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Carter: Eminent Domain Debate

The power of eminent domain is well established in the historical records and legal holdings of both the United States and Vermont. In a nutshell, eminent domain is the constitutional authority that grants government the power to take privately held land and use it for public purposes. Historically, this included lands that the government deemed necessary in order to complete public works projects such as roads, rails or utility lines.

As a regulated utility, the State has granted Vermont Gas Systems the power to condemn property for the purposes of constructing its gas pipeline. However, the issue now before the State Supreme Court isn’t whether Vermont Gas has the power to condemn land generally, but rather whether the company may condemn public park land that is already dedicated to another public use. The land in question is an 85 acre public park that was bequeathed to the town of Hinesburg more than 25 years ago.

On one side, residents of the town who oppose the project point to Vermont Supreme Court cases that indicate land may not be condemned if it is already in use for another public purpose. They point out that the Hinesburg park has been enjoyed as a public park since it was first given to the town.

On the other side, Vermont Gas argues that the project will not interfere with the public use of the park because the drilling technique it plans to use will be minimally invasive. Accordingly, the company asserts that it’s not subject to the general prohibition against condemning land already in public use for another purpose.

The stakes are high. If the Court sides with Vermont Gas, it may set a precedent that would allow companies to more readily condemn land within state or city parks. While there may be instances where this could be appropriate, surely, there would be outcry if some of our more iconic state public parks were subject to condemnation proceedings for pipelines or otherwise.

While both parties have put forward strong legal arguments, there can be no tie in an appeal to the State’s highest Court. Ultimately, the Vermont Supreme Court will have to decide whether to expand the power of eminent domain in Vermont or hold fast to its precedent that the constitutional power to take property does not extend to property already in use for another public purpose.

Jared Carter teaches legal activism, legal writing and appellate advocacy at Vermont Law School. He also directs the Vermont Community Law Center, a non-profit legal services organization focused on social justice, constitutional rights and consumer protection.
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