SCOVT affirms summary judgment dismissing claims, including takings claims against municipality arising from sewage backups that were “intermittent, limited, and transient.”

Lorman v. City of Rutland, 2018 VT 64 [filed 6/29/2018]

REIBER, C.J. Plaintiffs sought relief from the City of Rutland after suffering sewage backups in their homes. The trial court granted summary judgment to the City, concluding that plaintiffs failed to adequately support their negligence, nuisance, trespass, and constitutional takings claims. Plaintiffs appeal, arguing that they produced sufficient evidence to survive summary judgment. We affirm the court’s decision

Plaintiffs suggest that a taking has occurred, citing Winn v. Vill. of Rutland, 52 Vt. 481, 494-95  (1880) (stating that village authorities had no “right to make the lands of the plaintiff a place of deposit for the sewage of the village, creating there a cesspool and nuisance, and endangering the lives of the plaintiff and his family, without first making compensation therefor,” and “[s]uch use of the plaintiff’s lands amounts to a taking of his land within the purview of the constitutional requirement that compensation shall be made”)

The City is not immune from takings claims. For a property loss to be compensable as a taking, the government must “intend[] to invade a protected property interest or the asserted invasion [must be] the direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action.” Ondovchik Family 21 Ltd. P’ship, 2010 VT 35, ¶ 16

Although temporary, repeated incursions can sometimes rise to the level of a taking, the incursions must “amount to the taking of an easement. When the intrusion is limited and transient in nature and occurs for legitimate governmental reasons, it does not amount to a taking. Ondovchik, 2010 VT 35, ¶ 18 To the extent that we suggested otherwise in Winn v. Vill. of Rutland, 52 Vt. 481, 491-93 (1880), that suggestion is no longer good law

The undisputed facts here show that the sewage backups on plaintiffs’ property have been intermittent, limited, and transient. The Gallaghers have had one backup since 2007 and the Lormans have had two. The Dalys have had five backups between 1983 and 2014 with the closest backups occurring four years apart. While no backup is insignificant, the backups occurred intermittently over a long period of time, and we conclude that this does not suffice to show a taking under the law. Based on the undisputed facts, the City was entitled to summary judgment on this claim.

How cited