Vermont “Necessity” for Municipal Stormwater Takings Requires Evidence of Statutory Due-Consideration—Including Alternatives—Without Deference to the Town

I. Introduction

In Mongeon Bay Properties, LLC v. Town of Colchester, 2026 VT 1, the Vermont Supreme Court affirmed the denial of the Town’s petition to condemn a lakeshore parcel owned by Mongeon Bay Properties, LLC. The Town sought to take 885 East Lakeshore Drive to construct a stormwater treatment facility and to address asserted operational, safety, and liability concerns arising from an existing municipal stormwater pipe running under the property pursuant to a 1979 easement.

The case presented a core eminent-domain question under Title 24’s municipal sewage and stormwater condemnation framework: what does “necessity” mean under 24 V.S.A. § 3601(4), and what evidentiary showing must a municipality make—particularly regarding alternatives and owner impacts— before a court may approve a taking?

II. Summary of the Opinion

The Court held that the trial court acted within its discretion in finding the Town failed to prove “necessity” by a preponderance of the evidence under 24 V.S.A. §§ 3601(4), 3609. Although Vermont had not previously interpreted § 3601(4), the Court applied its highway-condemnation “necessity” jurisprudence under 19 V.S.A. § 501 because the statutes share similar language and purpose.

The Supreme Court affirmed on the narrow ground that the Town did not present adequate evidence that it gave “due consideration” to the statutory factors—especially the adequacy of other locations, the least inconvenience and expense to the owner, and the effect on the grand list and revenues. Because necessity was not established, the Court declined to reach the trial court’s separate “bad faith” holding.

III. Analysis

A. Precedents Cited

1. Standard of review and deference to trial-court factfinding

  • Cersosimo v. Town of Townshend, 139 Vt. 594 (1981): reaffirmed that “necessity” is a fact question for the trial court; also supplied the core “reasonable need” formulation later imported here.
  • Rossetti v. Chittenden Cnty. Transp. Auth., 165 Vt. 61 (1996): reiterated the “reasonable need” standard and the appellate posture—findings accepted if supported by competent evidence; decision upheld absent abuse of discretion.
  • Agency of Transp. v. Wall Mgmt., 144 Vt. 640 (1984): applied the “reasonable need” standard in condemnation and reinforced deference to supported findings.
  • Jackson v. Jackson as Tr. for William Jackson Tr. of 1939 & the William Jackson Tr. of 1941, 2025 VT 29: supplied the Court’s modern articulation of “clearly erroneous” review and deference to credibility determinations.

2. Interpreting “necessity” and the “due consideration” obligation

  • Agency of Transp. v. Timberlake Assocs., LLC, 2024 VT 83: critical to the Court’s reasoning. It stated that to show “due consideration,” the condemning authority must present evidence on each statutory factor “to the extent applicable.” The Court used Timberlake as a comparator: VTrans supported necessity with a commissioned scoping study, multiple alternative designs, modeling, revisions, and reliance on expert/public input—contrasting sharply with the Town’s record here.
  • In re Transp. Project Colchester HES NH 5600(14) (Exit 16 Diverging Diamond Interchange), No. 484-6-19 Cncv (Vt. Super. Ct. Mar. 9, 2022), aff’d Timberlake, 2024 VT 83: referenced as the trial-level foundation showing robust alternative analysis can satisfy the “other locations/designs” factor.

3. Burden of proof and evidentiary principles

  • Livanovitch v. Livanovitch, 99 Vt. 327 (1926): cited for the general civil rule that a party with the burden must prove its claim by a preponderance of the evidence.
  • Lofts Essex, LLC v. Strategis Floor & Décor Inc., 2019 VT 82: used to confirm the trial court’s province over credibility and persuasiveness, including its ability to discount expert or quasi-expert assertions.

4. Discretionary-factor analysis (by analogy)

  • New England Phoenix Co. v. Grand Isle Veterinary Hosp., Inc., 2022 VT 10: invoked by the Town for the proposition that failure to consider mandatory factors can be an abuse of discretion. The Court distinguished the argument by concluding the trial court did consider relevant factors; it was the Town that failed to produce evidence on them.

B. Legal Reasoning

1. First interpretation of 24 V.S.A. § 3601(4), guided by 19 V.S.A. § 501 cases

The Court announced an important interpretive move: although § 3601(4) had not been previously construed, Vermont’s established condemnation jurisprudence under 19 V.S.A. § 501 applies because of shared language and purpose. Accordingly, “necessity” does not require an “imperative, indispensable or absolute necessity,” but only that the taking be “reasonably necessary” to accomplish the end in view under the circumstances (quoting Cersosimo and reaffirmed in Wall Mgmt. and Rossetti).

2. No statutory presumption in favor of municipal necessity determinations

The Court emphasized a structural difference: highway takings under 19 V.S.A. § 505 include a presumption that VTrans’s project-level necessity/public purpose determination is correct (subject to bad faith/abuse), whereas Title 24, Chapter 101 contains no comparable deference. Instead, 24 V.S.A. § 3609(b) squarely places the burden on the Town. This undercut the Town’s argument that the court should defer to local policy judgments about phosphorus reduction.

