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| Still a Park? |
By Thomas M. Kester
The question is whether land dedicated to public use may be condemned for another public use when the new use does not materially interfere with the prior use. Intervenors are a group of Hinesburg residents who use Geprags Park (“park”) and they are appealing a Public Service Board (“Board”) order. On the other side is Vermont Gas Systems, Inc. (“VGS”). Intervenors take issue with the Board’s decision to condemn an easement through the park for the purpose of installing a natural gas pipeline, and argue 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. § 112(a)(2).
Background: VGS wanted to expand its Canada-to-Burlington pipeline to Addison county and, to that end, filed a petition with the Board for approval of a forty-one mile pipeline expansion that would run from Colchester to Middlebury.
The park was devised (a.k.a. transferred by will) to Hinesburg and the probate documents stated that park was to “be used only as a public park or school or for public recreational or educational purposes.” VGS sought an easement through said park but the Town wouldn’t convey the easement “because it determined that the decree’s covenant restricted its ability to do so.” But later on, VGS and the Town agreed to a condemnation of an easement and in October 2015, VGS petitioned the Board to condemn a 1,987-foot-long easement through the western portion of the park. In March 2016 several residents petitioned to intervene and, after initially denying their requests, the Board allowed some of the residents to intervene. Also in March 2016, the Board held a meeting and voted against the stipulation with VGS.
VGS subsequently filed an amended petition for condemnation and, in August 2016, the Board held an evidentiary hearing. VGS presented evidence as to why the easement had to run through the park and also presented evidence about alternative routes. In their post-hearing briefing, the intervenors argued the three following points:
1. The prior public use doctrine barred this new use when the park already had a public use;What the heck is this “prior public use doctrine”? Back in the late 19th century, in an effort to expand the country and transportation westward, state legislatures often gave railroad companies carte blanche authority to take land where they wanted to build tracks. Sometimes the railroad companies got a little over zealous and tried to take public land already dedicated for another specific purpose. This created a dilemma.
2. Even if the Board recognized an exception to the prior public use doctrine based on a material interference standard, the new use does materially interfere with the prior use; and
3. Condemnation was not warranted under Vermont statutes because VGS didn’t show 'that the alternative routes were infeasible, more costly, or would result in greater impacts to natural resources."
For example: state legislature gives Parcel A to Town of Blackacre for purpose of constructing a post office on it. At the same time, in the state legislature’s document giving the railroad the ability to take land in the Town of Blackacre it doesn’t include anything like “it’s cool to take land just not Parcel A.” The railroad company then tells the Town of Blackacre that they want Parcel A—that has now a physical post office building on it now—to expand their choo-choo roads. While this could make “snail mail” a lot faster, both activities—a post office building and railroad tracks—cannot co-exist harmoniously. Courts had to settle disputes where there were two legitimate legislative grants of authority. To deal with this head-scratcher, they began to employ a comparative analysis: either horological (whether the new use implicates the prior use and, if so, old > new) or wordage (whether one grant is more specific than the other).
In August 2016, the Town and VGS agreed to a revised stipulation about the easement. The stipulation contained various restrictions and limitations on VGS’ use of the easement. In September 2016, the Board agreed to authorizing VGS to condemn the easement. The Board based its decision on recognizing an exception to the prior public use doctrine – even though the SCOV hadn’t explicitly recognized such an exception. The Board based its decision on what some other jurisdictions had done, and further discussed alternative routes and that orderly development wouldn’t be interfered.
Here comes the but . . . but the Board imposed terms on the easement. Terms like:
Arguments on Appeal
As a case of first impression, the SCOV concludes 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.” That’s all folks, see you next week on the SCOV Law Blog . . . .
When looking at “material impairment,” applying a bright line rule “would not advance the purpose of the prior public use doctrine and would undermine the goals of the condemnation statute.” Vermont case law really didn’t address the question, because case law focused on competing or unharmonious uses of public property. The purpose of the prior public use doctrine “is to protect public uses and to prevent land from being condemned back and forth between competing condemners, which would result in a lack of consistent public use of the land,” with the Vermont legislature deciding the “relative importance of competing public uses.” The doctrine’s purpose is not materially impaired in this sort of situation because the risk of protracted litigation goes down and the Court (as opposed to the legislature) doesn’t need to make policy assessments. Other states have also concluded the same and the SCOV points out some of their case law.
