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Some states have property rights advocates — why doesn't Vermont?

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Posted on August 21, 2014 |
By Zach Despart



ADDISON COUNTY — For months, landowners along the Addison-Rutland Natural Gas Project pipeline route have asked state regulators to provide them with legal help to negotiate easements with Vermont Gas Systems.

The Office of the Attorney General does not represent private citizens, and many landowners feel the Department of Public Service has not offered adequate legal support, leaving them with few resources to represent their best interests.

But two states, Utah and Missouri, have offices dedicated to helping landowners understand their rights when faced with eminent domain threats, which begs the question: Why doesn’t Vermont have a similar office, and what can state regulators do to protect landowners’ interests?

In Utah, the Office of the Property Rights Ombudsman is staffed with attorneys who can help landowners when the government or a public utility seeks to use their land for an infrastructure or development project. 

Brent Bateman is the office’s lead attorney. He said state lawmakers have long valued private property rights, and created the office in 1996 to protect against eminent domain abuse.

“It’s a novel concept,” Bateman said. “Private property rights have always been important to the Utah Legislature.”

At first, the office answered questions from landowners to better help them understand their property rights. Now, Bateman said, the office offers mediation and arbitration in land disputes.

Bateman’s office can also order an independent appraisal of a property, to ensure that land is valued accurately. The cost of the second appraisal is borne by the condemning authority, usually the government or a public utility, but the client is the ombudsman’s office.

“We let the property owner choose who is going to be the appraiser, and we’re the appraiser’s client, so they won’t be motivated to pad the numbers either way,” Bateman said.

Bateman said he does not have any hard evidence of how many cases in Utah have avoided the courts because of the property rights ombudsman, but said he believes his office has benefited both the government and landowners.

“It’s fairly well agreed that we do save the state and local governments a ton of money on litigation, and certainly save residents a ton of money,” Bateman said.

Bateman said that in condemnation proceedings, the playing field is simply not level.

“The government comes with resources and attorneys and money, and says, ‘We’re going to take your land and there’s nothing you can do,’” Bateman said. “The ma and pa landowner can feel pretty trampled in that case.”

Bateman said that he harbors no illusions that his office can provide the clout that condemning authorities do, but believes that landowners are better equipped to fight for just compensation.

“My office doesn’t level the field, but certainly improves it,” Bateman said.

MISSOURI’S EXPERIENCE

Missouri has a similar office, which Acting Public Counsel Dustin Allison said was established in 2006 to address state and national concerns about the appropriate use of eminent domain.

Missouri’s Office of Property Rights does not offer legal advice or opinions to landowners, but does provide clarification of existing laws.

“The office does try to answer factual questions property owners may have, direct (them) to additional informational resources, and act as a neutral third-party assisting in communication between property owners and state political subdivisions,” Allison said.

Allison added that it is difficult to determine how many cases the property rights ombudsperson’s office has diverted from eminent domain court proceedings, because of the litany of unique factors in each case, but did say he believes the office is a valuable resource for landowners.

“We do think, however, that often we can help de-conflict and de-escalate disputes by providing a reliable, knowledgeable source of information for property owners, and when needed and appropriate, act as an interlocutor with political subdivisions,” he said.

LANDOWNERS RESPOND

Vermont landowners along the pipeline route believe they could benefit from a property rights ombudsman.

Philip Beliveau, a landowner in St. George who is currently negotiating with Vermont Gas, said he would welcome the assistance of a property rights ombudsman.

“I would love this to happen in Vermont,” Beliveau said. “It would save a lot of angst and expense.”

Beliveau said he believes the company’s appraisal of his 58 acres is far too low. He plans to subdivide it into building lots, but Vermont Gas has only valued the land as open fields.

Beliveau added that he is having trouble finding a second appraiser, which he will have to pay for out of his own pocket, that has experience with utility projects. He may not have much time to come to terms with the company.

“I got a call from (Vermont Gas) yesterday saying they would be filing for eminent domain soon,” Beliveau said this week.

Jane Palmer, who with her husband, Nate, has been at odds with Vermont Gas over an easement through the couple’s farm in Monkton, said a state-provided mediator is better than one hired by the private utility.

Vermont Gas last week offered to provide mediators to landowners and pay for the cost.

“If the ombudsperson were hired by the state, I think it would be a better choice for landowners than one hired by the gas company,” Palmer said.

Palmer added that an ombudsman would increase oversight and transparency in what many landowners feel has been a murky process.