3. “Due consideration” requires an evidentiary showing on the statutory factors

Tracking Timberlake, the Court treated the statute’s factor list not as aspirational, but as an enforceable “due consideration” obligation that must be supported by record evidence “to the extent applicable.” The Town failed on multiple fronts:

  • Home/homestead rights and owner convenience: The Town presented no meaningful evidence showing it evaluated the impacts of permanently taking the property and removing the structure—especially given the property’s position within a larger unsubdivided parcel.
  • Town grand list and revenues: The Town relied essentially on a single, weakly supported opinion that improved water quality would increase overall property values; the trial court could discount it for lack of qualification and specificity.
  • Least inconvenience and expense to the owner: The Town framed pipe-related risk largely as a municipal liability issue, and the trial court permissibly found the asserted future exposure speculative given the liner repair’s expected 30–50 year service life and the absence of post-repair failures.
  • Adequacy of other properties/locations: This was the central deficiency. The Town’s own 2017 scoping study and 2020 phosphorus plan identified many candidate sites, but not Mongeon Bay’s. The Town claimed evolving regulatory “tools” justified a later end-of-pipe approach, yet produced no documentation or credible explanation of any comparative analysis showing the Mongeon Bay site was reasonably superior. A cost comparison to 937 East Lakeshore Drive was found to be post hoc and tailored to a design “designed specifically to fit Mongeon Bay’s property,” not a genuine evaluation of alternatives.

4. The role of competing expert evidence

The Court rejected the Town’s attack on Mongeon Bay’s expert as an appellate re-weighing of credibility. The Town stipulated to admission of the report and did not preserve an evidentiary objection. The trial court could use the alternative-site analysis not to dictate where the Town must build, but to demonstrate that alternatives existed and therefore the Town’s “due consideration” showing was inadequate.

5. Phosphorus reduction and “public good” did not salvage an unsupported process

The Town argued the court improperly focused on cost-per-pound phosphorus removal. The Supreme Court treated that discussion as responsive to the Town’s own asserted justification. Because the Town acknowledged it considers cost-effectiveness in siting projects, evidence that an alternative could remove more phosphorus at far lower cost supported the finding that the chosen taking was not shown to be a reasonable means to achieve the stated public objective—especially absent a documented alternatives analysis.

C. Impact

  • Operational rule for municipal condemnations under Title 24: Municipalities seeking to condemn for sewage/stormwater systems must build a record demonstrating “due consideration” of the § 3601(4) factors with competent evidence—particularly alternatives and owner impacts.
  • Process matters as much as purpose: Even where the project advances significant regulatory goals (e.g., Lake Champlain phosphorus reduction), courts will scrutinize whether the municipality can show a reasoned, evidence-based selection of site and scope.
  • Reduced reliance on generalized assertions: Speculative liability concerns and broad claims of townwide property-value benefits are unlikely to satisfy the burden without quantified, site-specific, or expert-supported evidence.
  • Alignment with highway-condemnation doctrine—without highway deference: The decision imports the “reasonable need” framework of 19 V.S.A. § 501 into § 3601(4) analysis, but highlights that municipalities do not receive the statutory presumption afforded to VTrans under 19 V.S.A. § 505.

IV. Complex Concepts Simplified

Eminent domain / condemnation
The government’s power to take private property for a public purpose, with compensation; Vermont statutes also require proof that the taking is “necessary” as defined by law.
“Necessity” as “reasonable need”
Not “absolute necessity.” The question is whether the taking is reasonably needed to accomplish the public objective, considering statutory factors and alternatives.
“Due consideration” factors
The statute lists concrete items the condemning authority must meaningfully evaluate (e.g., other locations, owner inconvenience, scenic/recreational effects, grand list impacts). Courts expect evidence showing the evaluation occurred.
Preponderance of the evidence
More likely than not. The Town must tip the evidentiary scale in its favor on the necessity question.
Clearly erroneous / abuse of discretion
On appeal, factual findings stand if supported by competent evidence; reversal generally requires a lack of credible support or a decision outside the range of permissible choices.
End-of-pipe vs. infiltrative stormwater treatment
End-of-pipe systems treat runoff at an outfall point (near discharge). Infiltrative methods aim to soak runoff into soils upstream. The Town claimed regulatory shifts made end-of-pipe approaches more feasible, but it still needed evidence-based alternatives analysis.

V. Conclusion

Mongeon Bay Properties, LLC v. Town of Colchester establishes that municipal “necessity” under 24 V.S.A. § 3601(4) demands an evidentiary showing of genuine, factor-by-factor “due consideration,” especially regarding alternative locations and the least inconvenience and expense to the owner. The opinion aligns Title 24 necessity analysis with Vermont’s highway-condemnation “reasonable need” doctrine while underscoring that municipalities receive no statutory presumption in their favor. The practical takeaway is straightforward: a compelling public objective is not enough; municipalities must be able to prove, with competent evidence, that the particular property and the extent of the taking are reasonably selected after meaningful consideration of statutory factors and alternatives.