Petition for Writ of Certiorari — 835 Hinesburg Road, LLC, Petitioner v. City of South Burlington, Vermont, et al.

i

Appendix

Page

U.S. Court of Appeals for the Second Circuit

No. 23-218, Summary Order,

filed November 8, 2023 .......................................1a

U.S. District Court, District of Vermont,

No. 5:22-cv-58, Order on Motion to Dismiss,

filed January 27, 2023 ......................................13a

U.S. District Court, District of Vermont,

No. 5:22-cv-58, Judgment,

filed January 27, 2023 ......................................44a

Excerpts of City of South Burlington

Interim Bylaws,

Adopted November 13, 2018 .............................45a

Excerpts of City of South Burlington

Land Development Regulations,

Adopted May 12, 2003;

Amendments Adopted Nov. 20, 2023 ...............50a

U.S. District Court, District of Vermont,

No. 5:22-cv-58, Complaint,

filed February 24, 2022 (relevant excerpts) .....64a

Appendix 1a

23-218

(Filed November 8, 2023)

835 Hinesburg Rd., LLC v. City of S. Burlington

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT

HAVE PRECEDENTIAL EFFECT. CITATION

TO A SUMMARY ORDER FILED ON OR AFTER

JANUARY 1, 2007, IS PERMITTED AND IS

GOVERNED

BY

FEDERAL

RULE

OF

APPELLATE PROCEDURE 32.1 AND THIS

COURT’S LOCAL RULE 32.1.1. WHEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED

WITH THIS COURT, A PARTY MUST CITE

EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC

DATABASE

(WITH

THE

NOTATION “SUMMARY ORDER”). A PARTY

CITING TO A SUMMARY ORDER MUST SERVE

A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 8th day of November,

two thousand twenty-three.

Appendix 2a

PRESENT:

AMALYA L. KEARSE,

SUSAN L. CARNEY,

MYRNA PÉREZ,

Circuit Judges.

______________________________________________

835 HINESBURG ROAD, LLC,

Plaintiff-Appellant,

v.

No. 23-218

CITY OF SOUTH BURLINGTON, SOUTH BURLINGTON

CITY COUNCIL, MEAGHAN EMERY, TIMOTHY BARRITT,

HELEN RIEHLE,

Defendants-Appellees.

______________________________________________

FOR APPELLANT:

KATHRYN D. VALOIS,

Pacific Legal Foundation,

Palm Beach Gardens, FL

(Christopher M. Kieser,

Pacific Legal Foundation,

Sacramento, CA; Matthew

B. Byrne, Gravel & Shea

PC, Burlington, VT, on the

brief).

FOR APPELLEES:

PIETRO J. LYNN,

Lynn, Lynn, Blackman &

Manitsky, P.C., Burlington,

VT.

Appendix 3a

Appeal from a judgment of the United States

District Court for the District of Vermont (Crawford,

Chief Judge).

UPON DUE CONSIDERATION WHEREOF,

IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on January

27, 2023, is AFFIRMED.

Plaintiff-Appellant 835 Hinesburg Road, LLC

(“835 Hinesburg”) appeals from a judgment of the

United States District Court for the District of

Vermont (Crawford, Chief Judge) dismissing as

unripe its regulatory takings and due process claims

against the City of South Burlington (the “City”),

South Burlington City Council (the “City Council”),

and City Councilors Meaghan Emery, Timothy

Barritt, and Helen Riehle. Its claims arise from zoning

changes covering its 113.8-acre parcel of undeveloped

land within City limits (the “Property”). We assume

the parties’ familiarity with the underlying facts,

procedural history, and arguments on appeal, to

which we refer only as necessary to explain our

decision to affirm.

In November 2018, the City Council adopted

Interim Bylaws that required it to prioritize

undeveloped open spaces for conservation and to

assess whether and how to amend the existing Land

Development Regulations (the “LDRs”). The Interim

Bylaws facially prohibited new planned unit

developments, but also empowered the City Council in

its discretion to “authorize the issuance of permits” for

development. App’x at 51–52. In March 2020, a City

Council committee identified twenty-five “highest

priority parcels for conservation,” id. at 97, to be

designated as “Habitat Blocks.” These parcels include

Appendix 4a

a portion—around 38%—of the Property. Meanwhile,

the City Council continued its efforts to draft

amendments to the LDRs.

In August 2021, while the Interim Bylaws were

still in effect and before the City Council finalized any

proposed amendments to the LDRs, 835 Hinesburg

submitted a “sketch plan” application (the “sketch

plan” or “sketch plan application”) to the City Council,

requesting a permit for commercial development of

the Property under the Interim Bylaws. In November

2021, the City Council met regarding the proposed

amendments to the LDRs and voted to authorize

hearings on those changes. At the same meeting, the

City Council denied 835 Hinesburg’s sketch plan

application. In its written decision, the City Council

noted that the City had identified a portion of the

Property as a “Habitat Block,” which—if the City

Council were to adopt the proposed amendments to

the LDRs—could be subject to a ban on development.

The City Council explained that, because it “ha[d] not

completed the preparation of these amendments, the

City Council d[id] not yet know for certain the

standards that will apply to development of the

subject [P]roperty[.]” Id. at 34. It further advised that,

although its review reflected “a minimal assessment

of the proposed development under the draft LDR

amendments, . . . it is very likely that” the proposed

development “would not comply with the [draft] LDR

amendments.” Id. The City Council also pointed out

that the sketch plan was missing important

information relevant to an eventual decision. The

sketch plan failed to note the precise location of the

Habitat Block on the Property, the presence or

absence of any Class III wetlands on the Property, and

the impact of the proposed development on any 500-

Appendix 5a

year floodplain areas on the Property. “Based on these

unknowns and an initial review of the application of

the draft amendments [to the LDRs],” the City

Council concluded, “the proposed development will or

could be contrary to the amendments to the [LDRs]

that the City adopts.” Id. at 35.

In December 2021, the South Burlington

Development Review Board (the “DRB”) also reviewed

835 Hinesburg’s sketch plan. Without rendering a

decision on the sketch plan, the DRB elected to

“conclude the Sketch Plan meeting.” Id. at 42. It

explained that “significant modifications to the

[sketch] plan are necessary in order to meet the draft

regulations, which would require re-warning.” 1 Id.

The DRB invited 835 Hinesburg to “return with a

revised sketch under the Draft LDR[s],” id., but 835

Hinesburg never did so.

On February 7, 2022, by a three-to-two vote, the

City Council adopted amendments to the LDRs (the

“Amended LDRs”). The Amended LDRs included,

among other things, a requirement that “all lands

within a Habitat Block” be “left in an undisturbed,

naturally vegetated condition,” subject to certain

exemptions and potential modifications. Amended

LDRs § 12.04(F)(1). 835 Hinesburg did not submit an

application for development of the Property under the

Amended LDRs. Instead, on February 24, 2022, it

filed this suit.

Vermont law mandates “a warned public hearing” for all

development review applications submitted to the appropriate

municipal entity, subject to specific notice requirements.

24 V.S.A. § 4464.

1

Appendix 6a

I.

835 Hinesburg first challenges the District

Court’s determination that its Fifth Amendment

regulatory takings claim is unripe and therefore fails

to satisfy Article III’s “case or controversy”

requirement, Murphy v. New Milford Zoning Comm’n,

402 F.3d 342, 347 (2d Cir. 2005). The District Court

concluded that 835 Hinesburg was “jumping the gun,”

reasoning that neither the City Council nor the DRB

has “ruled in any comprehensive way on [835

Hinesburg]’s proposal under the LDRs now in effect.”

835 Hinesburg Rd., LLC v. City of S. Burlington, No.

22-cv-58, 2023 WL 2169306, at *9 (D. Vt. Jan. 27,

2023). The District Court also observed that the

Amended LDRs “indicate that the DRB may exercise

discretionary authority in locating and enforcing the

‘Habitat Blocks’ on undeveloped parcels.” Id. Upon

due consideration, we agree with the District Court

that 835 Hinesburg’s claim is unripe.

The Supreme Court has instructed that a

regulatory takings claim “is not ripe until the

government entity charged with implementing the

regulations has reached a final decision regarding the

application of the regulations to the property at issue.”

Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton

Bank of Johnson City, 473 U.S. 172, 186 (1985),

overruled in part on other grounds by Knick v. Twp. of

Scott, 139 S. Ct. 2162 (2019). To meet the finaldecision requirement, a plaintiff must show that “the

government is committed to a position.” Pakdel v. City

& Cnty. of San Francisco, 141 S. Ct. 2226, 2230 (2021).

In the land use context, we have emphasized that the

need for finality is “especially pronounced,” in order to

avoid courts’ premature involvement in essentially

Appendix 7a

local disputes. Vill. Green at Sayville, LLC v. Town of

Islip, 43 F.4th 287, 293 (2d Cir. 2022). Indeed, the

final-decision requirement “evinces the judiciary’s

appreciation that land use disputes are uniquely

matters of local concern more aptly suited for local

resolution.” Murphy, 402 F.3d at 348 (citations

omitted).

At the same time, the final-decision requirement

is “relatively modest,” and “nothing more than de facto

finality is necessary” to satisfy Article III. Pakdel, 141

S. Ct. at 2230. And the requirement “is not

mechanically applied.” Murphy, 402 F.3d at 349.

Property owners may be excused from pursuing

applications for a variance, for example, “when a

zoning agency lacks discretion to grant variances or

has dug in its heels and made clear that all such

applications will be denied,” i.e., when making such

applications would be futile. Id. (citations omitted).

Here, the City Council has not reached a final

decision on any specific proposed development of the

Property by 835 Hinesburg. To begin, 835 Hinesburg

concedes that it has not submitted an application

under the Amended LDRs; the City has thus not

rendered a final decision on any submission made by

835 Hinesburg under the applicable regulatory

regime. And the application that 835 Hinesburg did

file—the sketch plan—was both preliminary and

incomplete. Because the Amended LDRs were still in

draft form, and the City Council did “not yet know for

certain” how the proposed Amended LDRs would

apply to the Property, the City Council could conduct

only a “minimal” assessment of 835 Hinesburg’s

sketch plan, it explained. App’x at 34. Moreover, the

sketch plan lacked information that the City Council

Appendix 8a

advised that it needed to conduct a meaningful

evaluation of 835 Hinesburg’s preliminary proposal,

such as information about wetland buffers,

floodplains, and the precise location of the Habitat

Block relative to the proposed development. In sum,

the City Council’s November 2021 decision was not a

“final decision regarding the application of the

regulations to the property at issue.” Williamson

Cnty., 473 U.S. at 186. 2

835 Hinesburg attempts to sidestep the finaldecision requirement, contending that to submit an

application under the Amended LDRs would have

been “futile.” Appellant’s Br. at 22. It accuses the

District Court of “speculat[ing]” that “835 Hinesburg

may get what it wants through a land exchange or

boundary adjustment reached through agreement

with the zoning authority” and asserts that the

Amended LDRs “leave no room for the City to

consider, or issue, a development permit.” Id. at 13–

14 (citation omitted). But these assertions are merely

835 Hinesburg’s predictions regarding the City’s final

position on the application of the Amended LDRs to

the Property. As the District Court commented, the

Habitat Block located within the Property may

preclude any commercially viable development, “[b]ut

that is just it—the court does not yet know.” 2023 WL

2169306, at *9.

Contrary to 835 Hinesburg’s assertions, the

Amended LDRs offer the City several options to shape

how it applies the regulations to a given parcel,

Consistent with our understanding that the City Council’s

November 2021 decision was not final, the DRB subsequently

invited 835 Hinesburg to “return with a revised sketch under the

Draft LDR[s].” App’x at 42.

2

Appendix 9a

whether under the provisions governing Habitat

Blocks, Amended LDRs § 12.04(D)(1)–(3); wetlands,

id. § 12.06(D)(1), (F); or planned unit developments,

id. §§ 15.C.04(C)(3), 15.C.06(G)(2). For example, on

certain conditions, 835 Hinesburg may apply to

exchange a portion of a Habitat Block on the Property

for an equal amount of contiguous land. Id.

§ 12.04(D)(3). Because 835 Hinesburg has not yet

submitted a complete application under the Amended

LDRs—let alone a request for a modification—the

City has not been in a position to render “a final and

authoritative determination of the type and intensity

of development legally permitted on the subject

property.” MacDonald, Sommer & Frates v. Yolo

Cnty., 477 U.S. 340, 348 (1986).

For all these reasons, at this point, we simply do

not “know[] how far the regulation goes.” Id.

Accordingly, the District Court properly dismissed

835 Hinesburg’s regulatory takings claim as unripe.

II.

835 Hinesburg also argues that the District Court

erred by dismissing its substantive due process claim.

It asserts that City Councilor Emery’s allegedly

conflicted vote to adopt the Amended LDRs violated

its due process right to an unbiased determination on

the general zoning regime by a neutral municipal

decisionmaker. Relying primarily on Southview

Associates, Ltd. v. Bongartz, 980 F.2d 84 (2d Cir.

1992), the District Court rejected this claim and

applied the Williamson County final-decision

requirement to bar 835 Hinesburg’s due process claim

in addition to its takings claim.

Appendix 10a

In the past, we have applied the final-decision

requirement “to land use disputes implicating more

than just Fifth Amendment takings claims,” Murphy,

402 F.3d at 349–50, including to substantive due

process claims stemming from a zoning decision. In

Southview Associates, we held that the plaintiff’s

“substantive due process claim premised on arbitrary

and capricious government conduct” in denying a

permit for development was subject to the Williamson

County final-decision requirement. 980 F.2d at 96–99.

More recently, in Kurtz v. Verizon New York, Inc., we

explained that applying the Williamson County test to

due process claims “arising from the same nucleus of

facts as a takings claim” serves to “prevent[] evasion

of the ripeness test by artful pleading of a takings

claim as a due process claim.” 758 F.3d 506, 515–16

(2d Cir. 2014).

