Vt. Supreme Court: Geprags Park and pipeline can coexist

By Mike Polhamus
VTDigger.org

Vermont Gas continued its undefeated streak Friday with a victory in the Supreme Court over several Hinesburg residents who challenged the company’s use of a public park for a controversial natural gas pipeline.

In the process, the justices carved out an exception to a long-established law holding that public property dedicated to one use can’t be seized through eminent domain for another, separate use.

Companies may use public property, even when that public property is already devoted to some other use, so long as the new use doesn’t “materially impair” that property’s previous use, the court found.

In other words, Vermont Gas didn’t prevent anyone from using the park as intended when the company drilled sideways 30 to 50 feet beneath the park and installed a natural gas pipeline, according to the court’s rationale.

But the court also gave Vermont Gas the right to prevent Hinesburg from using a 50-foot-wide strip of land directly above that buried pipeline, and held that this, too, did not materially impair the purposes for which the public park was intended.

Dora Geprags bequeathed the park to the town of Hinesburg with the condition that the land be used for no purposes other than education and recreation.

Vermont Gas probably wouldn’t block Hinesburg from using that portion of the park, anyway, the court maintained in its ruling.

Vermont Gas spokeswoman Beth Parent called the ruling “welcome news for our customers” and for Vermont’s economy. “From the beginning, the project has been about bringing an important choice to Vermont’s families and businesses, and we’re going to keep doing just that,” Parent said.

Nearly 550 Addison County residents have hooked up their homes to the pipeline already, Parent said. The 12-inch-diameter, 41-mile pipeline carries natural gas from Canada to Addison County, and the $156 million project was completed in April 2017.

Despite the repeated success Vermont Gas has enjoyed before the courts, and despite the Department of Public Service’s advocacy on behalf of the company, activists have continued to fight the project.

Demonstrators blocked construction at the park last year and opponents have sought recourse in the courts. Rachel Smolker, a member of the Hinesburg concerned citizens’ group, noted that the group does not see a clear route to pursue further action on Geprags Park at this time. However, she pointed out, a different intervenors’ group has a case before the Public Utilities Commission regarding alleged issues with the depth of the pipeline’s burial. A status conference with the intervenors, the utilities commission, and the gas company is scheduled for next month.

The project has cost about double what company executives represented to the Public Utilities Commission when that panel, then known as the Public Service Board, approved it in 2013. It saw multiple violations of safety and environmental regulations, and the pipeline has been the subject of multiple state and federal investigations.

Pipeline opponents also sought to limit the state’s dependence on natural gas, which, according to the Environmental Protection Agency and other authorities, contributes to climate change.

Theora Ward, a Hinesburg resident, said in a statement that opponents succeeded in obtaining “a much stronger agreement for the town of Hinesburg, including the requirement that they use horizontal directional drilling, rather than trenching to install the pipeline, and a more reasonable financial settlement.”

The Citizen staff contributed to this report.

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