Experts tell Vermont committee adding ‘trespass’ to right-to-farm bill could trigger takings claims

Summary

A law professor told a legislative committee that expanded trespass immunity in S.45 could amount to a government-authorized physical invasion and prompt constitutional takings claims, and witnesses raised concerns about tile drainage, unclear nuisance definitions and a 25-year-flood exception in the draft bill.

A Vermont law professor warned a legislative committee on S.45 on Oct. 12 that adding trespass immunity to the state’s right-to-farm statute could amount to a government-authorized physical invasion of downstream land and lead to successful takings claims.

John Echeverria, a law professor testifying on his own behalf, told members the takings clause ‘‘draws an important distinction’’ between regulatory limits on property use and ‘‘physical invasions or physical occupations’’ that require compensation. He said, ‘‘it’s just common sense that you shouldn’t dump your water on your neighbor’s land.’’

Echeverria’s testimony focused on two legal doctrines. He described Vermont common-law drainage rules that generally allow water to flow naturally downslope but prohibit artificial increases or redirection that harm downstream neighbors. He contrasted those rules with constitutional takings law, saying the courts treat government-authorized physical…

Experts tell Vermont committee adding ‘trespass’ to right-to-farm bill could trigger takings claims

Summary

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