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...
