Sewage backups tend to make relationships between landowners and their municipal sewer authorities rather, well, messy.  When property is impacted by a sewer authority’s negligence, landowners would typically find a remedy in a trespass action.  However, a recent decision by the Commonwealth Court of Pennsylvania holds that repeated sewage backups may cause a de facto taking under the Pennsylvania Eminent Domain code, requiring compensation to the landowner.  This is yet another area of concern and possible liability for municipal authority operators.

In DeLuca v. Mountaintop Area Joint Sanitary Auth., 166 A.3d 553 (Pa. Commw. Ct. 2017), a landowner alleged that the Mountaintop Area Joint Sewer Authority effected a de facto taking of her property by allowing repeated sewage discharge on her property over a period of five years.  The Commonwealth Court agreed, and held that the Authority owed the landowner compensation as a result of the repeated discharges.

While landowners will undoubtedly be pleased with the decision, they still have a steep burden of proof in these types of proceedings.  To prevail, a landowner must prove that: (1) the authority (arguably the condemnor) has the power to condemn the land under eminent domain procedures; (2) that exceptional circumstances have substantially deprived the landowner of the use and enjoyment of their property; and (3) the damages sustained were the immediate, necessary, and unavoidable consequences of the exercise of the eminent domain power.

Further, the injury caused must be “a direct result of intentional action by an entity clothed with the power of eminent domain.”  In DeLuca, the court held that the Authority operated its system in a manner that would cause recurring sewage overflow in three ways.  First, it expanded its customer base, which increased the volume of sewage flowing through the system.  Second, faulty designs in two manholes resulted in sewage entering through multiple steep-sloped sewer lines, but exiting through a narrow, singular exit line, that had less slope.  Third, the Authority sent multiple employees to the landowner’s home on many occasions to pursue ad hoc remedies for the defects in the system—indicating that it had direct knowledge of the likelihood that the sewage would overflow onto the landowner’s property.

Courts in other states have looked at similar situations and made similar holdings to that of DeLuca.  For example, in City of Oroville v. Superior Court (a California appellate case), property owners filed suit alleging that the City of Oroville caused an inverse condemnation of their property when sewage overflowed into their business.  The California court held the City strictly liable for the damage caused, even though the property owners failed to install a backwater valve as required by a City ordinance.  Unlike Pennsylvania’s rigorous three-part test described above, to prove an inverse condemnation in California, a landowner must merely show that “the public improvement was a substantial concurring cause of the damage.”  The public improvement will be labelled a substantial cause unless other forces by themselves would have caused the injury.  Since the landowner’s failure to install a backup valve would not have otherwise caused the sewage backup, the City was found liable.

These cases offer a cautionary tale for municipal authorities.  Landowners now have another avenue to hold authorities liable.  Landowners are now successfully bringing eminent domain suits against authorities that fail to adequately design or maintain their sewer systems.  It is in an authority’s best interest to ensure that sewer lines are designed, maintained, and implemented correctly, keeping in mind the volume of sewage that may be flowing through the system, not only in the present, but also in the future.

Questions on how to prevent this mess?  Feel free to reach out to the author or any member of the McNees Public Sector Group for assistance.

The author extends a special thank you to Jo-Anne Thompson for assistance in drafting this article.