brian Pine, P-Ward 3, said he was skeptical that the level of PCB chemicals, which can cause a slew of health problems in high doses, reached the severity of removing students from the school.
The Environmental Protection Agency sets a limit at 600 nanograms of PCBs per cubic meter, and the Vermont Department of Health sets a limit at 15 nanograms of PCBs per cubic meter. Some buildings in the high school saw 14 ng per cubic meter, others saw 6,300 ng per cubic meter.
“I’ve been really kind of baffled by the screening level that the health department uses,” Pine said. “It seems as though we are stuck with a sort of order from the state, that is, shall we say, not necessarily shared by others in the public health profession.”
Outdoor fire pit resolution fails
The council has voted down a proposal brought by Councilor Joan Shannon, D- South District, to allow permits for outdoor fire pits in an effort to give Burlingtonians an opportunity to socialize while socially distant during the pandemic.
The resolution failed in a 11-1 vote, with Shannon being the lone supporting vote, after the Burlington Board of Health returned a statement to the council stating that it does not support a proposal to allow for permitted fires this winter because of the adverse health effects.
Interim Board of Health Chair Caroline Tassey wrote that smoke particles from backyard fires could put “nonconsenting neighbors and community members at risk during a global pandemic of COVID-19 in which those with pre-existing conditions such as asthma, heart disease and other cardiovascular and pulmonary issues are at highest risk.”
She also warned that BIPOC community members are at a greater risk from the smoke because of health disparities that have contributed to higher rates of asthma in those communities.
Tassey also cautioned that allowing outdoor fires might incentivize larger gatherings and erode social distancing as neighbors huddle close to the fires to stay warm. Additionally, some older Burlington homes may not be as airtight as others, Tassey said, so smoke particles could impact indoor air quality as well.
“While the intent is positive, we do not feel outdoor fires are the best option,” Tassey wrote. “Outdoor warming could be better provided with propane/gas fire pits or radiant heaters that do not impact the environment so directly and actually better warm outdoor areas because they heat objects, not the air. However, we realize these are costly and currently appear to be in short supply, so individual families who could utilize them will be limited.”
Ultimately, the majority of councilors agreed that the adverse health effects outweigh the socialization benefits outdoor fire pits might provide, given that Covid-19 isn’t waning as the city heads into winter.
“I think while this was done is such good faith, it really isn’t working,” said Councilor Sarah Carpenter, D-Ward 4.
Before the resolution failed, Shannon attempted to introduce an amendment that would only permit smokeless fire pits, which emits less smoke particles while still burning wood. Propane fire pits are allowed in the city. Still, the change wasn’t convincing enough for councilors.
Shannon said as someone who has suffered from asthma and respiratory issues, she still thinks the socialization benefits of allowing smokeless fire pits are needed in the city.
“This is the very time to encourage people to socialize outside and do something like this,” Shannon said. “I think there is not the political will to move this forward, and I would not ask the council to waste more time on this issue.”
Open meeting violation
Seven Days also submitted a letter to the councilors thanking them for their swift correction of an open meeting law violation, which occurred during their Sept. 8 meeting.
During that meeting, councilors had invited Battery Park protesters into an executive session discussion about the potential firing of three Burlington Police officers accused of excessive force. Seven Days submitted a complaint, and argued that the protesters did not have any privileged information that was justifiably private from the public.
“On behalf of Seven Days newspaper, I would like to thank you for your prompt response to our open meeting complaint dated September 10,” Seven Days Deputy News Editor Sasha Goldsetin wrote in a letter to councilors.
“It was heartening to see the spirited discussion and vote to acknowledge the violation at the council’s September 14 meeting,” Goldstein wrote. “And we believe the steps you’ve since taken to cure the violation have shown a desire to be held accountable by the public you serve.”