835 Hinesburg attempts to distinguish its due

process claim from that asserted in Southview

Associates by contending that its own challenge is to

the very enactment of the Amended LDRs, not to the

application of the Amended LDRs to the Property. It

argues that its due process claim ripened when

Emery—who 835 Hinesburg alleges is biased simply

due to her employment as a professor at the

University of Vermont, a large landowner in the

City—voted on and the City Council enacted the

Amended LDRs. In support of its argument that

Emery’s alleged bias supports a constitutionally

cognizable claim, 835 Hinesburg relies primarily on

Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).

We are not persuaded. Even accepting arguendo

835 Hinesburg’s characterization of its claim, the

claim fails because 835 Hinesburg does not plausibly

Appendix 11a

allege that “the probability of actual bias” on Emery’s

part was “too high to be constitutionally tolerable.”

Caperton, 556 U.S. at 872 (citation omitted). 3

Caperton involved matters of judicial disqualification

and an individual’s right to a fair trial: There, the

Supreme Court found a due process violation when a

justice of West Virginia’s highest court denied a

recusal motion, on the basis that he had received “an

extraordinary amount” in campaign contributions

from the principal officer of one of the parties in the

case—“an extraordinary situation where the

Constitution requires recusal.” Id. at 872–73, 887. We

have nothing like that situation here. 835 Hinesburg’s

sole allegations regarding Emery’s alleged bias are

that she “struggled under heavy conflicts of interest

that violated the City of South Burlington’s ‘Conflict

of Interest and Ethics Policy,’” and that her “employer,

the University of Vermont, had a direct financial

interest in the outcome of the consideration of the

[LDRs].” Compl. ¶¶ 2, 25. These conclusory

assertions, without more, do not plausibly suggest

that Emery’s risk of actual bias was “sufficiently

substantial” that her involvement “must be forbidden

if the guarantee of due process is to be adequately

implemented.” Caperton, 556 U.S. at 885 (citation

omitted); cf. id. at 884 (“Not every campaign

contribution by a litigant or attorney creates a

probability of bias that requires a judge’s recusal, but

this is an exceptional case.” (citations omitted)).

“We may affirm on any ground with support in the record, . . .

including grounds upon which the district court did not rely.”

Jusino v. Fed’n of Catholic Teachers, Inc., 54 F.4th 95, 100 (2d

Cir. 2022) (citations omitted).

3

Appendix 12a

Because 835 Hinesburg’s perfunctory allegations fail

to render plausible its assertion that Emery’s risk of

bias in casting her vote as a member of the City

Council worked a constitutional harm, we identify no

error in the District Court’s dismissal of this

substantive due process claim.

***

We have considered 835 Hinesburg’s remaining

arguments and conclude that they are without merit.

Accordingly, the District Court’s judgment is

AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe,

Clerk of Court

s/Catherine O’Hagan Wolfe

SEAL:

United States Second Circuit

Court of Appeals

Appendix 13a

U.S. DISTRICT COURT

DISTRICT OF VERMONT

FILED

2023 JAN 27 AM 9:34

CLERK

By s/

DEPUTY CLERK

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF VERMONT

835 HINESBURG ROAD, LLC,

)

)

Plaintiff,

)

)

v.

)

CITY OF SOUTH BURLINGTON, )

SOUTH BURLINGTON CITY

)

COUNCIL, MEAGHAN EMERY, )

TIMOTHY BARRITT, and

)

HELEN RIEHLE,

)

)

Defendants.

Case No.

5:22-cv-58

ORDER ON MOTION TO DISMISS

(Doc. 4)

This case concerns federal constitutional and

state law challenges to land use regulations recently

adopted by the City Council of South Burlington,

Vermont. The regulations designate portions of

certain parcels of land in South Burlington as

“Habitat Blocks,” and limit development thereon to

preserve open space for a variety of reasons. Plaintiff

owns a 113.8-acre parcel of undeveloped property in

Appendix 14a

South Burlington, portions of which are designated as

Habitat Blocks. Plaintiff objects to having certain

portions designated as “Habitat Blocks” and alleges

that the designation prevents it from using the

property as it wishes or developing it in the future.

Plaintiff’s primary claim is an inverse

condemnation claim—that in enacting its land use

regulations, South Burlington has taken property

rights without compensation in violation of the Fifth

Amendment to the United States Constitution (Count

One). Plaintiff also asserts federal constitutional

claims under the Due Process Clause and Equal

Protection Clause (Counts Two & Four). In addition,

Plaintiff makes similar claims under the Vermont

Constitution, including under the Takings, Due

Process, and Common Benefits clauses of the Vermont

Constitution (Counts One–Three). Separate from the

constitutional claims, Plaintiff asserts a declaratory

ruling under state law that South Burlington “lacked

legal authority to designate Plaintiffs land as a

‘Habitat Block’ under ‘the state statute creating forest

blocks’’ (Count Five). (Doc. 1 ¶ 155.) Plaintiff also

makes a claim under municipal law that one of the

city councilors who voted to adopt the regulations

should have disqualified herself because she was

employed by the University of Vermont which

received favorable treatment under these provisions

(Count Six). Lastly, Plaintiff claims that South

Burlington “discriminated against 835 Hinesburg in

creating the new zoning district, especially when

combined with the Habitat Block zoning changes”

(Count Seven). (Doc. 1 ¶ 164.) The complaint does not

state whether this is a federal or a state law claim.

(See id.)

Appendix 15a

Defendants filed a motion to dismiss all seven

counts in the complaint. (Doc. 4.) For the reasons that

follow, the court grants Defendants’ motion.

Factual Background

The court draws the following facts from the

complaint, the exhibits attached to the parties

memoranda,

and

certain

publicly

available

information. 1 These exhibits consist of public records

such as the South Burlington City Council’s Decision

regarding Plaintiffs Interim Zoning Application (Doc.

5-2), the South Burlington Development Review

Board’s (“DRB”) decision on Plaintiffs sketch plan

application (Doc. 5-3), and the South Burlington

Interim Bylaws at issue here (Doc. 9-1). In addition,

the court draws from the Land Development

Regulations (“LDRs”) formally adopted by the South

Burlington City Council on February 7, 2022 and the

LDRs in effect prior to that. 2

1 In ruling on a 12(b)(6) motion to dismiss, a court may consider

the complaint, any writing attached to it as an exhibit, any

statements or documents incorporated in the complaint by

reference, and matters that may be judicially noticed. Chambers

v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); Yak v.

Bank Brussels Lambert, 252 F.3d 127, 130 (2d Cir. 2001).

2 S. Burlington Planning Comm’n & S. Burlington City Council,

Land

Development

Regulations

1

(Dec.

7,

2020),

https://cms6.revize.com/revize/southburlington/Planning/

Regulations%20&%20Plans/Current%20LDRs%20effective%20

2020-12-28%20USE.pdf [hereinafter Prior LDRs]; S. Burlington

Planning Comm’n & S. Burlington City Council, Land

Development

Regulations

1

(Feb.

7,

2022),

https://cms6.revize.com/revize/southburlington/

Planning/Regulations%20&%20Plans/LDRs%20adopted%20202

2-02-07%20FinalFull.pdf [hereinafter 2022 LDRs].

Appendix 16a

I.

Interim Bylaws and Amended Land

Development Regulations

On November 13, 2018, the South Burlington City

Council adopted Interim Zoning Bylaws. (Doc. 1 ¶ 27;

Doc. 9-1.) Interim Zoning (“IZ”) is permitted by

24 V.S.A. § 4415(a). The statute authorizes a

municipality to adopt interim bylaws for a maximum

of three years while it considers revisions to its zoning

bylaws or municipal plan. See id. The City Council

initially authorized the Interim Bylaws for nine

months, subject to extension for up to two years. The

City Council ultimately authorized them for a total of

three years. (Doc. 9-1 at 5.)

The Interim Bylaws recognized that South

Burlington “values a balance among our natural, open

spaces and our developed, residential and commercial,

spaces so that the flora and fauna co-exist alongside

human dwellings, schools, industries and services.”

(Doc. 9-1 at 1.) With that in mind, the City Council

“adopted a small growth strategy in its policy

initiatives, including the preservation of open spaces,

forest blocks, and working landscapes.” (Id.) The

Interim Bylaws expressed the City Council’s

determination that “[t]he City needs to review

developable lands outside of the Transit Overlay

District and certain business park areas, including

undeveloped open space, forest blocks and working

landscapes such as the City’s remaining farms and

parcels in the Institutional & Agricultural District.”

(Id.) The Interim Bylaws contemplate the completion

of an “extensive study of Planned Unit Developments

and Master Plans” by the Planning Commission as

well as a “cost-benefit analysis of hypothetical

development ... on existing developable open spaces,

Appendix 17a

forest blocks, and working landscapes.” (Id. at 2.) For

the land areas to which the new Interim Bylaws

applied, the City Council outlawed new planned unit

developments, new subdivisions, new principal

buildings, and amendments to certain master plans,

site plans, or plats. (Id. at 3 § IV.) Nevertheless, the

City Council retained the authority to “authorize the

issuance of permits for the development” that the

Interim Bylaws otherwise prohibited “after public

hearing preceded by notice” and “only upon a finding

by the [City] Council that the proposed use is

consistent with the health, safety, and welfare of'

South Burlington.” (Id. at 3–4 § V.) The Interim

Bylaws also identified five standards under which to

analyze such proposals. (Id. at 4.)

On December 17, 2018, the City Council formed

an Open Space Interim Zoning Committee to consider

“the prioritization for conservation of existing open

spaces, forest blocks, and working landscapes in

South Burlington in the sustenance of our natural

ecosystem, scenic viewsheds, and river corridors.” S.

Burlington Interim Zoning Committee, Final Report,

1, 2 (Mar. 6, 2020). 3 On March 6, 2020, the Committee

released its final report. Id. The Open Space

Committee assessed 190 parcels of open, undeveloped

land using a two-tiered evaluation process. The first

tier identified parcels of more than four acres, covered

by less than 10% of impervious surface, and within the

Vermont Agency of Natural Resources BioFinder

marked as “highest priority” and “priority.” Id. The

3 Available at

https://cms6.revize.com/revize/southburlington/Planning/Regula

tions%20&%20Plans/FinalIZOpenSpaceReport_6Mar2020.pdf.

Appendix 18a

Committee excluded parcels that did not meet these

standards. The second tier scored the remaining

parcels on the basis of five criteria: water resources,

wildlife habitat, forest resources, aesthetics, and

agriculture. Id. Each criterion counted for one point.

The Committee removed from the evaluation process

parcels that were already conserved, such as parks,

and parcels that were relatively small, already

approved for development, contained a single family

home, or excluded for other reasons. The Committee’s

report identified 25 “highest priority parcels for

conservation.” Id. Twenty parcels, including

Plaintiff’s parcel, were privately owned; five belonged

to the University of Vermont. Id. at 23.

Plaintiff’s real property consists of 113.8 acres

close to the overpass of Hinesburg Road (Vermont

Route 116) over interstate I-89. (Doc. 5-3 at 2, 4.) The

Open Space Report gave the parcel a score of 4 out of

5 possible points. Final Report at 50. The relatively

high score identified it as subject to potential

restrictions on development. Id. Plaintiff takes issue

with the scoring of its property. (Doc. 1 ¶¶ 38–46.) It

alleges that the parcel should have scored only 1 out

of 5—resulting in its exclusion from the properties to

be considered for zoning protection.

At its November 8, 2021 meeting, the City Council

considered the proposed amendments to the LDRs. It

voted to authorize hearings to consider these changes.

(Doc. 1 ¶ 57.) In January 2022, the City Council

released a redline draft showing proposed changes.

See generally S. Burlington Planning Comm’n & S.

Burlington City Council, Proposed Land Development

Appendix 19a

Regulations (Jan. 18, 2022). 4 These amended LDRs

contained provisions implementing aspects of the

Open Space Report. The changes relevant to this case

include the recognition of “Habitat Blocks” and

“Habitat Connectors” within the permitting criteria.

These were identified as “Level 1 Resources” subject

to protection as “significant wildlife habitat” and

identified on a “Habitat Block and Habitat Connector

Overlay District Map.” See, e.g., id. at 21, 24, 39, 57,

226. Designation as a Habitat Block or Habitat

Connector triggered land use restrictions including a

general requirement that “all lands within a Habitat

Block must be left in an undisturbed, naturally

vegetated condition.” Id. at 229 § 12.04(F)(l). The

amended LDRs forbid development within Habitat

Blocks with minor exceptions not relevant here for

features such as trails. This protection also applied to

Habitat Connectors joining nearby Habitat Blocks. Id.

at 231–32 § 12.05.

On February 7, 2022, the City Council voted to

adopt the amendments to the Land Development

Regulations, including the provisions concerning the

protection of Habitat Blocks. See generally 2022

LDRs.

4 Available at

https://cms6.revize.com/revize/southburlington/Planning/LDR%

20 Amendments/202110%20Full/For%20Council%20Hearing%202022-0207/LDR%20Draft%202022-01- l 8%20Complete%20Redline.pdf.

Appendix 20a

II. Plaintiff’s Petitions and Sketch Plans

Plaintiff frequently registered its objections to the

changes to the LDRs contemplated by the Open

Zoning Committee. In a letter dated in February 2020,

Plaintiff objected to the possible designation of its

entire

parcel

and,

instead,

urged

that

environmentally sensitive features be protected

through buffers and delineation within the parcel

itself. (Doc. 1 ¶¶ 66–68.) Plaintiff renewed its

objections in letters sent on August 31, 2021 and

November 2, 2021. (Id. ¶¶ 69–71.)

