Alger, et al. v. Dept. of Labor & Industry, et al. (2005-001)

2006 VT 115

[Filed 09-Nov-2006]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2006 VT 115

                                No. 2005-001


  Rebecca Alger, et al.                          Supreme Court

                                                 On Appeal from
       v.                                        Franklin Superior Court


  Department of Labor and Industry, et al.       November Term, 2005


  Howard E. VanBenthuysen, J.

  Maryellen Griffin and Karen Richards, and Katherine Berkman and Stephen
    Norman (On the Brief), St. Johnsbury, for Plaintiffs-Appellants.

  William H. Sorrell, Attorney General and Clifford Peterson, Assistant
    Attorney General, Montpelier, for Defendants-Appellants.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

        
       ¶  1.  JOHNSON, J.  Plaintiffs Rebecca Alger, et al., appeal from the
  superior court's dismissal of their action against defendant Vermont
  Department of Labor and Industry, as well as from the court's denial of
  their application for class certification.  Plaintiffs' claims arise
  primarily from the Department's attempted closure of an apartment building
  at 13 High Street in St. Albans for longstanding housing code violations. 
  Plaintiffs allege that the conditions at 13 High Street are symptomatic of
  the Department's general failure to take action against the owners of
  rental housing who have violated the housing code. (FN1)  Plaintiffs claim
  that the closure was an unconstitutional taking of property without due
  process or just compensation.  They argue that the court's dismissal was
  premature because their allegations were sufficient to state due process
  and takings claims, as well as a claim in the nature of mandamus. 
  Plaintiffs also contend that the court improperly considered the merits of
  the case in denying class certification.  We affirm in part, reverse in
  part, and remand.

       ¶  2.  Plaintiffs brought this action in November 2002, following the
  Department's order that the apartment building at 13 High Street be vacated
  by November 15, 2002, due to fire and electrical code violations. 
  Plaintiffs' first complaint sought declaratory and injunctive relief
  pursuant to 21 V.S.A. § 209, which allows any person aggrieved by an action
  taken by the Commissioner of Labor and Industry to appeal the action to the
  superior court within twenty days of the action.  The complaint alleged
  that the Department's order failed to comply with the due process
  requirements of notice and a pre-closure hearing, that it was served
  improperly, and that the Department had failed to demonstrate that the
  building was imminently hazardous before ordering that it be vacated.  In
  connection with their complaint, plaintiffs sought, and received, a
  preliminary injunction preventing the Department from closing the building. 
  The Department then agreed to allow the building to remain open until
  further order of the superior court.  Plaintiffs filed a second amended
  complaint adding claims against Thomas Komasa, the owner of 13 High Street,
  after he was brought in as a third-party defendant at the Department's
  request.  Plaintiffs' claims against Mr. Komasa, some of which have been
  settled, are not at issue here. 

       ¶  3.  In June 2003, following discovery, plaintiffs filed a third
  amended complaint containing revised claims and additional allegations
  against the Department.  This complaint also added the claims of two
  plaintiffs, Tina Neville and Linda Limoge, who did not reside at 13 High
  Street.  We treat the following allegations as true for the purposes of
  reviewing the superior court's dismissal.  Gilman v. Maine Mut. Fire Ins.
  Co., 2003 VT 55, ¶ 14, 175 Vt. 554, 830 A.2d 71 (mem.).
   
       ¶  4.  On October 14, 2002, the Department issued an order regarding
  numerous fire and electric code violations at 13 High Street.  The order
  cited "a long history of violations" at that building that had been
  identified no later than 2000, although it did not include previous
  inspections from as far back as 1994 that had identified similar
  violations.  According to the October 14, 2002 order, the Department had
  instructed the building's previous owner, Brian Simpson, to correct similar
  violations in May 2000, notified him of continuing violations in July 2000,
  and ordered him to correct the violations within thirty days in November
  2000.  When Mr. Simpson failed to correct the violations, the Department
  asked, in April 2001, that he submit a plan of corrective action within
  thirty days, and noted in a report that the violations continued to exist
  as of August 2001.  Chittenden Bank acquired the building from Mr. Simpson
  in 2002 by foreclosure, and sold it to Mr. Komasa in May 2002.  In June
  2002, Department personnel met with Mr. Komasa and informed him of the
  continuing code violations.  Mr. Komasa told them that he would correct the
  violations, but on September 11, 2002, a Department inspection found "no
  evidence that any work had been done toward improving the condition of the
  building." 

       ¶  5.  The October 14, 2002 order directed Mr. Komasa to: (1)
  immediately vacate apartment 5, the residence of plaintiff Laura Bean,
  because it no longer had electrical service and plaintiff Bean was using
  candles to light the apartment; (2) submit a plan of corrective action by
  October 21, 2002; and (3) begin repairs to correct the violations no later
  than November 1, 2002.  The order stated that noncompliance would result in
  the closure of the building "until such time as all outstanding violations
  are corrected."  The order was handed to plaintiff Corinne Bluto, who lived
  on the third floor, and wedged into the doorway of plaintiffs Alger and
  Todd Massey.   
   
       ¶  6.  Plaintiff Bean vacated her apartment in October 2002. 
  Plaintiffs Bluto, Alger, and Massey remained in their apartments.  Although
  Mr. Komasa received an informal extension of the deadline for submitting a
  plan of corrective action until November 1, 2002, he did not submit such a
  plan by that date, and he took no action to begin correcting the
  violations.  On November 5, 2002, the Department issued an order that the
  building be closed and its electrical service disconnected as of November
  15, 2002.  The order did not contain a statement that there was an imminent
  hazard.  The Department did not provide plaintiffs an opportunity for a
  hearing prior to the closure date, and did not offer plaintiffs assistance
  in relocating or other compensation for the loss of their apartments.  The
  Department took no additional action against Mr. Komasa, such as the
  imposition of administrative fines, and did not refer the case to the
  Franklin County state's attorney for civil or criminal prosecution.  

       ¶  7.  Plaintiffs' complaint also contained allegations on behalf of
  plaintiffs Neville and Limoge, neither of whom shared plaintiffs' claims
  with respect to 13 High Street.  Plaintiff Neville alleged that she had
  vacated her rental home because of numerous uncorrected code violations,
  all of which the Department had identified through inspections, but none of
  which the Department had ordered her landlord to correct.  Plaintiff Limoge
  alleged that she was forced to vacate her rented mobile home when the
  Department disconnected her electrical service due to her landlord's
  failure to correct electrical code violations.  The Department took no
  action against either landlord before or after plaintiffs Neville and
  Limoge left their homes. 
   
