32 Intervale v. City of Burlington

7ermont Superior Court
Filed 11/19/24
Chittenden tUnit

VERMONT SUPERIOR COURT CIVIL DIVISION
Chittenden Unit Case No. 23-CV-02886
175 Main Street
Burlington VT 05401
802-863-3467
www.vermontjudiciary.org

32 Intervale, LLC et al v. City of Burlington

DECISION ON CITY'S MOTION FOR SUMMARY JUDGMENT

This action arises from the Defendant City of Burlington's recent ordinance amendment

imposing certain limitations on so-called "short-term rental" properties. Plaintiffs several Burlington

property owners seek a declaratory judgment that the City does not have authority to regulate the

length of residential use under the Minimum Housing Standards ordinance.! The City moves for

summary judgment. Because the City has broad authority to regulate short-term rentals, the court

grants the City's motion.

Undisputed Material Facts
The material facts are not in dispute. Plaintiffs are 14 distinct entities or individuals that own

properties in Burlington. All of them began renting out their properties on a short-term basis at a time
when the City's ordinances made no distinction regarding the length of a rental. On June 27, 2022, the

Burlington City Council enacted Ordinance Amendment 8.24, "An Ordinance in Relation to Housing
and Taxes Short Term Rentals BCO. Ch. 18 & Sec 21-31." It was signed by the Mayor on July 1,
2022 and became effective August 3, 2022. Second Am. Compl. ¢ 111; City's Exhibit A. That

amendment established regulations for the operation of "short-term rentals," which are contained in

several amendments and additions to Chapter 18 of the City's Code of Ordinances, collectively

referred in the City's briefing as the "STR Ordinance." City's Exhibit A; Pls. Second Am. Compl.

q 111-13. Specifically, the amended ordinance requires owner or "host" occupancy for most short-
term rentals, and limits the number of short-term rentals that one "host" can operate. City's Ex. A

(Amended Ordinance § 18-15(f)).
The primary purpose of the ordinance amendment was "to create and protect long-term housing
in the City." City's Resp. to Pls.' Statement of Mat. Facts J 1. The City's "planning memo" regarding

'
Plaintiffs originally brought three claims. The only remaining claim is Count II of the Second Amended Complaint (which
was originally Count II], since renumbered as Count II). See Entry Regarding Motion (Feb. 20, 2024); Pls.' Mot. to
Reconsider at 2 (Feb. 9, 2024),
Decision on City's Motion for Summary Judgment Page 1 of 5
23-CV-02886 32 Intervale, LLC et al v. City of Burlington
the amendment states that “[t]he proposed regulatory framework is aimed at minimizing the potential
for adverse impacts to the city’s housing stock, while balancing some flexibility for hosts to operate
short term rentals.” Id. ¶ 2. The planning memo further notes that “changes were made to the
Ordinance to better align with policy goals protecting long-term and affordable housing.” Id. ¶ 3
(internal quotation omitted). The Minutes from the City Council’s February and June 2022 meetings
addressing this topic reflect deliberations consistent with the purpose stated in the planning memo. Id.
¶ 4.
Discussion
Plaintiffs claim that the City’s regulation of short-term rentals separate and apart from other
rentals through the imposition of duration limits and requiring owner occupancy of dwellings exceeds
the City’s statutory authority under Chapter 83 of Title 24, specifically 24 V.S.A. § 3101(a). Second
Am. Compl. ¶ 152. According to Dillon’s Rule, “a municipality has only those powers and functions
specifically authorized by the legislature, and such additional functions as may be incident, subordinate
or necessary to the exercise thereof.” City of Montpelier v. Barnett, 2012 VT 32, ¶ 20, 191 Vt. 441
(citing Hinesburg Sand & Gravel Co. v. Town of Hinesburg, 135 Vt. 484, 486 (1977)). Plaintiffs’
claim fails as a matter of law, however, because the City plainly has broad authority to regulate short-
term rentals under a different statute, 24 V.S.A. § 2291(29):
For the purpose of promoting the public health, safety, welfare, and
convenience, a town, city, or incorporated village shall have the
following powers:
...
To regulate by means of an ordinance or bylaw the operation of short-
term rentals within the municipality, provided that the ordinance or
bylaw does not adversely impact the availability of long-term rental
housing. As used in this subdivision, “short-term rental” means a
furnished house, condominium, or other dwelling room or self-contained
dwelling unit rented to the transient, traveling, or vacationing public for
a period of fewer than 30 consecutive days and for more than 14 days per
calendar year.
Section 2291(29) clearly authorizes the City to impose duration limits and owner occupancy
requirements on short-term rentals.
In opposing summary judgment, Plaintiffs nevertheless maintain that the ordinance amendment
exceeds the authority granted by § 2291 because the duration limit and occupancy requirement do not
“promot[e] the public health, safety, welfare, [or] convenience” as specified in the preface to § 2291.
Plaintiffs also contend that the ordinance was not intended to promote those statutory purposes, and
that the City cannot demonstrate a connection between the ordinance and those statutory purposes.

