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

23-218
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.
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.
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 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
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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-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.
1 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.
3
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.
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 final-decision
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 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
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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 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 final-decision requirement, contending that to
submit an application under the Amended LDRs would have been “futile.” Appellant’s Br.
2 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.
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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, 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
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and applied the Williamson County final-decision requirement to bar 835 Hinesburg’s due
process claim in addition to its takings claim.
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 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
3 “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).
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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)). 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
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