       ¶  8.  Plaintiffs' third amended complaint no longer relied on 21
  V.S.A. § 209.  Instead, the complaint phrased plaintiffs' legal claims in
  terms of the Department's failure to perform its mandatory statutory
  duties, and its failure to exercise discretion in performing its
  discretionary duties.  The complaint alleged that the Department
  "arbitrarily abused [its] authority to enforce the habitability statutes
  and rules by failing and neglecting to take action to cause violations to
  be eliminated or removed in accordance with the statutes and rules," failed
  to establish or follow a procedure for penalizing landlords who fail to
  correct code violations, and failed to establish or follow a procedure for
  legal action against such landlords.  Plaintiffs alleged that the
  Department's actions were consistent with its general failure to enforce
  the housing code except by evicting tenants in rental housing.  That is,
  the Department rarely, if ever, issued fines or referred a landlord for
  prosecution, despite its statutory authority to do so, even after closing a
  rental property.  The amended complaint also contained the previous
  complaints' claims that the Department took plaintiffs' property without
  due process or just compensation by terminating plaintiffs' residential
  tenancies without providing a pre-closure hearing or taking effective
  action to force landlords to correct the violations that resulted in the
  closures. (FN2)
           
       ¶  9.  Plaintiffs also moved to certify a class of similarly situated
  tenants and a subclass of tenants who had suffered the loss of their rental
  housing.  Plaintiffs' motion for class certification defined the class as
  "all residents of rental housing in Vermont where there are one or more
  violations of the statutes and rules pertaining to habitability and
  enforced by [the Department]," including "all people who now reside in such
  housing, all people who have resided in such housing since November 13,
  1999, and all people who will reside in such housing in the future."  The
  subclass was composed of "all Vermont residential tenants who have in the
  past three years, or will in the future, be forced to move out of their
  homes as a result of [the Department's] actions and omissions regarding
  code enforcement in rental housing."  The Department opposed class
  certification, and the superior court denied plaintiffs' motion, finding
  that plaintiffs' proposed class failed to meet the requirements of Vermont
  Rule of Civil Procedure 23.   
   
       ¶  10.  The Department also filed a motion to dismiss under Rule
  12(b)(6), arguing that the allegations in plaintiffs' complaint were
  insufficient to state a claim for which relief could be granted.  The
  superior court granted the Department's motion and dismissed plaintiffs'
  claims, ruling that the Department's action in forcing plaintiffs to vacate
  their rental housing was an exercise of the police power, not subject to
  due process or takings analysis, and that plaintiffs' claims that the
  Department had abused its authority, which were in the nature of the writ
  of mandamus, were not properly brought under Rule 75.  Even had plaintiffs
  followed the procedures of Rule 75, the court stated that their allegations
  were legally insufficient because the Department's duty to act was
  discretionary, and any failure to act was not "an arbitrary abuse of
  power."  See Sagar v. Warren Selectboard, 170 Vt. 167, 171, 744 A.2d 422,
  426 (1999) (stating that mandamus is not generally available for
  discretionary decisions absent an arbitrary abuse of power).


       ¶  11.  Plaintiffs now appeal the court's dismissal of their complaint
  and its denial of their motion for class certification.  They argue that
  the court erred by: (1) dismissing their complaint despite allegations that
  were sufficient to state mandamus, takings, and due process claims against
  the Department; and (2) improperly considering the merits of their
  complaint in denying their motion for class certification.  We agree that
  the court's dismissal of plaintiffs' claims was premature, but find that
  denial of class certification was appropriate here, and therefore, we
  affirm in part, reverse in part, and remand for further proceedings.

                                     I.

       ¶  12.  Plaintiffs first contend their complaint should have survived
  a motion to dismiss because it stated claims upon which relief could be
  granted.  "A motion to dismiss is not favored and rarely granted."  Gilman
  v. Maine Mut. Fire Ins. Co., 2003 VT 55, ¶ 14, 175 Vt. 554, 830 A.2d 71
  (mem.).  This is especially true "when the asserted theory of liability is
  novel or extreme," as such cases "should be explored in the light of facts
  as developed by the evidence, and, generally, not dismissed before trial
  because of the mere novelty of the allegations."  Ass'n of Haystack Prop.
  Owners, Inc. v. Sprague, 145 Vt. 443, 447, 494 A.2d 122, 125 (1985).  In
  reviewing a motion to dismiss, we consider whether, taking all of the
  nonmoving party's factual allegations as true, " 'it appears beyond doubt'
  that there exist no facts or circumstances that would entitle the plaintiff
  to relief."  Amiot v. Ames, 166 Vt. 288, 291, 693 A.2d 675, 677 (1997)
  (quoting Levinsky v. Diamond, 140 Vt. 595, 600-01, 442 A.2d 1277, 1280-81
  (1982)).  We treat all reasonable inferences from the complaint as true,
  and we assume that the movant's contravening assertions are false. (FN3)
  Id.
                                                                           
                                     A.

       ¶  13.  We first address plaintiffs' claim that the Department failed
  to enforce the housing code, which plaintiffs characterize as a claim in
  the nature of mandamus.  Although Rule 81(b) abolished the writ of
  mandamus, relief in the nature of mandamus remains available under Rule 75. 
  Garzo v. Stowe Bd. of Adjustment, 144 Vt. 298, 299-300, 476 A.2d 125, 126
  (1984).  The superior court faulted plaintiffs for failing to proceed under
  Rule 75, but plaintiffs did not fail to satisfy any requirement of Rule 75
  by simply filing a complaint demanding a mandatory injunction.  To the
  extent Rule 75 alters the requirements of mandamus, it relaxes its formal
  requirements-for instance, by eliminating responsive pleading requirements
  at the discretion of the court, and by allowing amendment to permit a
  defective Rule 75 claim to be brought as an ordinary civil action. 
  V.R.C.P. 75(b).  
   
       ¶  14.  The Department interprets the court's statement as a ruling
  that plaintiffs' claims were brought outside the statute of limitations. 
  We see no indication of such reasoning in the court's ruling.  The
  limitations period set by Rule 75 with respect to failures to act is "six
  months after expiration of the time in which action should reasonably have
  occurred."  V.R.C.P. 75(c).  This time limit, however, is not
  jurisdictional, Fyles v. Schmidt, 141 Vt. 419, 422, 449 A.2d 962, 964
  (1982), and the Department raises it for the first time on appeal.  The
  only time bar raised below was with respect to plaintiffs' challenge under
  21 V.S.A. § 209; the Department failed to address any applicable bar to
  plaintiffs' mandamus claims, and responded to these claims only in terms of
  its lack of a mandatory duty.  We thus decline to address this issue on
  appeal.  See Rennie v. State, 171 Vt. 584, 587, 762 A.2d 1272, 1277 (2000)
  (refusing to consider a statute of limitations argument that was not
  specifically raised below, even though the same issue had been raised with
  respect to related claims).  

       ¶  15.  Perceiving no procedural default, we turn to the substance of
  plaintiffs' complaint.  Mandamus will ordinarily lie only "to compel a
  public officer to perform an official act which is merely ministerial," and
  only where "the right sought to be enforced is certain and clear."   Roy v.
  Farr, 128 Vt. 30, 34, 258 A.2d 799, 801-02 (1969).  This rule is subject to
  the exception, however, that where there is "an arbitrary abuse of the
  power vested by law in an administrative officer or board which amounts to
  a virtual refusal to act or to perform a duty imposed by law, mandamus may
  be resorted to in the absence of other adequate legal remedy."  Id., 258
  A.2d at 802.

       ¶  16.  Although the fire, electrical, and plumbing safety codes are
  each addressed by a separate statutory scheme, the enforcement provisions
  of each are similar.  Each code explicitly commits enforcement to the
  discretion of the Department by allowing the Commissioner of Labor and
  Industry to set priorities for inspection and enforcement.  See 21 V.S.A. §
  252(b) (2003) (FN4) (allowing the commissioner to "establish priorities for
  enforcing these rules and standards based on the relative risks to persons
  and property from fire or particular types of premises"); 26 V.S.A. § 893
  (allowing the commissioner to set electrical inspection priorities); id. §
  2173(b) (allowing the commissioner to set priorities for plumbing
  inspection and enforcement).   
                      