On August 31, 2021, while the Interim Bylaws

remained in effect and before the City Council

finalized the proposed amendments to the LDRs,

Plaintiff submitted a “sketch plan” to the City

Council. (Doc. 1 ¶¶ 80–82.) Plaintiff’s sketch plan

proposed the construction of 24 commercial buildings,

serving retail, service, and light industrial business

use. (See Doc. 5-2 at 1.) After a public hearing on

November 8, 2021, the same meeting in which it

considered the proposed amendments to the LDRs,

the City Council denied Plaintiff’s sketch plan and

application. (Doc. 1 ¶ 82; Doc. 5-2.)

The City Council explained that Plaintiff’s sketch

plan was subject to the prohibition on development for

Habitat Block of the Interim Bylaws, which the City

Council was considering as permanent amendments

to the LDRs. (Doc. 5-2 at 3; see Doc. 9-1 at 3, ¶ IV.) As

the City Council explained, it had “not completed the

preparation of these amendments, [so] the City

Council does not yet know for certain the standards

that will apply to development of the subject

property.” (Doc. 5-2 at 3.) In addition, the City Council

clarified that it had conducted no more than a

Appendix 21a

“minimal assessment of the proposed development”

and noted that “[w]hile not a complete assessment, it

is very likely that development of this ... parcel ...

would not comply with the LDR amendments

approved by the planning commission.” (Id.) As a

result, the City Council concluded that “[b]ased on

these unknowns and an initial review of the

application of the draft amendments approved by the

Planning Commission, ... the proposed project will or

could be contrary to the amendments to the [LDRs]

that the City adopts.” (Id. at 4.)

On December 21, 2021, the DRB also reviewed

Plaintiffs sketch plan and, on December 21, 2021,

recommended that DRB “conclude the Sketch Plan

meeting” because “significant modifications to the

plan are necessary to meet the draft regulations,

which would require re­warning” and explained that

Plaintiff “may return with a revised sketch under the

Draft LDR.” (Doc. 5-3 at 5.)

On January 6, 2022, Plaintiff forwarded an expert

report criticizing the designation of a Habitat Block

within its parcel. (Doc. 1 ¶¶ 72–79.) Plaintiff’s expert

opined on the suitability of the land for habitat and

concluded that the “City Council had no rational

basis” for designating Plaintiff’s property as a Habitat

Block. (Id. ¶ 79.)

In the complaint, Plaintiff takes particular issue

with several provisions of the Habitat Block

regulations. These include the general ban on

development (“all lands within a Habitat Block must

be left in an undisturbed, naturally vegetated

condition”), the curtailment of “traditional property

rights” such as the clearing of trees, the creation of

new lawn areas, and storage of snow, and the right to

Appendix 22a

exclude humans or wild animals by building fences.

(Doc. 1 ¶¶ 18–20.)

Beyond its complaints about the LDRs, Plaintiff

complains about the participation of city councilor

Meaghan Emery in the process of developing and

adopting the amendments. This allegation requires a

brief explanation. In addition to her duties as a

municipal leader, Ms. Emery serves as an adjunct

professor at the University of Vermont. (Id. 123.)

After UVM objected to the designation of property it

planned to develop as a protected habitat block, the

land use regulations were revised to recognize that

“Habitat Block and Habitat Connector designations

are subject to the limitations in 24 V.S.A. § 4413(a) for

uses enumerated therein and proposed by entities

such as the State of Vermont, the City of South

Burlington, the Champlain Water District, or the

University of Vermont.” 2022 LDRs at 54, § 3.04(H).

Plaintiff asserts that UVM received unfair special

treatment in the development of the LDRs, that Ms.

Emery should have disqualified herself from voting on

the amended regulations due to her employment by

UVM and that, if she had, the vote would have come

out differently. (Doc. 1 ¶¶ 25–26.)

This factual summary does not recount every

criticism levied by Plaintiff against the amended

LDRs. Plaintiff takes issue with the methodology

employed in creating the “Habitat Block” designation

and questions its utility in protecting and conserving

wildlife. Plaintiff alleges that the Open Space

Committee’s designation of its property as one of the

25 large blocks eligible for open space protection was

conducted in error. Plaintiff takes the DRB to task for

denying approval of its sketch plan application for

Appendix 23a

development of the parcel. These more specific

complaints about the municipal planning process are

complaints that the LDRs are the result of poor policy

decisions or that the municipal regulators have

applied the LDRs incorrectly. They are distinct from

the federal constitutional claims which are the focus

of this decision.

Plaintiff filed suit on February 24, 2022, after the

City Council adopted the amended Land Development

Regulations on February 7, 2022. (Doc. 1.) Plaintiff

sued the City of South Burlington, the South

Burlington City Council, and City Councilors

Meaghan Emery, Timothy Barritt, and Helen Riehle

(collectively “Defendants”). (Id. ¶¶ 6–11.)

Defendants move to dismiss Plaintiff’s complaint,

arguing that its federal-law causes of action are not

yet ripe and, if dismissed, the court should decline to

exercise supplemental jurisdiction over its state-law

causes of action. (See Doc. 4.) Plaintiff filed its

response, and Defendants replied. (Docs. 5, 9.) The

court heard oral argument on August 3, 2022 and took

the matter under advisement at that time.

Legal Standard

In ruling on a motion to dismiss, the court accepts

as true the allegations of the complaint and draws all

reasonable inferences in favor of the non-moving

party. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);

Matson v. Bd. of Educ., 63l F.3d 57, 63 (2d Cir. 2011).

The complaint must “contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’” Iqbal, 556 U.S. at 678

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)); see also Fed. R. Civ. P. 8(a)(2). A claim is

Appendix 24a

plausible “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct

alleged.” Matson, 631 F.3d at 63 (quoting Iqbal, 556

U.S. at 678). Dismissal is appropriate when “it is clear

from the face of the complaint, and matters of which

the court may take judicial notice, that the plaintiff’s

claims are barred as a matter of law.” Conopco, Inc. v.

Roll Int’l, 231 F.3d 82, 86 (2d Cir. 2000).

Analysis

Plaintiff brings claims under 42 U.S.C. § 1983 for

deprivation of its protected constitutional rights, a

claim under the Declaratory Judgment Act, 28 U.S.C.

§ 2202, claims under the Vermont Constitution, and

claims without a specified federal or state cause of

action.

Defendants seek dismissal of the federal

constitutional claims on grounds of ripeness. They

invoke the “final-decision rule.” In their view, Plaintiff

has never “submitted to the DRB a complete

application to develop its prope1iy or to modify its

Habitat Block designation since the amended LDRs

took effect.” (Doc. 4 at 5.) According to Defendants, in

the absence of such an submission, “the application of

the LDRs to Plaintiffs property is presently unclear:

the LDRs give the DRB substantial discretion to allow

development on Plaintiffs property.” (Id.) Defendants

argue that Plaintiffs claims of unconstitutional

taking, violation of due process, equal protection, and

reverse spot zoning should be dismissed on prudential

ripeness grounds.

Plaintiff responds that the City Council and the

DRB have already rejected its proposal to develop the

Appendix 25a

property when the council members rejected its

proposal under the IZ procedures in November 2018.

In Plaintiffs view, its “facial” challenges to the LDRs

are already ripe because Defendants have conducted

a “physical invasion” of its property and the LDRs

prevent it from developing property due to the

designation of portions of the acreage as “Habitat

Blocks” or “Habitat Corridors.” (See Doc. 5 at 19.)

I.

Taking Claim

In Count One, Plaintiff alleges that the amended

LDRs permit the designation of Habitat Blocks and

increase the buffer zones around wetlands from 50 to

100 feet, both of which impose restrictions on

Plaintiffs use of its property for which it has not

received compensation as required by both the United

States and Vermont Constitutions. Plaintiff alleges

that it cannot fence the property to exclude human

trespassers or “animals that are to inhabit the land

designated as a ‘Habitat Block.’” (Doc. 1 ¶ 116.)

Plaintiff alleges that it purchased the land for

development purposes and that the amended LDRs

defeat this legitimate plan. In addition, Plaintiff

decries the use of “Habitat Blocks” as “a guise to allow

anti-property rights advocates to prevent further

development” at the behest of “a small group of

private citizens” in violation of the broader public

interest. (Id. ¶ 118.)

A.

Ripeness Requirements

Takings Claims

for

Federal

The ripening of fruit and vegetables has long

provided a metaphor for life’s passages. William

Shakespeare, King Lear, act 5, sc. 2, 12 (“Ripeness is

all”); John Keats, To Autumn (“And fill all fruit with

Appendix 26a

ripeness to the core.”). The fundamental issue is

“whether the case has been brought at a point so early

that it is not yet clear whether a real dispute to be

resolved exists between the parties.” 15 Moore’s Fed.

Prac.–Civil § 101.70.

Federal jurisdiction is limited to resolving cases

and controversies. U.S. Const. art. III. § 2. Ripeness

doctrine requires courts to consider whether it is

premature to decide that the parties have a live

dispute that satisfies this constitutional standard. “A

claim is not ripe if it depends upon ‘contingent future

events that may or may not occur as anticipated, or

indeed may not occur at all.’” Nat’l Org. for Marriage,

Inc. v. Walsh, 714 F.3d 682, 687 (2d Cir. 2013)

(quoting Thomas v. Union Carbide Agric. Prods. Co.,

473 U.S. 568, 580–81 (1985)). “The doctrine’s major

purpose is to ‘prevent the courts, through avoidance of

premature adjudication, from entangling themselves

in abstract disagreements.’” Id. (quoting Abbot Labs.

v. Gardner, 387 U.S. 136, 148 (1967), overruled on

other grounds by Califano v. Sanders, 430 U.S. 99, 105

(1977)).

Federal courts have long recognized that a

decision about ripeness has both a constitutional and

a prudential dimension. Reno v. Cath. Soc. Servs.,

Inc., 509 U.S. 43, 57 n.18 (1993) (“[The] ripeness

doctrine is drawn both from Article III limitations on

judicial power and from prudential reasons for

refusing to exercise jurisdiction.” (collecting cases)).

Recent decisions of the Supreme Court have cast

doubt on the viability of the prudential ripeness

doctrine. See Lexmark Int’l Inc. v. Static Control

Components, Inc., 572 U.S. 118, 128 & n.3 (2014)

Appendix 27a

(prudential standing); Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 167 (2014).

A federal court’s concern about adjudicating a

case before it is ripe is “especially pronounced in the

land-use context.” Vill. Green at Sayville, LLC v. Town

of Islip, 43 F.4th 287, 293 (2d Cir. 2022). There are

several reasons for the prominence of the ripeness

doctrine in these cases. One is that whether a taking

has occurred depends upon factors such as “the

economic impact of the state’s actions and its

interference with investment-backed expectations.”

Kurtz v. Verizon NY, Inc., 758 F.3d 506, 512 (2d Cir.

2014), abrogated on other grounds by Knick v. Twp. of

Scott, Pa., 139 S. Ct. 2162 (2019)). A second reason is

that after review of an application, a municipal zoning

board may remove an obstacle to a proposed

development through discretionary decision-making.

When, as here, the case concerns judicial review of

another branch of government, the ripeness

requirement reduces the risk of interference in the

executive or legislative functions. If judicial review is

later appropriate, the court may be better informed on

a complete record after the zoning board issues a final

decision. See id.

Because of the importance of ripeness in

constitutional

takings

challenges

to

zoning

regulations, courts must apply the final-decision rule

regardless of whether ripeness is described as

jurisdictional or prudential. See Vill. Green at

Sayville, LLC 43 F.4th at 293–94; see also Pakdel v.

City & Cnty. of San Francisco, Cal., 141 S. Ct. 2226,

2228, 2230 (2021) (per curiam) (discussing final

decision rule for takings challenges without

differentiating between prudential or constitutional

Appendix 28a

ripeness). This rule asks whether the “government

entity charged with implementing the regulations has

reached a final decision regarding the application of

the regulations to the property at issue.” Vill. Green

at Sayville, LLC, 43 F.4th at 294 (internal quotations

omitted). While the requirement is “relatively

modest[,]” a plaintiff “must show ... that ‘there [is] no

question ... about how the ‘regulations at issue apply

to the particular land in question.’” Pakdel, 141 S. Ct.

at 2230 (quoting Suitum v. Tahoe Regional Planning

Agency, 520 U.S. 725, 739 (1997).)

Like most rules, there are exceptions to the rule

where a property owner’s appeal to a zoning board of

appeals of request for a variance would be futile or

where a policy is facially discriminatory. Vill. Green at

Sayville, LLC, 43 F.4th at 294. As a result, the rule

cannot be “mechanically applied.” Id. (internal

quotation marks omitted).

With these general principles in mind, the court

begins by reviewing the arguments and legal positions

of both sides.

B.

No Plausible Allegation of a Physical

Taking

Plaintiff seeks to define the taking here as a

physical taking. According to Plaintiff, the amended

LDRs “take[] away [its] rights to possess, control and

dispose of its property.” (Doc. 5 at 20.) Plaintiff also

describes its challenge as “facial,” meaning that the

LDRs result in a taking of its property rights

regardless of how the DRB may apply them to a

particular proposal. (See id. at 14.) For this reason,

Plaintiff contends that the court does not need to wait

for a final decision from the DRB and instead should

Appendix 29a

strike down the amended LDRs as violating the Fifth

Amendment now because it is unconstitutional under

any interpretation by the zoning authorities.

In the court’s view, the complaint contains no

plausible allegation of a physical taking. See Lingle v.

Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005) (“The

paradigmatic taking requiring just compensation is a

direct government appropriation or physical invasion

of private property”). Examples of physical takings

include the forced installation of utility equipment,

Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419 (1982), permanent flooding due to

construction of a dam, Pumpelly v. Green Bay Co., 80

U.S. 166 (1871), seizure of a mine during wartime,

United States v. Pewee Coal Co., 341 U.S. 114 (1951),

and entry of union representatives, Cedar Point

Nursery v. Hassid, 141 S. Ct. 2063 (2021). As these

examples suggest, a physical taking is “relatively

rare” and “easily identified.” Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S.

