Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Vermont Gas Systems, Inc.

Supreme Court of Vermont

September 22, 2017

In re Vermont Gas Systems, Inc. William Marks, Nancy Baker, Linda Gage, Rachael Smolker, Melanie Pulley, Stephanie Spencer, and Lawrence Shelton, Appellants

         On Appeal from Public Service Board James Volz, Chair

          Robert E. Woolmington and John D. Stasny of Woolmington, Campbell, Bernal & Bent, P.C., Manchester Center, and James A. Dumont of Law Office of James A. Dumont, P.C., Bristol, for Appellants.

          R. Jeffrey Behm and Justin A. Brown of Sheehey Furlong & Behm P.C., and William J. Dodge of Downs Rachlin Martin PLLC, Burlington, for Appellee Vermont Gas Systems, Inc.

          Louise C. Porter, Montpelier, for Appellee Department of Public Service.

          PRESENT: Skoglund, Robinson, Eaton and Carroll, JJ., and Burgess, J. (Ret.), Specially Assigned

          ROBINSON, J.

         ¶ 1. This appeal requires us to decide whether land dedicated to a public use may be condemned for another public use when the new use does not materially interfere with the prior use. Intervenors, a group of Hinesburg residents who use Geprags Park, appeal the Public Service Board's order authorizing Vermont Gas Systems, Inc. (VGS) to condemn an easement through the park for the purpose of installing a natural gas pipeline. They argue that the Board erred in authorizing the condemnation in light of the fact that the park was already dedicated to a public use, and in concluding that the condemnation was necessary under 30 V.S.A. § 110(a)(2). We affirm the Board's decision on the issues raised in this appeal, but remand for a minor correction to the order relating to the terms of the easement.

         ¶ 2. The following background facts provide context to this appeal. VGS had previously constructed a pipeline from the Canadian border to Burlington, was providing natural gas services to customers in Chittenden and Franklin counties, and sought to expand its services to customers in Addison County. In December 2012, VGS filed a petition with the Board for approval of a forty-one mile pipeline expansion that would run from Colchester to Middlebury. Under 30 V.S.A. § 248(a)(3), VGS could not commence construction unless the Board concluded that the pipeline would promote the general good of the state and issued a certificate of public good (CPG) authorizing the project. Throughout the CPG proceedings, VGS's proposed route for the expansion included a segment that went through Geprags Park in Hinesburg. The Board concluded that the project satisfied the eleven criteria established in § 248(b). It determined that the project would not impose undue negative consequences on any of the affected regions and identified several benefits that would flow from the project, including lower energy costs and a decrease in greenhouse gas emissions. The Board ultimately concluded that the pipeline would promote the general good of the state and issued a CPG in December 2013. VGS began constructing the pipeline expansion in the summer of 2014.

         ¶ 3. The undisputed facts concerning the immediate appeal are as follows. Dora Geprags devised the park at issue to the Town of Hinesburg in 1991. A covenant in the decree of distribution provides that, "the property decreed hereby shall be used only as a public park or school or for public recreational or educational purposes." The park covers approximately eighty-five and a half acres and contains a barn, a sledding hill, and walking trails. VGS sought an easement through this park in order to complete its pipeline expansion, but the Town would not voluntarily convey the easement to VGS because it determined that the decree's covenant restricted its ability to do so. Subsequently, VGS and the Town stipulated to condemnation of an easement through the park for the pipeline.

         ¶ 4. In October 2015, VGS filed a petition of condemnation with the Board, seeking to condemn a 1987-foot-long and fifty-foot-wide easement that runs north to south on the western side of the park. By that time, VGS had acquired easement rights from all other property owners along the pipeline route, prepared the pipeline corridor up to the northern and southern boundaries of the park, and begun construction of the pipeline on other parts of the route; the easement through the park was the last segment of the pipeline route that VGS needed to acquire to complete construction of the expansion.

