Michael Long, Lynn Martin, Steven Goodkind and the Coalition for a Livable City
City of Burlington and BTC Mall Associates, LLC.
Supreme Court On Appeal from Superior Court, Chittenden Unit,
Civil Division Robert A. Mello, J.
L. Franco, Jr., Burlington, for Plaintiff-Appellant Coalition
for a Livable City.
Richard W. Haesler, Jr. and Justin St. James, Burlington, for
Defendant-Appellee City of Burlington.
Jonathan T. Rose and Brian S. Dunkiel of Dunkiel Saunders
Elliott Raubvogel & Hand, PLLC, Burlington, for
Defendant-Appellee BTC Mall Associates, LLC.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. Plaintiff Coalition for a Livable City (CLC) appeals the
trial court's summary judgment denying its Public Records
Act (PRA) request to the City of Burlington for an unredacted
financial feasibility study provided by a private developer
to a contractor hired by the City of Burlington to help the
City assess the viability of the developer's plans. The
development plans included some public improvements to be
financed with tax dollars. We do not decide whether the
documents qualify as public records under the PRA because we
conclude that, assuming without deciding that they do, the
redacted information falls under the PRA trade-secrets
exemption. Accordingly, we affirm.
2. The undisputed facts are as follows. In December 2014, the
Burlington City Council took its first steps toward
redevelopment of several downtown city blocks then home to
the Burlington Town Center Mall (Project) by approving a
process to create a public-private partnership with the
property's owners, Devonwood Investors, LLC and BTC Mall
Associates, LLC (collectively BTC). The City contracted with
an economic consulting firm called ECONorthwest to help the
City analyze the Project and structure a public-private
partnership. ECONorthwest is an independent Seattle-based
consulting firm that has experience providing economic and
technical expertise to state and local governments on
economic redevelopment projects.
3. Over the next seventeen months, the City, with technical
assistance from ECONorthwest, worked with BTC to
conceptualize and refine the Project. This effort led to a
Predevelopment Agreement (PDA) to memorialize the basic
Project concept and identify the next steps in bringing it to
fruition. BTC's proposed redevelopment included, among
other things, residential, retail, and commercial office
components, as well as parking. The PDA contemplated up to
$222 million in public improvements and acquisitions financed
by tax increment financing. The City Council approved this
PDA in May 2016.
4. The PDA included a provision requiring BTC to provide the
City with copies of any market studies and feasibility
analysis prepared for the benefit of BTC's lenders or
investors and available to BTC. The PDA recited:
The Parties agree that such reports customarily include data
that analyze whether a market exists for the retail,
commercial and residential components of a project, and
whether the anticipated market demand for the retail,
commercial and residential components of a project is
sufficient to support the anticipated costs of developing,
constructing and operating it.
provision involved disclosures of information "that if
disclosed to BTC's competitors, could harm BTC
commercially." The City sought this information to test
the assumptions in BTC's financial projections. The
agreement further provided that BTC would work cooperatively
with ECONorthwest to provide a range of customary financial
underwriting information, and stated, "The parties agree
to cooperate as needed to facilitate the completion of these
disclosures and assessments, including appropriate treatment
of proprietary or confidential information."
5. In August 2016, BTC and ECONorthwest purported to enter
into a nondisclosure agreement (NDA) pursuant to which BTC
agreed to provide confidential business information to
ECONorthwest so it could do its own assessment of the
project, and ECONorthwest agreed that it would not disclose
that confidential business information to anyone, including
the City. Whether this agreement created any enforceable
rights or obligations is disputed.
6. Soon thereafter, BTC provided ECONorthwest with a copy of
a Market Feasibility Assessment (Study) prepared by its own
consultants. The Study concluded that the Project was
economically feasible and represented a viable investment for
the developer. In September 2016, ECONorthwest issued its own
analysis of the Study, concluding that the Study was
generally well conceived and agreeing with its findings.
7. BTC provided a redacted copy of the Study to the City and
the public. BTC asserts that the redactions include figures
showing estimated rents, revenues, costs, and other
proprietary financial information associated with the
Project. CLC contends that since the unredacted document has
not been made available, it has no basis to admit or deny
BTC's assertion as to the nature of the redactions. The
document itself undisputedly includes the following
redactions made by BTC:
[T]he analysis indicates that the project achieves a Net
Operating Income of $[REDACTED] million in year 2020,
resulting in a Yield on Cost of [REDACTED] percent.
As of the time of this writing, monthly rental rates [in the
139 market rate rental units] were projected as following:
Efficiencies -$[REDACTED] per month; One Bedroom -
$[REDACTED] per month, Two Bedroom - $[REDACTED] per month.
. . . Triple Net [retail] leases under negotiation range from
$[REDACTED] to $[REDACTED] per square foot.
Based on current retail rents in the Church Street
Marketplace and the developer's ongoing negotiations with
potential commercial tenants in pre-lease negotiations,
significant retailers and service providers are expected to
lease in the $[REDACTED] -$[REDACTED] PSF NNN range,
the project overall is expected to achieve toward the high
end of downtown core retail rates.
. . . For pro forma purposes . . . a blended retail lease
rate of $[REDACTED] PSF NNN has been assumed.
An executed Letter of Intent between the University of
Vermont Medical Center and Devonwood Investors LLC commits
the Medical Center to lease 110, 000 square feet of office
space at a triple net rate of $[REDACTED] per square foot.
The lease has a [REDACTED]-year term, with two [REDACTED]
year options to extend.
Negotiations are underway for an additional 105, 000 square
feet of office space, at rents of ...