302, 324 (2002). In Yee v. City of Escondido, Cal., for

example, the Supreme Court rejected the property

owner’s claim that rent restrictions amounted to a

physical invasion of the owner’s rights, explaining

that “[t]he government effects a physical taking only

where it requires the landowner to submit to the

physical occupation of his land.” 503 U.S. 519, 527

(1992).

Plaintiff alleges no physical entry or occupation of

its land. Plaintiff also does not allege that the

amended LDRs require the landowner to submit to

Appendix 30a

the physical occupation of its land. 5 Instead, the

complaint alleges that the LDRs restrict its planned

development and include restrictions such as a

prohibition on fencing Habitat Blocks. These are

conventional grounds for claims of regulatory taking

and inverse condemnation. They do not amount to a

physical taking.

C.

No

Plausible

Allegation

of

a

Deprivation

of

All

Economically

Beneficial Use of the Property

There is a second exception to the rule that

takings claims are not ripe unless the zoning board

issues a final decision. These are cases in which the

regulation is both confiscatory and certain in its

5 According to Plaintiff, it has suffered a physical taking because

it cannot build a fence to exclude people or animals from entering

its property, meaning people and animals are physically

occupying its land. (Doc. 5 at 20 (citing Doc. 1 ¶¶ 18–20, 116).)

But the amended LDRs contain an explicit exemption for fencing.

Cf. Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 94 (2d Cir.

1992), abrogated on other grounds by Knick, 139 S. Ct. at 2169

(noting plaintiff could possibly exclude deer using a fence).

Section 12.04(G) explains that certain uses of property

designated as a “Habitat Block” do not require application and

review by the Land Development Board. One of those is the uses

and activities listed in Section 12.01(C). 2022 LDRs

§ 12.04(G)(3). Section 12.01(C) explicitly permits the

construction of fences that are “lower than 4 feet and that have

at least 16 inches of clearance between the lowest horizontal part

of the fence and the ground,” subject to the portion of the LDRs

further regulating fences. 2022 LDRs § 12.01(C)(1). Plus,

Plaintiff “retains the right to exclude any persons from the land,

perhaps by posting ‘No Trespassing’ signs.” Southview Assocs.,

Ltd., 980 F.2d at 94. The limits on fencing provides a good

example of an issue that will be far better developed after

submission of an application to the DRB.

Appendix 31a

application such that a court may proceed directly to

the takings issue before a final decision. In Lucas v.

South Carolina Coastal Council, for example, state

legislation barred any development of the plaintiff’s

residential lots on a barrier island. 505 U.S. 1003,

1008–09 (1992). The Supreme Court held that such a

“total deprivation of beneficial use” gave rise to a

takings claim that was not subject to the final decision

rule. Id. at 1017, 1019. The Supreme Court reached

similar decisions in Suitum, 520 U.S. at 739 (“The

demand for finality is satisfied by [property owner’s]

claim, however, there being no question here about

how the regulations at issue apply to the particular

land in question.” (cleaned up) and Pakdel, 141 S. Ct.

at 2230 (“In this case, there is no question about the

city’s position ....”).

In this case, there is considerable uncertainty

about how South Burlington will apply the “Habitat

Block” provisions of the amended LDRs. The LDRs

include provisions for variance and for adjustments of

the location and boundaries of the Habitat Blocks.

Having read the complaint and reviewed the LDRs,

the court has no prediction about how Plaintiffs

application may fare—in large part because Plaintiff

has not submitted an application directed to the

amended LDRs.

Both the City Council’s explanation for its denial

of Plaintiffs sketch plan and the DRB’s explanation

for denying the same support this conclusion. For

example, the City Council’s November 8, 2021 denial

of its sketch plan explains:

Under the draft [Land Development

Regulations], development is generally

prohibited on lands within a Habitat Block.

Appendix 32a

The application does not include any

information regarding the location of this

overlay district, but it is apparent that the

proposed development includes several

buildings and associated infrastructure

within the proposed Habitat Block Overlay

district.

(Doc. 5-2 at 4.) This does not say that Plaintiff may

not develop the land at all or that it may not develop

in the designated “Habitat Block.” Instead, it states

that Plaintiffs application included development

within a “Habitat Block” and that Plaintiff did not

attempt to comply with the draft LDRs. The City

Council went on to note the number of unknowns

presented by Plaintiffs sketch plan. (Id. at 5). The

number of unanswered questions that the City

Council identified means Plaintiff has not shown that

“there [is] no question ... about how the ‘regulations at

issue apply to the particular land in question.’”

Pakdel, 141 S. Ct. at 2230 (quoting Suitum, 520 U.S.

at 739).

The DRB’s denial identified many of the same

uncertainties. The DRB explained that “significant

modifications to the plan are necessary in order to

meet the draft regulations” and that Plaintiff could

“return with a revised sketch under the Draft LDRs.”

(Doc. 5-3 at 5.) Like the above, the court cannot say as

a matter of law that no questions remain as to how the

amended LDRs would apply to Plaintiff’s proposal.

The court also finds that none of the exceptions to

the final-decision rule apply here. That is because the

amended LDRs explained that the goal of the Habitat

Block Overlay District is to “to avoid undue adverse

effects from development on these resources, promote

Appendix 33a

the natural succession of vegetated areas of native

vegetation in order to support wildlife habitat and

movement, promote carbon sequestration, filter air,

and increase infiltration and base flows in the City’s

streams and Lake Champlain.” 2022 LDRs § 12.04(A).

To accomplish this end, the regulations create an

overlay map that identifies the “Habitat Blocks.” The

blocks can be modified through minor boundary

adjustments, exchanges of land within a parcel, and

other adjustments. The blocks must be left in an

“undisturbed, naturally vegetated condition.” Tree

clearing, lawns, and encroachment by structures are

prohibited. The regulations provide similar protection

and modifications for “Habitat Connectors” which are

150 foot wide strips between “Habitat Blocks.”

As in many regulatory takings cases, the critical

question is how much has the property owner actually

lost? This question cannot be answered in the abstract

in this case. The identification of a “Habitat Block”

does not foreclose all opportunities for development. It

limits the use of a portion of the parcel. Here, the DRB

estimated that approximately 43 acres of Plaintiffs

113.8-acre parcel falls within a Habitat Block. (Doc. 53 at 2, 4.) The LDRs anticipate that parcels that

include “Habitat Blocks” or “Habitat Connectors” will

be developed with limitations to protect wildlife. It is

possible that the “Habitat Block” located on Plaintiff’s

property may preclude any commercially viable

development plan. Or the “Habitat Block” may be no

more than one consideration among others in a

relatively flexible planning process. Or the owner’s

needs may be met through a land exchange or

boundary adjustment reached through agreement

with the zoning authority. But that is just it—the

court does not yet know. In the absence of a concrete

Appendix 34a

plan, submitted to the DRB and a final decision from

the DRB, it is not possible to tell how far the

regulations encroach on the Plaintiffs right to develop

its property. With these possibilities, Plaintiff has not

demonstrated that an appropriate application would

be futile. Vill. Green at Sayville, LLC, 43 F.4th at 294.

The same considerations apply to the increase in

the wetland buffer zone. Wetlands have long received

protection. Increasing this protection may prevent

development or it may have no practical impact.

D. Facial or As-Applied Challenge

Plaintiff seeks to avoid the application of the

ripeness requirement by characterizing its claim as a

facial challenge to any application of the LDRs to

private property. In fact, Plaintiff makes both a facial

and an as-applied challenge. (See Doc. 5 at 14.) The

facial challenge is based on a claim that the

enactment of the LDRs was itself a constitutional

violation which was complete when the LDRs came

into effect. Plaintiff takes a pessimistic view of its

prospects before the DRB. At the oral argument on

this motion, Plaintiff explained that “on the question

of de facto finality, it is de facto final. They told us we

can’t build in a habitat block. So, no matter what we

propose, it’s going to be rejected.” (Tr. of Hr’g Aug. 3,

2022, Doc. 12 at 16:10–13; see also Doc. 5 at 2

(similar).) The as-applied claim concerns the rejection

of Plaintiffs proposed development under the IZ

bylaws. (Doc. 12 at 27:4–10.)

The court concludes that Plaintiff is jumping the

gun. Neither the City Council in applying the IZ

zoning procedures nor the DRB in reviewing Plaintiffs

sketch plan have ruled in any comprehensive way on

Appendix 35a

Plaintiffs proposal under the LDRs now in effect.

Further, these regulations indicate that the DRB may

exercise discretionary authority in locating and

enforcing the “Habitat Blocks” on undeveloped

parcels. The final-decision rule prevents courts from

striking down a zoning provision as unconstitutional

without a full understanding how the provision

functioned in the particular case. So too here.

E. Application of the Final-Decision Rule

Defendants seek dismissal of Count One on

ripeness grounds because South Burlington has never

made a final decision about Plaintiffs plans to develop

the parcel. (Doc. 4 at 11 (citing Pakdel, 141 S. Ct. at

2230 and Suitum, 520 U.S. at 739).) Defendants

contend that without a request for a permit or

variance, “it is entirely speculative how [municipal]

discretion would be exercised with respect to

Plaintiff’s parcel.” (Id.)

Plaintiff characterizes the issue as one of

exhaustion of remedies. (Doc. 5 at 4–12.) Relying on

Knick and Patsy v. Board of Regents of State of

Florida, 457 U.S. 496 (1982), Plaintiff argues that its

case became ripe as soon as South Burlington adopted

the LDRs. (Doc. 5 at 4–5.)

It is true that, prior to the Supreme Court’s

decision in Knick, property owners aggrieved by a

governmental taking were required to exhaust

administrative and state court compensation

remedies before filing a federal lawsuit. A

constitutional tort claim under 42 U.S.C. § 1983 was

the last stop on the line and frequently subject to res

judicata for issues already litigated in state court.

Plaintiff relies on Knick as a basis for seeking judicial

Appendix 36a

relief before receiving a final decision on a specific

development proposal.

But exhaustion of remedies and ripeness are not

the same. It is now well-settled law that there is no

exhaustion requirement in § 1983 cases (except for

statutory exceptions not relevant here). Patsy, 457

U.S. at 516 (“[W]e conclude that exhaustion of state

administrative remedies should not be required as a

prerequisite to bringing an action pursuant to §

1983.”); Heck v. Humphrey, 512 U.S. 477 (1994). As

plaintiff observes, in Knick, the Supreme Court

extended this principle to takings claims, overruling

that portion of its decision in Williamson County

Regional Planning Commission v. Hamilton Bank of

Johnson City, 473 U.S. 172 (1985). Knick, 139 S. Ct.

at 2167, 2169–70. Federal takings claims asserted

under § 1983 are no longer subject to a requirement

that plaintiffs file first for compensation in state

court. See id.

Demolishing the straw man of exhaustion of

remedies does not also remove the requirement of

ripeness. The constitutional requirement of ripeness

continues to apply to all federal cases, including

§ 1983 claims. In regulatory taking cases, the ripeness

requirement asks whether the government “has

reached a ‘final’ decision. After all, until the

government makes up its mind, a court will be hard

pressed to determine whether the plaintiff has

suffered a constitutional violation.” Pakdel, 141 S. Ct.

at 2228 (internal citation omitted).

Although the Williamson County holding on

exhaustion of remedies was overruled by the Knick

decision, it remains the leading case on ripeness in

land use disputes. It continues to require a final

Appendix 37a

decision regarding the application of the regulations

to the property at issue. See Vill. Green at Sayville, 43

F.4th at 287 (“Accordingly, federal courts adhere to

specific ripeness requirements applicable to land use

disputes. Williamson County is the foundational

case.” (cleaned up)). In cases in which the local

planning board retains discretion in fashioning its

ruling on a zoning application, the final decision rule

remains good law. The Suitum decision recognizes the

continuing viability of Supreme Court cases that

found claims unripe when property owners had not

submitted plans, Agins v. City of Tiburon, 447 U.S.

255 (1980); had failed to request a variance, Hodel v.

Virginia Surface Mining & Reclamation Ass’n., Inc.,

452 U.S. 264 (1981); or additional factors remained to

be presented to the municipal decisionmaker that

might allow the project to proceed, Williamson County

473 U.S. 172; MacDonald, Sommer & Frates v. Yolo

County, 477 U.S. 340 (1986). See Suitum, 520 U.S. at

735–39.

The ripeness question in this case is similar to

that faced by the courts in Suitum and its

predecessors. Has there been a physical invasion of

the property by the municipality for which

compensation is due as a matter of course? No. While

there are zoning restrictions on Plaintiffs use of its

property, there is no claim that municipal workers

have built a road or in some other way invaded the

property. Do the new regulations permanently remove

all value from the property so as to amount to a per se

taking? No again. The LDRs anticipate that open land

in South Burlington, including parcels containing

“Habitat Blocks,” may be developed subject to

restrictions. Under these circumstances, a final

decision by the zoning agency remains a prerequisite

Appendix 38a

for a constitutional takings claim. See Sunrise Detox

V, LLC v. City of White Plains, 769 F.3d 118, 124 (2d

Cir. 2014); Murphy v. New Milford Zoning Comm’n,

402 F.3d 342, 352–54 (2d Cir. 2005). 6

II. Other Federal Constitutional Claims

Federal courts have also applied the final decision

rule to claims that zoning regulations violate

constitutional guarantees of substantive due process

and equal protection.

