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Welcome to 2023! – LexBlog


Pic ipsa loquitur

Happy New Year!

One opinion from SCOV yesterday. This opinion deals mainly with statutes of limitation and stormwater runoff. In a nutshell, back in 2006, the Vermont Agency of Transportation (VTrans) rebuilt Route 7 in South Burlington and Shelburne. As part of that project, it got a permit and constructed “a new, enclosed stormwater-drainage-management system to collect stormwater from the widened road surface.” It’s undisputed that the system increased stormwater discharges. The system sent the stormwater downhill and eventually down to the Lake (you know which Lake—everybody knows which Lake it is when you capitalize Lake in Vermont). Plaintiff lives to the west of Route 7 and her property abuts the Lake.

At some point—nobody knows exactly when—plaintiff noticed that the stormwater was creating a ravine where there was formerly a dry depression. She got in touch with VTrans around 2009, and, ultimately, in early 2013, VTrans told her that “legal” said they were in the clear. At the end of 2018, plaintiff filed suit with a whole bunch of claims. VTrans moved to dismiss on SOL and discretionary-function immunity (a carve-out in the Tort Claims Act—weren’t we just talking about this last week in the context of municipal immunity?). Ultimately, the trial court dismissed several claims but allowed plaintiff’s trespass and nuisance claims to go forward on plaintiff’s continuing-tort-exception-to-the-statute-of-limitations theory. Flash forward through some discovery and the inevitable motion for summary judgment and the trial court dismisses the final remaining claims, reasoning that the continuing-tort doctrine doesn’t apply.

On appeal, plaintiff makes four arguments: (1) that her takings claim should go under the fifteen-year limitations period for bringing claims to recover lands; (2) if the takings claim is time-barred, the time barring violates the federal and Vermont Constitutions; (3) the fifteen-year statute also applies to her trespass and nuisance claims; and (4) even if it doesn’t, trespass and nuisance fall into the continuing-tort doctrine. SCOV reasons that the longer statute of limitations doesn’t apply here and that plaintiff’s takings claim is really an inverse-condemnation claim—six years and time’s up on this one. SCOV relies in part on New Jersey land-use law and there are some obvious jokes about the wisdom of such a choice, but I will refrain. Next, SCOV sidesteps the whole this-is-unconstitutional argument with old not-raised-below-not-doing-it-here two-step. On the fifteen-years-for-trespass-and-nuisance front, SCOV rejects plaintiff’s trespass arguments based on a handful of 100+ year old cases maintaining that the cases don’t say what plaintiff says they say. This—to me—seems like an easy way to deal with old cases because nobody actually knows what they’re saying in those old cases half the time. Nuisance finds a similar fate though based on more recent rulings. Finally, SCOV deals with the continuing-tort-doctrine argument—a first-time ask to SCOV—not by rejecting the doctrine itself but by reasoning that VTrans has committed no tortious act since 2006. The trial court is affirmed and thus concludes our first opinion of 2023. Nesti v. Vermont Agency of Transportation, 2023 VT 1.


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