The CityPlace Burlington developers have countersued a group of opponents of the long-stalled downtown project.
BTC Mall Associates and Devonwood Investors argue in a December 30 court filing that the opponents — Barbara McGrew, Lynn Martin, Michael Long and Steve Goodkind, along with their attorney, John Franco — violated a prior settlement in an ongoing lawsuit involving the project.
As a result, the developers say, they incurred “substantial costs” and are asking a judge to award them attorney fees. They also want the court to nullify a provision in the settlement that the developers donate $500,000 to a charitable fund.
Franco said he’s disappointed in the turn of events, particularly since he had cheered CityPlace progress in recent months. Developers presented a scaled-down version of the downtown project in October 2019, at which time Franco said he was optimistic that the lawsuit could be resolved. Any goodwill he felt has now evaporated.
“Lynn, Steve, Barb and Michael are all retirees on Social Security — that’s who Brookfield, a multibillion-dollar company, has sued,” Franco said, referring to Brookfield Asset Management, BTC’s majority owner. “You have a bit of an idea of what that does to the atmosphere of this case.”
The counterclaim stems from a June 2017 settlement that required the developer to include more parking spaces in the project design, to not lease housing to college students and to contribute $500,000 to a charitable fund, among other agreements.
The developers argue that Franco and his clients violated that settlement by continuing to pursue a separate public records claim. The Vermont Supreme Court ruled in the developer’s favor on that claim in September 2018.
The counterclaim says the opponents’ litigation “constitutes a breach of the implied covenant of good faith and fair dealing” and “interfered with BTC’s ability to perform its obligations under the Settlement Agreement.”
As such, the developers argue, they should not have to make the charitable donation. A message seeking comment left for Jonathan Rose, a Burlington attorney representing the developers, was not immediately returned.
Franco called the counterclaim “frivolous” and plans to file a response by month’s end.
Brookfield is scheduled to appear before the city’s development review board in February to discuss its latest proposal. But Jeff Glassberg, who is working as a liaison between the developers and the city, wants more from the developer. He says Brookfield has reneged on an earlier promise to schedule community meetings about the project.
“Despite weekly requests for an update on that, we’ve seen no progress,” he told the Burlington City Council on Monday.
The recent developments leave a sour taste in Franco’s mouth.
“[I was] really supportive of the scaled-down project,” he said. “This is a serious kick in the shins.”
Read the filing below:
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Seriously, screw these New York-based Brookfield developers. Regardless of your view of the new mall, this is a low blow and just a squirrelly attempt to get out of paying what they already promised. Assholes.
Live by the court, perhaps you die by the court…
If a settlement was reached that both parties signed off on and then one party violated the settlement — then the other party has a right to seek defined compensation per the agreement. Right?
Doesn’t matter if one of the parties are retirees on Social Security, they signed off on the settlement. Right?
It doesn’t matter if some people don’t like the developer. This is a legal document outlining the terms of the settlement. If it was violated, there you go. Right?
Attorney Franco’s attitude is a little difficult to understand. He seems to be suggesting that it’s fair and reasonable for him and his clients to keep hitting Brookfield, but it’s unfair for Brookfield to assert its legal rights in court?
” to not lease housing to college students”…
Huh? How is that even remotely legal? And what does Steve G have against adult students?
Funny thing is, the separate suit over the refusal of the City to release the economic feasibility study under freedom of information was done by the Coalition for a Livable City (CLC)…and the project ended up a hole on the ground! Seems that suit was right on the mark! Looks like a reasonable suit to me…a voting member of the CLC. The Mayor Clavelle brokered agreement now being challenged by Brookfield sounds like a distraction. What Brookfield should do is work with everyone to get about 75 units of 30% income max rent assistance. Otherwise, Brookfield faces rejection…BTV no longer interested in $3,000 monthly rental apartment charade of recent years developer.s.
The attorney for the alleged ragtag group, John Franco, is a legal and political force not to be underestimated.
For example, three days after Franco posted a Dec. 13 comment in this forum on what Franco called the “outrageous” social-media behavior of the-then police chief, the chief resigned.
The rare Franco posting brought due notice.
