Vt. Supreme Court rules for Vermont Gas in Geprags Park case

MONTPELIER — In a Sept. 22 ruling, the Vermont Supreme Court upheld the Public Utilities Commission’s authorization of Vermont Gas Systems to install a section of the Addison Natural Gas Project through Hinesburg’s Geprags Park.
The 41-mile natural gas pipeline runs from Colchester to Middlebury and has been in operation since last April.
The PUC’s decision had been appealed to Vermont’s highest judicial body by a group of park supporters — William Marks, Nancy Baker, Linda Gage, Rachel Smolker, Melanie Pulley, Stephanie Spencer and Lawrence Shelton. Justices heard arguments on the matter during the April term.
The 85.5-acre Geprags Park was donated to the town of Hinesburg by Dora Geprags to be used “only as public park or school or for public recreational or educational purposes.” Intervenors argued that burying the natural gas pipeline through the park (though the pipeline would not be visible) violated the terms on which the land was willed to the town.
The Supreme Court found otherwise: “We reject intervenors’ arguments and affirm the Board’s (Public Service Board) decision to authorize the condemnation.” (Earlier this summer, the former PSB renamed itself the Public Utilities Commission.)
In its 21-page majority opinion, the justices first examine the issue from the standpoint of “prior public use” and conclude that “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.”
The situation, according to the majority opinion, was a Vermont first, as all previous Supreme Court decisions had involved cases where the second use would “destroy or materially impair” the first.
In looking at the park as a whole, its barn, sledding hill and walking trails, the high court determined that the natural gas pipeline would have “negligible effect on the existing use of the park.” The pipeline will be underground, the court reasoned, and so would have “no material impact.” Likewise, the court reasoned that Vermont Gas’s ongoing “rights of access to the park” would also have “minimal impact on the park’s recreational uses.”
In countering a second line of appeal, the court also rejected the intervenors’ arguments that Vermont Gas had insufficiently examined alternate routes and that the PUC had thus erred in authorizing the condemnation easement. Instead, the court upheld the PUC’s determination of the route’s “necessity.”
Justices voting with the majority opinion were Beth Robinson, who authored the opinion, as well as Marilyn Skoglund, Karen Carroll and retired justice Brian Burgess (who was specially assigned to the case). Justice Harold Eaton dissented, saying that the PUC’s easement to Vermont Gas would “materially impact park land dedicated exclusively for recreational or educational purposes.”
Reporter Gaen Murphree is reached at [email protected].

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