The right of way is for the controversial Addison Rutland Natural Gas Project pipeline. The project received a state certificate of public good in 2013 but has struggled to secure access to the planned route and attracted disruptive protests from environmental activists who oppose expansion of fossil fuel infrastructure.
A May 23 order from the Public Service Board reverses an earlier decision denying the residents’ request to intervene in the proceeding.
The residents’ legal challenge, plus another ongoing eminent domain proceeding, have the potential to delay completion of the project, which was expected sometime this year.
“Access to the entire pipeline corridor could certainly impact our schedule and therefore our costs,” said Vermont Gas spokeswoman Beth Parent.
Vermont Gas CEO Don Rendall put a finer point on the impact of the legal challenges in an interview with Vermont Public Radio this week, saying, “There’s no doubt that they will have impact on schedule and cost.”
Rendall was not available to comment Thursday.
The cost of the natural gas pipeline has already ballooned significantly since it received its certificate of public good, growing from $86.6 million to $154 million.
An agreement reached last year between Vermont Gas and the Department of Public Service, which is charged with representing ratepayers before the PSB, caps the costs borne by ratepayers in Franklin, Addison and Chittenden counties at $134 million.
However, the agreement states that Vermont Gas may seek to recoup costs above that cap that result from protests and disruptions or “material delays in rights of way access construction.” Parent said it’s too early for Vermont Gas to consider whether it would try to recover additional costs from ratepayers.
The Public Service Board initially told the Hinesburg residents they would not be allowed to intervene in an eminent domain proceeding where Vermont Gas sought a right of way through Geprags Park.
In his order reversing that decision, hearing officer Michael Tousley writes that the residents demonstrated “substantial interest” in the use and enjoyment of the park that is distinct from the interests of the general public, which would have to be represented by the town of Hinesburg.
Specifically, Tousley cites an affidavit filed by Bill Marks, a member of the Hinesburg Conservation Commission, attesting that he spends “hundreds of hours” in the park, constructing and maintaining hiking trails and making other improvements.
The Hinesburg Selectboard reached an agreement in 2014 with the utility to sell the right of way for $75,000.
That agreement was entered into during executive session and not brought to the notice of the public, in violation of Vermont’s open meeting law. In March, the Selectboard voted to invalidate the agreement and later decided to reject the deal during a public meeting.
Parent, the Vermont Gas spokeswoman, said the company is negotiating a new agreement with the town. The deal includes “significant community investments in areas like land conservation, habitat protection and recreation,” she said. Selectboard Chairman Michael Bissonette did not return a request for comment on those negotiations Thursday.
Jim Dumont, an attorney representing the Hinesburg residents before the Public Service Board, argues in a motion filed on behalf of his clients that eminent domain can’t be used to obtain easements “dedicated to use as a public town park.”
Dumont cites a Vermont Supreme Court ruling from 1928 where the court ruled that land dedicated for one public use could not be taken through eminent domain for a different public use.
Further, Dumont argues that the proposed right of way through the park violates the deed through which Hinesburg acquired the land, which included a “restrictive covenant limiting its use to public recreational and educational use.”
For municipal land with conservation restrictions to be sold or diverted for other uses, Vermont law requires an affirmative vote from residents at a municipality’s annual town meeting.
Dumont suggested that if Hinesburg agrees to a right-of-way easement through the park without a Town Meeting Day vote, his clients are likely to challenge the easement in court.