Starting with Plaintiff’s claims under the Due

Process Clause, the same final-decision rule means

that this claim, too, is not yet ripe. In Southview

Decisions concerning the ripeness of takings claims may

address only jurisdictional ripeness or may also apply prudential

ripeness concerns. In Williamson County, for example, the

Supreme Court concluded that the factors governing what

constitutes a taking “simply cannot be evaluated until the

administrative agency has arrived at a final, definitive position

regarding how it will apply the regulations at issue to the

particular land in question.” 473 U.S. at 191. This sounds like

constitutional ripeness since it is impossible—not just unwise or

inefficient—to evaluate the plaintiff’s claim without a final

decision. In a more recent case, Murphy v. New Milford Zoning

Comm’n, the court based its decision on both aspects of the

doctrine, explaining that “[the two-prong ripeness analysis] in

some ways tracks both the doctrine’s Article III and prudential

underpinnings.” 402 F.3d at 347. With serious doubt now cast on

the viability of the prudential prong, this court relies on the

jurisdictional basis for ripeness. The case is not ripe because in

the words of Williamson, we simply do not know whether the

plaintiff will be hampered and constrained in its development

plans at a level sufficient to support a takings claim. That is a

concern about jurisdictional ripeness, specifically whether there

will later be a real dispute in the case at all. To the extent it

remains alive, the prudential concern over the inadequate

factual record at this time and the entanglement of the court in

municipal government provide subsidiary support for dismissal.

6

Appendix 39a

Associates, Ltd., the Second Circuit held that a

substantive due process challenge to Vermont’s Act

250, 10 V.S.A. § 6001 et seq., limiting development

across the state was not yet ripe. 980 F.2d at 99. In

that case, the developer challenged the protection of a

winter deeryard as violating principles of due process

because it was arbitrary and capricious and because

it was the equivalent of a taking by eminent domain,

making it beyond the limits of the state’s police power.

Id. at 96. The panel, chaired by Chief Judge Oakes,

held in relevant part that the due process (and a

related equal protection claim) were subject to

Williamson principles of exhaustion and ripeness. See

id. at 97, 99, 103 n.10. As we have seen, the

exhaustion requirement is no longer good law. But the

ripeness requirement remains very much alive, and

that portion of Southview is binding authority today.

Southview requires a developer who seeks to

strike down a state land use law to obtain a final

ruling from the regulator. Without such a decision, “a

court cannot determine adequately the economic

loss—a central factor in inquiry—occasioned by the

application of the regulatory restrictions.” Id. at 96.

As Southview makes clear, this requirement applies

to substantive due process claims that a statute is

arbitrary and capricious or exceeds the legislative

authority in the same manner that it applies to the

Fifth Amendment taking claim. Id. at 99; see also

Herrington v. Cnty. of Sonoma, 857 F.2d 567, 569 (9th

Cir. 1988) (“Our decisions in this area have also

clarified that we will apply the same ripeness

standards to equal protection and substantive due

process claims.”); Unity Ventures v. Cnty. of Lake, 841

F.2d 770, 776 (7th Cir. 1988) (finding plaintiff’s equal

Appendix 40a

protection and due process claims based on

application for a sewer connection were not yet ripe).

Turning to Plaintiff’s claim under the Equal

Protection Clause, it is also not yet ripe. Plaintiff

alleges that South Burlington’s amended LDRs

treated its land differently than others similarly

situated in the town of South Burlington. (Doc. 1

¶¶ 142–153.) This is based on Plaintiff’s contention

that it should have received a different rating in the

Open Space Interim Zoning Committee’s final report

(Id. 145–146.) In addition, Plaintiff alleges that it was

treated differently than landowners with already

developed land, that it should have been treated the

same as landowners with less than four acres, and

there was no rational basis for treating it differently

than UVM. (Id. ¶¶ 149–152.)

At base, these allegations depend on how the

LDRs are applied to Plaintiff’s land. Like Plaintiff’s

due process claim, its equal protection claim is subject

to the same final-decision requirement. See Dougherty

v. Town of N. Hempstead Bd. of Zoning Appeals, 282

F.3d 83, 88–89 (2d Cir. 2002) (affirming district court

that Williamson County finality rule applies to equal

protection claims in the context of land use challenges

and affirming dismissal for lack of ripeness),

abrogated on other grounds by Knick, 139 S. Ct. at

2169; Nenninger v. Village of Port Jefferson, 509 F.

App’x 36, 38–39 (2d Cir. 2013) (summary order)

(affirming dismissal of equal protection and due

process claims relating to a subdivision proposal as

unripe); see also Del Monte Dunes at Monterey, Ltd. v.

City of Monterey, 920 F.2d 1496, 1507 (9th Cir. 1990)

(“In evaluating the ripeness of ... equal protection

claims arising out of the application of land use

Appendix 41a

regulations, [courts] employ the same final decision

requirement that applies to regulatory taking

claims.”). Therefore, the court dismisses this claim as

unripe.

III. Remaining Claims

Having dismissed all of Plaintiffs claims that

explicitly involve a federal-law claim, the court turns

to the remaining causes of action. Where a federal

court dismisses the only federal­law causes of action,

it may, in its discretion, decline to continue to exercise

supplemental jurisdiction over the remaining statelaw causes of action. 28 U.S.C. § 1367(c)(4); Kolari v.

N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.

2006). In making that discretionary decision, a

district court must balance judicial economy,

convenience, fairness, and comity. Id. “[I]n the usual

case in which all federal-law claims are eliminated

before trial, the balance of factors ... will point toward

declining to exercise jurisdiction over the remaining

state-law claims.” Id. (quoting Carnegie-Mellon Univ.

v. Cohill, 484 U.S. 343, 350 n.7 (1988)); see also United

Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726

(1966) (“[I]f the federal law claims are dismissed

before trial ... the state claims should be dismissed as

well.”).

The court turns first to Plaintiff’s claims under

the Vermont Constitution, including the taking claim

in Count One, due process claims in Count Two, and

Common Benefits Clause claim in Count Three. All

three are state-law causes of action. Here, the court

will dismiss the federal-law claims at the motion to

dismiss stage. The parties have not yet begun

discovery. Therefore, the court declines to exercise

Appendix 42a

supplemental jurisdiction and dismisses the three

state law claims, all without prejudice.

Turning next to Count Seven for illegal reverse

spot zoning, Plaintiff has not articulated whether this

claim is under federal law or Vermont law. To the

extent it is brought under Vermont state law, the

court declines to exercise supplemental jurisdiction

for the same reasons just articulated. See, e.g., N. Mill

St., LLC v. City of Aspen, 6 F.4th 1216, 1235 (10th Cir.

2021). To the extent it is brought under federal law, it

is not ripe for the same reasons already explained.

Turning finally to Count Five, Plaintiff seeks

declaratory judgment that the South Burlington City

Council lacked the statutory authority to designate a

portion of its land as a Habitat Block. (Doc. 1 ¶¶ 155–

156.) According to Plaintiff, “the state statute creating

forest blocks did not authorize the City to create

‘Habitat Blocks’ for reasons different from the

reasoning for forming Forest Blocks.” (Id. ¶ 155.)

Even though Plaintiff alleges this claim under the

Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202,

that alone does not provide a federal ingredient

sufficient for federal question jurisdiction. That is

because Plaintiff requests the court to grant

declaratory judgment on a matter of state law, not

federal law. An action under the Declaratory

Judgment Act alone does not create the requisite

federal ingredient. See Skelly Oil Co. v. Phillips

Petroleum Co., 339 U.S. 667, 671–73 (1950)

(explaining that the Declaratory Judgment Act does

not expand the subject matter jurisdiction of federal

courts); Freeman v. Burlington Broad., Inc., 204 F.3d

311, 318 n.4 (2d Cir. 2000) (similar). As a result, this

claim falls under the court’s supplemental

Appendix 43a

jurisdiction. Like the other non-federal claims, the

court declines to exercise its supplemental jurisdiction

over this claim and dismisses it.

Conclusion

For the foregoing reasons, the court GRANTS

Defendants’ motion to dismiss (Doc. 4). The dismissal

is without prejudice.

Dated at Rutland, in the District of Vermont, this

27th day of January, 2023.

s/ Geoffrey W. Crawford

Geoffrey W. Crawford, Chief Judge

United States District Court

Appendix 44a

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF VERMONT

835 HINESBURG ROAD, LLC,

)

)

Plaintiff,

)

v.

)

CITY OF SOUTH BURLINGTON, )

SOUTH BURLINGTON CITY

)

COUNCIL, MEAGHAN EMERGY, )

TIMOTHY BARRITT, and

)

HELEN RIEHLE,

)

)

Defendants.

)

Case No.

5:22-cv-58

JUDGMENT IN A CIVIL ACTION

☐Jury Verdict

☒Decision by Court.

IT IS ORDERED AND ADJUDGED that

pursuant to the court’s Order (Document No. 13) filed

January 27, 2023, defendants’ Motion to Dismiss

(Document No. 4) is GRANTED. The case is hereby

DISMISSED without prejudice.

Date:

January 27, 2023

JUDGMENT ENTERED

ON DOCKET

DATE ENTERED: 1/27/2023

JEFFREY S. EATON

CLERK OF COURT

/s/ Elizabeth Morris

Signature of Clerk

Appendix 45a

Excerpts of City of South Burlington

Interim Bylaws, Adopted November 13, 2018

I. PURPOSE

Our community values a balance among our

natural, open spaces and our developed, residential

and commercial, spaces so that the flora and fauna coexist alongside human dwellings, schools, industries

and services. All of these spaces will sustain our

economic viability going forward. Together these

spaces provide, for the benefit of our residents and

visitors, clean, fresh air to breathe, clean water to

drink and swim in, recreational opportunities, homes,

jobs, and valuable industries and services. As more

homes are built in South Burlington, we must

examine carefully the intensity and nature of

development and its potential impacts on the balance

that we seek to maintain. Based on previous studies,

the City needs to review developable lands outside of

the Transit Overlay District and certain business

park areas, including undeveloped open spaces, forest

blocks and working landscapes such as the City’s

remaining large farms and parcels in the Institutional

& Agricultural District.

City staff regularly considers the infrastructure

and staffing needs, short and long term, of the

community. For the past three years, some City

department heads have raised concerns about an

ongoing strain on City resources. In the face of

ongoing development, South Burlington must

continue to safeguard against the possibility that the

costs of emergency services and construction and

maintenance of sewers and roads will outstrip City

revenues such that City residents and business will

Appendix 46a

face the prospect of an acute increase in their tax

burden.

For all these reasons, the City Council has

adopted a smart growth strategy in its policy

initiatives, including the preservation of open spaces,

forest blocks and working landscapes, and amended

the Land Development Regulations to encourage

dense development in our urban core, which includes

City Center and the Shelburne Road corridor. We also

have sought to encourage commercial development

and construction of affordable housing. However, the

pace of residential development has outstripped the

planning tools and processes intended to ensure

sustainability and encourage affordability.

With the delicate ecosystems and preparedness of

both our natural and constructed infrastructure in

mind, the City needs to determine what locations,

types, and densities of development are most

desirable in order to maintain the balance between

natural and developed spaces and sustainability and

to avoid a fiscal crisis -- not when it is upon us, but

before we reach that point.

For all these reasons, the City Council considers

it necessary to preserve temporarily the land

development that currently exists outside of the

Transit Overlay District and certain business parks in

order to accomplish the following tasks:

Undertake an analysis of undeveloped open

spaces, forest blocks and working landscapes

and update the prioritization of these lands for

conservation, permanent open space, and/or

recreation.

Appendix 47a

Give the Planning Commission time to

complete its extensive study of Planned Unit

Developments and Master Plans, which

necessarily includes the study of density of

development and open space.

Undertake an analysis of the program for the

Transfer of Development Rights established in

and by the Land Development Regulations and

recommend options for its implementation.

Conduct a cost-benefit analysis of hypothetical

development, including density and type, on

existing developable open spaces, forest blocks,

and working landscapes.

Once the City has determined which parcels in

South Burlington are most critical to our

environmental and economic goals, the City can

assess whether, and possibly how, the current Land

Development Regulations or tools, regulatory or

nonregulatory, require amendment and act

accordingly.

II. LANDS TO WHICH THE INTERIM BYLAWS

APPLY

These Interim Bylaws shall apply to all lands in the

City of South Burlington as depicted on the Interim

Zoning map, except for those lands depicted on the

Interim Zoning map as Exempt Areas. The Interim

Zoning map describes the areas to which these

Interim Bylaws apply and the Exempt Areas to which

these Interim Bylaws do not apply, and is

incorporated herein by reference.

***

Appendix 48a

IV. LIMITATIONS ON LAND DEVELOPMENT

Within the areas to which these Interim Bylaws

apply, the following shall not be allowed:

A. New Planned Unit Developments.

B. New Subdivisions.

C. New Principal Buildings.

D. Amendment of a master plan or any related

site plans or plats that deviates from an

approved Master Plan in one of the respects

set forth in Article 15.07(D)(3)(a)-(e) of the

South

Burlington

Land

Development

Regulations.

V. REVIEW OF APPLICATIONS

Upon application, the City Council may authorize the

issuance of permits for the development prohibited in

Section IV, above, after public hearing preceded by

notice in accordance with 24 V.S.A. section 4464, but

only upon a finding by the Council that the proposed

use is consistent with the health, safety, and welfare

of the City of South Burlington and the following

standards:

A. The capacity of existing or planned community

facilities, services, or lands.

B. The existing patterns and uses of development

in the area.

C. Traffic on roads and highways in the vicinity.

D. Environmental limitations of the site or area

and significant natural resource areas and

sites.

Appendix 49a

E. Utilization of renewable energy resources.

F. Municipal plans and other municipal bylaws,

ordinances, or regulations in effect

The applicant and all abutting property owners shall

be notified in writing of the date of the hearing and of

the City Council’s final determination.

Appendix 50a

Excerpts of City of South Burlington Land

Development Regulations (Adopted May 12,

2003; Amendments Adopted Nov. 20, 2023)

12 ENVIRONMENTAL PROTECTION

STANDARDS

12.04 Habitat Block Overlay District

A.

Purpose.

With the main goals of identifying habitat resources

that meet the needs of a wide variety of wildlife

species and provide opportunities for some species to

access several habitat areas, the City engaged a

consultant to conduct a City-wide habitat assessment.

