ermont Superior Court Filed 06/25/25 Washington L nit
VERMONT SUPERIOR COURT CIVIL DIVISION Washington Unit Case No. 23-CV-04631 65 State Street Montpelier VT 05602 802-828-2091 www.vermontjudiciary.org
Janet Cote v. Vermont Agency of Natural Resources
Opinion and Order on Ripeness
In an April 30, 2025, Order with the State's Motion to Dismiss pending the
Court requested briefing on whether Ms. Cote's inverse takings claim, her only claim in
this case, is ripe such that the Court has subject-matter jurisdiction at this time. In
subsequent briefing, Ms. Cote argues that her claim is ripe, that a case cited by the Court
in requesting briefing on ripeness may no longer be sound, and that the Court should
stay this case pending a decision in Ms. Cote's pending Petroleum Cleanup Fund (PCF)
case before the Supreme Court, at which time we will know whether she has a claim or
not. The Court determines as follows.
No doubt, Ms. Cote's takings claim is novel as it depends not any alleged direct
restriction on the use, possession, or ownership of her property but on the State's
decisions to not pay certain expenses related to the remediation of environmental
contamination (without which she claims some impact on those rights).! As summarized
in the Court's April 30 Order:
1 "The prohibition on takings without compensation is not absolute. We have previously held that an exercise of the police power to abate a public nuisance nota compensable taking. While takings jurisprudence, especially at the federal level, has undergone significant development since [that an earlier Vermont decision], there remains no question that the abatement of a nuisance is not a taking." Alger v. Dep' of J Lab. & Indus., 2006 VT 115, 31, 181 Vt. 309, 325 (citation omitted). Moreover, it would Order Page 1 of 6 23-CV-04631 Janet Cote v. Vermont Agency of Natural Resources Plaintiff Janet Cote owns real property (the site) in Swanton that, at least in the past, was put to both commercial and residential uses. According to the Amended Complaint, “decades ago,” the Vermont Agency of Natural Resources ordered to her to remove underground storage tanks and begin remediating petroleum contamination. She alleges that ANR had reimbursed her for all such expenses from Vermont’s Petroleum Cleanup Fund (PCF), 10 V.S.A. § 1941, until 2018 and 2019, when it denied certain reimbursements. She appealed those decisions to the Environmental Division, In re Cote/ Maquam Shore Market, Nos. 134-12-18 Vtec and 135- 12-19 Vtec, and appealed its decision to the Vermont Supreme Court, In re Cote/Maquam Shore Market, No. 24- AP-161. The Supreme Court case remains pending.
In this case, Ms. Cote makes clear that she is not attempting to challenge any ANR remediation orders directly or collaterally; nor is she attempting to seek any reimbursement from the PCF. Instead, she asserts that if any requested reimbursements from the PCF remain unsatisfied following the termination of the PCF litigation, then she will have suffered a taking of her property in violation of either or both U.S. Const. amend. V and Vt. Const. ch. I, art. 2. She claims that “[w]ithout reimbursement of these costs, in particular the costs denied in 2019, Plaintiff could not, and cannot, use her property nor realize the full economic value of the property.” Her takings claim in this case thus appears to depend on the future outcome of the PCF litigation.
As the Court perceives it, the alleged taking is some perceived loss of property
rights arising out of the lack of reimbursement from the State for remediation expenses
that may or may not be available from the PCF.
Even assuming the viability of such a potential claim, any such taking will not
materialize until the outcome of the PCF litigation becomes clear. That could happen as
soon as the Supreme Court decides the appellate case, if it grants all Ms. Cote’s claims or
denies some claims without remanding, or it could happen later if there is a remand.
This conclusion is compelled by how Ms. Cote crafted her claim in her amended
be reasonable to presume that property has more value once remediated than it did while contaminated.
Order Page 2 of 6 23-CV-04631 Janet Cote v. Vermont Agency of Natural Resources complaint. She concedes as much in her May 8, 2025, filing: “If the Supreme Court
upholds the decision, the ripeness issue disappears as all other administrative remedies
have been exhausted. If the Supreme Court reverses the Environmental Court, then
perhaps Plaintiff no longer has a takings claim at all. Thus, the issue of ripeness may
become moot or irrelevant in short order.”
