This story by Habib Sabet was first published by the Other Paper on May 23.
A legal battle between developers and South Burlington over the city’s land use regulations could be decided by the U.S. Supreme Court.
The nation’s highest court is currently considering whether to take a case between the city and developers Jeff Nick and Jeff Davis, owners of a 113.8-acre property at 835 Hinesburg Road, who filed documents with the court in March appealing a decision made by two lower federal courts to dismiss their lawsuit against South Burlington and its city council.
The dispute stems from land use regulations passed by the city council in February 2022 that limits development in newly designated “habitat blocks,” or wildlife corridors.
In a lawsuit filed in the U.S. District Court of Vermont in early 2022, the developers alleged that the new regulations, which could prevent them from building on approximately a third of their Hinesburg Road property, amount to an unconstitutional seizure of their property rights.
Nick and Davis, who had bought the land over 20 years ago with the intention to develop it, sought monetary damages in addition to an injunction preventing the city from enforcing the law.
The lawsuit, however, was dismissed by the district court as “unripe,” a decision upheld in November 2023 by the U.S. Court of Appeals for the Second Circuit following an attempt by the developers to appeal the district court’s original ruling.
Put simply, the judges of both courts found that Nick and Davis jumped the gun by suing the city, since the developers had not actually applied to develop the land — and therefore had not been refused the right to do so — under the new regulations.
In his dismissal of the initial lawsuit, Judge Geoffrey Crawford of the U.S. District Court of Vermont wrote that, “in absence of a concrete plan, submitted to the (Development Review Board) and a final decision from the DRB, it is not possible to tell how far the regulations encroach on the Plaintiff’s right to develop it’s property.”
In their appeal to the U.S. Supreme Court, however, Nick and Davis contend that the rejection of a preliminary “sketch plan” they submitted for the project, which the city council voted against under interim regulations in anticipation of the 2022 law, already demonstrates the consequences of the regulations.
“We think nothing is more final than an actual city council vote in which they indicated they would not permit the application to move forward,” said Kathryn Valois, an attorney with the Pacific Legal Foundation, who is representing the developers.
After receiving the developers’ complaint, the court requested a response from South Burlington by mid-June, which Valois said was “always a good sign.”
“It means that someone at the court is interested enough to want to hear from the other side,” Valois said. “But you can never really read the tea leaves.”
Even if the Supreme Court decides to take the case, that does not mean the judges will side with Nick and Davis.
“We’re hopeful that the U.S. Supreme court would uphold the decision of the Second Circuit and the District court,” Colin McNeil, the city attorney for South Burlington, said in an interview. “We agree with those decisions.”
Moreover, a decision in the developers’ favor would just mean more litigation. Since their original case was thrown out on the grounds of ripeness, the merits of their arguments were never fully determined. According to Valois, a positive Supreme Court decision would likely result in the case returning to a lower court for reconsideration of the details, which could mean years of litigation.
“You have to think of ripeness as getting past the starting line. You have to get to the starting line to be able to actually argue your case,” Valois said. “They would be able to then move forward with the actual merits of the property case.”
Read the story on VTDigger here: US Supreme Court to consider South Burlington land use case.