The “City of South Burlington Habitat Block

Assessment & Ranking 2020” prepared by Arrowwood

Environmental, LLC, locates and ranks certain

contiguous forested areas and adjacent unmanaged

shrubby areas of old field, young forest and

unmanaged wetlands. Based on the information in

that report, the City has designated certain areas

permanently as Habitat Blocks. It is the purpose of

the Habitat Block Overlay District standards to avoid

undue adverse effects from development on these

resources, promote the natural succession of

vegetated areas of native vegetation in order to

support wildlife habitat and movement, promote

carbon sequestration, filter air, and increase

infiltration and base flows in the City’s streams and

Lake Champlain.

B.

Applicability.

The requirements of this Section apply to all areas

indicated as “Habitat Blocks” on the Habitat Block

Appendix 51a

and Habitat Connector Overlay District Map, except

as follows:

(1) On lots less than one (1) acre in size existing as

of November 10, 2021;

(2) On land located within a 50-foot horizontal

distance of a principal building existing on the

same parcel as of the effective date of these

regulations;

(3) On land authorized by the Development Review

Board to be removed from or added to a Habitat

Block pursuant to the modification options of this

section or as part of a Conservation Planned Unit

Development.

C.

Application Submittal Requirements.

Submittal of a preliminary and/or complete Site

Conditions Map (as applicable to the stage of

application) pursuant to Appendix E. Where an

applicant elects to perform a Habitat Disturbance

Assessment, the submittal requirements of Section

12.04J shall apply.

D.

Modification of Habitat Block.

An applicant may request approval from the

Development Review Board to modify a Habitat Block

in any of the following manners. An applicant may

select any one of the three modification options below.

A development application may not include more than

one option for any applications.

Land located within the SEQ-NRP zoning subdistrict, Hazards, or Level I Resources, previously

approved as open space or converted land, subject to a

deed restriction prohibiting development, subject to a

Appendix 52a

conservation or density reduction easement, or owned

by the City of South Burlington or the Winooski

Valley Parks District and designated as a park or

conservation parcel shall not be eligible for any of the

three options to modify a Habitat Block.

(1) Minor Habitat Block Boundary Adjustment.

An applicant may apply to modify the boundary of

a Habitat Block by up to fifty (50) feet in any

direction to account for site-specific conditions,

upon written request by the applicant as part of

the requisite application. Any proposed reduction

in Habitat Block area must be offset with an equal

addition elsewhere within the same subject parcel

or Planned Unit Development. The land to be

protected through the modification of the Habitat

Block boundary must be contiguous to the Habitat

Block. In no case shall the Development Review

Board approve a net reduction of the area of a

Habitat Block.

(2) Small On-Site Habitat Block Exchange. An

applicant may apply to exchange a portion of a

Habitat Block not to exceed two (2) acres or ten (10)

percent of the application’s total land area,

whichever is less, for an equal amount of land

within the same Planned Unit Development or

Site Plan upon written request, without requiring

a Habitat and Disturbance Assessment. Such land

exchange must not include Core Habitat Block

Areas and shall not eliminate existing Habitat

Connectors. The land to be protected through the

exchange may be located separate from the

Habitat Block. To approve a small on-site habitat

Appendix 53a

block exchange, the Development Review Board

shall require the applicant to:

(a) Retain a similar or greater quality and

maturity of vegetation within the proposed

areas for exchange; and

(b) Prioritize the retention of forest stands that

include trees measuring 9 inches diameter at

breast height (dbh) within the exchange area.

(3) Larger Area Habitat Block Exchange. An

applicant may apply to exchange a portion of a

Habitat Block for the addition of an equal amount

of contiguous land within the same Habitat Block

upon written request, and pursuant to the

standards of this Section. The exchange of land

within the same Habitat Block may occur within

one parcel or on separate parcels.

(a) Supplemental Submittal Requirements.

(i)

Indicate, on the Master Plan and all

subsequent

plans,

all

proposed

alterations to the Habitat Block.

(ii)

Submit, as part of the preliminary plat

application, a Habitat and Disturbance

Assessment (HDA) pursuant to Section

12.04(J) and a written assessment of

compliance with the standards contained

within this subsection.

(b) Supplemental Standards of Review. The

Development Review Board may approve a redesignation of a portion of a Habitat Block if it

finds that all of the criteria below are met:

Appendix 54a

(i)

The HDA demonstrates that the

alternation will not result in a reduction

in the Habitat Block’s function as a

Significant Wildlife Habitat;

(ii)

Wildlife movement and connectivity

between Habitat Blocks will be retained;

and,

(iii)

Development

and

infrastructure

proposed to be located adjacent to the

Habitat Block must be designated to

have no undue adverse effects on habitat

functions; and

(iv)

The land that will be added to the

Habitat Block is contiguous to the land

that will not be removed from the

Habitat Block, such that the modified

Habitat Block is a contiguous whole that

is not interrupted or separated by

roadways, railways, or other impending

infrastructure.

(c) Exchange Land. Land to be added to the

Habitat Block pursuant to this subsection must

be identified on the subdivision plat that is

recorded, and in associated legal documents, for

the purposes of subsection 12.04(I), below.

(i)

Any land proposed to be added shall be

accompanied by a restoration plan,

prepared by a landscape architect,

professional

wildlife

biologist,

or

equivalent, that will result in the land

functioning as a Significant Wildlife

Habitat within a period of ten (10) years

Appendix 55a

and being classified as transitional forest

/ forest by a land use / land cover

assessment at that time.

E.

Substantially-Habitat Block-Covered Lots.

A lot containing a combination of Hazards and Level

I Resources exceeding seventy (70) percent of the total

lot area is eligible for relief from Habitat Block

standards in the following manners:

(1) As a Conservation Planned Unit Development,

subject to the standards of Section 15.C.05; and,

(2) The applicant is entitled to re-designate a portion

of the Habitat Block, to allow for thirty (30) percent

of the total parcel area as Buildable Area. The

applicant shall provide a proposed redesignation to

the Development Review Board with land

designated as, and added to, the parcel’s Buildable

Area in the following order:

•

First: Land not a Hazard or Level I Resource;

•

Second: Land that is not characterized by a

preponderance of mature trees;

•

Third: Land within Habitat Blocks, excluding

Core Habitat Block Areas or areas which would

sever a Habitat Connector.

•

Fourth: Land within Habitat Blocks, avoiding

Core Habitat Block Areas to the greatest extent

possible;

(a) Calculation: Land shall be selected from first

to fourth. If all applicable land on the lot from

one category is designated as Buildable Area,

and the allotment of thirty (30) percent of the

Appendix 56a

total parcel area has not been reached, then

land from the next category shall be selected.

(b) Special Circumstances: Where the DRB

finds that designation of land as Buildable Area

pursuant to the priority order above is in

conflict with the purposes of this section, or

where it finds that strict adherence to the

priority order does not allow for a unified PUD

consistent with the purposes or intent of these

regulations, it may approve modifications to

the land selected. Any such modification shall

be minimized in terms of land area and changes

to, or reordering, the priority order.

(c) Any land excluded from Habitat Blocks

regulated

under

this

subsection

and

redesignated as Buildable Area shall remain

subject to all other provisions of these

Regulations.

F.

Standards for Habitat Block Protection.

(1) General Standards. Except as specifically

exempted pursuant to Subsections 12.04(G)(1) and

(2) below, approved by the DRB pursuant to

subsection 12.04(G)(3) below, or modified in

accordance with Section 12.04(D) above, all lands

within a Habitat Block must be left in an

undisturbed, naturally vegetated condition.

Specifically:

(a) The clearing of trees and understory

vegetation is prohibited except as specified in

this section.

(b) The creation of new lawn areas is prohibited.

Appendix 57a

(c) Snow storage areas are prohibited.

(d) Habitat Blocks must be clearly indicated on

all plans and demarked as such. Any building

envelopes shall not contain any land located

within Habitat Blocks.

(e) Supplemental planting and landscaping with

appropriate species of vegetation to achieve

the objectives of this Section is permitted.

G.

Exempted Uses and Activities.

The following uses and activities are exempt from

review under this section:

(1) Establishment and maintenance of unpaved, nonmotorized trails not to exceed ten (10) feet in

width, or their width prior to adoption of these

regulations, whichever is greater;

(2) Removal of invasive species, removal of diseased

vegetation, and removal of dead or dying trees

posing an imminent threat to buildings or

infrastructure; and,

(3) Uses and activities enumerated in Section

12.01(C).

Nothing in this subsection shall be construed to

modify the boundary of a Habitat Block as shown on

the Habitat Block and Habitat Connector Overlay

Districts Map.

H.

Development within Habitat Blocks.

The encroachment of new development activities into,

and the clearing of vegetation, establishment of lawn,

or other similar activities in Habitat Blocks is

prohibited. However, the DRB may allow the

Appendix 58a

following types of development within a Habitat Block

pursuant to the standards contained herein:

(1) Restricted

Infrastructure

Encroachment,

pursuant to Section 12.02 and the following

supplemental standards:

(a) The facility shall be strictly limited to the

minimum width necessary to function for its

intended purposes;

(b) The clearing of vegetation adjacent to the

facility shall be strictly limited to the

minimum width necessary for the facility to

function for its intended purposes (street tree

requirements shall not apply in these areas).

Street lighting shall be prohibited in these

areas except as necessary to meet State or

Federal law; and,

(c) Appropriate measures shall be taken to

promote safe wildlife passage, including the

reduction or elimination of curbs, reduced

speed limits, and/or signage users, and

underpasses or culverts.

(2) Outdoor recreation uses, provided any building,

parking and/or driveways appurtenant to such use

are located outside the Habitat Block.

(a) Within a public park, structures not exceeding

500 square feet gross floor area are permitted.

All such structures must be consistent with

the adopted management plan for the park, if

one exists.

(3) Research and educational activities, provided any

building or structure (including parking and

Appendix 59a

driveways) appurtenant to such use is located

outside the Habitat Block.

(a) Research and educational structures not

exceeding 500 square feet gross floor area,

such as seating areas made of natural

materials, storage sheds, or climbing

structures, may be allowed within a Habitat

Block.

I.

Habitat Block and Habitat Connector

Overlay District Map.

The approval of a modification of a Habitat Block

pursuant to Section 12.03D, above, or of the exclusion

of an area of land from a Habitat Block pursuant to

Section 12.04E, above, shall, without further action,

revise the Habitat Block and Habitat Connector

Overlay Districts Map accordingly. After the effective

date of these regulations, the Habitat Block and

Habitat Connector Overlay Districts Map may be

revised only once for each Substantially-Habitat

Block-Covered lot from which a portion of the land

within the Habitat Block has been excluded.

J.

Habitat

(HDA).

and

Disturbance

Assessment

(1) Purpose. The Habitat and Disturbance

Assessment (HDA) is a tool to inventory and

quantify significant wildlife habitat, and the

existence of rare, threatened and endangered

species (RTEs), within subject properties within

Habitat Blocks and Habitat Connectors (Section

12.04 and Section 12.05) where an applicant is

seeking to relocate and/or redesignate a portion of

the Habitat Block or Habitat Connector.

Appendix 60a

(2) HDA Content Requirements. Where an HDA is

required by these regulations, the applicant shall

contract with a qualified wildlife biologist or

ecologist to prepare the HDA. The HDA prepared

for the Development Review Board shall include

the following information:

(a) Site Conditions Map including all Habitat

Blocks and Habitat Connectors on or within

200 feet of the project site.

(b) An inventory of existing (pre-developed)

wildlife habitat found on the site, including the

presence of rare, threatened, and/or

endangered species and significant wildlife

habitat, and an inventory of the specific

habitat types found on the parcel and their

relative importance to the various wildlife

species that rely on that habitat for one or

more life-cycle function;

(c) An assessment of the relationship of the

habitat found on the site relative to other

significant wildlife habitat present in the City

(e.g., does habitat found on the parcel provide

for connectivity between mapped habitat

blocks; is the parcel located contiguous to other

significant wildlife habitat, or part of a habitat

block);

(d) Identification of the distance of all proposed

development

activities

(as

permitted),

including

clearing,

driveways,

and

infrastructure, and areas of disturbance, from

the significant wildlife habitat and, if

significant wildlife habitat is proposed to be

Appendix 61a

disturbed, the total area of disturbance and

the total area of the remaining (undisturbed)

habitat;

(e) An assessment of the likely impact of the

proposed development, including associated

activities (e.g., introduction of domestic pets,

operation of vehicles and equipment, exterior

lighting, introduction of non-native species for

landscaping) on the ecological function of the

significant wildlife habitat found on the site.

This shall include an assessment of whether

travel between Core Habitat Block Areas will

be disrupted; and

(f) An assessment of the anticipated functionality

of the Habitat Block with proposed mitigation

measures and a statement identifying specific

mitigation measures taken to avoid or

minimize the proposed development’s impact

on the habitat, including buffers of or from

habitat for specific identified species, possible

replacement or provisions for substitute

habitats that serve a comparable ecological

function to the impacted habitat, and/or

physical design elements to incorporate into

the project.

***

Appendix 62a

14 SITE PLAN AND CONDITIONAL

USE REVIEW

14.05 Application Review Procedure

A.

Pre-Submission Meeting.

Prior to a formal submission, the applicant should

meet in person with the Administrative Officer and

other City officials as desired to discuss the proposed

site plan. The intent of such a conference is to enable

the applicant to inform the Department of Planning

and Zoning of the proposal prior to the preparation of

a detailed site plan and for said Department to review

the basic design concept, advise the applicant as to

potential problems and concerns, and to determine

generally the type of information to be shown on and

submitted with the site plan.

15.A SUBDIVISION REVIEW

15.A.05 Pre-Application Sketch Plan Review

A.

Purpose.