Accordingly, the takings claim, as framed by Ms. Cote, depends on the outcome of
a future event. “Courts will ordinarily not render decisions involving events that are
contingent upon circumstances that may or may not occur in the future.” Echeverria v.
Town of Tunbridge, 2024 VT 47, ¶ 17.
In its April 30 Order, the Court cited Killington, Ltd. v. State, 164 Vt. 253, 258
(1995), for the proposition that a “takings claim [is] not ripe until [the] underlying
regulatory proceedings reach finality.” Ms. Cote argues that this principle of Vermont
law arose out of Williamson County Regional Planning Com’n v. Hamilton Bank of
Johnson City, 473 U.S. 172 (1985), and the U.S. Supreme Court overruled Williamson in
Knick v. Township of Scott, Pennsylvania, 588 U.S. 180. The finality principle of
Killington, Ms. Cote contends, rests on tenuous grounds at best, and this Court should
not rely on it.
The Court rejects this argument. First, Knick overruled Williamson only insofar
as it rejected what it described as the “San Remo preclusion trap.” The Court described
the trap as follows:
The Takings Clause of the Fifth Amendment states that “private property [shall not] be taken for public use, without just compensation.” In [Williamson], we held that a property owner whose property has been taken by a local government has not suffered a violation of his Fifth Amendment rights—and thus cannot bring a federal takings claim in federal court—
Order Page 3 of 6 23-CV-04631 Janet Cote v. Vermont Agency of Natural Resources until a state court has denied his claim for just compensation under state law.
The Williamson County Court anticipated that if the property owner failed to secure just compensation under state law in state court, he would be able to bring a “ripe” federal takings claim in federal court. But as we later held in [San Remo Hotel and County of San Francisco], a state court’s resolution of a claim for just compensation under state law generally has preclusive effect in any subsequent federal suit. The takings plaintiff thus finds himself in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court. The federal claim dies aborning.
This case has nothing to do with the San Remo preclusion trap, and Ms. Cote’s inference
that Knick portends dire consequences for the finality principle of Killington is by no
means obvious.
The finality principle of Killington may have its origins in federal case law, but it
is part of Vermont case law now and remains binding on this Court until the Vermont
Supreme Court says otherwise.
Additionally, while Ms. Cote argues that there is finality in this case as the
Free access — add to your briefcase to read the full text and ask questions with AI
ermont Superior Court Filed 06/25/25 Washington L nit
VERMONT SUPERIOR COURT CIVIL DIVISION Washington Unit Case No. 23-CV-04631 65 State Street Montpelier VT 05602 802-828-2091 www.vermontjudiciary.org
Janet Cote v. Vermont Agency of Natural Resources
Opinion and Order on Ripeness
In an April 30, 2025, Order with the State's Motion to Dismiss pending the
Court requested briefing on whether Ms. Cote's inverse takings claim, her only claim in
this case, is ripe such that the Court has subject-matter jurisdiction at this time. In
subsequent briefing, Ms. Cote argues that her claim is ripe, that a case cited by the Court
in requesting briefing on ripeness may no longer be sound, and that the Court should
stay this case pending a decision in Ms. Cote's pending Petroleum Cleanup Fund (PCF)
case before the Supreme Court, at which time we will know whether she has a claim or
not. The Court determines as follows.