         ¶ 5. In March 2016, several residents of the Town and the Hinesburg Conservation Commission filed motions to intervene in the proceeding. The Board initially denied these motions but after the intervenors filed a motion to reconsider, it allowed some, but not all, of the movants to intervene because they had a substantial interest in the use and enjoyment of the park which was different than that of the Town, and this interest could be impacted by the proceeding. These intervenors are the appellants in this appeal.

         ¶ 6. In March 2016, the Town's selectboard held a public meeting and voted against ratification of the stipulation with VGS. Soon thereafter, VGS filed an amended petition of condemnation with the Board, acknowledging that the Town no longer stipulated to the condemnation. VGS and the Town engaged in further discussions, and on August 1, 2016, they signed a revised stipulation for condemnation of an easement to the west of, and roughly parallel to, the Vermont Electric Power Company (VELCO) electricity transmission easement that ran through the park. The stipulation included the agreed-upon compensation for the easement, terms of VGS's distribution of natural gas to customers in Hinesburg, and conditions that would restrict VGS's use of the easement. It provided that VGS would use horizontal directional drilling (HDD), meaning it would drill bores in the properties to the north and south of the park to install the pipeline thirty to fifty feet underground throughout the length of the easement without disrupting the land within the park.[1] The stipulation provided that VGS would comply with plans to protect the golden-winged warbler habitat in the vicinity of the pipeline and to conserve the recreational uses and ecology of the park. The stipulation also included a proposed deed of easement that provided more details about VGS's rights and restrictions.

         ¶ 7. The Board conducted a site visit of the park on August 2, 2016, and held an evidentiary hearing two days later on August 4. VGS witnesses testified about the alternative routes VGS had analyzed and the impact of the easement on the park.[2] Intervenors did not present testimony or other evidence. In their post-hearing briefing, intervenors contended that: (1) the prior public use doctrine as articulated by this Court barred the condemnation because the park was already dedicated to a public use; (2) if the Board were to recognize an exception to the public use doctrine that allowed condemnation when the new use would not materially interfere with the prior use, the easement would materially interfere with the use of the park; and (3) the condemnation was not necessary as required by 30 V.S.A. § 112(a)(2) because VGS did not show that the alternative routes were infeasible, more costly, or would result in greater impacts to natural resources.

         ¶ 8. On September 13, 2016, the Board issued a written order authorizing VGS to condemn the easement in the park. First, the Board determined that VGS had satisfied the requirements of 30 V.S.A. § 112. It concluded that the condemnation was reasonably necessary pursuant to § 112(a)(2) so that VGS could provide adequate natural gas service in Addison and Chittenden counties.

         ¶ 9. With respect to the applicability of the prior public use doctrine, the Board recognized that this Court has not squarely addressed whether land dedicated to a public use may be condemned for another public use when the new use does not materially interfere with the prior use. It explained that other jurisdictions have recognized an exception to the doctrine which allows the condemnation of land when the new public use does not destroy or materially impair the prior public use. The Board concluded that the public use doctrine "is to be tempered in cases where the public good will best be served by requiring the joint use of a property that is already subject to a prior public use, provided the additional public use will not destroy or materially interfere with the prior public use." It went on to conclude that VGS's pipeline was a public use that would not interfere with the prior recreational use of the park.

         ¶ 10. In its necessity analysis, the Board considered the alternative routes that VGS analyzed, including a route that went through the VELCO transmission corridor within the park and three routes that went around the park. The routes that went around the park were labeled the eastern route, western route, and far western route. The Board determined that all four alternatives were inferior to the proposed route. None of the routes around the park followed a straight line as called for by industry best practices, and all would be significantly longer and would require more pipe. They would all encounter terrain challenges because of soil instability, elevation changes, tree clearing, rocky ledges, highways, or houses. The alternative route through the VELCO transmission corridor also presented problems due to wetlands in the area and a house to the south of the park. The Board also noted that requiring VGS to pursue an alternative route would introduce the risk of further delay in completing construction of the pipeline.

