SCOVT Affirms dismissal of one count of environmental contamination for failure to join a necessary party, but reverses dismissal of remaining counts and remands for further consideration of municipal immunity defense

 

Belter v. City of Burlington, 2025 VT 35  [filed June 27, 2025]

Cohen J. Plaintiffs John Belter, Joyce Belter, David Belter, and the Belter Family Partnership seek to hold defendant City of Burlington liable for soil and water contamination caused by runoff from Burlington International Airport, which abuts their property in South Burlington.  Plaintiffs appeal the civil division’s order dismissing their complaint for failure to join a necessary and indispensable party, and on the basis of municipal immunity.  Plaintiffs claim the trial court erred in its analysis of Vermont Rule of Civil Procedure 19 by ignoring Vermont’s common law lack of contribution among joint tortfeasors and not considering the specific claims brought in the case below.  Plaintiffs further argue the trial court erred in its analysis of the extent of municipal immunity by failing to acknowledge the property-maintenance functions at the center of plaintiff’s claims against defendant.  We affirm in part and reverse in part.

Count 1 of the complaint alleged negligence in allowing the Guard to use firefighting foams that contaminated plaintiffs’ property with PFAS. The remaining counts alleged  trespass in the form of PFAS entering plaintiffs’ property; private nuisance due to the infiltration of PFAS into the drinking water;  a de facto taking of the property by defendant through the contamination of the property by PFAS;  violation of the Vermont Groundwater Protection Act, 10 V.S.A. § 1410(a)(4); and  direct negligence by defendant for discharging polluted water onto plaintiff’s property.   

The trial court dismissed plaintiffs’ complaint for failure to join a party under Vermont Rule of Civil Procedure 12(b)(7). This Court has not stated the standard of review for dismissal under Rule 12(b)(7).  Because our rules are modeled on the Federal Rules of Civil Procedure, we look to federal case law for guidance on the applicable standard.  We adopt the federal abuse of discretion standard for a dismissal under Rule 12(b)(7) for failure to join a party.

Rule 19(a)(2) requires joinder of a person if the person claims an interest in the action and disposition in their absence "may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the person's claimed interest." Plaintiffs claimed in Count 1 that “on multiple occasions [the Guard] provided firefighting services, and practiced fighting fires, at [Burlington airport] and on its Base in a negligent manner, directly and proximately causing the PFAS contamination of Plaintiffs’ property.” 

We agree with the trial court that Count 1 is entirely based in the negligence of the unjoined third parties. The Guard and the United States clearly have an interest in Count 1 and a finding on this count by a trial court could lead to inconsistent determinations of fault for the United States, which is currently involved in similar litigation in another court.  The trial court properly concluded that the United States and the Guard were necessary parties to this claim and acted within its discretion in dismissing it under Rule 12(b)(7). The dismissal of Count 1 is affirmed.

However, the remaining counts are  all based on the spread of contaminated water from defendant’s property, not the Guard’s firefighting activities.  We conclude that the Guard and the United States were not necessary parties to Counts 2-5 and 7 of the complaint under either prong of Rule 19(a)(2) and their joinder was therefore not required.  The court abused its discretion is dismissing Counts 2-5 and 7. 

  

Because we conclude that the court improperly dismissed Counts 2-5 and 7 for nonjoinder, we must consider the court’s ruling that to the extent insurance is not available to cover plaintiffs’ claims, they are barred by municipal immunity for Counts 2-3, 5, and 7.The trial court dismissed plaintiffs’ complaint on this ground  under Rule 12(b)(1) for lack of subject-matter jurisdiction. We review this decision de novo, taking all facts pled in the complaint as true and resolving all doubts in favor of the nonmoving party.  Jordan v. State Agency of Transp., 166 Vt. 509, 511, 702 A.2d 58, 60 (1997) (applying de novo standard when reviewing dismissal for lack of subject matter jurisdiction).

 Here, the trial court focused on the Guard’s firefighting function and found that activity to be shielded by municipal immunity.    It is undisputed that firefighting has long been recognized as a governmental function.  However, a determination of immunity must be based on the purpose of the activity at the root of plaintiffs’ complaint.  Vt. Gas Sys. v. City of Burlington, 153 Vt. 210, 214, (1989).  In Counts 2-3, 5, and 7, plaintiffs are not seeking to hold defendant liable for its firefighting functions, but for alleged failures of maintenance and operation of the airport that caused polluted water to run onto their land.  These broader functions are arguably proprietary. But the record before us is insufficient to allow us to make such a determination in the first instance, however.  We therefore reverse and remand for the court to consider whether municipal immunity applies to the maintenance and operation activities alleged in the surviving counts of the complaint.

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The dismissal of Counts 2-5 and 7 is reversed and the matter is remanded for further proceedings consistent with this opinion.

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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

Municipal immunity bars claim of negligent tax assessment. Estoppel claim not proven.

Sobel v. City of Rutland, 2012 VT 84 (Burgess, J.)              

Plaintiff owners of an office building appeal the superior court’s grant of summary judgment for defendant municipality. Plaintiffs claim the municipal assessor was negligent in providing inaccurate property tax estimates on the proposed, but not yet built, office.  Plaintiffs also sought to enjoin enforcement of the tax assessment on the office building ultimately constructed.  On appeal, they argue that the court erred in concluding, on summary judgment, that their negligence claim was barred by municipal immunity and that they failed to establish equitable estoppel. We affirm.

Municipal immunity protects municipalities "from tort liability in cases where the municipality fulfills a governmental rather than a proprietary function." Governmental functions are those performed when a municipality "exercise[s] those powers and functions specifically authorized by the Legislature, as well as those functions that may be fairly and necessarily implied or that are incident or subordinate to the express powers." Proprietary activities, on the other hand, are, essentially, commercial activities performed by a municipality in its corporate capacity, for the benefit of the municipality and its residents, and unrelated to its "legally authorized activity." Plaintiffs admit that the estimates here were sought from the Assessor in his official capacity.  But for his office plaintiffs would not haveinquired. Tax estimates thus  elicited solely on account of the Assessor’s official position are reasonably treated as governmental, as opposed to proprietary, activity, that entitle the municipality for immunityfrom suit stemming from the Assessor's estimates.

We also conclude that plaintiffs cannot establish the elements of equitable estoppel: (1) the party to be estopped must know the facts; (2) the party being estopped must intend that its conduct be acted upon; (3) the party asserting estoppel must be ignorant of the true facts; and (4) the party asserting the estoppel must rely on the conduct of the party to be estopped to its detriment.