Jeff Nick and his business partner, Jeff Davis, are responsible for some of the most substantial development in Vermont, including the state’s first Walmart.
In 2000, they bought a large swath of industrially zoned land in a high growth area of South Burlington (pictured above). The property’s location and infrastructure made it ripe for the city-backed smart growth strategy to boost the economy without additional sprawl.
The business partners spent millions of dollars on the property’s purchase, maintenance, and taxes, and hundreds of hours with city planners to design the best development fit.
More than two decades later, however, the site remains vacant. Instead of building, the developers are battling the city’s efforts to rope off the use of nearly half their property.
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.
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.” Never mind that their property’s neighbors include an interstate, a major sports center, hundreds of homes, and an industrial park.
With a huge chunk of their property rendered useless by government fiat, the developers took the city to federal court. They argued the habitat block designation bars them from doing anything with their land and is a regulatory taking requiring just compensation.
But the court said it couldn’t even consider the taking claim because the city hadn’t yet issued a final decision. Under its own laws, however, the city could never approve development of a habitat block.
By dismissing the claim as “unripe,” the court effectively gave the city legal cover to take property by using gimmicks such as habitat blocks that ban all development and at the same time forever pause the city’s obligation to compensate landowners for takings.
The the U.S. Supreme Court agrees that property owners should be treated like every other person asking a federal court to protect their constitutional rights: PLF’s 2021 win in Pakdel v. City and County of San Francisco confirmed takings claims are ripe for federal court review once it’s clear the government cannot permit any development under its own laws.
Nor can the government move its land use goalposts then hide behind its self-created regulatory uncertainty to avoid paying just compensation. And courts must give property-related civil rights claims the same respect as they do every other type of civil rights claims such as free speech and due process.
With their property rights relegated to second-class status, Jeff Nick, his son Ryan, and Jeff Davis asked the Supreme Court to hear their case. Unfortunately, in October 2024, their petition was denied. The property owners are still pursuing ways to develop the property so they don’t have to give up on their dreams.
What’s At Stake?
- Federal courts need to stop treating property rights as second-class rights and allow property owners to defend those rights before a federal court without delay—as they do for all other constitutional rights.
- Property owners have a right to the productive use of their property. If local governments take away that right, then they must pay just compensation under the Fifth Amendment of the U.S. Constitution.
