[T]he Vermont Supreme Court has announced that it will hear a case on April 4 about the Vermont Gas pipeline, which is weeks away from completion.
A group of Hinesburg residents have appealed a Public Service Board decision that allowed Vermont Gas Systems to use the power of eminent domain to build a pipeline under a municipal park.
Vermont Gas won permission from lower courts to construct the 2,000 foot length of pipeline beneath Geprags Park.
But attorney James Dumont who is representing the Hinesburg residents argues that Vermont Gas has violated the prior public use doctrine.
The public use doctrine holds that a property already in public use can’t be used for another public purpose without the approval of the Legislature.
The Department of Public Service, which has long supported the pipeline’s construction, and Vermont Gas Systems both argued that the “prior public use” does not apply in this case. Both have said that the pipeline, which Vermont Gas agreed in 2016 to bury as deep as 50 feet below the park’s surface, will not interfere with recreational activities at the park.
The late Dora Geprags’ estate bequeathed the 80-acre park to the town of Hinesburg in 1991, and the town accepted the land the following year. The bequest came with the condition that the park be used solely for educational and recreational purposes.
The Hinesburg select board attempted in 2016 to give Vermont Gas permission to bury the pipeline beneath Geprags Park, but Dumont stymied the move. The Bristol attorney claimed the terms of Dora Geprags’ will restricted the park’s use to recreation and education.
Vermont Gas then sought to use the power of eminent domain to secure an easement for the structure.
The Public Service Board ruled that the pipeline wouldn’t hinder the use of the park for recreational purposes and on September 13 awarded Vermont Gas a 50-foot-wide easement through Geprags Park.
“The evidence shows that … the easement across Geprags Park would neither destroy nor materially impair the existing public recreational uses of the park,” the board wrote.
But under the prior public use doctrine, only the state Legislature — not the courts or the Public Service Board — may authorize eminent domain power over land already in use for a public purpose.
The Legislature has on many occasions given applicants this authority, Dumont said, but Vermont Gas never sought permission from lawmakers.
“Vermont Gas never went and asked [the Legislature] in this case,” Dumont said. “Maybe they would have refused permission. We don’t know, because they never asked.”
Nevertheless,
When Dumont appealed the decision, the Public Service Board refused to reconsider the order.
Opponents then took the case to the Vermont Supreme Court in December. The high court gave Vermont Gas permission to continue construction under the park before hearing the case.
Beth Parent, a spokesperson for Vermont Gas, said the company looks forward to bringing its case before the Supreme Court, “so we can continue our focus of bringing another energy choice to thousands of families and businesses in Addison County.”
Vermont Supreme Court Chief Justice Paul Rieber has recused himself from the case. He did not, and is not required to, provide a reason for doing so, said Linda Ryea Richard, the Supreme Court’s chief of planning and court services.