The purpose of a pre-application sketch plan review,

required for any proposed subdivision of land, is to

acquaint the DRB (Development Review Board) with

the subdivision proposal at a conceptual stage in the

design process, prior to the submission of a formal

application for master plan, preliminary or final

subdivision review. Sketch plan review offers the

applicant and DRB the opportunity to consider and

discuss a conceptual subdivision plan under relevant

regulations, prior to incurring the expense of

Appendix 63a

preparing a complete application and surveyed

subdivision plat. Sketch plan review while required,

is advisory in nature, intended only to guide the

application and review process.

Appendix 64a

U.S. DISTRICT COURT

DISTRICT OF VERMONT

FILED

2022 FEB 24 PM 1:58

CLERK

By s/

DEPUTY CLERK

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF VERMONT

835 HINESBURG ROAD, LLC, )

)

Plaintiff,

)

)

v.

)

)

CITY OF SOUTH

)

BURLINGTON, SOUTH

)

BURLINGTON CITY

)

COUNCIL, MEAGHAN

)

EMERY, TIMOTHY

)

BARRITT, and HELEN

)

RIEHLE,

)

Defendants

)

Case No.

5:22-cv-58

JURY TRIAL

DEMANDED

COMPLAINT

Nature of Action

1. By three to two vote, the South Burlington

City Council seized 1,300 acres of land throughout the

City without paying for it. The recent amendments to

the Land Development Regulations (“LDR”) exclude

large swaths of land from any development at all.

Appendix 65a

South Burlington barred all activity in “Habitat

Blocks.” Under South Burlington’s LDRs, “all lands

within a Habitat Block must be left in an undisturbed,

naturally vegetated condition” and the “encroachment

of new development into ... Habitat Blocks is

prohibited.” The City Council’s action constitutes an

illegal taking under both the United States and

Vermont Constitutions. It must pay for approximately

1,300 acres of land that it has taken.

2. In casting the critical vote, Meghan Emery,

who was both a City Councilor and an employee of the

University of Vermont, struggled under heavy

conflicts of interest that violated the City of South

Burlington’s “Conflict of Interest and Ethics Policy.”

At the eleventh hour, the University of Vermont

negotiated additional specific language that protected

it from the land seizures that the City Council

executed. It did so after threatening to sue the City for

violating its property rights. Despite having a clear

“conflict of interest” under the City of South

Burlington’s ethics policy, she failed to recuse herself

and voted for the adoption of the Land Development

Regulations. The last minute version of the

Regulations contained specific language designed to

insulate the University of Vermont from its effects.

The Court should nullify Ms. Emery’s vote because

voting with the conflict of interest violates the Due

Process Clause, Vermont’s equivalent, and South

Burlington’s own regulations.

3. The designation of land owned by 835

Hinesburg Road, LLC (“835 Hinesburg”) as a “Habitat

Block” violates the United States Constitution’s Equal

Protection Clause, Vermont Constitution’s Common

Appendix 66a

Benefit Clause, and Vermont statutes. The

designation of the 835 Hinesburg’s land as a Habitat

Block was improper because it discriminated against

property owners’ rights to develop their land. The

consultants that the City of South Burlington (the

“City”) hired failed to visit 835 Hinesburg’s land to

determine whether it actually was a Habitat Block.

835 Hinesburg presented expert analysis to the City

Council that rebutted the City’s consultants and that

showed that the land should not be included in the

areas designated as Habitat Blocks. Moreover,

encouraging species to roam across 835 Hinesburg’s

land puts them at risk of being run over on the

interstate, undermining the purpose of the “Habitat

Blocks.” The City Council ignored this evidence and

decided to continue to include the land.

4. South Burlington’s LDRs are also fatally

ineffective in accomplishing the goals for Habitat

Blocks. For example, the exemption of the University

of Vermont’s land completely undermines the basis of

the LDRs. The land owned by UVM is large and

centrally located in South Burlington. By excluding

land from the University, the stated goals of

protecting

Habitat

Blocks

are

significantly

undermined. Additionally, the purpose of helping

species navigate the fragmented land in South

Burlington is also undermined by allowing walking

paths on land preserved as Habitat Blocks. Animals

generally avoid all human contact and their canine

pets.

Appendix 67a

Parties

5. Plaintiff 835 Hinesburg is a Vermont limited

liability company.

6. The City is a Vermont municipality.

7. The City Council is the governing body for the

City of South Burlington.

8. Meaghan Emery is a member of the City

Council and is named in this action in her official

capacity. She voted in favor of the amendments to the

Land Development Regulations.

9. Timothy Barritt is a member of the City

Council and is named in this action in his official

capacity. He voted in favor of the amendments to the

Land Development Regulations.

10. Helen Riehle is the chair of the City Council

and is named in this action in her official capacity. She

voted in favor of the amendments to the Land

Development Regulations.

11. The City, the City Council, and the members

of the City Council acted under color of state law when

they undertook the actions described in this

complaint.

Jurisdiction and Venue

12. This Court has jurisdiction pursuant to 28

U.S.C. § 1331. The federal issues include resolution of

a Fifth Amendment illegal takings claim, Fifth and

Fourteenth Amendment Due Process claims, and a

Fourteenth Amendment Equal Protection Claim.

Appendix 68a

13. This Court may enter a declaratory judgment

pursuant to the Declaratory Judgment Act, 28 U.S.C.

§ 2202.

14. Venue lies in this jurisdictional district

pursuant to 28 U.S.C. § 1391(b).

Facts

835 Hinesburg Owns Property In South Burlington

15. 835 Hinesburg owns property in South

Burlington, Vermont. Interstate 89 and Burlington

International Airport are directly to the north of the

property. Heavy industrial development and a major

state highway, Routh 116, is directly to the east. A

major sports complex and hundreds of homes are to

the west. Hundreds of additional homes lie to the

south.

16. 835 Hinesburg has been seeking to develop its

property for a number of years. In 2015, it presented

a plan to the Planning Commission. The members of

the Planning Commission responded favorably to the

plan.

The Amended LDRs Completely Takes

835 Hinesburg’s Property

17. On February 7, 2022, the City Council voted

to adopt the amendments to the Land Development

Regulations.

18. Section 12.04 (F) of the amended regulations

completely prevents any use of the area of land

designated a Habitat Block: “all lands within a

Habitat Block must be left in an undisturbed,

naturally vegetated condition.”

Appendix 69a

19. Section 12.04(F) specifically prevents a

number of traditional property rights associated with

fee simple ownership, including: (1) “the clearing of

trees and understory vegetation is prohibited except

as specified in this section,” (2) “the creation of new

lawn areas is prohibited,” (3) “Snow storage areas are

prohibited.”

20. Section 12.04(F) also undermines one of the

most traditional and important rights of private

property—the right to exclude. 835 Hinesburg cannot

erect a fence to exclude either humans or wild animals

under Section 12.04(F).

21. Section 12.04(H) also prohibits development

in the Habitat Block: “The encroachment of new

development activities into, and the clearing of

vegetation, establishment of lawn, or other similar

activities in Habitat Blocks is prohibited.”

22. The broad language of the LDRs prohibits any

manner of uses including the fundamental right to

exclude others from entering your property. The

prohibition on “disturbing” the land prevents a

property owner from even walking his or her land for

fear of disturbing animals.

***

The Interim Zoning Committee’s Work Was

Flawed, Conflicted, And Biased

27. On November 13, 2018, the City imposed a

ban on development by adopting interim zoning.

During the period of time that interim zoning was in

effect, no one in South Burlington could develop

property without the approval of the City Council.

Appendix 70a

28. During the existence of Interim Zoning, the

City Council acts both in a legislative and quasijudicial capacity. The City Council is the final

arbitrator of development rights during the period of

interim zoning.

29. The City formed an Open Space Interim

Zoning Committee (“Interim Zoning Committee”) on

December 17, 2018. The Clerk of that committee was

Meaghan Emery who was also a City Councilor for the

City of South Burlington.

30. In its first report to the South Burlington City

Council, the Interim Zoning Committee made clear

that its intent was to strip private property owners of

their development rights. The untitled power point

said: “The relevant issue for our work is that we don’t

want to expend resources (time & $) on the protection

of properties that may not be developable.”

31. The final report from the Interim Zoning

Committee made clear that the Committee was

seeking to undermine the development potential of

private property owners. “The assessment process led

to the distillation of a list of 25 highest priority parcels

for open space conservation. Twenty are privatelyowned properties and five are owned by the

University of Vermont.”

32. The Committee took a hands-off approach to

the University of Vermont properties: “The high

priority UVM properties do not fit neatly into these

categories, but we suggest that the city work with

UVM to better understand their long-term goals for

properties within South Burlington.”

Appendix 71a

33. The

Committee

excluded

from

its

prioritization system any properties owned by public

entities or that already had certain conservation

protections. The final report said: “We then

eliminated parcels that were already conserved

through 1) permit requirements which restrict

development, 2) publicly-owned parks or lands with

conservation designation, and 3) third party

conservation ownerships or easements.”

34. The Committee also arbitrarily excluded

properties of a smaller size regardless of the

environmental attributes found on the properties.

35. By excluding these properties from the

scoring system, the Committee fatally undermined

any legitimate environmental conservation.

36. For the 25 properties that the Interim Zoning

Committee included, it did not take an objective

approach. Instead, it allowed the personal preferences

of some of its members to infect the scoring system for

the properties.

37. While the Report purported to prioritize

properties if they had a “hit” on 4 of the 5 categories

under consideration, the members of the Committee

had their collective thumb on the scale. These five

categories were “water,” “wetland,” and “forest,”

“aesthetics,” and “agriculture.” The scoring system

had no basis in environmental science and was

created to over identify property as having important

environmental attributes. The over identification of

properties with environmental attributes was

consistent with the anti-growth philosophies of the

Committee members.

Appendix 72a

38. Even though the Committee claims that 835

Hinesburg’s property had 4 out of 5 on its own scoring

system, 835 Hinesburg’s property did not have 4 out

of 5. The Committee itself determined that there was

no scoring for “aesthetics” or “agriculture.” In other

words, there were on[ly] 3 out of 5 categories that

applied to 835 Hinesburg’s property based on the

Committee’s own scoring. Yet, inexplicably, the

Committee gave the property a 4 out of 5 score.

39. The Committee excluded a number of

properties that had scored a 3 [out] of 5 from its

identification as “Habitat Blocks.” These property

owners were identically situated to 835 Hinesburg for

the purposes of identifying “Habitat Block” but, for

inappropriate

reasons,

were

excluded

from

designation as a “Habitat Block.”

40. Hinesburg’s property should not have even

scored a 3 out of 5.

41. The Committee claimed that 835 Hinesburg’s

property had forest habitat. That conclusion was

inconsistent with the State of Vermont’s Biofinder

tool. The Biofinder showed that the 835 Hinesburg

property had neither a “Highest Priority” nor

“Priority” for “Interior Forest Block” status.

42. The Committee’s conclusions concerning

wildlife also are suspect. The Committee admitted

that its system did not include actual visits to the

properties: “the ratings in this report for each parcel

were primarily done using mapping, not on-site visits

by professionals.” The scoring of 835 Hinesburg’s

property appears to be based on a single observation

from June 21, 2008 that was logged not by the

Appendix 73a

Committee but by someone with access to the

BioFinder tool. This observation was more than ten

years old before the Committee’s report.

43. The Committee relied on this information

even though it acknowledged that it should not rely

on this data. In its report, it quoted Biofinder’s own

statement concerning its lack of reliability for the very

task that the Committee used it: “For example, under

the “Community and Species Scale” one finds this

caution: ‘As you interact with this map, please

remember that all data were collected for use at the

state or town level. Though you can zoom in to

individual parcels, for example, you need to

understand the limitations of each of the datasets

you’re using.’”

44. The report again quoted Biofinder which

again said that the Biofinder tool should not be used

for the purpose for which the Committee used it: “The

accuracy for other components (Interior Forest) can

diminish as one zooms in. Because of these accuracy

issues at the local scale, BioFinder cannot replace site

visits or site-specific data and analyses and should

only be used to gain a general understanding of

components likely to be at play.” The Committee

never verified that its information was current or

reliable.

45. In the final report, the Committee stated that

“As the 2014 report by the previous Open Space

Committee noted, field surveys will be ultimately

required to verify the existence or absence of the

resources.” Despite this acknowledgement, no one

from the City ever verified the conclusions of the

Committee by conducting a site visit to the property.

Appendix 74a

46. Correcting for this faulty information, the 835

Hinesburg property should have scored a 1 out of 5

and not been included in the properties that should be

preserved for environmental reasons.

47. The five categories themselves do not

represent any legitimate basis for prioritizing

conservation of environmental resources. Instead,

they were simply a guise for the Committee’s desire to

prevent any further private commercial development

of property in that area of South Burlington.

48. In an effort to give their conclusions the aura

of legitimacy, the Committee hired Arrowwood as a

consulting firm to bless its conclusions.

49. The 2020 Arrowwood report admitted that its

employees did not visit the sites under consideration.

Arrowwood admitted this even though the Committee

had said that its conclusions should be field verified.

***

835 Hinesburg Objected To The Process

At The City Of South Burlington

65. 835 Hinesburg objected early and often to the

process occurring at the City of South Burlington.

66. In a February 2020 letter, 835 Hinesburg

urged the City Council not to use the process that was

unfolding at the Interim Zoning Commission. In that

letter,

835

Hinesburg

noted

that

“Many

environmental features (e.g., wetlands) can be

scientifically identified, mapped and protected

through delineations and/or buffers.” Despite this

statement, the City never sent anyone to the property

Appendix 75a

to document properly the actual features of 835

Hinesburg’s land.

67. The February 2020 letter also objected to the

approach of selecting the properties to stop

development then justifying their selection after the

fact by customizing how environmental criteria are

applied.

68. The February 2020 letter also noted that

acting on the preliminary plan would amount to an

illegal taking.

