A new court ruling spells hope for a group of neighbors opposed to a proposed housing project on a corner of the Wheeler Nature Park in South Burlington.
The environmental division of the Superior Court in Burlington on Wednesday rejected BlackRock Construction’s recent motion to dismiss the neighbors’ appeal of a state review board decision, giving them more time to present concerns.
“I’m encouraged that we’re going to have an opportunity to explain more in a different setting,” said John Bossange, one of more than 135 neighboring families opposed to the project that involves, among other things, blasting rock ledges in what they say is a protected parkland and wildlife habitat.
They are concerned the project would fragment the 110-acre park, violate city and regional plans, disturb wildland habitat in a pristine setting with scenic views, and defy Act 250 criteria regarding noise, traffic and emissions.
“This is not a NIMBY appeal,” Bossange said, referring to the acronym for ‘not in my backyard.’ “This is about preserving a well-defined nature park, enjoyed and valued by the entire South Burlington community.”
While the court decision this week involves procedure — such as the timeliness of filing an appeal — rather than the neighbors’ complaints about the project, the ongoing appeal prevents the developer from proceeding, state officials confirmed.
“This means our appeal is alive and well and we anticipate winning this case to save Wheeler Nature Park, its habitat and its wildlife,” said James Marc Leas, one of the opposing neighbors.
In a letter on Friday, Benjamin Avery, president of BlackRock Construction, said the decision is “of course frustrating.” But he said the company was “confident in our ability to move forward following the court proceedings.”
BlackRock Construction applied in September 2021 for a permit to construct 32 residential units on an undeveloped 6.9-acre parcel inside Wheeler Nature Park at the north corner of Dorset Street and Park Road under Act 250, Vermont’s land use law intended to minimize the environmental impacts of development. A state district environmental commission issued the permit for the units, which would have roadway and utility access, on July 20.
A group of opponents — including Leas, who is a patent attorney; the presidents of three neighboring homeowners associations; another group of residents against blasting; and additional individual adjoining homeowners — filed a motion to alter the permit decision on Aug. 4. But the commission denied the motion on Aug. 25 on procedural grounds.
The opponents then filed an appeal with the environmental division of the Superior Court on Sept. 22, asking the court to overturn the commission’s permit decision, the Aug. 25 denial of the motion to alter and “and all prior decisions of the District Commission in this matter.”
A day later, BlackRock filed a motion arguing that the neighbors filed their appeal after a deadline imposed by the district commission. Superior Court Judge Thomas G. Walsh’s decision this week concluded that the notice of appeal was filed in a timely manner, allowing the neighbors to move forward with their case.
The appeal of the Act 250 permit is now before the court. The next hearing is scheduled for Dec. 12, Leas said.
As the project is going through an appeal process, the developers have to wait until it is resolved, said Sabina Haskell, chair of the Vermont Natural Resources Board that oversees the Act 250 process.
But Avery, from BlackRock, contended the company could move ahead with construction but has chosen to wait through the appeal.
“We will make an internal decision regarding our desire to move forward with site work in the near term,” he said. “That decision has not been made.”
The city acquired the 110-acre nature park in 1992. It consists of mixed forest, grasslands, shrublands, wetlands, about 2 miles of walking trails, a tree nursery and a 14-acre Wheeler Homestead area that includes community garden plots for rent. City planning documents have referred to it as “the green lungs of the City Center.”
The Wheeler parcel at 550 Park Road has a long history of litigation. It was created in 2017 as part of a settlement agreement and a land swap between the city and James McDonald, who still owns the property through a limited liability corporation.
The land is zoned with “incredibly clear development guidelines,” said Avery, who contends the idea that the company is developing a protected parkland is “patently false” and “sensationalization.”
Leas, meanwhile, said Act 250 was enacted in Vermont to curb this kind of development and to prevent cities, towns and villages from making deals with developers, calling it an “extreme case.”
“What could be considered more protected from development than a nature park?” he said.