       ¶  17.  Each code also empowers the Department to respond to
  violations in several ways.  Each contains a provision authorizing an
  administrative fine of not more than $1,000 for each violation of a rule or
  order.  21 V.S.A. § 254(c) (2003) (fire); 26 V.S.A. § 897(a) (electrical);
  id. § 2175(d) (plumbing).  In addition, each authorizes action in the
  superior court to enforce a regulation or order by injunctive relief and,
  in the case of fire code violations, fines of up to $20,000.  21 V.S.A. §
  254(a)-(b) (allowing superior court prosecution for injunctive or other
  relief and fines of up to $10,000 for a violation of any provision and
  $20,000 for a violation of an emergency order); 26 V.S.A. § 897(b)
  (authorizing the superior court, "on application by the commissioner," to
  grant injunctive relief for electrical code violations); id. § 2175(e)
  (authorizing the superior court, "[o]n application by the commissioner," to
  enjoin plumbing code violations. (FN5)  Each scheme also authorizes the
  Department to issue an order to the owner of the premises to correct a
  violation.  21 V.S.A. § 253(a) (fire); 26 V.S.A. § 895 (electrical); id. §
  2175(b)(1) (plumbing).  If a fire code violation is not corrected following
  an order, the building may be closed.  21 V.S.A. § 253(a).  An uncorrected
  plumbing or electrical violation may result in the disconnection of
  service.  26 V.S.A. § 895 (electrical); 26 V.S.A. § 2175(b)(3) (plumbing).
                                          
       ¶  18.  By authorizing the commissioner of labor and industry to set
  inspection and enforcement priorities and enabling the Department to
  exercise one or more of several enforcement options, the Legislature has
  vested a great deal of discretion in the Department in performing the
  duties addressed in plaintiffs' complaint.  Thus, the duties plaintiffs
  seek to enforce are not ministerial, and mandamus can lie against the
  Department only under the "arbitrary abuse of power" exception.  See Roy,
  128 Vt. at 34, 258 A.2d at 801-02 (distinguishing discretionary duties from
  ministerial acts).  To determine whether plaintiffs' claim fits within this
  exception, we must determine whether the facts they allege and the
  reasonable inferences from those facts establish that the Department's
  conduct was so arbitrary that it amounted a refusal to act or a failure to
  perform a legal duty, and that plaintiffs have no other adequate remedy. 
  Id., 258 A.2d at 802.

       ¶  19.  We agree with plaintiffs that they have no alternative remedy. 
  "In order to supersede mandamus, the other remedy must be competent to
  afford relief on the very subject matter in question, and be equally
  convenient, beneficial and effective."  Id. at 37, 258 A.2d at 803.  The
  Department argues that plaintiffs have a remedy under 21 V.S.A. § 209,
  which allows for appeals to the superior court from actions or orders of
  the Commissioner of Labor and Industry, but this statute, by its plain
  language, applies only to actions and orders, not to failures to act.  21
  V.S.A. § 209 ("[A] person aggrieved by an order or action of the
  commissioner . . . may appeal to the superior court for the order or action
  within 20 days after the order is issued or the action is taken.")
  (emphasis added).  Rule 75 is a better avenue for challenging a failure to
  act, and the Department has identified no alternative remedy.  See V.R.C.P.
  75 (allowing review of "[a]ny action or failure or refusal to act by an
  agency of the state or a political subdivision thereof") (emphasis added). 

       ¶  20.  The key question is thus whether the Department's alleged
  failures to act were sufficiently arbitrary that they can be characterized
  as nonperformance of a legal duty.  We acknowledge that it is difficult to
  articulate a clear answer to this question.  In the context of a motion to
  dismiss, though, we need to consider only two broad preliminary questions
  to determine whether plaintiffs' complaint is sufficient to survive
  dismissal and allow further factual development:  (1) whether there is some
  minimum standard of conduct with which the Department must comply; and (2)
  whether plaintiffs' complaint alleges that the Department has failed to
  comply with that standard.
   
       ¶  21.  Plaintiffs contend that, while the Department has discretion
  in how it enforces the housing code, the Department's actions represent a
  wholesale failure to enforce the code.  The Department responds by arguing
  that it does not owe plaintiffs a legal duty of any kind, including a duty
  to enforce the housing code.  The Department appears to base this argument
  on the fact that it does not owe plaintiffs a duty of care in tort.  See,
  e.g., Corbin v. Buchanan, 163 Vt. 141, 144, 657 A.2d 170, 172 (1994)
  (holding that agency could not be held liable for damages resulting from
  allegedly negligent fire safety inspections).  The type of duty plaintiffs
  must assert to fit within the exception to the requirements of mandamus is
  distinct from a duty of care.  The proposition that the law imposes duties
  on an administrative agency is not related to the proposition that the
  agency must take care to prevent harm to the public or risk liability for
  negligence.  In Roy, for instance, we held mandamus to lie against a local
  board for its failure to correct a previously identified violation of the
  health code.  128 Vt. at 36, 258 A.2d at 803.  There, the duty imposed by
  law on the board was not a duty that the plaintiff could enforce in tort if
  he fell ill as a result of the violation.  Instead, it was a more general
  duty to obey and enforce a mandatory statutory provision.  Id.  Thus, the
  fact that the Department does not owe plaintiffs a duty of care does not
  resolve the question of whether the Department may have other affirmative
  legal duties.  

       ¶  22.  We agree with plaintiffs that the Department has, at minimum,
  a legal duty to enforce the housing code, and that a wholesale failure to
  enforce the code would violate that duty.  This is a somewhat simplistic
  and misleading description of the Department's alleged conduct, however. 
  Such a description cannot be reconciled with the fact that, for instance,
  the Department inspected the building at 13 High Street several times and
  identified multiple violations of the code, nor with the fact that the
  Department ultimately ordered the building closed and its utility service
  terminated.  A more accurate description of the alleged conduct is that the
  Department enforced the housing code as a regime of voluntary compliance. 
  The specific omissions identified by plaintiffs are the Department's
  repeated failures to issue administrative fines or refer violations of the
  housing code and specific Department orders to the state's attorney for
  civil prosecution.  In other words, the Department failed to take any
  action to ensure compliance with the provisions of the housing code or its
  own specific orders.
   
       ¶  23.  We conclude that the Department's use of a voluntary
  enforcement scheme can be characterized as a failure to perform a legal
  duty.  Although there can be no expectation that the Department's limited
  resources will allow it to correct every code violation, a voluntary
  compliance regime is entirely inconsistent with the statutory framework of
  the housing code.  The fire code phrases the duties of landlords in
  mandatory terms, explicitly requiring compliance with the Department's fire
  safety rules.  See 21 V.S.A. § 251(b)-(c) (stating that "[a] person shall
  not maintain, keep or operate any premises or any part thereof . . . in a
  manner which causes or is likely to cause harm to other persons or property
  in case of fire" and that "[o]n premises under his control, a person shall
  observe rules promulgated under this subchapter for the prevention of fires
  which may cause harm to other persons or property").  While the electrical
  and plumbing codes lack similarly explicit language, they imply much the
  same thing by authorizing penalties for violations of the Department's
  rules and orders.  Supra, ¶ 16.  The Legislature could have enacted the
  housing code as a system of voluntary compliance, where the Department's
  only duties would have been to inform landlords of their deviations from
  sound safety practices, and to step in as a last resort to prevent imminent
  threats to the community.  Instead, it created a system composed of
  mandatory provisions, and it assigned responsibility for enforcing those
  provisions to the Department.
   
