Case 5:18-cv-00059-gwc Document 1 Filed 03/30/18 Page 1 of 9

U.S. ClST;\ICT COURT

DISTRICT OF VERMONT
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

FILED

201B HAR 30 AH 8: 21

CLERK
BARBARA MCGREW, LYNN
MARTIN, MICHAEL LONG,
and STEVEN GOODKIND,
Plaintiffs
V.

CITY OF BURLINGTON,
VERMONT, DEVONWOOD
INVESTORS, LLC, and
BTC MALL ASSOCIATES, LLC,
Defendants

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Civil Action No.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
UNDER THE FEDERAL CIVIL RIGHTS ACT
FOR VIOLATION OF 14th AMENDMENT PROCEDURAL DUE PROCESS
PARTIES

1)

Plaintiffs are residents of Burlington, Vermont.

2)

The City of Burlington is a Vermont municipal corporation.

3)

Devonwood Investors, LLC. is a non-resident limited liability company with

principal offices at 1 North End Avenue, New York, New York 10017, and with local
offices at 101 Cherry Street, Suite 440, Burlington, VT. 05401.
4)

BTC Mall Associates, LLC. is a non-resident limited liability company with

principal offices at 101 Cherry Street, Suite 440, Burlington, VT. 05401.
JURISDICTION

3)

The Court has federal question jurisdiction under 28 U.S.C. §§ 1331 and 1343.

Supplemental jurisdiction over state law questions is provided by 28 U.S.C. § 1367.

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 Case 5:18-cv-00059-gwc Document 1 Filed 03/30/18 Page 2 of 9

FACTS
The Settlement Agreement

4)

These plaintiffs had brought a series of legal challenges to the redevelopment

being proposed for the former Burlington Square Mall at 75 Cherry Street in Burlington,
now referred to as City Place Burlington.
5)

Barbara McGrew individually and Steven Goodkind on his own behalf and on

behalf of a group of individuals had brought an appeal in Devonwood Investors, LLC (75
Cherry Street), Vermont Superior Court, Environmental Division, Docket Number 39-4-

17 Vtec regarding the local land use approval issued by the Burlington Development
Review Board (DRB) on March 17, 2017 to Devonwood Investors, LLC on behalf of the
property owner BTC Mall Associates, LLC.
6)

Barbara McGrew individually brought the appeal Devonwood Investors, LLC JO

4-255, Vermont Superior Court, Environmental Division, Docket Number 63-5-17 Vtec

claiming that Act 250 had jurisdiction to also review the proposal.
7)

Steven Goodkind, Michael Long and Lynn Martin in Counts I, II, and III of Long

et. al. v. City of Burlington et. al. Vermont Superior Court, Civil Division, Docket No.

996-11-16 Cncv brought a taxpayer challenge to $22 million in Tax Increment Financing
(TIF) provided by State and City property taxpayers to BTC Mall Associates to subsidize
the project, and in Count IV of that action also as individual plaintiffs challenged a denial
of a request for public records regarding that subsidy.
8)

These claims were all settled and compromised in a global Settlement Agreement

between the plaintiffs and Devonwood. These actions were each dismissed by the

2
Law Office of John L. Franco, Jr. 11 O Main Street Burlington, Vermont 05401
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 Case 5:18-cv-00059-gwc Document 1 Filed 03/30/18 Page 3 of 9

plaintiffs with prejudice and/or they individually withdrew as per the Settlement
Agreement.

9)

That Settlement Agreement provided for additional permit conditions "consistent

with changes to mitigate concerns raised by Appellants by adding subsurface parking
capacity for approximately 200 automobiles in the Project."
10)

Paragraph 3 of that Settlement Agreement incorporated by reference a Stipulation

for Final Judgment along with a Proposed Judgement Order.

11)

The Stipulated Findings of Fact Supporting Final Judgment were approved and

signed by the plaintiffs, Devonwood and the City.
12)

The Proposed Judgment Order was adopted by the Vermont Superior Court

Environmental Division as a Judgment Order on July 17, 2017.
13)

The Judgment Order specified that it was approving "the Devonwood Investors

LLC 75 Cherry Street Project as approved by the City of Burlington DRB on March 17,
2017 and modified by Exhibit 1, adding parking capacity for approximately 200
automobiles in the Project's basement level."
14)

The March 17, 2017 DRB approval incorporated by reference into the Judgement

Order is for 761 parking spaces in four of the above ground floors.