No doubt, Ms. Cote's takings claim is novel as it depends not any alleged direct
restriction on the use, possession, or ownership of her property but on the State's
decisions to not pay certain expenses related to the remediation of environmental
contamination (without which she claims some impact on those rights).! As summarized
in the Court's April 30 Order:
1 "The prohibition on takings without compensation is not absolute. We have previously held that an exercise of the police power to abate a public nuisance nota compensable taking. While takings jurisprudence, especially at the federal level, has undergone significant development since [that an earlier Vermont decision], there remains no question that the abatement of a nuisance is not a taking." Alger v. Dep' of J Lab. & Indus., 2006 VT 115, 31, 181 Vt. 309, 325 (citation omitted). Moreover, it would Order Page 1 of 6 23-CV-04631 Janet Cote v. Vermont Agency of Natural Resources Plaintiff Janet Cote owns real property (the site) in Swanton that, at least in the past, was put to both commercial and residential uses. According to the Amended Complaint, “decades ago,” the Vermont Agency of Natural Resources ordered to her to remove underground storage tanks and begin remediating petroleum contamination. She alleges that ANR had reimbursed her for all such expenses from Vermont’s Petroleum Cleanup Fund (PCF), 10 V.S.A. § 1941, until 2018 and 2019, when it denied certain reimbursements. She appealed those decisions to the Environmental Division, In re Cote/ Maquam Shore Market, Nos. 134-12-18 Vtec and 135- 12-19 Vtec, and appealed its decision to the Vermont Supreme Court, In re Cote/Maquam Shore Market, No. 24- AP-161. The Supreme Court case remains pending.
In this case, Ms. Cote makes clear that she is not attempting to challenge any ANR remediation orders directly or collaterally; nor is she attempting to seek any reimbursement from the PCF. Instead, she asserts that if any requested reimbursements from the PCF remain unsatisfied following the termination of the PCF litigation, then she will have suffered a taking of her property in violation of either or both U.S. Const. amend. V and Vt. Const. ch. I, art. 2. She claims that “[w]ithout reimbursement of these costs, in particular the costs denied in 2019, Plaintiff could not, and cannot, use her property nor realize the full economic value of the property.” Her takings claim in this case thus appears to depend on the future outcome of the PCF litigation.
As the Court perceives it, the alleged taking is some perceived loss of property
rights arising out of the lack of reimbursement from the State for remediation expenses
that may or may not be available from the PCF.
Even assuming the viability of such a potential claim, any such taking will not
materialize until the outcome of the PCF litigation becomes clear. That could happen as
soon as the Supreme Court decides the appellate case, if it grants all Ms. Cote’s claims or
denies some claims without remanding, or it could happen later if there is a remand.
This conclusion is compelled by how Ms. Cote crafted her claim in her amended
be reasonable to presume that property has more value once remediated than it did while contaminated.
Order Page 2 of 6 23-CV-04631 Janet Cote v. Vermont Agency of Natural Resources complaint. She concedes as much in her May 8, 2025, filing: “If the Supreme Court
upholds the decision, the ripeness issue disappears as all other administrative remedies
have been exhausted. If the Supreme Court reverses the Environmental Court, then
perhaps Plaintiff no longer has a takings claim at all. Thus, the issue of ripeness may
become moot or irrelevant in short order.”
Accordingly, the takings claim, as framed by Ms. Cote, depends on the outcome of
a future event. “Courts will ordinarily not render decisions involving events that are
contingent upon circumstances that may or may not occur in the future.” Echeverria v.
Town of Tunbridge, 2024 VT 47, ¶ 17.
In its April 30 Order, the Court cited Killington, Ltd. v. State, 164 Vt. 253, 258
(1995), for the proposition that a “takings claim [is] not ripe until [the] underlying
regulatory proceedings reach finality.” Ms. Cote argues that this principle of Vermont
law arose out of Williamson County Regional Planning Com’n v. Hamilton Bank of
Johnson City, 473 U.S. 172 (1985), and the U.S. Supreme Court overruled Williamson in
Knick v. Township of Scott, Pennsylvania, 588 U.S. 180. The finality principle of
Killington, Ms. Cote contends, rests on tenuous grounds at best, and this Court should
not rely on it.
The Court rejects this argument. First, Knick overruled Williamson only insofar
as it rejected what it described as the “San Remo preclusion trap.” The Court described
the trap as follows:
The Takings Clause of the Fifth Amendment states that “private property [shall not] be taken for public use, without just compensation.” In [Williamson], we held that a property owner whose property has been taken by a local government has not suffered a violation of his Fifth Amendment rights—and thus cannot bring a federal takings claim in federal court—
Order Page 3 of 6 23-CV-04631 Janet Cote v. Vermont Agency of Natural Resources until a state court has denied his claim for just compensation under state law.