69. On August 31, 2021, 835 Hinesburg sent a

letter objecting to the Planning Commission’s

abandonment of its efforts to work with 835

Hinesburg. Instead, the Planning Commission spent

its time adopting regulations that were consistent

with the reports from the Interim Zoning Committee

that sought to stop all development in “Habitat

Blocks” and to expand buffer zones beyond what was

required by the State of Vermont regulations.

70. On November 2, 2021, 835 Hinesburg

submitted another letter objecting to the draft of the

Land Development Regulations that the Planning

Commission voted to approve.

71. In that letter, 835 Hinesburg objected to the

Land Development Regulation’s concept of a Habitat

Block as a taking.

72. On January 6, 2022, 835 Hinesburg sent an

additional letter objecting to the adoption of the

proposed Land Development Regulations.

Appendix 76a

73. With its January 6, 2022 letter, 835

Hinesburg submitted expert analysis on the

suitability of the land for Habitat.

74. This analysis found that there were no

advantages to designating the land as a “Habitat

Block.” The analysis found that over 12 years the

expert had not seen evidence of the species for which

Habitat Blocks were created. This expert had actually

visited the property.

75. The expert had seen no signs of unusual,

threatened or endangered species.

76. The expert concluded that “The site [HB12] is

not a movement corridor to the north and it never will

be so long as down-town exists. Common sense

dictates that vertebrates would avoid the

noise/smells/sounds/sights of a 4-lane divided

highway with high speed traffic. Animals might

attempt it once, but the danger is obvious—and is

continuous 24/7. Ultimately, if crossing repeatedly,

most small, mid or large land animals crossing I-89

will be killed or injured.” The expert also noted that

the presences of walking trails brought human

through the forested area that provided another

disincentive for species to be present on the property.

77. The expert also noted that the alleged

“Habitat Block” on 835 Hinesburg’s property was not

connected to any other protected forest area.

78. The expert concluded that species have

already shifted to those species adapted to survive in

a suburban environment. The expert also concluded

that the state sponsored 50 foot buffer was sufficient

to protect the wetland areas and related species.

Appendix 77a

79. The January 6, 2022 letter noted that with

the addition of the expert analysis, the City Council

had no rational basis for designating 835 Hinesburg’s

land as a “Habitat Block.” The letter also objected that

there was no way to rebut the conclusion that the land

was a “Habitat Block.” The letter noted that the Land

Development Regulations violated the Due Process

Clause, the Equal Protection Clause, and their

Vermont equivalents.

The City Council Denied 835 Hinesburg

The Right To Develop Its Land Because

It Was Located In A Habitat Block

80. The August 31, 2021 letter also noted that 835

Hinesburg felt it had no choice but to submit for

sketch plan review a plan to develop the property with

the then existing Land Development Regulations.

81. 835 Hinesburg submitted its sketch plan to

the City Council on August 31, 2021.

82. On November 8, 2021, the City Council

denied 835 Hinesburg the opportunity to develop the

property by saying that the Property did not meet the

proposed new regulations. As part of its decision, the

City Council relied on the fact that some of the

proposed development was located within a Habitat

Block.

Appendix 78a

Despite Detailed Legal And Scientific Information

That Showed The Application Of A Habitat Block

To 835 Hinesburg’s Land Was Unwise And Illegal,

The City Council Adopted The Amendments

To The Regulations

83. The City Council did not carefully review

whether the amendments to the LDRs should be

applied to 835 Hinesburg’s land. Had they done so,

they would have seen that the application to 835

Hinesburg’s land runs contrary to the purposes of the

regulations.

84. The City did not even act consistently with its

plan to designate 835 Hinesburg’s land as a “Habitat

Block.” The City has approved the placement of a dog

park within Wheeler Park abutting the habitat block.

It would not have allowed dogs near a “Habitat Block”

if it were truly concerned with making the land

hospitable to wild species.

85. Despite having all the information about the

flawed nature of the regulations and their adoption,

the City Council voted to continue to include 835

Hinesburg’s land in the designation of a “Habitat

Block” under the City’s amended Land Development

Regulations and to increase the buffer for the wetland

to 100 feet. The City failed to ever conduct an onsite

evaluation of the “Habitat Block” to verify the

tentative conclusions of the Interim Zoning

Committee. It failed to do so even though the Interim

Zoning Committee said that it must do so to have any

validity.

Appendix 79a

The Amendments Of The Land Development

Regulations Will Result In Negative

Environmental Consequences

86. The State of Vermont is facing a housing

crisis both for “affordable housing” and workforce

housing. The City Affordable Housing Committee has

documented this worsening situation.

87. The prices of real estate and developed

housing have increased rapidly in the last few years.

88. Vacancy rates in Chittenden County for

rental and homes for purchase are exceptionally low.

89. In the absence of construction in the core

areas of Chittenden County, the high prices for real

estate in Chittenden County have caused and will

continue to cause housing to be constructed in the

outlying areas of Chittenden County and areas

outside of Chittenden County. This construction will

reduce more significantly the amount of forested

areas. This is because the property outside South

Burlington is more forested than property within

South Burlington. The construction outside South

Burlington will also cause significantly worse

environmental impacts including the goals identified

for passing the Habitat Blocks.

90. Private employment for the State of Vermont

is focused in the core areas surrounding Burlington,

Vermont.

91. Employees traveling to work in Burlington

and the core areas of Chittenden County will often use

Interstate 89 through South Burlington.

Appendix 80a

92. The development of the property at 835

Hinesburg is ideal for reducing transportation travel

times and distances because the property is situated

on Interstate 89. There are currently plans to develop

an interstate interchange on or near the property at

835 Hinesburg.

93. By further reducing the supply of available

housing, the City has increased the pressure to build

outside of the core areas of Chittenden County.

94. By furthering reducing the supply of available

housing, the City of South Burlington will increase

both particulate air pollution and greenhouse gases by

forcing employees in the core of Chittenden County to

travel longer distances to housing outside the core

areas of Chittenden County. The increased

transportation along Interstate 89 will also increase

water pollution in surrounding waterways.

95. Transportation is the largest source of

greenhouse gases in Vermont.

96. Building housing close to employment would

lead to less overall pollution. Moreover, constructing

a

residential

neighborhood

that

integrated

appropriate commercial development would also

reduce the use of pollution from transportation.

South Burlington’s “Habitat Blocks” Will Undermine

The Goals Of Vermont’s “Forest Blocks”

97. The “Forest Block” concept under Vermont

law bears no relation to South Burlington’s

implementation of its “Habitat Blocks.”

98. The state statute developed as an attempt to

balance development with protection of “large areas of

Appendix 81a

contiguous forest.” See 2014 Act 188 S 1(2); see also 24

V.S.A. § 4303(34) (defining “forest block” as “a

contiguous area of forest ...”).

99. South

Burlington’s

own

consultant,

Arrowwood Environmental, concluded that “South

Burlington does not contain large areas of continuous

forest cover.” Arrowwood Environmental, LLC, “City

of South Burlington Habitat Block Assessment &

Ranking 2020,” (“Arrowwood 2020”) at 1. The

consultant’s report also notes the “Habitat Blocks” in

South Burlington “are likely too small by themselves

to support breeding populations of wide ranging

wildlife species such as bobcat and fisher.” Arrowwood

2020 at 13.

100. One of the chief aims of the state statute is

to maintain connections between forest blocks. 2015

Act 171 § 14. The idea is to allow species to move

between various forest blocks. Here, no one should

want species to move to 835 Hinesburg’s property.

Interstate 89 and Burlington International Airport

are directly to the north of the property. Heavy

industrial development and a major state highway,

Rout[e] 116, are directly to the east. A major sports

complex and hundreds of homes lie to the west.

Hundreds of additional homes are to the south. In

addition, there are no forest blocks on the property on

the other side of Interstate 89.

101. Encouraging species to move toward the

Interstate and the property north of Interstate 89 or

easterly toward Route 116 puts them in danger of

collisions with cars and trucks. It runs contrary to the

purposes of the legislation adding the forest blocks.

Moreover, animals tend to avoid areas near already

Appendix 82a

existing development and areas where humans have

walking paths.

102. On a regional or state-wide basis,

preventing 835 Hinesburg from developing its land

will have adverse effects on real forest blocks. As

Arrowwood notes, “South Burlington is one of the

most populous cities in Vermont. ...” Arrowwood at 1.

South Burlington made its decisions about whether it

would support forest blocks a long time ago. It chose

to have economic development. The maps from

regional and town planners reflect these facts. Map 1

from the Chittenden County Regional Planning

Commission labels the area as an employment zone

with sewer service. Map 2 related to future land use

gives the land an “Enterprise Designation.” The City’s

Comprehensive Plan Map 11 labels the area as

medium to high density and principally nonresidential.

103. The “Habitat Blocks” and the amendments

to the LDRs are not consistent with the regional plan.

South Burlington voted to approve the regional plan

in 2018.

The Zoning Of 835 Hinesburg’s Land

Amounted To Illegal Reverse Spot Zoning

104. The City created an entirely new zoning

district for 835 Hinesburg’s land. 835 Hinesburg’s

land is by far the largest—if not only—parcel of land

in the new zoning district.

l05. The zoning district took away 835

Hinesburg’s right to develop the property as an

industrial area under the former zoning.

Appendix 83a

l06. The chief opposition to the amendments to

the Land Development Regulations came from

citizens who rightly cited the regulations as

restricting the availability of affordable housing in the

City.

l07. The City’s own Affordable Housing

Committee opposed the passage of the Land

Development Regulations.

l08. The City used the rezoning of 835

Hinesburg’s property as an attempt to justify its

reduction in affordable housing by claiming that 500

additional units could be built on the property. City

Councilors who favored the new Land Development

Regulations cited faulty calculations from the City

managers to drum up support for the amendments.

They used these faulty calculations at public meetings

and failed to recognize the true facts when

representatives of 835 Hinesburg corrected them.

109. Of course, the City’s designation of a large

block of the property as a Habitat Block makes that

calculation of the number of units a fantasy.

110. Because of the uniquely negative treatment

that 835 Hinesburg received under the new zoning

regulations, the zoning of its property is illegal

reverse spot zoning.

COUNT I

Illegal Taking (U.S and Vermont Constitution)

111. Plaintiff realleges the previous paragraphs

as if set out in full here.

112. The United States Constitution prohibits

the government from taking private property for

Appendix 84a

public use without just compensation. See U.S. Const.

amend. V. Plaintiff seeks to enforce its federal

constitutional rights through 42 U.S.C. § 1983.

113. The Vermont Constitution prohibits the

government from taking private property for public

use without just compensation. See Vermont

Constitution, Ch. 1, Articles 2, 4, 9.

114. 835 Hinesburg has a legal interest of record

in the property it owns at 835 Hinesburg Street in

South Burlington, Vermont.

115. The amendments to South Burlington’s

Land Development Regulation are an illegal taking

under the Vermont Constitution. In particular, the

creation of Habitat Blocks and the increase of the

buffer zones around wetlands from 50 to 100 feet

represent takings by the City.

116. In this case, the taking is a physical taking.

The restrictions on any land that is a “Habitat Block”

are so severe that 835 Hinesburg may not even put up

a fence to keep people off of its property. Recent

inspection during a snow storm showed that there are

people illegally entering 835 Hinesburg’s land for

recreational purposes. The restriction violates 835

Hinesburg’s most fundamental property right—the

right to exclude others from entering its property.

Moreover, the City has acquired the land for someone

else—the animals that are to inhabit the land

designated as a “Habitat Block.”

117. To the extent that the Court considers it a

regulatory taking, the taking is illegal because 835

Hinesburg had definite investment back expectations

that it would be able to use the whole property with a

Appendix 85a

Habitat Block designation. At the time that 835

Hinesburg bought the property and throughout most

of the time that it was developing the property, the

concept of a “Habitat Block” did not exist. The

investment backed expectations included paying more

than 20 years of property taxes.

118. The “Habitat Block” concept does not

represent any true environmental science concern.

Instead, it is a guise to allow anti-property rights

advocates to prevent further development in South

Burlington. Thus, the “Habitat Block” concept does

not promote the public good, but instead it promotes

the individual interests of a small group of private

residents.

119. Moreover, the application of the “Habitat

Block” concept to 835 Hinesburg’s property actually

decreases the public good because it will lead to

negative impacts to the public good like increased

greenhouse gases, decreased real “Forest Blocks,” and

increased particulate pollution.

***

Claims for Relief

WHEREFORE, Plaintiff prays that judgment be

entered in his favor for the following relief:

A. A declaration that the resolution to authorize

amendment to the Land Development Regulations

failed;

B. A declaration that the City lacked authority

to seize 835 Hinesburg’s property;

C. A declaration that 835 Hinesburg may

proceed with its application for development of the

Appendix 86a

property under the previous version of the Land

Development Regulations;

D. An injunction barring the enforcement of the

Land Development Regulations;

E. An order barring the Individual Defendants

from issuing a permit that would invade 835

Hinesburg’s property rights;

F. A declaration that the purported passage of

the Land Development Regulations amounted to a

taking under the United States and Vermont

Constitutions;

G. A declaration that the purported passage of

the Land Development Regulations violated the

Common Benefits Clause of the Vermont Constitution

and the Equal Protection Clause of the United States

Constitution;

H. A declaration that the purported passage of

the Land Development Regulations violated the Due

Process Clause;

and

I.

Damages;

J.

Punitive Damages;

K. An order awarding attorneys’ fees and costs;

L. Such other and further legal and equitable

relief as this Court deems just and proper.

Appendix 87a

JURY DEMAND

Plaintiff demands trial by jury of all issues

so triable.

Dated: Burlington, Vermont

February 24, 2022

s/Matthew B. Byrne

Matthew B. Byrne, Esq.

Gravel & Shea PC

76 St. Paul Street, 7th Floor,

P.O. Box 369

Burlington, VT 05402-0369

(802) 658-0220

mbyrne@gravelshea.com

For Plaintiff