The "Administrative" Amendments to the Settlement Agreement and Judgment
Order.
15)

On February

23,

2018

the

City

of Burlington zonmg

administrator

administratively amended that Judgment Order as a "minor" permit amendment, that is,
without approval of the DRB.

3
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 Case 5:18-cv-00059-gwc Document 1 Filed 03/30/18 Page 4 of 9

16)

This was done in express violation of the DRB's Conditions of Approval #4

which provides "That any future enlargement or alteration of the use return to the DRB
to permit the specifying of new conditions. " (Emphasis original).
Reduction in Onsite Parking.

17)

The amendments
• reduced the total number of open, tandem and stacked parking spaces provided
in Settlement Agreement by 294 spaces from 961 to 667 spaces;
• reduced the total number of open, tandem and stacked parking spaces on the
above ground floors by 184 spaces from 761 to 577;
• reduced the total number of open, tandem and stacked parking spaces on the
basement floor by 110 spaces from 200 to 90 spaces; and
• reduced the overall area of floor space to be dedicated to above ground parking
by over 39,000 sf and of the basement floor area by about 40%.

18)

The amendments purport to add 205 "valet" spaces, but these spaces
• are crammed into the aisles of the floors, obstructing vehicular circulation in
violation of the requirements of §8.1.11 Parking Dimensional Requirements of the
parking ordinance which provides that the parking dimensional standards "shall
be used to ensure safe, adequate, and convenient access and circulation;"
• leave insufficient aisle space for fire lanes, emergency vehicles, or safe egress
from the building;
• in many cases do not even leave enough space between vehicles to easily get in
and out of them;
• are parked perpendicular to the stacked spaces, blocking the ingress and egress
into those stacked spaces in violation of §8.1.14 Stacked and Tandem Parking
Restrictions of the zoning ordinance;
• have stacked spaces more than 3 spaces deep also in violation of the same
section of the ordinance;
• fail in many cases to meet the minimum width and length requirement of the
ordinance Table 8.1.11-1 Minimum Parking Dimensions;
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 Case 5:18-cv-00059-gwc Document 1 Filed 03/30/18 Page 5 of 9

• combine to make the parking and retrieving of vehicles on these floors a
Rubik's cube exercise, resulting in a huge loss of level of service;
• increase waiting times for parking and retrieving vehicles, resulting in backups
into the adjoining streets, or a diminution in use of the facility because of an
unacceptable level of service.
19)

No analysis was provided of what effect this will have on delay times in parking

and retrieving vehicles, or a traffic analysis of the resulting backups into the adjoining
streets.

Relocation of the Parking Floors and Displacement of First Floor Retail
Space
20)

The amendments relocate the above ground parking from floors 2-5 to floors 1-4.

The resulting new first floor parking
• displaces a considerable amount space previously designated for the retail first
floor;
• removes any first floor retail abutting the new section of Pine Street to be
extended from Bank to Cherry Streets;
• in tum create a wall which faces the other wall created by the disconnection with
the east side of the Macy's Building; and
• ignored the ordinance's required 20 foot buffer between parking and the street.
21)

None of this went through design review.

22)

Also no floor plans at all were submitted or approved showing the use of the 5th

floor, which is now freed of parking.

Increase in Residential Units
23)

The amendments increased the square footage devoted to residential use by just

under 43 thousand sf. and an additional 16 units over the number allowed by the DRB's
2017 decision.
5
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 Case 5:18-cv-00059-gwc Document 1 Filed 03/30/18 Page 6 of 9

24)

The amendments were requested on behalf of BTC Mall Associates on January

26, 2018 by Jesse Beck of Freeman French and Freeman architects.
25)

According to the narrative submitted on February 15, 2018 by Mr. Beck in

support of the amendments, the stated purpose of the reduction in the square footage for
parking on the upper floors is to accommodate "Added Wrapper Housing" for 288
residential units.
26)

This was accomplished by the addition of "wrapped" residential units on the east

and west ends of the second, third and fourth parking floors, none which was found in the
DRB's 2017 approval.
Plaintiffs Wish to Enforce the Settlement Agreement.