       ¶  24.  Plaintiffs contend that the Department has subverted this
  mandatory statutory scheme by following a general policy that violations of
  the housing code will not result in sanctions against landlords.  According
  to the complaint, the long history of violations at 13 High Street resulted
  in only the following pattern of action and inaction by the Department: (1)
  the Department inspected the building and identified serious violations;
  (2) the Department informed the landlord of the results of the inspection;
  (3) the Department issued a specific deadline for correction of the
  violations identified by the inspection report; (4) the landlord failed to
  take any corrective action; and (5) the Department took no further action
  until the next time it inspected and identified the same or similar
  violations.  After several years of repeating this cycle, the violations
  became severe enough that the Department threatened to close the building
  if Mr. Komasa failed to complete the ordered repairs.  When Mr. Komasa did
  not respond, the Department ordered the building closed, but took no
  additional enforcement action against Mr. Komasa. 

       ¶  25.  While the Department correctly points out that the housing
  code did not require the Department to take a specific enforcement action,
  such as issuing an administrative fine or referring the matter to the
  state's attorney for civil prosecution, the pattern of violations
  plaintiffs have identified required some response beyond issuing yet
  another order requesting compliance.  Instead, obeying the housing code,
  and even obeying direct orders of the Department, became an entirely
  voluntary obligation on the part of Mr. Komasa and his predecessors.  The
  incentives created by the Department's alleged enforcement scheme were for
  the building's landlords to ignore the housing code and the Department's
  occasional inspections and orders, to avoid spending any additional money
  on a deteriorating building, and to allow the building to grow
  progressively less safe, until  it finally became uninhabitable.  The
  housing code became a mandatory obligation only when the building was
  deemed imminently hazardous.  At that point, it may well have been in Mr.
  Komasa's best interest to have the tenants of 13 High Street removed,
  allowing him to renovate and find new tenants, presumably at a higher rent. 
   
       ¶  26.  The Department's alleged enforcement regime appears
  inherently ineffective with respect to ensuring anything but the minimum
  level of housing code compliance necessary to avoid imminent hazards;
  everything else is left to the discretion of the landlord.  The only
  meaningful role the Department plays in protection against run-of-the-mill
  violations is to inform the landlord of their existence.  A landlord who is
  confident that a building can be maintained at a minimally habitable level,
  or who is indifferent to the loss of already-diminishing rental income from
  a deteriorating building, may ignore the housing code with impunity. 
  Rental housing under such an enforcement regime cannot be expected to be
  any safer or healthier than it would be without any housing code at all. 
  If that is the system the Department has implemented, it represents an
  arbitrary abuse of power that amounts to a failure to comply with its legal
  duties.  As plaintiffs' complaint is sufficient to allege that such a
  system is in place, it states a claim in the nature of mandamus under Rule
  75.  We reverse and remand so that plaintiffs may attempt to prove their
  allegations.

                                     B.

       ¶  27.  We next address plaintiffs' claim that the Department's
  actions resulted in the loss of their leaseholds without due process or
  just compensation.  We agree with the Department that the isolated act of
  ordering a building vacated cannot be characterized as an unconstitutional
  taking without just compensation, or as a taking without due process, when
  the order to vacate is necessary to eliminate an imminent threat of harm. 
  We nevertheless hold that dismissal on these grounds was premature with
  respect to plaintiffs' takings claims.  While plaintiffs' complaint does
  not state a due process claim, the facts alleged were sufficient to raise
  the question of whether the Department's alleged failures to act led to the
  destruction of plaintiffs' leaseholds without compensation. 

       ¶  28.  We first address plaintiffs' claim that the Department failed
  to provide them with due process, in the form of notice and a hearing,
  prior to ordering that they vacate their homes.  The Fourteenth Amendment
  to the United States Constitution provides that no state shall "deprive any
  person of life, liberty, or property without due process of law."  U.S.
  Const. amend. XIV.  The United States Supreme Court has interpreted this
  Due Process Clause to require notice and a predeprivation hearing before a
  person's property is taken.  Fuentes v. Shevin, 407 U.S. 67 (1972).  This
  requirement does not apply, however, in "extraordinary situations where
  some valid governmental interest is at stake that justifies postponing the
  hearing until after [deprivation]."  Id. at 82 (quotations omitted). 
  "Protecting citizens from an immediate risk of serious bodily harm falls
  squarely within those 'extraordinary situations' contemplated in Fuentes." 
  Flatford v. City of Monroe, 17 F.3d 162, 167 (6th Cir. 1994).  
   
       ¶  29.  We agree with the Department that the closure of the building
  at 13 High Street and the termination of utility service at the other
  buildings were justified by an immediate risk of serious bodily harm. 
  "[W]here the need to protect lives is the basis for [the challenged
  deprivation], government officials should not be made to hesitate in
  performing their duties, particularly where postdeprivation remedies can
  immediately correct any errors in judgment."  Id. at 168.  While there
  might be circumstances under which the Department's findings of code
  violations would be insufficient to establish the exigency necessary for
  action without a prior hearing, plaintiffs' allegations do not establish
  such circumstances.  Each of the Department's orders to vacate or cut off
  utility service was supported by findings of dangerous code violations, and
  plaintiffs' complaint concedes the existence, and in most cases, the
  seriousness, of these violations.  Indeed, much of the complaint is devoted
  to establishing that the longstanding violations were serious enough to
  merit Department action prior to the orders to vacate.  No further factual
  development is necessary to determine that the violations at issue posed
  enough of a threat to merit ordering plaintiffs to vacate their homes, and
  it was, therefore, appropriate for the court to dismiss plaintiffs' due
  process claims. 
   
       ¶  30.  It was not appropriate, however, for the court to dismiss
  plaintiffs' takings claims.  Both the Vermont and federal constitutions
  prohibit takings of private property for public purposes without
  compensation.  U.S. Const. amend. V ("[N]or shall private property be taken
  for public use, without just compensation."); Vt. Const. ch. I, art. 2
  ("That private property ought to be subservient to public uses when
  necessity requires it, nevertheless, whenever any person's property is
  taken for the use of the public, the owner ought to receive an equivalent
  in money.").  This prohibition applies not only when the government takes
  property for its own use through the formal procedures of eminent domain,
  but also when government regulation results in the loss of a property
  interest.  Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015
  (1992).  The property interest lost need not be an ownership interest; a
  leasehold is an interest in property subject to analysis under the takings
  clause.  Alamo Land & Cattle Co. v. Arizona, 424 U.S. 295, 303 (1976); see
  also Devines v. Maier, 728 F.2d 876, 880 (7th Cir. 1984)  (holding that a
  residential leasehold is a property interest compensable under the takings
  clause).  Moreover, the loss need not be permanent; a temporary taking of
  property can be compensable.  First English Evangelical Lutheran Church of
  Glendale v. County of Los Angeles, 482 U.S. 304, 318 (1987).

