The U.S. Supreme Court could take up a South Burlington land use case

This story by Habib Sabet was the first published by Other Paper on May 23.

A legal dispute 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 a case between the city and developers Jeff Nick and Jeff Davis, owners of the 113.8-acre property at 835 Hinesburg Road, who filed court papers in March appealing two lower federal courts’ decisions to dismiss lawsuit against South Burlington and its city council.

The dispute stems from land use regulations adopted by the city council in February 2022, which restrict the development of newly designated “habitat blocks,” or wildlife corridors.

In a lawsuit filed in early 2022 in U.S. District Court in Vermont, developers alleged that the new regulations, which could prevent them from building on about one-third of their property on Hinesburg Road, amounted to an unconstitutional taking of their property rights.

Nick and Davis, who bought the land more than 20 years ago with the intention of developing it, were seeking monetary damages and an injunction preventing the city from enforcing the law.

However, the lawsuit was dismissed by the district court as “immature”, which was upheld in November 2023 by the U.S. Court of Appeals for the Second Circuit after the developers attempted to appeal the district court’s original ruling.

Put simply, the judges in both courts found that Nick and Davis had no hesitation in suing the city because the developers had not actually filed — and therefore were not denied the right to — develop the land under the new regulations.

In dismissing the original lawsuit, Judge Geoffrey Crawford of the U.S. District Court in Vermont wrote that “in the absence of a specific plan submitted to the (Development Review Board) and a final decision by the DRB, it is impossible to indicate the extent to which the regulations violate Plaintiff’s right to develop his real estate.”

However, in their appeal to the U.S. Supreme Court, Nick and Davis argue that the rejection of their submitted initial “draft plan,” which the city council voted for under interim provisions pending the 2022 law, already demonstrates the consequences of the regulations.

“We believe there is nothing more final than an actual city council vote indicating that they will not allow the application to proceed,” said Kathryn Valois, an attorney at the Pacific Legal Foundation, which represents the developers.

After receiving the developers’ complaint, the court required South Burlington to respond by mid-June, which Valois said “is always a good sign.”

“It means that someone on the court is interested enough to want to hear the other side’s opinion,” Valois said. “But you can never really read the tea leaves.”

Even if the Supreme Court decides to take up the case, that doesn’t mean the justices will side with Nick and Davis.

“We hope that the U.S. Supreme Court will uphold the U.S. District and District Court’s decision,” Colin McNeil, South Burlington city attorney, said in an interview. “We agree with these decisions.”

Moreover, a decision in favor of developers would only mean more legal proceedings. Because their original case was dismissed on maturity grounds, the validity of their arguments has never been fully established. According to Valois, a favorable Supreme Court decision would likely result in the case returning to a lower court to reconsider the details, which could mean years of litigation.

“You have to think of maturity as crossing the starting line. You have to be at the starting line to argue your case,” Valois said. “They would then be able to address the actual substantive issues in the property case.”

Clarification: The headline of this article has been changed to clarify that the U.S. Supreme Court has not yet decided whether it will hear the case.

Related