Decision on City’s Motion for Summary Judgment Page 2 of 5
23-CV-02886 32 Intervale, LLC et al v. City of Burlington
From the start, Plaintiffs have a steep hill to climb in advancing these arguments; police power
ordinances are presumptively valid, and Plaintiffs have the burden of proof in challenging the
regulation. See Town of Brattleboro v. Nowicki, 119 Vt. 18, 19 (1955); Champlain Val. Exposition,
Inc. v. Vill. of Essex Junction, 131 Vt. 449, 455 (1973).
The statute indeed requires that regulations issued thereunder be “[f]or the purpose of
promoting the public health, safety, welfare, and convenience.” 24 V.S.A. § 2291. But, as the City
correctly points out in its Reply, those statutory purposes are quite broad. “The concept of the public
welfare is broad and inclusive” and the “values it represents are spiritual as well as physical, aesthetic
as well as monetary.” Berman v. Parker, 348 U.S. 26, 33 (1954). The premise behind the ordinance is
that requiring owner occupancy and restricting the number of short-term rentals an owner can operate
disincentivizes whole-unit short-term rentals that reduce the available long-term housing supply. The
relationship between a lack of available long-term housing and strains on the housing market, with
impacts on homelessness, is intuitive, as is the consequent impact on a municipality’s general welfare.
Thus, the City’s regulation of short-term rentals bears an obvious and rational relation to public
welfare, health, and safety. Indeed, the court cannot articulate it any better than City does in its Reply:
Very little reasoning—and no additional facts—is required to connect an
unhealthy housing market, less available housing, and increased price
pressure as a result of short-term rental competition, with real physical,
monetary, and spiritual impacts on the public faced with escalating rents
and dwindling certainty that they will not need to move towns and
schools at the end of a lease.
City’s Reply at 13. Other courts have easily concluded that regulation of short-term rentals has a
manifest public purpose. See, e.g., Murphy v. Walworth Cnty., 383 F. Supp. 3d 843, 851 (E.D. Wis.
2019) (“The Ordinance’s stated purpose—to protect the health, safety, and general welfare of the
public from seasonal over-occupancy—is an obvious and rational justification for the requirements
imposed.”); Dean v. City of Winona, 843 N.W.2d 249, 257 (Minn. Ct. App. 2014) (“We easily
conclude that the public has a sufficient interest in rental housing to justify a municipality’s use of
police power as a means of regulating such housing.”); Nekrilov v. City of Jersey City, 45 F.4th 662,
679 (3d Cir. 2022) (affirming lower court’s decision upholding short-term rental ordinance and
concluding that increasing long-term housing supply was legitimate public purpose); Mogan v. City of
Chicago, No. 21 C 1846, 2022 WL 159732, at *16 (N.D. Ill. Jan. 18, 2022) (“Based on the allegations
in the [complaint], the Court can hypothesize many sound reasons as to why the City chose to prohibit
certain home sharing activities through the Ordinance—including maintaining the quality of life in
residential neighborhoods and mitigating the effects of home sharing guests on full-time residents.”);

