In a state like Vermont that is heavily dependent on tourism, it shouldn’t be all that surprising that one of the most prominent issues is the policy and legal fight over short-term rentals. In 2022, Burlington, the state’s largest city, tightened up its short-term rental regulations to prohibit “nonhost-occupied short-term rentals in Burlington with few exceptions.”

Owners sought a declaratory ruling from a Vermont trial court that their units were preexisting nonconforming uses. Eventually, the Vermont Supreme Court held that the Vermont Environmental Court had exclusive jurisdiction over the nonconforming use claim. (Why these courts were created and whether they are needed is a separate story.) The owners then filed a second complaint seeking a declaratory ruling in the Environmental Court.

In 32 Intervale, LLC v. City of Burlington, No. 25-AP-248 (Apr. 10, 2026), the Vermont Supreme Court upheld the dismissal of the complaint, concluding that the dispute was too “facty” and that it was not ripe.

The court first concluded that the are too many facts for the court to handle. Whether each plaintiff’s property is a nonconforming use “necessarily requires substantial factual findings regarding each individual property.” Slip op. at 13. “Thus, per plaintiffs’ own explanation of the process, plaintiffs’ complaint is not merely a request for a ‘declaration of rights, status, or other legal relations,’ it is a request for twenty-two separate fact-dependent inquiries performed by the Environmental Division in the guise of a declaratory judgment.” Slip op. at 14. Barista’s note: forgive us for our misunderstanding, but isn’t fact-finding what trial courts do?

Next, the court concluded the claim was not ripe. The long and the short of it is that even though the plaintiffs asserted the city has threatened them with enforcement, it actually hasn’t enforced the ordinance. See slip op. at 16 (“However, even taking this in the light most favorable to plaintiffs, without more information, the form of that enforcement remains uncertain.”).

The city’s not (yet) prosecuting the owners for violations means that the courts don’t know how the ordinance is going to be applied to particular situations. The court analogized this situation to final decision takings ripeness, concluding:

the City has yet to initiate enforcement actions under its zoning authority against plaintiffs’ properties and the lack of certainty concerning how that enforcement would be effectuated contributes to both ripeness and jurisdictional issues.

Slip op. at 18 (footnote omitted).

In short, the property owners need to wait, and risk being subject to the city’s enforcement mechanism, before they may seek a declaratory ruling on whether they are violating the law. Any you just know what that means: if and when the city comes after an owner, the owner will likely be prohibited from immediately filing a lawsuit challenging the ordinance until he exhausts the city’s administrative appeals process (which also means that the city will develop the factual record, not a judicial fact-finder).

Seems like a heads-I-win, tails-you-lose situation that the declaratory ruling process was designed to avoid.

32 Intervale, LLC v. City of Burlington, No. 25-AP-248 (Vt. Apr. 10, 2026)