Homeowners opposed to a decades-in-the-making housing development in the Wheeler Nature Park were given a glimmer of hope last week after the court rejected the developer’s motion to dismiss their appeal of the project.

The regional environmental commission in July approved the project, giving the developer, BlackRock Construction, an Act 250 permit.

Several homeowners’ associations filed a motion to alter that approval, which was denied by the Act 250 board. They then appealed that ruling, 28 days after the court’s decision.

At question was whether the plaintiffs filed their appeal in a timely manner. BlackRock filed a motion to dismiss the appeal as untimely, arguing they had missed the filing deadline.

Challenging BlackRock in court are three homeowners’ associations, including the Inverness Homeowners’ Association, the Glen Eagles Homeowners’ Association and the Villas at Water Tower Hill Homeowners’ Association, as well as the Neighbor’s Committee to Stop Neighborhood Blasting, a coalition of residents against blasting.

But Superior Court Judge Thomas G. Walsh on Nov. 9 tossed that appeal, halting the project for now and giving the plaintiffs another chance to argue why the project should never have received Act 250 approval in the first place.

“This is such an extreme case where the developer is seeking to put housing in land that was preserved by a city as a nature park ... the largest natural area in the city, or one of the largest natural areas in the city,” said James Marc Leas, a resident and plaintiff in the suit.

Ben Avery, the vice president of development for BlackRock Construction, told The Other Paper that the company will “move forward accordingly and address the issues before the environmental court.”

“I am not concerned about this project moving forward,” he said. “We have unanimous decisions with the city and at the Act 250 level.”

The 7-acre parcel of land on the corner of Dorset Street and Park Road has long been a center of contention.

The 110-acre Wheeler Nature Park was first acquired by the city in 1993 and has a decades-long history of legal battles. The parcel in question was first created in 2017, the result of a settlement agreement that included the swapping of the 7 acres for 22 that have been conserved into perpetuity with Wheeler Nature Park.

The land swap was eventually approved by a Town Meeting Day vote in 2011, although the vote was not legally binding and only considered a “good faith” gesture on the part of the city, former city attorney Jim Barlow said at a council meeting in 2015, according to previous reporting.

That settlement agreement created specific zoning for the parcel, laying out specific development guidelines.

“It’s not like this was some sort of backroom deal,” Avery said. “This had an incredible amount of transparency.”

The construction company in September 2021 applied for Act 250 permitting to build 32 units of residential housing on the parcel, about five-units per acre.

Opponents say the project would involve blasting rock ledges — a disruption to residents’ quality of life — and would severely disrupt protected natural wildlife. The plaintiffs have argued that building residential housing on this parcel would be a distortion of Act 250 regulations with local and regional plans.

The Act 250 application miscategorized the parcel as suburban when it should be labeled rural, per the regional plan for future land use, and as “residential, moderate density” when it should be labeled “very low intensity, principally open land,” per South Burlington’s 2016 comprehensive plan, Leas has argued in court records.

“Act 250 was established ... because towns were making deals with developers that was turning the state into — this is a ridiculous way to put it, and it’s disparaging for New Jersey to say this — but basically it was turning Vermont into a highly developed state like New Jersey,” Leas said. Act 250, he added, is “a citizen-friendly process that has been a check on unchecked development ... but in this case, I don’t understand how the commission allowed this to go through.”

Questions over blasting noise and frequency, meanwhile, were settled to the city’s development review board’s satisfaction following a technical review of the blasting plan conducted last year, according to previous reporting, and questions over traffic and the safety of building a road expelling traffic onto Park Road were resolved in a traffic study last year.

The Act 250 permit appeal hearing is scheduled for Monday, Dec. 12. If they lose again, Leas said an appeal to the Vermont Supreme Court would be on the table.

“We expect to win at this level,” he said.

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