The Williamson County Court anticipated that if the property owner failed to secure just compensation under state law in state court, he would be able to bring a “ripe” federal takings claim in federal court. But as we later held in [San Remo Hotel and County of San Francisco], a state court’s resolution of a claim for just compensation under state law generally has preclusive effect in any subsequent federal suit. The takings plaintiff thus finds himself in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court. The federal claim dies aborning.
This case has nothing to do with the San Remo preclusion trap, and Ms. Cote’s inference
that Knick portends dire consequences for the finality principle of Killington is by no
means obvious.
The finality principle of Killington may have its origins in federal case law, but it
is part of Vermont case law now and remains binding on this Court until the Vermont
Supreme Court says otherwise.
Additionally, while Ms. Cote argues that there is finality in this case as the
administrative agency arrived at its final decision, she refers only to finality for purposes
of appeal. Finality of a judgment for purposes of appeal is not necessarily the same as
finality for purposes of res judicata. See Restatement (Second) of Judgments § 13 cmt. b.
As it relates to Ms. Cote’s takings claim, the PCF litigation remains in an interlocutory
(nonfinal), appellate phase.
Ms. Cote also observes that her takings claim is slightly different than the one at
issue in Killington. That is manifestly so. The inverse takings claim in Killington was
the classic such claim in which the property owner claimed that zoning regulations so
limited the use of the property that the restrictions amounted to a taking. The finality
issue was whether there remained remedies related to the zoning restrictions still Order Page 4 of 6 23-CV-04631 Janet Cote v. Vermont Agency of Natural Resources available such that the takings claim was not yet ripe. The ripeness defect here is more
straightforward. Ms. Cote’s claim plainly depends on a future event—that her PCF
litigation will conclude without the reimbursement that is the premise for her takings
claim.
As to Ms. Cote’s request for a stay pending the outcome of the PCF litigation in
lieu of dismissal, it is not possible if a claim is unripe. Ripeness is a component of the
Court’s subject-matter jurisdiction. Echeverria v. Town of Tunbridge, 2024 VT 47, ¶ 17.
When a Court concludes that it lacks subject-matter jurisdiction, there is nothing left to
do but dismiss. See Merriam v. AIG Claims Servs., Inc., 2008 VT 8, ¶ 13, 183 Vt. 568,
571. Any “inefficiency” in such a dismissal was caused by the filing of the unripe claim.
To the extent that Ms. Cote expresses concern about the statute of limitations, the
Court notes that it neither predicts nor determines how a future Court hearing a future
case may rule. That notwithstanding, the Court notes that a claim generally does not
accrue for statute-of-limitations purposes before it becomes ripe for resolution in court.
See Sikorsky v. City of Newburgh, New York, 136 F.4th 56, 63 (2d Cir. 2025) (“Just as a
claim becomes ripe when it accrues, the statute of limitations begins to run when the
claim accrues.”); see also Plaintiffs in Winstar-Related Cases v. United States, 37 Fed. Cl.
174, 182 (1997), aff’d sub nom. Ariadne Fin. Servs. Pty. Ltd. v. United States, 133 F.3d
874 (Fed. Cir. 1998) (“For a cause of action to accrue and the statute of limitations to run,
the claim must be ripe. Common sense, as much as case law, dictates this maxim, for the
alternative would lead plaintiffs into a conundrum in which their claims could be time-
barred before even becoming amenable to judicial resolution.” (citation omitted)).
Order Page 5 of 6 23-CV-04631 Janet Cote v. Vermont Agency of Natural Resources Moreover, 12 V.S.A. § 558(a)(2) allows a timely filed case to be refiled within one
year regardless of the limitations period when the original action was dismissed for lack
of subject-matter jurisdiction.
Conclusion
For the foregoing reasons, this case is dismissed without prejudice for lack of
subject matter jurisdiction on ripeness grounds. The State’s motion to dismiss is denied
as moot.
Electronically signed on Tuesday, June 24, 2025, per V.R.E.F. 9(d).
_______________________ Timothy B. Tomasi Superior Court Judge
Order Page 6 of 6 23-CV-04631 Janet Cote v. Vermont Agency of Natural Resources