By Michael Bielawski

Developers who invested in land to build in South Burlington argue that the City is unfairly enforcing restrictions on development within wildlife corridors. 

The case could soon be in the U.S. Supreme Court. A lower federal court sided with the city and the plaintiff/plaintiff developers want the Supreme Court to rule. 

If the U.S. Supreme Court were to rule broadly that bans on the development of wildlife corridors are unconstitutional, then the State of Vermont’s latest Act 250 revisions (H. 867) which includes banning rural development in wildlife corridors may also be legally challenged. Language in the bill states “A permit will not be granted if it is demonstrated by any party opposing the applicant that a development or subdivision will destroy or significantly imperil necessary wildlife habitat or any endangered species.” The bill was passed by the Legislature and may face a veto by Gov. Scott. 

The plaintiff is “Appellant 835 Hinesburg Road, LLC”. According to a federal court document, they are asking Supreme Court Justice Sonia Sotomayor (whose district covers Vermont) for an extension to submit a “writ of certiorari”: a request for a lower court to pass documents to a higher court for further review.

The Pacific Legal Foundation representing them offers a summary of the case. It mentions that these are high-profile developers responsible for the state’s first Walmart.

It states, “The legal troubles trace back to 2015, when the landowners presented the city with plans for a mixed-use commercial and residential development. The plan was well-received by city officials who encouraged them to delay their plans so they could re-zone the land accordingly.”

It continues, “A flurry of zoning manipulations ensued over the next several years, ultimately leading to the city’s adoption in 2021 of a zoning scheme involving wildlife corridors called ‘habitat blocks’ – an area where all development is prohibited. The city rewarded the developers’ patience by rejecting their proposed development and designating 45 acres of their land as a ‘habitat block.’”

It also mentions that housing was a major part of this development project. The article states “Never mind that their property’s neighbors include an interstate, a major sports center, hundreds of homes, and an industrial park.”

The Burlington region is notorious for having limited housing available. The vacancy rate for apartments in The Queen City is just .5%, according to WCAX. According to Zillow, the average cost of a home in South Burlington is now over $455,000.

The writ of certiorari also provides its narrative of the events leading up to the lawsuit. It states that in November 2018 the City Council adopted interim bylaws to “prioritize undeveloped open spaces for conservation.” It deals with development in wildlife corridors where animals are known to migrate through.

In 2020 the Council voted to select 25 high-priority locations that would be especially protected from development. They were designated as “habitat blocks” meant to support migration. This includes about 38% of the property that the plaintiffs had purchased.

In 2021 the plaintiffs submitted a request for commercial development on the property, and then the City denied the request. The letter explaining the denial states that they “had not completed the preparation of these amendments [regarding land use], the City Council did not yet know for certain the standards that will apply to development of the subject property.”

The document further states that only a “minimal assessment” of the proposed property was completed. Nonetheless, it was concluded that there was a “very likely” possibility that the development would not be allowed.

The Council alleged that the developers’ plan lacked necessary information about wetlands and other protected natural landscapes that could be impacted. The South Burlington Development Review Board also determined that more information was needed.

At this point, the developers initiated a lawsuit. The document states, “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.”

Murphy v. New Milford Zoning Comm’n concerned a homeowner being asked by a municipality to stop holding community prayers at the home. According to CaseText, it determined that “Holding that ripeness requires a “final, definitive position from a local authority to assess precisely how [a landowner] can use [his] property”

The author is a writer for the Vermont Daily Chronicle