Vermont Supreme Court: Snow Is A Fact Of Life In Vermont

"Our decision today recognizes that snow and snowplowing are facts of life in Vermont, and we do not find a cause of action when defendant has done nothing more than protect public safety by plowing the roads that it has an ongoing legal duty to plow."

Ondovchick Family Ltd. P'ship v. Agency of Transportation, No 2009-182, at ¶ 22 (Apr. 30, 2010).

There you have it: one of those decisions where its really not productive to dig deeper, or to try and reconcile it with other cases. You know the kind of decision we're talking about, the kind where the opinion begins with "The widow Plaintiff..." and that you don't need to read much further to know the result the opinion is going to reach, or why.

Oh, we could try and analyze the Vermont Supreme Court's opinion in Ondovchick more closely. But that might be a fruitless exercise.

Like how the court rejected an inverse condemnation theory which alleged that as a result of road-widening project, plowed snow and water runoff entered the plaintiff's property and damaged a building (before the project moved the road closer to the building, thrown snow was not a problem). The theory failed, the court held, because the invasion of the property by the thrown snow was "temporary," citing of all things, Loretto v. Teleprompter Mannattan CATV Corp., 458 U.S. 419 (1983) (Slip op. at ¶ 12), but not even mentioning First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987), the decision confirming that temporary takings require compensation. See slip op. at ¶¶ 16-18.

Or that the court cited Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005) for the just plain weird proposition that "[i]nverse condemnation claims are reserved for instances in which the state should have entered into eminent domain proceedings initially." Slip op. at ¶ 21. "This is not such an instance," the Vermont court concluded, because, "Defendant did not have an obligation to use its powers of eminent domain to take all of the land that might at some point be hit by snow throw and water runoff." (If anyone cares, Lingle stands for nothing of the sort, holding instead that when a police power regulation has the same effect as an exercise of the eminent domain power, the protections of the Takings Clause are triggered. Courts don't need to inquire whether the government had an obligation to condemn the property instead of regulating it.)

The court also rejected the property owner's trespass theory. The agency's conduct was privileged, the court held, because it has discretion to determine how to remove snow off of Vermont's roads, "even if the chosen method causes some incursion upon or incidental damage to landowner’s property." Slip op. at ¶ 12.

In sum, Vermont has snow.

Lots of it, and it must be plowed. Get over it, landowners.