Decision on City’s Motion for Summary Judgment Page 3 of 5
23-CV-02886 32 Intervale, LLC et al v. City of Burlington
Stone River Lodge, LLC v. Vill. of N. Utica, No. 20 C 3590, 2020 WL 6717729, at *4 (N.D. Ill. Nov.
15, 2020) (finding that ordinance regulating short-term rentals was rationally related to village’s
interests in protecting “life-safety concerns, quality of neighborhood and related life concerns, security
concerns, fire safety concerns, and tax revenue concerns”). This court joins those in recognizing a
compelling public purpose in such regulations.2
Plaintiffs also raise—for the first time in their Opposition—a constitutional attack on the
statute. Specifically, they contend that 24 V.S.A. § 2291(29) is an unconstitutional delegation of
legislative authority. Pls.’ Opp’n at 5–9. This argument fails for two independent reasons. First,
Plaintiffs have not pleaded any constitutional claim in their complaint, and thus have not given the City
fair notice of its constitutional claim in accordance with V.R.C.P. 8(a). Second, there is no indication
that the attorney general has been served with a copy of this proceeding. See 12 V.S.A. § 4721;
V.R.C.P. 24(d). Accordingly, the court need not address Plaintiffs’ constitutional argument.
Moreover, even assuming that the constitutional attack were properly pled, the court would
reject it easily. Statutes are presumed to be reasonable and constitutional, Badgley v. Walton, 2010 VT
68, ¶ 20, 188 Vt. 367, and a plaintiff has the burden to prove a statute’s unconstitutionality. Boyd v.
State, 2022 VT 12, ¶¶ 20, 23, 32. Plaintiffs have not come close to meeting that burden here. The
unlawful-delegation doctrine “is not violated when the Legislature vests municipalities ‘with certain
powers of legislation as to matters purely of local concern.’ ” Stowe Citizens for Responsible Gov’t v.
State, 169 Vt. 559, 575 (1999) (mem.) (quoting Village of Waterbury v. Melendy, 109 Vt. 441, 448
(1938)); 2 McQuillin Mun. Corp. § 4:8 (3d ed.) (“it is a fundamental rule that the power to make laws
cannot be delegated, except to the extent that such power may be conferred upon municipal
corporations for local self-government”) (emphasis added) (footnote omitted). That is exactly what the
legislature has done here through § 2291(29); it has granted municipalities explicit authority to make
laws of general applicability regarding short-term rentals. “[T]he police power reserved to the
Legislature under [the constitution] can properly be delegated in matters concerning the protection or
preservation of the public morals, health, safety and welfare.” Elliott v. State Fish & Game Comm’n,
117 Vt. 61, 68 (1951). Moreover, “[t]he power (police) may lawfully be delegated to municipalities, . .
. and, when so delegated,” the municipality “is clothed with power to act, as full and efficient as that
possessed by the Legislature itself.” Id. (quotation omitted). The constitutional argument, even if
properly raised, fails.

2 Because 24 V.S.A. § 2291(29) plainly authorizes the challenged ordinance amendment, the court need not address

whether § 3101(a) also provides authority.
Decision on City’s Motion for Summary Judgment Page 4 of 5
23-CV-02886 32 Intervale, LLC et al v. City of Burlington
ORDER
The court grants the City’s motion for summary judgment. The separate form of judgment
required by V.R.C.P. 58 will issue forthwith.

Electronically signed pursuant to V.R.E.F. 9(d): 11/19/2024 12:41 PM

___________________________
Samuel Hoar, Jr.
Superior Court Judge

Decision on City’s Motion for Summary Judgment Page 5 of 5
23-CV-02886 32 Intervale, LLC et al v. City of Burlington