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.
Fortunately, 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, along with his son Ryan, and Jeff Davis are fighting back. Represented at no charge by Pacific Legal Foundation, they’re appealing their case’s unjust dismissal at the Second Circuit to ensure federal court access for takings claims and ultimately the right to productively use their property.