Vermont Supreme Court allows Higher Ground relocation to proceed

Updated at 2:40 p.m.

The Vermont Supreme Court on Friday rejected an appeal from a group of neighbors challenging Higher Ground’s relocation, giving the concert and events company the go-ahead to build a new performing arts center on Burton’s Queen City Park campus.

The appellants, a group of 140 Burlington and South Burlington residents organized as Citizens for Responsible Zoning, had appealed an environmental court’s July 2023 decision confirming conditional use and Act 250 permits. The city of South Burlington, which borders the proposed site to the south, had appealed the decision as well, signing on as an interested party.

The resident group claimed the court had erred in allowing alcohol sale and consumption throughout the entire space, that the Burlington’s noise ordinance had not been applied correctly, and that increased traffic would have an adverse impact on the area.

But the Supreme Court rejected their arguments in a decision issued last week, finding there was not enough evidence showing a clear violation or an inconsistent application of local zoning law.

Chief Justice Paul Reiber, addressing appellants’ arguments over noise, wrote in the decision that evidence showed “sounds levels — from music alone and from the project as a whole” were projected to be lower than guidelines set by the World Health Organization and other groups.

“Given this evidence, we cannot conclude that the noise from musical instruments will unreasonably disturb the peace, quiet, or comfort of the public,” he wrote.

Alex Crothers, a co-owner of Higher Ground, did not immediately respond to a request for comment.

In a written statement Monday, Citizens for Responsible Zoning called the decision “disappointing.”

“We still have grave concerns about noise and traffic from a 1,500 seat venue serving alcohol whose patrons will pour out into our residential neighborhoods and get into their cars, trucks and motorcycles after midnight and sometimes after 2 a.m.,” said Doug Goodman, a South Burlington resident and spokesperson for the group. “We plan to address these issues when Higher Ground applies for its entertainment permit and liquor license.”

The performing arts center project, a collaboration between Higher Ground and Burton, has been in the works for years. Under the plan, Higher Ground would move from its current location on Williston Road into a new, 12,000-square-foot venue at Burton’s headquarters on Queen City Park Road.

The site would be transformed into an outdoor plaza, food court, indoor skate park and music facility, with a capacity of up to 1,500 people. The current venue space in South Burlington has a maximum capacity of 1,100 people.

The Burlington Development Review Board in 2015 amended its zoning to allow such projects with conditional use permits, and did so with ArtsRiot, the Pine Street food and events venue, in March 2016.

Burton was first approved for the permit in September 2020 and later received its Act 250 permit in March 2022. Both the DRB and Act 250 commission found that mitigation efforts and other permit conditions were sufficient to avoid any undue adverse effects on the neighborhood.

Neighbors disagreed and challenged the permit conditions in environmental court — and later in the state Supreme Court — arguing that Burton had not met permit compliance related to health impacts of nighttime noise, traffic safety and aesthetic impacts on nearby Red Rocks Park.

Sarah Star, an attorney for the neighbors group, said during a Supreme Court hearing in May that Burton “simply did not meet its burden to show that there will not be this adverse impact on the residential area.”

“This project would represent a sea change for this district, which is a quiet residential area,” she said. “It would go from a district with no bars to having probably one of the largest functional bars in the city, maybe in the state.”

The issue turned tense last year, when nearly two dozen residents affiliated with the litigation were issued no-trespass notices by Burton. The company at the time said it had reason to believe neighbors were coming onto the property to place signs and flyers on vehicles in the parking lot.

While the group was disappointed with the ruling, Goodman said it was thankful for the process and that stipulations tacked on during the environmental court process would ensure some level of protection for neighbors.

Those included ensuring that all ticketed events will end by midnight (with the exception of 12 events per year that must end by 2 a.m.), that Burton install a permanent noise monitoring station at its property line, and that Burlington and South Burlington police coordinate to ensure event parking was limited to the Burton campus and not to surrounding neighborhoods.

“We also are hoping that, Burton as a ‘Certified B Corporation,’ will ultimately be respectful of their neighbors’ right to peaceful enjoyment of their property and uninterrupted sleep,” Goodman said.

Correction: An earlier version of this story misspelled Sarah Star’s surname.

Read the story on VTDigger here: Vermont Supreme Court allows Higher Ground relocation to proceed .