“Right now it is ‘us against them’ and many entities tend to dismiss the landowner’s concerns,” Palmer said. “It would be helpful for a professional with a landowner’s perspective to weigh in to the state as well.”

Palmer said that ultimately, she hopes Vermont Gas creates a legal fund for landowners, as she is worried that what she and her husband will spend negotiating an easement will exceed the compensation they receive. Last week, Vermont Gas reiterated that it has no plans to create such a fund.

The Monkton landowner, who found herself in handcuffs after staging a “knit-in” protest at Vermont Gas headquarters in July, said that state regulators and Vermont Gas need to remember that landowners did not enter these negotiations willingly.

“What needs to be hammered home here is the fact that we do not seek this transaction,” Palmer said. “We are being forced to comply so we should not have to bear any of the cost and we need to be compensated fairly for our losses.”

Monkton landowner Maren Vasatka said an independent appraisal paid for by the condemning authority, as is the case in Utah, would be beneficial to landowners.

“The issue right now is that appraisers are not willing to do it because they don’t have enough data and are referring homeowners to real estate agents,” Vasatka said. “Real estate agents don’t have the data either and are not willing to take on the liability.”

Vasatka said she is unsure how helpful a mediator hired by the state would be, since mediators, by law, can’t give legal advice. She said an ombudsman could be helpful in explaining the ramification of each clause of an easement contract.

Melanie Peyser, whose mother is a Monkton landowner who has not yet reached an agreement with Vermont Gas, said that many states offer more legal protections and resources to residents facing land takings and eminent domain. She said that Vermont landowners could benefit from a property rights ombudsman, but only if that office existed outside of the Department of Public Service.

“Unfortunately, Vermont simply does not have the clarity of missions, roles and responsibilities, or formalized professional conduct standards and limitations on conflicts of interest to support someone inside the department to play that role,” Peyser said.

She said that the department’s varying roles, which include both shepherding a project that has been approved while also representing opponents to it, make it unsuitable to protect landowners’ best interests.

“The Department of Public Service is not capable of wearing multiple hats at once,” Peyser said.”

IN VERMONT

Vermont does have some experience with having government advocates for citizens, but not for property rights. Vermont Legal Aid, an independent nonprofit that receives some state funding, provides official advocates for Vermonters in long-term medical care. The Department of Taxes has a staff taxpayer advocate that acts as a de facto ombudsman.

Department of Public Service Commissioner Chris Recchia is out of the office this week, but his deputy, Darren Springer, issued a statement on behalf of the department.

“The Department of Public Service is presently evaluating how other states and agencies address these issues, and we’re open to exploring ways to improve the process,” the statement read.

Addison County legislators said Vermont could learn from the property rights advocates in other states, and use our own ombudsmen as a model.

Rep. David Sharpe, D-Bristol, said the Legislature should create a property rights ombudsman similar to those in Utah and Missouri.

“We have models in the state for this idea of leveling the playing field, and giving citizens more knowledge or control over the process,” Sharpe said. “I think the Department of Public Service should put an ombudsman in place.”

Sharpe said he believes an imbalance of power exists between landowners and Vermont Gas, and said that though state regulators have approved the project, landowners need support.

“Even though the Department of Public Service and Public Service Board believe the gas line is in the public good, it’s still incumbent upon us to make sure we stand up for Vermont citizens,” Sharpe said.

Sen. Chris Bray, who last week called the relationship between Vermont Gas and landowners a “David and Goliath situation,” said he is baffled why regulators haven’t created a property rights advocate similar to the state’s other ombudsmen.

“I don’t understand yet how we pulled that off for healthcare, but haven’t been able for this case,” Bray said.

The New Haven Democrat said he has lobbied the Department of Public Service for a year to create more resources for landowners, but has not seen much headway.

“Frankly, after a year there’s not been much meaningful progress for landowners, which is the bottom line for them,” Bray said. “I know Commissioner Recchia has been looking into it, but so far they have not been able to find a way to deliver any more service to individuals.”

However, Bray did not lay blame squarely on Recchia or his staff. Rather, Bray suggested that the department’s varied responsibilities may make it difficult to oversee such a project. The Department of Public Service is charged with both regulating Vermont Gas and representing the public.

“It’s hard to be a promoter of something and also the regulator,” Bray said.

While Bray acknowledged the time may have passed to get landowners along the Phase I pipeline route the legal help they have sought, he vowed to take up the issue when the Legislature convenes in January.

“This is part of what the Legislature owes citizens, to help figure this out so we don’t face the same situation over and over again,” Bray said.

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