Franco is a hometown boy who knows keenly how to navigate the intersection of law and politics.
Seems like a distraction of ill will.
I’ve said it before, if a lie will work better than the truth and they think they can sell it, we are going to get the lie. It’s all about the optics. The leopard cannot change its spots.
College students should live on campus where they belong and not take up apartment spaces that low income and homeless people need!
Municipal government failed us. Mayor, City Council, Finance Board, project review boards and commissions — all were mesmerized by the $ugar plum$ dancing in their heads. All the points opponents challenged later surfaced as significant flaws in the Town Center project (aka mall redevelopment, aka CityPlace). I think Brookfield wants to keep litigation going to create delays so they can blame others for their failed project.
What good is community consensus, for example on height in the municipal plan, if city government sneaks around it to please (and profit) one developer? As I recall, opponents objected to the building height as per the municipal plan, to the reduction in parking as per common sense, to building luxury and student housing when affordable housing is a high priority as per the Housing Plan. A coalition of livable city activists defended taxpayers and community consensus, a responsibility that municipal government reneged on.
Repeatedly, instead of taking advantage of public input and indispensable opposition to fully vet a project, making full information available in an open and transparent process, City sneaks around, withholds information, and frankly, corrupts the process as if their end justifies their means. It comes back to bite them, as the empty pit in the middle of the city proves. As the doomed Champlain Parkway proves. As the racist parade mural on the marketplace proves. As the nasty F-35s based at our municipal airport prove. (Jury still out on City Hall Park’s concrete performance venues and squirty fountains.
I’m told that a councilor recently told his NPA that the CityPlace project failed because of Donald Trump! If he was a Republican he would have blamed Obama. Knowledgeable locals blame the Mayor et al for not properly vetting the Sinex project and the financing.
https://www.wsj.com/articles/brookfields-b…
Of course there couldn’t be an article about the mall project without the usual suspect complaining about the mural.
Get off my lawn, Patrick Cashman
Too many times a small group will continue litigation to stall development long after everything has been approved, making it prohibitively expensive to build in VT. If the project had been allowed forward maybe it would be in the stages of being built now without the lawsuits. Also if the agreement was violated then the developer should be allowed to sue.
As for the whining about more affordable apartments, the best way to come up with affordable housing is to increase the number of apartments available so the supply is greater than the demand.
Now hiring: moderator for comments on sevendaysvt.com.
@ Steve Goodkind, I agree with you 100% that a leopard cannot change it spots.
Remind me Ted, who’s the leopard again ?
While it’s true that lawsuits can be used to delay and stymie projects — the suit to block the Costco gas station comes to mind — this was not the case with the suits challenging City Place.
The settlement agreement mediated by Peter Clavelle — who supported the project — was reached in about 90 days. This allowed the project to proceed and demolition followed promptly. The subsequent construction that everyone expected did not happen because no financing had been secured.
It was as if you had torn out your bathroom for a remodel but had neglected to get a home improvement loan.
Oops!
Even an inept homeowner would be unlikely to make such an error, but the developer and our elected representatives were comfortable demolishing the bulk of the mall without assurance that it would be replaced in a timely fashion.
I’ve even heard office holders claim they prefer City Hole to the “failing” mall. Can’t say I agree.
Its true, at age 72 the leopards cant change their spots.
It does not appear that Mr. Franco was prepared for the kick in the shins that he instigated and had coming to him.
“Lynn, Steve, Barb and Michael are all retirees on Social Security — that’s who Brookfield, a multibillion-dollar company, has sued,” Franco said” To be fair, you started it Mr. Franco, so you should be prepared for the blow back. They are suing the parties that have caused them harm and violated a prior agreement, that is who is being sued.
I think the project is very disappointing. A blight on a city that thrives by it’s attributes. I lived in Burlington from 1985-1998 where after I moved to Essex Junction. I’m very proud having lived in Burlington. I hope that resolution of the issues comes to a close and that they get this project done. Renovation of Memorial or a replacement would be awesome too!
Maybe Brookside should keep the city updated about their plans like they promised but that’s been a big lie from them.. I think they’re as bad as Don the Con!!
“Brookside”? Who is that?