Intervenors’ next argument is basically that when the Legislature drafts and enacts legislation, it does so knowing that the SCOV may have decided cases in that area of legislation and the Legislature “codifies” the SCOV’s decisions in that area in a sense where it doesn’t disagree with them. In support of this argument, Intervenors point to a statute that discusses condemnation. Kind of a “acceptance by silence” argument. SCOV dismisses this argument because the statute evidences an intent to modify the prior public use doctrine and this case is the first one to approach this issue. Third, the SCOV states that the “doctrine itself reflects a judicial gloss on condemnation statutes,” and the SCOV has the ability to deal with this type of question. The SCOV also disagrees that this will empower the Board to value-based decisions as “its analysis is restricted to the impact of the proposed use on the prior use,” and will not require making judgments on competing uses.
The SCOV concludes that “the Board’s determination that the easement will not materially impair the prior use of the park” is okay because it's supported by substantial evidence in the record. The SCOV states that “the installation of the pipeline and its ongoing presence will have a negligible effect on the existing use of the park,” and goes on to explain the park’s characteristics. To the SCOV, “the fleeting nature of most of these intrusions, and the remoteness of the likelihood” for what VGS can do dampens the intrusions’ materiality. The restrictions “do not materially impair park uses” as the park “does not contain many manmade structures and there was no evidence suggesting that the town had plans to erect such structures anywhere within the park,” it only affects a small portion of the overall park, and the town can still use the park for the deeded purposes.
Necessity is the mother of invention . . . and also what the Board had to find when analyzing condemnation. What does “necessity” mean? VGS had to show “that the condemnation ‘is reasonably necessary to accomplish the end in view after weighing all the circumstances which bear on any given situation.’” There were “disadvantages” to the other proposed alternative routes and VGS presented enough evidence to permit the Board to find it necessary for the pipeline to go through the park. Even though VGS didn’t present cost estimates for the alternative routes, that didn’t undercut the Board’s analysis as it was one factor in the analysis and the Board got evidence of “numerous practical and environmental problems” with the alternative routes. Finally, the Board’s analysis on the risk of further delay was improper, as “[a]lthough the Board may have been mindful of the costs of delay, we do not read its analysis as relying to any great degree on that factor.”
Dissenting Opinion
Justice Eaton agrees with the majority about allowing exception to the prior public use doctrine where the use doesn’t materially impair the prior use but takes issue with the idea that “adoption of a “compatible use” exception to the doctrine [as it] is contrary to our prior caselaw.” Given the use and discretion VGS has to restrict the Town’s use where the easement runs, Eaton concludes that VGS’ use “materially impairs the prior use such as to require specific legislative authorization for the condemnation.”
Justice Eaton takes issue with the majority reading too much into a couple cases, because in his view the “vague and unexplained insertion of such language” into these cases “is not the equivalent of adopting a compatible use exception” especially when “our mostly ancient caselaw on this subject essentially laid out a broad rule without exception.” Eaton also points out that after accepting the park “subject to its restrictive covenant, the Town then accepted a quarter of a million dollars in return for agreeing to VGS’s condemnation of part of the property in a manner that violated the restrictive covenant.” Because of the restriction placed on the Town, Eaton views the two uses as “incompatible” and believes “most certainly” that the prior use will be impaired.
The current use will materially impede the prior use as VGS will have “discretionary authority over use of the land within the easement, particularly its discretion to preclude the Town from using the land as intended,” and, had it been known ahead, this new use “may well have” precluded the prior use even happening. The majority’s decision could also affect testators who want to donate land to public use, as Eaton fears that testator intent “can be so easily ignored through general condemnation proceedings.” Absent legislative approval, the current use “not only immediately impacts the property’s current use as a park but also materially interferes with its potential future use within the easement corridor for recreational or educational purposes, for which the property was exclusively dedicated.”
Justice Eaton also takes issue with the majority’s reasoning that the park had an electrical easement through it. That easement was in place when the Town was gifted the park, and any future easements would materially impair the prior use (and not support the majority’s position).
In August 2016, the Town and VGS agreed to a revised stipulation about the easement. The stipulation contained various restrictions and limitations on VGS’ use of the easement. In September 2016, the Board agreed to authorizing VGS to condemn the easement. The Board based its decision on recognizing an exception to the prior public use doctrine – even though the SCOV hadn’t explicitly recognized such an exception. The Board based its decision on what some other jurisdictions had done, and further discussed alternative routes and that orderly development wouldn’t be interfered.
Here comes the but . . . but the Board imposed terms on the easement. Terms like:
- VGS has to use HDD to install the pipeline
- The public couldn’t be unreasonably excluded from the area
- Nothing could be constructed on top of the land
- VGS had to fix any boo-boos it made to the land during construction
Arguments on Appeal
Majority Opinion1. Prior public use doctrine prohibits the Board’s action (i.e., finding an exception)
2. Even if the Board’s action/exception is permitted, VGS’ action will materially impair the use of the park
3. There were alternative routes for the pipeline
As a case of first impression, the SCOV concludes 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.” That’s all folks, see you next week on the SCOV Law Blog . . . .
