August 2, 2014

Town settles suit over housing project

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110-unit proposal near Taft Corners can move forward

By Tom Gresham
Observer staff

The town recently settled a lawsuit filed by a developer over a housing project near Taft Corners. However, it appears the developer gained little from the two-year legal battle.

Burlington-based Village Associates filed the suit after the town refused to allocate sewer for the project. The recent settlement does not give the developer anything it would not have received from the town otherwise, according to Williston’s town planner. But a Village Associates representative maintains the suit still served a purpose.

The settlement, which has not been lodged into court record yet, gives Village Associates the sewer capacity to construct the 110 residential units it originally planned in the Taft Corners area over the next six years.

The sewer will be allocated starting in the current 2005-06 fiscal year, during which Village Associates will be allowed to construct 21 units. The remaining sewer allocations will be meted out on an annual basis until 2010-11.

Town Planner Lee Nellis said Village Associates likely would have received a similar allocation without the lawsuit. Village Associates had re-entered the development review process while the lawsuit was still pending, and the development would have been considered for phasing, which determines how fast construction can occur, along with other proposed projects discussed by the Development Review Board last month.

Every project that applied for a sewer allocation received it under new growth management rules recently approved by the Selectboard.

“It’s probably no different from what would have happened without the lawsuit,” Nellis said. “It’s conceivable it might have varied by a couple units from year to year, but that’s what would have happened more or less.”

Brett Grabowski of Village Associates agreed with Nellis’ assessment, but noted the lawsuit was filed under the former regulations in order “to gain some assurances that we weren’t going to be locked out at the end.”

Grabowski said the Selectboard’s move to adopt new growth management regulations — an action he credits in large part to Nellis –— gave credence to Village Associates’ suit.

“The fact that they changed their regulations validated our lawsuit,” Grabowski said. “It basically showed us that the town agreed with our case that their regulations were faulty and that not all projects were viewed as equals.”

Village Associates filed the suit in March 2003 after the town denied sewer capacity for the project, a residential and commercial development named “The Hamlet.” The town claimed it did not have the sewer capacity available to support the project, nor did it want to grant capacity before it was available or hand out a partial sewer allocation.

Village Associates had already received concept plan approval and phasing allocation from the Williston Development Review Board, but under the previous town rules it had to return to the beginning of the review process when it could not secure the sewer capacity needed for the project.

Williston has since added 200,000 gallons of sewer capacity through the expansion of the Essex Junction wastewater facility.

The settlement includes the requested sewer allocation for Village Associates with a stipulation that at least 30 percent of the residential units remain perpetually affordable housing.

Village Associates had sought unspecified punitive and compensatory damages, but the settlement provided no financial compensation for the developer. The Hamlet still must receive a final plat permit from the Development Review Board and an Act 250 permit from the state.

Nellis insisted the recent changes in the town’s growth management rules, which were beneficial for large projects like the Hamlet, were not driven by the Village Associates’ lawsuit. Grabowski agreed.

Instead, Nellis and Grabowski said, the concurrent applications from Village Associates and an even larger mixed-use development at the former the Pecor horse farm on U.S. Route 2 just east of Taft Corners highlighted problems in the previous growth management process that spurred the changes.

“We didn’t forget about the lawsuit — that’s impossible to do, really — but it didn’t drive the way (the growth management changes were) written,” Nellis said. “The reality of the big projects was really behind it. It is the 110 units next to the 356 units that really motivates here.”

Nellis said the Hamlet will be reviewed in the next few weeks by the Design Advisory Committee, which advises the Development Review Board on projects in the Taft Corners area. Grabowski said Village Associates hopes to begin construction next summer.

Grabowski said the lawsuit and the wait for sewer capacity cost Village Associates money, particularly considering the company hoped to start construction three years ago. He said one result was that the units built next summer that are not among those tagged as perpetually affordable will be pricier than they would have been.

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