Court Rejects Challenge to Church Street Marketplace District Trespass Ordinance for Lack of Standing

In Baird et al. v. City of Burlington, 2016 VT 6 (January 8, 2016), the Vermont Supreme Court rejected a challenge to recently adopted “Church Street Marketplace District trespass authority” ordinance because the plaintiffs lacked standing to challenge the ordinance.

Issue: Plaintiffs appealed the trial court’s dismissal for lack of standing, arguing that: 1) their expressive interests were restricted by the ordinance; 2) there was a credible threat of enforcement of the ordinance; 3) they have standing under the “overbreadth doctrine;” and 4) they have standing under a “derivative taxpayer” theory.

Holding: The Court reviewed the trial court’s findings of fact under a clearly erroneous standard and its conclusions of law under a de novo standard. It found that plaintiffs’ rights to access the Marketplace District had not been adversely affected, so they lacked standing based on their own expressive interests. It found credible evidence to support the trial court’s finding that they had not been threatened with enforcement of the ordinance, so lacked standing on that basis. The Court also refused to allow plaintiffs to assert third-party standing on behalf of others because there was no evidence that those other individuals would likely be unable to assert their own First Amendment rights. Since plaintiffs had not suffered any injury that gave them standing, the Court held that neither plaintiff could bring a challenge under the overbreadth doctrine. Lastly, it rejected their “derivative taxpayer” theory, holding that plaintiffs could not show either a direct loss or that municipal assets had been improperly wasted.