27)

Paragraph 9 of the Settlement Agreement provides that it "may not be amended,

modified, or terminated except by written consent signed by all the parties hereto."
28)

Devonwood and BTC Mall did not obtain the written consent of the plaintiffs for

these amendments.
29)

Devonwood and BTC Mall did not give the plaintiffs actual notice that the

amendments were being considered, had been applied for, or had been granted, all in
violation of the implied covenant of good faith and fair dealing that accompanies the
Settlement Agreement.

30)

Plaintiffs wish to enforce the Settlement Agreement, the implied covenant, and the

Judgment Order in the Vermont Superior Court.

6
Law Office of John L. Franco, Jr. 11 O Main Street Burlington, Vermont 05401
(802) 864-7207
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 Case 5:18-cv-00059-gwc Document 1 Filed 03/30/18 Page 7 of 9

Blocking of Plaintiffs' Access to the Vermont Courts

31)

The plaintiffs' access to the Vermont courts to do that has, however been blocked

by its use of the "minor" permit amendment mechanism by the City which requires under
24 V.S.A. § 4449(b) only "posting" notice of the administrative decision.
32)

The City did not provide any actual notice to the plaintiffs that the amendments

either had been applied for by BTC Mall Associates or approved.
33)

The City used only the "posting notice" required by 24 V.S.A. § 4449(b).

34)

Because the City did not provide plaintiffs with such actual notice, they were

unaware of BTC Mall's or the City's actions, especially Barbara McGrew who was at the
time wintering in Florida.
35)

This allowed the 15 day period for appeal of the administrative decision to the

DRB provided by 24 V.S.A. § 4465(a) to slip by unnoticed.
36)

The exclusive remedy provisions of the Vermont Planning Act, 24 V.S.A. §

4472(d) bars them from now contesting these amendments either directly or indirectly
because they did not first take a timely appeal to the DRB required by 24 V.S.A. §
4465(a) within 15 days of the administrative action approving the amendments.
Actual Notice to the Plaintiffs by the City Was Required By Procedural Due Process

37)

Vermont law recognizes that parties rely on permit conditions designed to

mitigate the impact of proposed developments, especially when they are part of a
judgment which is the product of a settlement agreement.
38)

Vermont law recognizes parties have a right to rely on the finality of zoning

permit decisions under the "successive application doctrine."
39)

A state-created right to redress a grievance is a property right.
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 Case 5:18-cv-00059-gwc Document 1 Filed 03/30/18 Page 8 of 9

40)

Access to the courts is also a fundamental First Amendment right to redress of

gnevances.
41)

Given these interests, the plaintiffs have sufficient property and liberty interests

therein to warrant the protection of 14th Amendment procedural due process.
42)

The posting notice given by the City under 24 V .S.A. §4449(b) was insufficient

under 14th amendment procedural due process. Instead, actual notice by the City to
plaintiffs of the approval of the administrative amendments, at minimum by first class
mail, was required by Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983).

RELIEF REQUESTED
43)

The plaintiffs seek a declaratory judgment under the federal Civil Rights Act, 42

U.S.C. § 1983, that
(i) the City's failure to provide them with actual notice of Devonwood's permit
amendments application and timely notice of the City's approval of them violated
the Due Process clause of the 14th Amendment;
(ii) the February 23, 2018 permit amendments are consequently unlawful and
void; and
(iii) due process in the future requires the City to provide the plaintiffs with
actual notice of any proposed future local land use amendments to the project,
with timely actual notice of any administrative action taken on the amendment
applications, and timely actual notice of any applications for certificates of
occupancy, all sufficient to allow plaintiffs to exercise their full rights to contest
same under 24 V.S.A. § 4472 or otherwise.
44)

The plaintiffs seek compensatory damages against the City, including emotional

distress damages under 42 U.S.C. §1983.
45)

The plaintiffs alternatively seek nominal damages against the City under 42

U.S.C. § 1983.

8
Law Office of John L. Franco, Jr. 110 Main Street Burlington, Vermont 05401
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 Case 5:18-cv-00059-gwc Document 1 Filed 03/30/18 Page 9 of 9

46)

Plaintiffs also seek attorneys' fees and reasonable litigation expenses against the

City under 42 U.S.C. § 1988.
Dated at Burlington, Vermont this 30'h day of

M~J, 291-N

Jo '1,~ranco, Jr.
A omey for Plaintiffs

9
Law Office of John L. Franco, Jr. 110 Main Street Burlington, Vermont 05401
(802) 864-7207
johnfrancolaw@aol.com