When looking at “material impairment,” applying a bright line rule “would not advance the purpose of the prior public use doctrine and would undermine the goals of the condemnation statute.” Vermont case law really didn’t address the question, because case law focused on competing or unharmonious uses of public property. The purpose of the prior public use doctrine “is to protect public uses and to prevent land from being condemned back and forth between competing condemners, which would result in a lack of consistent public use of the land,” with the Vermont legislature deciding the “relative importance of competing public uses.” The doctrine’s purpose is not materially impaired in this sort of situation because the risk of protracted litigation goes down and the Court (as opposed to the legislature) doesn’t need to make policy assessments. Other states have also concluded the same and the SCOV points out some of their case law.
Intervenors’ next argument is basically that when the Legislature drafts and enacts legislation, it does so knowing that the SCOV may have decided cases in that area of legislation and the Legislature “codifies” the SCOV’s decisions in that area in a sense where it doesn’t disagree with them. In support of this argument, Intervenors point to a statute that discusses condemnation. Kind of a “acceptance by silence” argument. SCOV dismisses this argument because the statute evidences an intent to modify the prior public use doctrine and this case is the first one to approach this issue. Third, the SCOV states that the “doctrine itself reflects a judicial gloss on condemnation statutes,” and the SCOV has the ability to deal with this type of question. The SCOV also disagrees that this will empower the Board to value-based decisions as “its analysis is restricted to the impact of the proposed use on the prior use,” and will not require making judgments on competing uses.
The SCOV concludes that “the Board’s determination that the easement will not materially impair the prior use of the park” is okay because it's supported by substantial evidence in the record. The SCOV states that “the installation of the pipeline and its ongoing presence will have a negligible effect on the existing use of the park,” and goes on to explain the park’s characteristics. To the SCOV, “the fleeting nature of most of these intrusions, and the remoteness of the likelihood” for what VGS can do dampens the intrusions’ materiality. The restrictions “do not materially impair park uses” as the park “does not contain many manmade structures and there was no evidence suggesting that the town had plans to erect such structures anywhere within the park,” it only affects a small portion of the overall park, and the town can still use the park for the deeded purposes.
Necessity is the mother of invention . . . and also what the Board had to find when analyzing condemnation. What does “necessity” mean? VGS had to show “that the condemnation ‘is reasonably necessary to accomplish the end in view after weighing all the circumstances which bear on any given situation.’” There were “disadvantages” to the other proposed alternative routes and VGS presented enough evidence to permit the Board to find it necessary for the pipeline to go through the park. Even though VGS didn’t present cost estimates for the alternative routes, that didn’t undercut the Board’s analysis as it was one factor in the analysis and the Board got evidence of “numerous practical and environmental problems” with the alternative routes. Finally, the Board’s analysis on the risk of further delay was improper, as “[a]lthough the Board may have been mindful of the costs of delay, we do not read its analysis as relying to any great degree on that factor.”
Dissenting Opinion
Justice Eaton agrees with the majority about allowing exception to the prior public use doctrine where the use doesn’t materially impair the prior use but takes issue with the idea that “adoption of a “compatible use” exception to the doctrine [as it] is contrary to our prior caselaw.” Given the use and discretion VGS has to restrict the Town’s use where the easement runs, Eaton concludes that VGS’ use “materially impairs the prior use such as to require specific legislative authorization for the condemnation.”
Justice Eaton takes issue with the majority reading too much into a couple cases, because in his view the “vague and unexplained insertion of such language” into these cases “is not the equivalent of adopting a compatible use exception” especially when “our mostly ancient caselaw on this subject essentially laid out a broad rule without exception.” Eaton also points out that after accepting the park “subject to its restrictive covenant, the Town then accepted a quarter of a million dollars in return for agreeing to VGS’s condemnation of part of the property in a manner that violated the restrictive covenant.” Because of the restriction placed on the Town, Eaton views the two uses as “incompatible” and believes “most certainly” that the prior use will be impaired.
The current use will materially impede the prior use as VGS will have “discretionary authority over use of the land within the easement, particularly its discretion to preclude the Town from using the land as intended,” and, had it been known ahead, this new use “may well have” precluded the prior use even happening. The majority’s decision could also affect testators who want to donate land to public use, as Eaton fears that testator intent “can be so easily ignored through general condemnation proceedings.” Absent legislative approval, the current use “not only immediately impacts the property’s current use as a park but also materially interferes with its potential future use within the easement corridor for recreational or educational purposes, for which the property was exclusively dedicated.”
Justice Eaton also takes issue with the majority’s reasoning that the park had an electrical easement through it. That easement was in place when the Town was gifted the park, and any future easements would materially impair the prior use (and not support the majority’s position).
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