       ¶  31.  The prohibition on takings without compensation is not
  absolute.  We have previously held that an exercise of the police power to
  abate a public nuisance, and specifically, to abate a fire hazard, is not a
  compensable taking.  Eno v. City of Burlington, 125 Vt. 8, 13, 209 A.2d
  499, 504 (1965) ("A fire hazard is a nuisance and the abatement of such a
  nuisance is not the taking of property without due process or a taking for
  which compensation must be made.").  While takings jurisprudence,
  especially at the federal level, has undergone significant development
  since our holding in Eno, there remains no question that the abatement of a
  nuisance is not a taking.  " '[T]akings' jurisprudence . . . has
  traditionally been guided by the understandings of our citizens regarding
  the content of, and the State's power over, the 'bundle of rights' that
  they acquire when they obtain title to property."  Lucas, 505 U.S. at 1027. 
  Thus, where, as here, "the State seeks to sustain regulation that deprives
  land of all economically beneficial use," it may refuse to compensate a
  property owner only if the regulation prohibits a use of the land that was
  "not part of his title to begin with."  Id.  When the challenged state
  action is consistent with "background principles of the State's law of
  property and nuisance," no property interest has been taken, and no just
  compensation is due.  Id. at 1029.  
   
       ¶  32.  Although plaintiffs bear no responsibility for creating the
  nuisance the Department attempted to abate through its orders, remaining in
  a building that posed a threat to public safety was not among the "bundle
  of rights" reserved to them as tenants.  Vermont law allows a tenant to
  remain in a dwelling after a landlord's violation of the warranty of
  habitability.  See 9 V.S.A. § 4458(a) (providing that a tenant "may . . .
  terminate the rental agreement on reasonable notice" if the landlord fails
  to comply with habitability requirements, as one of several alternatives
  under such circumstances).  This does not mean, however, that tenants are
  entitled to remain in a building when doing so threatens the surrounding
  community, as in cases where occupancy of the building poses a fire hazard. 
  Accordingly, to the extent plaintiffs' claims challenge the Department's
  ultimate decision to order that their homes be vacated or their utility
  service be terminated, their allegations do not state valid takings claims.  

       ¶  33.  It would be unfair, however, to construe plaintiffs' claims so
  narrowly.  Instead, we understand plaintiffs to challenge the Department's
  entire course of action with respect to the dwellings at issue.  Like
  plaintiffs' claims under Rule 75, their takings claims rest on their
  allegations that the Department failed to carry out its enforcement duties. 
  In this sense, the government action that resulted in the destruction of
  plaintiffs' property interests was the Department's alleged policy of
  enforcing the housing code only as a last resort in cases of imminent harm. 
  This approach to takings analysis is entirely consistent with Eno, as
  plaintiffs do not seek compensation for the Department's abatement of a
  nuisance.  Instead, they seek compensation for the Department's role in
  allowing the nuisance to continue unabated for so long.  At the time
  plaintiffs were forced to vacate their homes, each plaintiff possessed only
  the illusory right to remain in an imminently hazardous dwelling.  At the
  time plaintiffs allege the Department should have acted, though, each had a
  valid property right to occupy her home.  
   
       ¶  34.  We recognize that plaintiffs' takings claims are unusual, but
  that is not a sufficient reason to allow their dismissal without full
  factual development.  See Sprague, 145 Vt. at 447, 494 A.2d at 125 (stating
  that claims should not be dismissed simply because they are novel or
  extreme).  We need only ascertain that plaintiffs' complaint corresponds to
  general takings principles, and we conclude that it does.  The complaint
  alleges that the Department's choice to enforce the housing code only as a
  last resort deprived them of all beneficial use of their homes.  See Lucas,
  505 U.S. at 1015 (stating that just compensation is categorically
  appropriate "where regulation denies all economically beneficial or
  productive use of land").  The complaint also contains sufficient
  allegations to remove plaintiffs' claims from the exception that the
  government need not compensate for enforcing pre-existing background
  principles of nuisance.  Id. at 1029.  The government's ability to avoid
  paying compensation when it abates a nuisance, such as an imminent fire
  hazard, is conditioned on its lack of responsibility for the exigency.  See
  Devines, 728 F.2d at 884 (allowing the state to condemn uninhabitable
  residential apartments without compensating the tenants when "the
  uninhabitability of the leasehold interest . . . occurs through no fault of
  the State").  

       ¶  35.  Plaintiffs and the Department agree that the landlords of the
  buildings at issue were primarily responsible for the buildings' condition,
  but plaintiffs contend that the Department shares that responsibility. 
  They allege that the Department knew of the relevant code violations, and
  that in the face of the landlords' refusal to take corrective action, it
  chose to allow the violations to continue until they became serious enough
  to require removal of the tenants or termination of utility service.  But
  for the Department's failure to act, there would have been no nuisance to
  abate, and plaintiffs' property would not have been taken. (FN6)  If
  plaintiffs can prove these allegations, they will be entitled to just
  compensation.  Their complaint thus states valid takings claims, and the
  superior court's dismissal of these claims was premature.                

                                     II.
        
       ¶  36.  As a final matter, we affirm the superior court's denial of
  class certification.  Provided that the superior court has applied the
  correct legal standards, we review the court's decision on a motion for
  class certification for abuse of discretion.  Caridad v. Metro-North
  Commuter RR., 191 F.3d 283, 291 (2d Cir. 1999).  Here, plaintiffs contend
  that the court erred in applying the law, so our review is de novo.  Miller
  v. Miller, 2005 VT 89, ¶ 10, 178 Vt. 273, 882 A.2d 1196.  Motions for class
  certification are controlled by Rule 23, which is substantively identical
  to Federal Rule 23.  Reporter's Notes, V.R.C.P. 23.  To be certified, a
  class must satisfy the four requirements of Rule 23(a), which are commonly
  referred to as numerosity, commonality, typicality, and adequacy of
  representation. (FN7)  E.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
  613 (1997).  Rule 23(b) contains additional prerequisites, but the superior
  court did not consider whether a class action would be appropriate under
  Rule 23(b), as it determined that the class failed to satisfy the
  requirements of Rule 23(a).

       ¶  37.  Plaintiffs moved for certification of a class containing "all
  residents of rental housing in Vermont where there are one or more
  violations of the statutes and rules pertaining to habitability and
  enforced by [the Department]," including "all people who now reside in such
  housing, all people who have resided in such housing since November 13,
  1999, and all people who will reside in such housing in the future."  In
  addition, plaintiffs sought to certify a subclass "of all Vermont
  residential tenants who have in the past three years, or will in the
  future, be forced to move out of their homes as a result of [the
  Department's] actions and omissions regarding code enforcement in rental
  housing." 
   
       ¶  38.  The superior court determined that the proposed class was
  overbroad, and thus, that "it would not be administratively feasible for
  the Court to determine if a particular individual is a member of the
  proposed class."  See 7A C. Wright, A. Miller & M. Kane, Federal Practice
  and Procedure § 1760, at 136, 140 (stating that although a class need not
  be "so ascertainable that every potential member can be identified at the
  commencement of the action," it must be "sufficiently definite so that it
  is administratively feasible for the court to determine whether a
  particular individual is a member").  Furthermore, the court decided
  against plaintiffs on class certification because a class cannot "be
  defined so broadly that it encompasses individuals who have little
  connection with the claim being litigated," nor can the class definition be
  too "amorphous."  Id.  at 142-44.  

       ¶  39.   Our analysis of the proposed class definition leads us to the
  same conclusion as the superior court.  The class included virtually every
  renter and leasehold in the state of Vermont over which the Department has
  jurisdiction and where there may have been a code violation.  It was
  entirely fair for the superior court to hold that the class was too
  amorphous as so defined.  We acknowledge that the trial court could have
  required a narrower definition of the class that was more in line with the
  allegations in the complaint, and that it did not do so.  In re New York
  City Mun. Sec. Litig., 87 F.R.D. 572, 580 (S.D.N.Y. 1980). ("Prior to
  decision on the merits, leave to amend the complaint to redefine the class
  should be freely given [by the trial court].").  There was no real effort
  to force redefinition because the trial court dismissed the action for
  failure to state a claim.  