         ¶ 11. The Board also determined that the condemnation would not unduly interfere with the orderly development of the area under § 112(a)(3). It concluded that the easement would not violate any community standards intended to promote the scenic preservation of the park because the pipeline itself would be completely underground and not visible to the public, and the pipeline markers and cathodic protection test access points the easement allowed VGS to install would not be intrusive to the park's aesthetics. The Board further concluded that, because VGS would not disturb the surface of land within the park, installation of the pipeline would not affect park uses.

         ¶ 12. The easement approved by the Board included the following terms. VGS must use HDD to install the pipeline under the surface of the park. During and after construction, VGS may not exclude members of the public from the easement area except when necessary on a temporary basis for public safety. VGS may not construct "above-ground appurtenances" in the easement, except for "mandatory and lawfully required safety and operational appurtenances, " including pipeline markers and cathodic test leads, to be installed and maintained in consultation with the town. VGS may conduct regular route inspections on foot, and has the right within the easement area to inspect, maintain, repair, replace, reconstruct, and remove the pipeline. After installation it must use HDD "to the extent feasible" to repair, maintain, replace, reconstruct, or remove the pipeline. Except in exigent circumstances that pose a risk to public health or safety, VGS must provide reasonable notice to the Town when accessing the easement for maintenance and repair, and may only access the area where it meets the property boundaries on the north and south sides. VGS may cross other parts of the park to access the easement only in exigent circumstances. It must keep the easement area clear of debris during periods of construction, and it must remediate any damage it causes on park land in the event that the company disturbs the surface of the property constructing any trails, unpaved roadways, or utilities structures, or constructing or storing any other objects within the easement area, and must construct such improvements as perpendicular to the easement area as is reasonably practicable.[3]

         ¶ 13. After the Board denied their motions for a new trial and to alter or amend the judgment, intervenors appealed.[4] On appeal, intervenors make three primary arguments. First, they argue that the prior public use doctrine prohibits the Board from authorizing condemnations of land already devoted to a public use. Second, they argue that, if we accept the Board's adoption of an exception to the public use doctrine that allows condemnation of land devoted to a public use if the new use does not materially impair the prior use, the easement in this case does materially impair the use of the park. Third, they contend that the Board erred in concluding that the condemnation was necessary because VGS did not adequately evaluate alternate routes for the pipeline. For the reasons set forth below, we reject intervenors' arguments and affirm the Board's decision to authorize the condemnation. We remand for resolution of minor issues relating to the terms of the easement.

         ¶ 14. We typically apply a deferential standard of review to appeals from the Board and "[o]rders issued by the Board enjoy a strong presumption of validity." In re Green Mountain Power Corp., 162 Vt. 379, 380, 648 A.2d 374, 376 (1994). We will uphold a Board decision when its findings are supported by the record and its conclusion is supported by its findings. In re UPC Vt. Wind, LLC, 2009 VT 19, ¶ 35, 185 Vt. 296, 969 A.2d 144. However, we do not defer to Board decisions on questions that are not within its particular areas of expertise, such as legal questions that do not turn on considerations specific to the Board's sphere of regulation. See In re Tariff Finding of Cent. Vt. Pub. Serv. Corp., 172 Vt. 14, 19-20, 769 A.2d 668, 673 (2001) (reviewing questions of claim and issue preclusion without deference because they are outside Board's special expertise). Accordingly, our review of the legal question concerning the scope of the prior public use doctrine is plenary and nondeferential, and our review of the Board's findings related to material impairment and necessity is deferential.

         I. Prior Public Use

         ¶ 15. In a decision of first impression, we conclude that the prior public use doctrine does not prohibit condemnation of land devoted to a public use when the new use does not materially impair the prior use. Applying this legal framework to this case, we conclude that the Board's conclusion that the easement will not materially ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.