Downtown developer says court delays could derail project

The developer of Burlington Town Center says he's losing about $270,000 per month as a court action opposing the project delays construction. 

Don Sinex asked a judge Monday to dismiss a challenge to his project in the Environmental Division of Vermont Superior Court, or to require the opponents to post a $25 million bond to cover damages he could suffer from delays.

Sinex said Tuesday he and his attorney, Brian Dunkiel, arrived at the $25 million figure by calculating the financial harm to the city and its residents — and to him as a property owner — if the Burlington Town Center project is unable to proceed because of an appeal filed by attorney John Franco on behalf of 57 individuals who oppose the project.

Sinex said in an affidavit that Burlington Town Center is losing about $270,000 per month. In addition, Sinex said he has monthly expenses including housekeeping, insurance, property taxes and maintenance.

"Over the past 12 months, these expenses have averaged roughly $240,000 per month and I expect them to continue at around that rate until the current mall can be demolished," he said in the affidavit.

Mayor Miro Weinberger called for the court dispute to be resolved as quickly as possible, in favor of the project.

"There is a critical public interest at stake," Weinberger said. "People have weighed in again and again saying they want downtown to go in this direction. It's important the matter be reviewed quickly and carefully."

Franco told the Burlington Free Press in April that the appeal will subject the redevelopment project to "rigorous review" for the first time before the environmental judge — the kind of review he says the project failed to receive before the Burlington Development Review Board, which approved the project.

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Franco said the appeal boils down to a basic objection that the project is too big for downtown Burlington. Some of the proposed buildings are 14 stories.

Franco could not be reached Tuesday for comment.

Sinex already has signed contracts with engineers, architectural firms, accounting firms and others to build the $225 million project that would replace the existing mall with new retail, office space and residential units. 

"Let's just assume we get bogged down in this environmental court proceeding for six months and we prevail," he said. "Six months can be the difference between the market peaking out and turning away."

Sinex explained that lenders who are making the project possible could decide after a delay of six months or longer that conditions no longer were favorable to make a loan, or the lenders could change terms of a loan.

He is particularly concerned that UVM Medical Center — his anchor tenant for office space included in the project — will decide to make other plans because of the uncertainty surrounding the court actions.

A win in environmental court won't necessarily put an end to the delays, Sinex said.

"The real danger is even at that point this group can appeal again to the Supreme Court," he said. "I am told that could take two years or more."

Sinex said he plans to carry on with the assumption that the market and financing sources will remain "decent," and that the hospital will remain committed.

"If any of those things fail the project is in jeopardy," he said.

Brian Dunkiel, Sinex's attorney, said Tuesday that Franco's appeal to stop the project prevents the city from issuing a zoning permit until the motion to stay is resolved, despite approval for the project from the Development Review Board.

"And so what we said to the court yesterday was that their motion to stay should be denied because their case is without merit, and their case should be dismissed because there's no legal basis to allow it to move forward," Dunkiel said.

In his filing, Dunkiel addresses each of the 12 questions raised by Franco in his request to stay, explaining why each question should be dismissed.

Dunkiel says in his motion that were it not for Franco's appeal, construction on the Burlington Town Center project would start July 5. He says that until construction is complete and the project is operating, Burlington Town Center is absorbing "significant costs" each month.

As detailed in Sinex's affidavit, those costs add up to more than $500,000 monthly.

Sinex said Tuesday that if his planned  makeover of the mall fails, he will gut the building and put together a leasing plan that includes no change of use or additional uses. He said the new tenants would likely be "discounters."

"I'm not going through another process with Burlington, there's just no way," Sinex said. "I've spent two and a half years, millions and millions of dollars, and this is the end result. A small group philosophically opposed to anything can ignore the will of the people, ignore a two-and-a-half year process, ignore two public votes on the matter and get away with it."

Contact Dan D’Ambrosio at 660-1841 or ddambrosio@freepressmedia.com.