Burlington is currently debating a proposal by a New York City development corporation to build a fourteen story tower above Burlington’s historic Church Street Marketplace. And while fourteen stories may not sound like a lot in New York City, here in Vermont, the legal and policy implications of this proposed project are broad and far reaching.
At stake is Burlington’s community scale skyline - arguably a public asset that should be legally protected within the public trust in the same manner that the Vermont Supreme Court protected Burlington’s public waterfront in the historic 1989 case Burlington v. Central Vermont Railroad. While few courts have directly considered public trust in this context, the doctrine generally protects resources in perpetuity so that government may not convey those public resources to private entities for their potential destruction. Typically, the public trust doctrine protects waterways because of their importance to commerce. However, the Vermont Supreme Court has long held that the doctrine is not “fixed or static,’ but may ‘be molded and extended to meet changing conditions.”
Today, Burlington’s commerce is driven largely by tourists who come to our exceptional community because it isn’t filled with skyscrapers. They come to Historic Church Street because of the community feel that Burlington still offers. If tourists want skycrapers they go to Montreal, if they want a vibrant art, food and cultural scene with a community feel, they come to Burlington. This is the commerce of today, and it’s analogous to the importance public waterways played in the early days of the public trust doctrine. The question is whether the city should give away a vital public asset - since the community scale skyline is no less vital than Burlington’s public waterfront was in 1989.
In light of the recent scandal involving out-of-state developers in the North East Kingdom, Burlington should review the developer’s economic projections for the Church Street tower with a critical and perhaps even skeptical eye. Burlington must consider the economic impacts of giving away this principle public asset – a skyline that resembles a vibrant town and community rather than a major city. It must consider this alongside any projected – dare I say optimistic - job or housing numbers that the developer promotes.
Public trust doctrine aside, the best approach, consistent with the vibrant democracy that is a hallmark of Burlington, is to allow a public referendum on any changes so that community members can decide for themselves whether such a project is consistent with the public interest.
