The leaders behind CityPlace, Burlington’s long-stalled downtown development project, have been confronted with the first legal challenge to their newly granted permits.
The company that owns the 100 Bank Street office building, 100 Bank LLC, filed an appeal on Tuesday in Vermont Superior Court’s Environmental Division concerning a list of issues brought to the Development Review Board that it says have not been resolved. The DRB approved newly amended zoning permits for CityPlace March 3.
CityPlace developers have filed a lawsuit to protect their permits, and to keep the project moving forward. But 100 Bank LLC is not the party in their crosshairs — for now.
Developers filed suit on Friday against local attorney John Franco and the clients he represents, who have also threatened to file an appeal to challenge the new CityPlace permits. Franco has not yet filed this appeal but argues that developers have violated a 2017 settlement agreement around parking obligations, brokered between his clients and CityPlace leaders.
Don Sinex, a CityPlace developer who has been involved with the project since the beginning, told VTDigger he’s suing Franco for his “meritless and frivolous” opposition to the development. He called the appeal from 100 Bank LLC “nothing more than a contract dispute about parking.”
100 Bank alleges legal issues with new permit
Lawyers for 100 Bank LLC made their clients’ concerns known to the Development Review Board at its March 3 meeting, where the board ultimately granted CityPlace approval for the new amended zoning permits.
The 100 Bank Street Building, which houses the Burlington Free Press, Goldman Sachs and consulting company Willis Towers Watson, is included in the Redstone property management portfolio.
In a letter provided to the board members, lawyers presented a list of concerns that they say have not been addressed by the DRB in its appeal. These concerns include:
- Stormwater has not been properly managed at the site, which sits next to the 100 Bank Street building. The letter states that the stormwater has caused erosion and “a breeding ground for mosquitoes.”
- Traffic has not been properly accounted for and that composting has not been factored into the development’s plans.
- The project does not have enough parking to fulfill the demand that the downtown is expected to see when this complex is built (this is a concern that was echoed by Franco and his clients).
Developers have planned to build 422 parking spaces for the 426-apartment building, which will also house retail space and a restaurant. CityPlace lawyers have said that these spaces meet city requirements. The number of spaces comes 25 short of the maximum allowed under city ordinances.
The appeal states that the DRB “failed” to address concerns raised by 100 Bank LLC about whether CityPlace developers “could amend a permit that had expired and that it had expressly abandoned in order to achieve an advantage in litigation with the City of Burlington.”
This is referencing a recently achieved settlement agreement the city had reached with the developers, which requires that they begin construction by February 2022 or lose out on a tax increment financing reimbursement to develop the surrounding streets of the project.
Attorney Matthew Byrne of the firm Gravel and Shea, which is representing100 Bank LLC, did not return a request for comment.
In an email sent to VTDigger, Sinex said he had not yet seen the appeal filed by 100 Bank LLC. He said he views it as an attempt to extract a settlement from the developers. He said if the company “adversely and intentionally interferes with my property rights in any meritless or frivolous manner, they will have an action filed against them for damages.”
Sinex wrote that “100 Bank street has no parking, never has had any parking of its own, and anyone who bought the building was aware of that fact or they are stupid. And they were also aware of our project and what a large development means as far as everyday noises, dirt and debris or again they are pretty stupid.”
Franco and clients hit with lawsuit
In early March, Franco announced that he and a group of residents would be challenging the Development and Review Board’s decision to issue the developers new permits out of concern that there is not enough parking provided in the current plans. Still, no appeal has been filed, and he told VTDigger he can’t comment on when it might be filed, but Sinex has decided to sue.
The lawsuit is also seeking an injunction against Franco and his clients from continuing to file legal challenges against the project. It’s also seeking damages, in an amount to be determined by the court, from Franco and his clients for continually disputing the CityPlace project with legal challenges and for allegedly breaking the 2017 settlement agreement.
“If allowed to continue, Defendants’ unlawful actions will cost BTC millions of dollars in increased construction costs and lost reimbursement for the design and construction of the public roadways incorporated into the Project, and will irreparably damage BTC’s operations and reputation,” the lawsuit states. “BTC therefore brings this action to enforce the terms of the Settlement Agreement and to hold the Defendants accountable for their unlawful conduct.”
Franco’s clients — Barbara McGrew, Steven Goodkind, Michael Long and Lynn Martin — argue the proposed parking capacity for the project violates a 2017 settlement agreed to by Franco’s clients and CityPlace developers, after they had raised previous concerns and legal challenges that the project wasn’t right-sized to Burlington.
The agreement required that CityPlace developers add 200 parking spots to their original plan, which Franco says was an effort to make up for the loss of the parking garage that was torn down to make way for the new complex. Because the project has been revised, Franco argues, the developers need his clients’ approval to change the parking plan that was agreed to.
CityPlace developers disagree. Sinex told VTDigger in early March that Franco is “mistaken” in his understanding of the settlement agreement.
Franco alleges that the lawsuit brought against him and his clients is “unprecedented” in that he hasn’t seen anyone attempt to force an injunction on an environmental court proceeding through a civil complaint.
“They’re asking the Civil Division to enjoin us from filing an appeal in the Environmental Division because,” Franco said, “of the catastrophe that will befall Burlington’s CityPlace project as if we haven’t had four years of catastrophe already.”
Franco previously told VTDigger that he and his clients do not want to see the project fail. He says he views a potential appeal as a way to hold the developers accountable to their legal agreements.
Sinex told VTDigger that he thinks Franco’s challenges to the project have been designed to eventually kill it, which is why he’s seeking this injunction against him.
“The original Settlement Agreement, under which we paid substantial amount of money to Franco, requires the Franco parties to stop opposing the project specifically stating that the Franco Group would withdraw all lawsuits and not oppose any further permit or work by BTC to amend the permit or advance the project,” Sinex wrote. “Franco ignores this agreement in totality.”