       ¶  40.   On remand, however, a trial court has discretion to change a
  decision not to certify a class, even where an appellate court has affirmed
  the trial court's earlier denial of class certification.  Salazar-Calderon
  v. Presidio Valley Farmers Ass'n, 765 F.2d 1334, 1350 (5th Cir. 1985).  
  Under Rule 23(c)(1), the superior court has continuing power to adjust its
  class decisions in light of evidentiary developments and the general
  progression of the case from assertion to facts.  Richardson v. Byrd, 709
  F.2d 1016, 1019 (5th Cir. 1983).   In view of the early stage of this
  litigation, and our reversal of the trial court on the motion to dismiss,
  plaintiffs are not barred from seeking certification of a more precisely
  defined class that meets the standards of Rule 23.
   
       ¶  41.  We add, as guidance on remand, that plaintiffs must establish
  a sufficient connection between any proposed class of renters and the
  Department for a class action to stand.  At the same time, we caution the
  trial court that in the event that plaintiffs move to certify a new class
  on remand, the certification decision must be made wholly apart from a
  consideration of the merits of the case using the standards set out under
  Rule 23(a) & (b).   

       Affirmed in part, reversed in part, and remanded for further
  proceedings consistent with the views expressed herein.  



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                 Dissenting


       ¶  42.  BURGESS, J., concurring in part and dissenting in part.  
  Rather than call on the courts to run the Department of Labor and Industry,
  a task we are neither qualified nor authorized to do, plaintiffs should
  address their complaint to the executive branch responsible for setting
  code enforcement priorities, and to the legislative branch that granted the
  Department its broad discretionary authority over the priority and method
  of housing code enforcement.  Contrary to the tenor of the complaint and
  the majority opinion, the applicable statutes impose no requirement on the
  Department to use its enforcement tools in any particular sequence, to any
  prescribed degree, or in any manner more satisfactory to plaintiffs. 
  Therefore, I would affirm the trial court's dismissal of plaintiffs'
  complaint for failing to state a viable cause of action.

       ¶  43.  Regarding plaintiffs' due process claim, the legislation cited
  in the complaint imposes neither an actionable duty issuing from the
  Department to these plaintiffs in particular, nor any procedural conditions
  on the Department before it responds to imminent hazards.  As acknowledged
  by the majority, the Department may respond to emergencies with emergency
  measures, without a prior hearing, and properly did so in the case of the
  plaintiffs living at 13 High Street.  Thus, I concur with the majority's
  decision to affirm dismissal of the plaintiffs' due process claims as
  unfounded.
   
       ¶  44.  As for plaintiffs' request for class certification, the
  named plaintiffs appear to have little  in common with the amorphous and
  varied class that they purport to represent.  The original plaintiffs at 13
  High Street had to vacate after a long history of inspections reiterated
  code violations that ultimately threatened an immediate risk of bodily
  harm.  Intervening plaintiff Neville alleges being misled by her landlady
  to move back into a residence previously condemned, and not approved for
  reoccupancy, by the Department.  The code violations described by
  intervening plaintiff Limoge were imminently hazardous, but her inspection
  experience-three inspections in three days-was quite different from that of
  the other plaintiffs.  Thus, on the pleadings, the situations of the named
  plaintiffs are dissimilar, and they have little resemblance to the broad
  class they claim to represent: "all . . . tenants," three years past and in
  the future, who "live in housing where there exists one or more violations
  of the codes," regardless of the severity of the violation.

       ¶  45.  The class, as pleaded, fails to satisfy the "[p]rerequisites
  to a class action" set out under V.R.C.P. 23(a).  Questions of law and fact
  must be common to the class, id. at 23(a)(2), and claims of the named
  plaintiffs based on acts or omissions of the Department must be typical of
  the claims of the class.  Id. at 23(a)(3).  The complaint fails to allege
  what law, facts and claims are common and typical between tenants forced
  out of their homes due to immediate danger of fire or electrocution, and
  plaintiffs' proposed class of tenants faced with single, or even multiple,
  minor code violations such as nonworking electrical outlets, absent
  bannisters or missing junction box covers.  If the putative class alleged
  by plaintiffs "is so numerous that joinder of all members is
  impracticable," as required by V.R.C.P. 23(a)(1), it is only because the
  class is overbroad as pleaded.  Accordingly, I concur with the majority's
  decision to affirm the trial court's denial of class certification.
   
       ¶  46.  I would, however,  also affirm the trial court's dismissal of
  plaintiffs' mandamus and takings claims.  Plaintiffs seek to mandate the
  Department of Labor and Industry to enforce the housing codes against
  landlords in  a manner satisfactory to the tenants, and, under a tortured
  theory of unconstitutional governmental taking, look to the Department to
  pay tenants for closing dangerous rental units.  Plaintiffs' frustration is
  understandable in that they are relatively powerless and stuck between the
  Department's code enforcement and their landlords' recalcitrance. 
  Nevertheless, their complaint alleges only that the Department is enforcing
  the housing code in a manner disagreeable to them, rather than contrary to
  statute.  Notwithstanding the majority's inaccurate characterization of the
  Department's enforcement program as one of "voluntary compliance," the
  allegations in the complaint describe enforcement decisions and mechanisms
  falling well within the choices authorized by the Department's enabling
  legislation.

       ¶  47.  The enforcement program described by plaintiffs could just as
  easily be characterized as "comply or close," rather than "voluntary
  compliance," and the majority agrees that the orders to vacate in this case
  were justified by the emergency situations presented.  Ante, ¶ 29.  Because
  the complaint fails to set forth an "arbitrary abuse of power" by the
  Department sufficient to support the mandamus action, Roy v. Farr, 128 Vt.
  30, 34, 258 A.2d 799, 802 (1969), and further fails to allege any
  unconstitutional taking recognized in law, both claims were properly
  dismissed.  Accordingly, I respectfully dissent from the remand for further
  litigation.

       ¶  48.  Given the undisputed facts of the Department's enforcement
  efforts as pleaded by plaintiffs, even the majority is compelled to
  describe as "somewhat simplistic and misleading" plaintiffs' claim that the
  Department's actions amounted to a wholesale failure to enforce the code 
  Ante, ¶ 22.  Plaintiffs' own allegations demonstrate that the Department
  made frequent inspections of the subject properties, found violations,
  issued orders compelling the landlords to rectify the violations, required
  the landlords to prepare a plan of corrective action, threatened various
  actions if the landlords did not comply, and eventually closed hazardous
  buildings or terminated dangerous utility services when the landlords
  failed to comply.

       ¶  49.  The majority moves to revive the complaint, however, by
  reconstructing what,  in the majority's view, plaintiffs really meant to
  say-that the Department's methods of enforcing the housing code amounted to
  "a regime of voluntary compliance" in which there was no effort to coerce
  correction of violations. (FN8)  The reason that plaintiffs do not actually
  make such a claim might be because several of their own allegations are
  expressly contrary to the majority's characterization of their claim. 
  Indeed, it is precisely the Department's enforcement of the fire and
  electrical safety statutes, rather than toleration of imminent hazards,
  that prompted plaintiffs' complaint.  The complaint describes a system of
  inspections combined with closure orders that fall squarely within the
  Department's discretion as authorized by law.  The alleged facts show that
  the Department inspected, found violations, ordered compliance, threatened
  consequences for noncompliance, and then followed through on the
  consequences.  What plaintiffs seek is increased intermediate enforcement
  efforts emphasizing litigation to assess monetary and judicial sanctions
  against landlords, but the statutes impose no duty on the Department to
  enforce the code as preferred by plaintiffs.  Nor do plaintiffs allege that
  their remedy of mandated fines, penalties, and injunctions would actually
  be more effective-and not result in earlier closures and more tenant
  dislocation-than the policy alleged to be in place.
                                   
