In re Petition of Vt. Gas Sys., Inc.
| Decision Date | 08 December 2016 |
| Docket Number | SUPREME COURT DOCKET NO. 2016-396 |
| Citation | 2016 VT 132 |
| Court | Vermont Supreme Court |
| Parties | In re Petition of Vermont Gas Systems, Inc. |
Public Service Board
In the above-entitled cause, the Clerk will enter:
¶ 1. In this case, the Public Service Board authorized Vermont Gas Systems (VGS) to condemn a pipeline easement through Geprags Park and to install the pipe underground utilizing horizontal directional drilling. Appellants-Intervenors, who are park users, filed a notice of appeal, which triggered an automatic stay of the Board's decision under 30 V.S.A. § 124. VGS asks this Court to vacate the automatic statutory stay. See id. (). The Department of Public Service supports VGS's request. As set forth below, we grant VGS's request and vacate the statutory stay.
¶ 2. In reaching our conclusion, we consider the traditional factors concerning the issuance of a stay. Thus, we consider: (1) the likelihood that the moving party will prevail on the merits; (2) the threat of irreparable injury to the moving party; (3) the threat of irreparable injury to the nonmoving party; and (4) the public interest to be served by a stay. Auclair v. Vt. Elec. Power Co., 132 Vt. 519, 520-21, 323 A.2d 578, 579 (1974) (per curiam). We are mindful that "[w]hen considering the likelihood of success on the merits, the Court must be careful not to allow the argument on the interlocutory issue to be expanded into a full-blown debate on all issues likely to be raised on appeal." In re Tariff Filing of New England Tel. & Tel. Co., 145 Vt. 309, 312, 488 A.2d 746, 748 (1985).
¶ 3. As to the first factor, appellants maintain that they are likely to prevail on appeal because the Board created an exception to the prior public use doctrine that is at odds with existing Vermont case law. The Board recognized this case law in its decision and found it distinguishable. The Board concluded that the evidence showed that the limited condemnation involved here would not destroy or materially impair the existing public recreational use of Geprags Park. Instead, it found that the pipeline segment, which would be located thirty to fifty feet below the surface of the park, would be compatible with the existing above-ground recreational uses. The Board explained that other jurisdictions had similarly accepted the principle that where land is already devoted to a prior public use, a subsequent additional condemnation is not foreclosed when the second taking will also serve a public use and will neither destroy nor materially impair the existing public use. The Board determined that the public good would best be served by authorizing a condemnation that would result in the joint use of the Geprags Park for both the existing public recreational purpose and the second, additional public use proposed by VGS.
¶ 4. As is common, the stay vacation request comes before there has been briefing and argument so we must judge the likelihood of success on the merits primarily on the basis of the...
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In re Vt. Gas Sys., Inc.
... ... VGS had previously constructed a pipeline from the Canadian border to Burlington, was providing natural gas services to customers in Chittenden and Franklin counties, and sought to expand its services to customers in Addison County. In December 2012, VGS filed a petition with the Board for approval of a forty-one mile pipeline expansion that would run from Colchester to Middlebury. Under 30 V.S.A. 248(a)(3), VGS could not commence construction unless the Board concluded that the pipeline would promote the general good of the state and issued a certificate of ... ...
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In re Vt. Gas Sys., Inc.
...that "this conclusion does not have any impact on our later consideration of the merits of the underlying appeal." In re Vt. Gas Systems, Inc. 2016 VT 132, ¶ 4, ___ Vt. ___, 161 A.3d 522. We concluded that VGS, but not appellants, demonstrated a threat of irreparable injury. VGS had secured......