Saturday, November 19, 2016

It’s Raining, It’s Pouring . . . Is The Old Culvert Diverting?

Regan v. Spector, 2016 VT 116

By Thomas M. Kester

The issue in this case is surface-water redirection. There is a hillside dissected by two roads and property lots below the top road are owned by the Regans and Spectors (Regans live on the easterly side and Spectors live on the westerly side). Culverts play an integral role in this story. Of particular note is culvert #7: a 15" culvert that carried water from above the top road, under it, and then drained below the top road, and was repositioned in 2004 and again in 2008. There are also culverts #5, 6, and 8, as well, but #7 is the important one.

The Spectors purchased three lots in 1992 that were off the top road and later became their residence. In 1992, as well, culvert #7 “was a fifteen-inch culvert that carried storm water from a portion of the hillside above . . . [the top road], under the [top] road, and on the wooded hillside below.” In 1996, the Spectors sought a permit for a driveway that was at the location of culvert #7 and the Town required the Spectors to help pay for enlargement costs of the 1992 culvert. Spectors wanted to move culvert #7 further uphill but the town road commissioner was concerned that it would increase the flow of storm water.

In 2004, the Spectors applied for a home-build permit from the town that planned for a driveway access close to culvert #7. The town road commissioner “dug out a box ditch from the outlet of culvert #7 for several feet in an easterly direction. It sent the flow of water from culvert #7 towards the east approximately fifteen feet, at which point the water was free to run in sheets down the hillside,” and “when the Spectors built their driveway close to culvert #7, they placed a culvert in the box ditch and covered it with gravel for the driveway to run over it. The result was that water from above . . . [the top road] flowed through culvert #7 into the box ditch and then turned at almost a ninety-degree angle to proceed through the culvert under the Spectors’ driveway toward the east for a distance of fifteen to thirty feet.” 

In 2005, the Spectors built a home and, as a result of building, altered their property’s contours from the clearing and grading. This caused erosion problems below the outlet of culvert #7. The trial court found “‘[t]here may have been some shift of water drainage from the west to the east toward the Regan land, but it was not significant and apparently not noticed by anyone.’” In 2007, the Regans purchased property adjacent to, downhill, and easterly from the Spector’s property. At the bottom of the Regans’ property is a sediment pond (used for an adjacent pond) that the Regans were unaware of. Note that the Regans’ property slopes downhill to a wetland area and the house/driveway are located just off the top road.

In 2008, the Spectors clear cut trees below their house and sought again to move culvert #7. A new road commissioner agreed as “culvert #7 might flow to an identified well site,” required the Spectors to pay for it, and “would not have proceeded with the project if the Spectors had not requested it.” The town commissioner noted “troublesome maintenance of the box ditch.” So, in October 2008, culvert #7 was expanded 24 inches and moved 100’-150’ downhill and closer to the Regan property.

The Regans protested to the town and the town required “Spectors to install a stone-lined channel from the end of the outlet to redirect water back toward the Spectors’ land,” which happened. However, in May 2009, a huge rainstorm had “devastating consequences for all parties” and, following this event, the Spectors installed new stone-lined channels on two occasions at least, “but subsequent storms continued to overwhelm the erosion-control device and caused sediment to be brought downhill to the Regans'” property.

In October 2010, other downhill neighbors from the Spectors sued the Spectors and the town. In January 2012, the Regans sued the Spectors and the town, “alleging trespass and nuisance against the Spectors and inverse condemnation against the Town.” The Regans sought an injunction to relocate culvert #7 and claimed money damages.

According to my law dictionary: “inverse condemnation” is government action that results in a taking of property and the government has not given “just compensation” for the taking; “nuisance” is violating a property owner’s right to use and enjoy their property; and “trespass” is wrongful interference with a property owner’s possession of property. These three causes of actions, while similar in respects, have different analyses and available remedies.

The trial court “heard extensive testimony from various experts with a variety of specialized training and experience.” The experts “fundamentally disagreed about whether the water that flowed through old culvert #7 before 2004, and again between 2004 and the fall of 2008 when the culvert [#7] was moved 100-150 feet downhill and easterly . . . drained toward the west or east.” With everyone pointing fingers all over the place, it was “virtually impossible to know where water flowed from culvert #7 before 2004.” At that point, I maybe would have attempted to introduce dowsing evidence (I wonder if there are any Daubert-level dowsing experts available?). Comparatively, however, the former road commissioner “had the best opportunity to observe the pre-2004 conditions” and “the court found credible his testimony that . . . the water from culvert #7 sheeted out as it went downhill but was directed to some degree to the west by the . . . [top road] culvert [that was installed by the town in 1992].”

The trial court held that, regardless of whether it was pre- or post-2004, the water drained all over the place, and that the 2008 relocation “increased the amount of water flowing . . . to some degree but not to the degree of being a major shift in direction.” Also, the town commissioners’ “decisions in 2004 and 2008 . . . were both reasonable in light of the circumstances at the time,” and the trial court found the Spectors installed mitigation measures since 2009 had a “very significant degree” of effect, the Regans had not maintained the sediment pond, and downed logs in a wetland were a natural occurrence for that area. The trial court further found that the water on the Regans’ property was “due almost entirely to the natural evolution of a seepage wetland,” the current location of culvert #7 had “‘little, if any, effect on current conditions,’” and relocation of culvert #7 back to its original place “was ‘highly unlikely to have positive impact on the Regan pond of any consequence.’”

Accordingly, the nuisance and trespass claims fail, and money damages were precluded due to a discovery-sanction-related matter. Because of the trial court’s findings and Regans’ lack of proof, the trial court “found no need” to examine the inverse condemnation claim.

The Regans raise three claims on appeal: (1) the money-damage-related evidence should have been allowed in; (2) trial court used the incorrect legal standard with the inverse condemnation claim; and (3) the trial court incorrectly rejected nuisance and trespass claims with regards to the Spectors’ stone-lined channel.

Claim #1 is not considered because it is mooted by the SCOV’s decision upholding the trial court’s decision as to liability and causation for the Spectors and the town.

For Claim #2, the Regans argue that the trial court “erroneously applied a ‘substantial injury’ test focusing on the degree of damage to their property rather than the nature and character of the invasion of the property.” The Regans base this argument on a couple of Vermont cases. However, when the SCOV looks at those same cases it sees that the trial court properly followed them (the case law does articulate a test that examines the government’s action, intention, legitimacy, and benefit derived therefrom, and, depending on the balance of things, the governmental action may be an inverse condemnation).

To the SCOV, the trial court “did not apply a substantial-injury test, but rather noted that it did not need to consider in depth” the claim due to the Regans “fail[ing] to prove a ‘substantial injury potentially warranting equitable relief.’” The SCOV indicates there was some inquiry by the trial court. That inquiry “concluded that there was no permanent physical occupation or temporary incursions by the Town amounting to an easement on the Regans’ land,” and the “evidence showed [the erosion] . . . was due almost entirely to the natural evolution of the seepage wetland near the sediment pond,” and there was expert evidence backing up these points.

Finally, with Claim #3, the SCOV rejects it as “the trial court found by a preponderance of the evidence” that the Spectors’ stone-line channel wasn’t a nuisance or a trespass and the evidence at trial support the conclusion. While there may be some facts to the contrary about where sediment came from, the trial court’s “findings demonstrate that the condition . . . was almost entirely the result of natural processes and not the repositioning of culvert #7.”

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