       ¶  50.  In any event, the enforcement actions that plaintiffs
  complain about here are explicitly discretionary and not subject to
  mandamus.  As the majority acknowledges, mandamus is ordinarily limited to
  compelling "merely ministerial" acts of public officials.   Roy, 128 Vt. at
  34, 258 A.2d at 801.  Mandamus "does not issue to compel action that is
  discretionary,"  Richardson v. City of Rutland, 164 Vt. 422, 424, 671 A.2d
  1245, 1247 (1995) (quoting Dobbs, Remedies § 2.10, at 112 (1973)(internal
  quotations omitted), except " '[w]here there appears, in some form, an
  arbitrary abuse of the power vested by law in the administrative officer .
  . . which amounts to a virtual refusal to act or to perform a duty imposed
  by the law.' " Id. (quoting Couture v. Selectmen of Berkshire, 121 Vt. 359,
  361, 159 A.2d 78, 80 (1960)); see Vt. State Employees' Ass'n v. Criminal
  Justice Training Council, 167 Vt. 191, 195, 704 A.2d 769, 771 (1997)
  (explaining that writ of mandamus may be extended, in the absence of any
  other adequate legal remedy, only "to reach extreme abuses of discretion
  involving refusals to act or perform duties imposed by law").

       ¶  51.  In this case, as the majority acknowledges, the fire,
  electrical, and plumbing safety statutes all commit inspection and
  enforcement priorities to the discretion of the commissioner of labor and
  industry.  Ante, ¶ 16.  Each safety scheme authorizes, but does not
  require, the Department to respond to violations in various ways, including
  issuing orders to building owners to correct violations, 21 V.S.A. § 253(a)
  (fire); 26 V.S.A. § 895 (electrical); 26 V.S.A. § 2175(b)(1) (plumbing),
  and to impose a variety of sanctions if the violations are not corrected. 
  See 21 V.S.A. § 253(a) (commissioner "may" close building if fire code
  violation is not corrected); 26 V.S.A. § 895 (commissioner "may" disconnect
  electrical service if code violation is not corrected); 26 V.S.A. §
  2175(b)(3) (commissioner "may" disconnect water or sewer service if
  plumbing code violation is not corrected) (emphases added).  The statutes
  also authorize, but do not require, the Department to seek civil and
  administrative fines and injunctions for violations.  Ante, ¶ 17.  Further,
  as in the instant case, if the commissioner deems a fire code violation to
  be imminently hazardous, the commissioner "shall" order the violation
  corrected immediately and, if it is not corrected, "may" order the premises
  immediately closed until the violation is corrected.  21 V.S.A. §253(a)
  (emphasis added).
   
       ¶  52.  The majority's recognition of a mandamus action based on the
  allegations in plaintiffs' complaint is wholly unsupported and, in fact,
  contradicted by the pleadings.  The majority acknowledges that the statutes
  vest within the Department "a great deal" of enforcement discretion, ante,
  ¶ 18, and then recites the plaintiffs' allegations that the Department
  inspected buildings, ordered correction of violations, and later ordered
  the closing of imminently hazardous premises for noncompliance.  Yet,
  notwithstanding its acknowledgment of the Department's enforcement actions,
  the majority stretches to allow the mandamus claim by declaring that the
  Department's inspections and orders to close and vacate dangerous premises
  in the face of uncorrected violations "could be characterized as a failure
  to perform a legal duty," because the Department did not exercise the other
  enforcement options available under the statutes.  Ante, ¶ 23.  The
  majority first imagines that litigation to secure fines, penalties and
  injunctions would necessarily accomplish better code compliance than
  closing dangerous buildings, and then concludes that an enforcement regime
  limited to inspection and closure of dangerous buildings is subject to
  mandamus as an "arbitrary abuse of power" because such a program leaves
  rental housing no "safer or healthier than it would be without any housing
  code at all."  Ante, ¶ 26. 

       ¶  53.  This is a fallacy for at least three reasons.  First, the
  inspection and closure of dangerous housing for uncorrected code violations
  obviously removes unsafe housing from the rental market, which is, at
  worst, still a better result than having no housing code at all.  Second,
  nothing in the pleadings support an implication that scofflaw landlords
  would respond more compliantly to a system of monetary penalties and
  injunctions, or that such sanctions are otherwise inherently more
  compelling, than the Department's "comply or close" enforcement program
  described by plaintiffs.  Third, and most importantly, it cannot be an
  abuse of discretion for the Department to exercise the discretion expressly
  granted by the Legislature to set priorities and elect, from several
  express options, how to enforce the housing code.
   
       ¶  54.  That plaintiffs or this Court might exercise enforcement
  discretion differently does not mean that the Department's enforcement
  decisions are an abuse of discretion.  Plaintiffs cannot, with a straight
  face, seek to enjoin the Department's enforcement of the housing code on
  the one hand, and on the other hand complain that there is no enforcement. 
  "Mandamus will not lie for the review of acts that involve the exercise of
  judgement and discretion."  Richardson, 164 Vt. at 424, 671 A.2d at 1247.  
  Plaintiffs' mandamus complaint fails to allege the necessary "abuse of
  power" amounting to a refusal by the Department, virtual or otherwise, to
  enforce the housing codes as authorized by the statutes.  Id.  Hence, the
  trial court properly dismissed the complaint.

       ¶  55.  Plaintiffs fare no better on their takings claim.  As the
  majority recognizes, plaintiffs have no valid takings claim based on the
  Department's decision to close their buildings or to terminate their
  utility services due to an imminent hazard.  Plaintiffs complain that the
  Department's condemnation of a dangerous building amounted to a taking of
  their leasehold, but the law is settled that governmental abatement of a
  fire hazard is not a compensable taking.  Eno v. City of Burlington, 125
  Vt. 8, 13, 209 A.2d 499, 504 (1965).  Nevertheless, the majority again
  seeks to resurrect plaintiffs' complaint by recasting its takings claims as
  a claim for compensation based on the Department allowing a nuisance to
  persist unabated after ongoing inspections.  The majority reasons that the
  government can be financially liable for the loss of the leaseholds if,
  "but for the Department's failure to act, there would have been no nuisance
  to abate," and so no need to condemn the residences.  Ante, ¶¶ 34-35.  
  Under this logic, the police become liable for the acts of the criminals.

       ¶  56.  The majority's theory first depends on the viability of
  plaintiffs' inconsistent claim that the Department refused or failed to act
  by inspecting and condemning the rental units.  The underlying mandamus
  claim is untenable, and the takings claim must fail for the same reason.
  Plaintiffs' pleadings admit that the Department did take action, although
  not the action prescribed by plaintiffs, and the majority agrees that the
  actions taken were authorized by the statutes. 
   
