Noah A. Messing owns the property at 10 Deepwood Drive (the Property) in the Town of Hamden (the Town). He purchased the Property in 2018. The Property sits at the bottom of a hilly road. Until 2016, Deepwood Drive had a drainage ditch or conduit running alongside the road, which ensured that water runoff did not flood properties. In 2016, the Town repaved Deepwood Drive. In the process, it removed the drainage system and changed the grading of the road, which resulted in water flowing downhill and then veering down the driveway of the Property. Messing alleges that the Town knew or should have known that the way it repaved the road guaranteed that the Property would flood. Yet, to keep down the cost of the project, it chose not to add a drainage system.

Soon after purchasing the Property, Messing leased it, and his tenants reported that the Property flooded whenever heavy or moderate rains fell. This would create pools of ice in the colder months. When humidity levels rose, the interior of the house on the Property would smell dank and moldy. Water seeped into the ground around the house, and then seeped into the house and damaged walls and weakened the house’s foundation. The house became infested by mold. Messing alleges that the Property is worth at least $150,000 less than it was before the Town repaved Deepwood Drive.

Messing contacted the Town’s engineering department, which sent two employees to inspect the Property. Those employees acknowledged that the grading of repaved road and its lack of a drainage system caused the flooding. They stated that they would speak to their colleagues and propose a solution. They never contacted Messing again. Messing sued the Town, arguing its actions constituted a taking under the Fifth Amendment. Is this still a taking even though the Town did not take possession of the property? How should the court rule?