Vermont Supreme Court Reviews Trial Decision on Property Owners’ and Town Responsibility to Manage Storm Water

In Michael J. Regan, et al. v. Allen Spector et al., 2016 VT 116, No. 2015-415 (Oct. 21, 2016), the Supreme Court affirmed a trial court decision adjudicating a dispute between property owners (in which the Town of Fayston is also a Defendant), wherein significant erosion and flooding resulted from heavy rains and in which plaintiffs allege defendants’ conduct directly caused these conditions on their property.

Issue: Defendants, the Spectors, own 8.3 acres of hilly property in Fayston—property that requires town-approved storm water management through multiple culverts. In 2004, critical culvert #7 was moved by the town in an attempt to properly manage storm water to avoid erosion. In 2005, the Spectors built a large home on the property, clear-cutting and grading much of the property around the house. In 2007, Plaintiffs, the Regans, bought their home, downhill from the Spector property. In 2008, the Spectors clear-cut more of the hill between their home and the Regan property, and received town approval to move and expand culvert #7 to conform to their desired plan for the property. The town approved this plan with the condition that the Spectors pay for it because, the town testified at trial, it had no interest in moving the culvert at that time. In 2009, a “huge rainstorm” resulted in damage to the property of all parties; however, the Regans allege that the worst of their flooding and other water-related damage was caused by the Spectors’ landscaping of their property and the relocation of culvert #7.

Holding: The Supreme Court upheld the trial court’s finding that, due to the state of the Regans’ property, which included man-made and natural ponds that were naturally merging and shifting, and the unprecedented nature of the 2009 storm, it could not be determined that the Spectors’ conduct directly caused the flooding to their property, or that the erosion near culvert #7 was preventable under the extraordinary weather circumstances. The trial court decision was upheld on the principle that the Supreme Court will uphold the finding of a trial court unless it is clearly erroneous and even when “contradicted by substantial evidence … an appellant must show there is no credible evidence to support the finding.”