       ¶  57.  The majority erroneously "ascertain[s]  that plaintiffs'
  complaint corresponds to general takings principles."  Ante, ¶ 34. 
  General principles of takings law are neatly summarized in Chapter I,
  Article 2 of the Vermont Constitution: "[W]henever any person's property is
  taken for the use of the public, the owner ought to receive an equivalent
  in money."  Excluding police intervention, compensable takings normally
  require a governmental interference with private property, "and exclusion
  of the owner from its beneficial use."  See Griswold v. Town Sch. Dist. of
  Weathersfield, 117 Vt. 224, 226, 88 A.2d 829, 831 (1952).  The
  deterioration of a tenant's use and enjoyment of a leasehold imagined by
  the majority as resulting from the Department's decision not to seek
  monetary penalties and injunctions does not correspond to general takings
  principles.  Such a decision by the Department interferes with no property
  interest.  There is no public use.  Short of a closure order responding to
  an imminent hazard which the majority agrees is not a taking, tenants are
  not to be excluded from their leaseholds.  Plaintiffs' takings claim is not
  merely "novel or extreme," as the majority suggests, ante, ¶ 34, but is
  unrecognizable and nonexistent in law.

       ¶  58.  This really appears to be a damages claim for alleged
  Department nonfeasance  masquerading as a takings claim.  The majority
  recognizes as much when it confirms that plaintiffs "seek compensation for
  the Department's role in allowing the nuisance to continue unabated for so
  long."  Ante, ¶ 33.  The legal and practical effect of the majority
  extending inverse takings claims to allege inaction by government agencies
  is troubling.  All victims of loss arising from regulatory or criminal
  violations by third parties could claim compensation upon a mere allegation
  that "but for" a lack of action by the enforcement authority, the offender
  could not have succeeded. (FN9)  Such a claim could arise whenever a
  regulatory agency head, prosecuting authority, or police chief charged with
  the general duty of enforcing the law determined to prioritize enforcement
  efforts in one area at the necessary expense of another.  Even if no
  liability ultimately obtained, what resources would be diverted to
  pre-trial discovery and litigation of such causes of action?  Since total
  deprivation of a leasehold due to condemnation cannot be a taking, Eno, 125
  Vt. at 13, 209 A.2d at 504, how can an agency's alleged inaction leading to
  condemnation, but resulting in less than a taking, be compensable as a
  taking?  The cause of action invented by the majority is unworkable.

       ¶  59.  I would affirm the trial court's dismissal of the takings
  claim, as well as the underlying mandamus claim upon which it is based.  I
  am authorized to say that Chief Justice Reiber joins in the dissent.



                                       _______________________________________
                                       Associate Justice



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                                  Footnotes


FN1.  Plaintiffs and the Department refer to the housing statutes and
  regulations that the Department administers collectively as the "housing
  code," "habitability statutes and rules," or "building safety regulations." 
  For the sake of simplicity, we will use the term "housing code" to describe
  these statutes and regulations.

FN2.  Of the named plaintiffs listed in the third amended complaint, we note
  that only plaintiffs Bean, Neville, and Limoge raise individual claims of
  takings without just compensation.  We continue to refer to these
  plaintiffs as "plaintiffs" to avoid confusion.

FN3.  Our disagreement with the dissent appears to be over the breadth of the
  standard of review in this case. Our standard of review of 12(b)(6) motions
  is long-standing and generous to the nonmovant, and thus, we read
  plaintiffs' complaint broadly-recognizing that their allegations are novel. 
  The dissent, on the other hand, appears to read the complaint narrowly and,
  as such, forecloses the possibility of further evidentiary development at
  the trial court level in contravention of the standard, which disfavors
  dismissal by 12(b)(6) motion.

FN4.  Pursuant to 2003, No. 141 (Adj. Sess.), fire safety jurisdiction was
  transferred to the Department of Public Safety, and the relevant provisions
  in Title 21 were transferred to Title 20, §§ 2728-2739.  For the purposes
  of this opinion, we refer to the provisions in place at the time of
  plaintiffs' original complaint.

FN5.  We reject the Department's argument that the statute vests civil
  prosecutorial discretion solely in the state's attorney.  The housing code
  contemplates that the Commissioner of Labor and Industry will refer some
  set of violations to the state's attorney for prosecution.  For instance,
  the fire code provides that "[t]he state's attorney of the county in which
  [a] violation occurs shall prosecute such violation and may commence a
  proceeding in the superior court."  21 V.S.A. § 254(a).  While this
  language, in isolation, might seem to vest discretion solely in the state's
  attorney, § 254(c) provides, after authorizing the commissioner to assess
  administrative penalties, that "[a]n election by the commissioner to
  proceed under this subsection shall not limit or restrict the
  commissioner's authority under subsection (a) of this section," indicating
  that the commissioner is primarily responsible for initiating civil
  prosecution, presumably by referring violations to the appropriate state's
  attorney.  (Emphasis added). 

FN6.  The dissent mischaracterizes plaintiffs' takings claim when it posits
  that our decision would allow, "[a]ll victims of loss arising from
  regulatory or criminal violations by third parties [to] claim compensation
  upon a mere allegation of . . . a lack of action by the enforcement
  authority."  Post, ¶ 58.  Plaintiffs allege a complete failure of the
  Department to act as statutorily prescribed-affecting an entire class of
  persons-rather than a discretionary decision resulting in dissatisfaction
  or loss to one renter.  At this point in the proceedings plaintiffs have
  merely made allegations (presenting novel mandamus and takings claims) that
  we are allowing to go forward; whether plaintiffs will ultimately be
  successful on the merits of their claims, we leave to the trial court  upon
  full development of the facts.

FN7.  The precise terms of Rule 23(a) require, in relevant part, that:  

    (1) the class is so numerous that joinder of all members is
    impracticable, (2) there are questions of law or fact common to
    the class, (3) the claims or defenses of the representative
    parties are typical of the claims or defense of the class, and (4)
    the representative parties will fairly and adequately protect the
    interests of the class.

FN8.  The majority asserts that its reading of the complaint as such is
  simply a matter of broad reading  encouraged by the standard of review
  under V.R.C.P. 12(b)(6).  Ante, ¶ 12 n. 3.  But even the broadest reading
  must still "consider . . . all of the nonmoving party's factual allegations
  as true."  V.R.C.P. 12(b)(6).   Here, plaintiffs' factual allegations were
  that the Department routinely exercises some statutorily authorized
  enforcement actions, although not others.  My view that plaintiffs'
  dissatisfaction with the enforcement options actually pursued by the
  Department  fails to support a claim of utter failure in enforcement is not
  a result of narrow reading, as the majority suggests, but rather is the
  product of treating plaintiffs' factual allegations as true.

FN9.  The majority asserts that this mischaracterizes plaintiffs' takings
  claim, contending that  plaintiffs allege a "complete failure of the
  Department to act as statutorily prescribed-affecting an entire class of
  persons."   Ante, ¶ 35 n. 6. The majority is incorrect on several levels. 
  The statutes do not prescribe, in the mandatory sense, that the Department
  do anything plaintiffs insist upon.  On the other hand, the Department's
  enforcement actions as alleged by plaintiffs were explicitly authorized by
  the statute.  While plaintiffs employ the words "wholesale failure," this
  merely conclusory pleading is plainly contradicted by their factual
  allegations of enforcement as recited in the complaint and by the majority. 
  These named plaintiffs failed to effectively allege an "entire class"
  affected by the Department's enforcement actions.  Intended or not, given
  that plaintiffs allege the Department took enforcement action and complain
  that its enforcement was unsatisfactory, the majority today recognizes a
  cause of action for compensation for imperfect law enforcement.


