The City's sewage pipe backed up into several residences. The City has known for decades that these pipes were "cracked, structurally unsound, and that they had significant root intrusion." The City took measures, but apparently these were not enough, and after "an extremely intense rain and hail storm," three million gallons of wastewater overflowed into adjacent streams, and backed up into the plaintiffs' basements.
They sued the City for negligence, trespass, and for physical takings.
In Lorman v. City of Rutland, No. 17-158 (June 29, 2018), the court affirmed the dismissal of all of the claims. Slip to page 20 of the slip opinion for the takings analysis, where the court starts off by noting that the takings tests under the U.S. and Vermont Constitutions are "virtually the same," and (unlike torts) the government is not immune. Slip op. at 20. For a loss of property to be compensable, "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.'" Id.
But these sewage invasions were not permanent physical occupations:
¶ 37. 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.
Slip op. at 22-22. While the court acknowledged that "temporary, repeated incursions can sometimes rise to the level of a taking," they must be so frequent as to amount to the taking of a flowage (sewage) easement. Slip op. at 21. Why that wasn't the case here, we are left to guess.
This is an ongoing issue. Didn't Arkansas Game and Fish hold that the "temporariness" of an invasion is not the be-all-end-all of the analysis, and that "time is indeed a factor in determining the existence vel non of a compensable taking," but that the reviewing court must look to other things such to make the determination? Where was that analysis here?
Lacking any in the opinion, we must conclude that for the Vermont Supreme Court focused only on time (and frequency, which is also a temporal measurement).